                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  September 24, 2004
                         FOR THE FIFTH CIRCUIT
                         _____________________                  Charles R. Fulbruge III
                                                                        Clerk
                            Summary Calendar
                              No. 04-10058
                         _____________________


FIROOZEH H. BUTLER,

                                                 Plaintiff - Appellant,

                                  versus

MBNA TECHNOLOGY, INC., formerly
known as MBNA Hallmark Information
Services, Inc.,

                                                   Defendant - Appellee.

__________________________________________________________________

           Appeal from the United States District Court
       for the Northern District of Texas, Dallas Division
                      USDC No. 3:02-CV-1715-H
_________________________________________________________________


Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

     Firoozeh Butler brought this suit against MBNA Technology,

Inc.,    alleging   retaliatory   discrimination    and   a   hostile      work

environment under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981.        The district court

dismissed Butler’s claims under § 1981 for failure to state a

claim.   She has not appealed that decision.       The case went to trial


     *
       Pursuant to 5TH CIR. R. 47.5., the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
and, after the close of plaintiff’s case, the district court

granted MBNA’s motion for judgment as a matter of law on Butler’s

Title VII hostile work environment claim.               The court held that

Butler could not rely on a “continuing violation” theory to extend

the three hundred day statute of limitations for hostile work

environment claims, and that the single incident within the statute

of limitations period was insufficient as a matter of law to

establish a hostile work environment.              As to the retaliatory

discrimination claim, the jury returned a verdict against Butler,

concluding   that    she   had   not   suffered   an    “adverse   employment

decision”.    Butler appeals the court’s ruling and the jury’s

verdict.

                                       I

     Butler is of Iranian descent and is a practicing Muslim.             She

has been employed by MBNA since 1993, and has worked in several

different departments under various supervisors.               The record is

unclear as to precisely how and when the alleged discriminatory

treatment began.     It appears that the first incident occurred in

1995 or 1996, when Don Little, a supervisor, allegedly remarked to

Butler that Iranians are “crazy” and “smell bad”.              In March 1997,

her then-supervisor, Mike Sullivan, allegedly commented to her that

Iranians are “crazy” and “put dirty laundry on their heads”.

Butler   testified    that   after     she   reported   this   comment   to   a

superior, Sullivan “began yelling and cursing at” her in a vacant

office and blocked the door when she tried to leave.                In April

                                       2
2000, Mary Thompson, Butler’s project leader, allegedly told Butler

that the two could not communicate due to cultural differences and

that “American people don’t forget that Iranians take hostages.”

In May 2000, Kim Murphy, an employee in MBNA’s Human Resources

Department, allegedly referred to Middle Easterners as “camel

jockeys” or “CJ”. Finally, Butler claims to have been subjected to

harassment in October 2001, when the aforementioned Don Little

posted a picture of Taliban leader Mullah Mohammed Omar in his

cubicle.   The picture featured a quotation of Omar using the term

“jihad”, which Butler says she found offensive.

     Butler further claims to have been subjected to retaliatory

discrimination as a result of her complaints to management about

the above events.   In March 2001, Butler, who had been a “Tier 3"

software engineer, was reassigned to the lower “Tier 2".1      She

alleges that this change was made because she “began to complain on

a regular basis to her supervisors and the HR department.”

                                 II

     We review the district court’s order granting judgment as a

matter of law de novo.   Stevenson v. E.I. DuPont de Nemours & Co.,

327 F.3d 400, 404-05 (5th Cir. 2003).   Judgment as a matter of law

     1
       The parties disagree as to whether this change in Butler’s
status constituted a “reclassification” or a “demotion”.       The
distinction is essentially semantic and does not affect our
analysis. This court’s interpretation of the “adverse employment
decision” element of a Title VII retaliation claim is well settled
and our evaluation hinges on the substance of the decision, rather
than the label applied to it. See Pegram v. Honeywell, Inc., 361
F.3d 272, 282 (5th Cir. 2004).

                                 3
is appropriate only if “there is no legally sufficient evidentiary

basis for a reasonable jury to find for” the non-movant.     FED. R.

CIV. P. 50(a).

     We review the jury’s verdict for MBNA only to determine

whether it is “supported by substantial evidence.”        Snyder v.

Trepagnier, 142 F.3d 791, 795        (5th Cir. 1998).   “Substantial

evidence” is evidence “of such weight and quality that reasonable

and fair minded men in the exercise of impartial judgment might

reach different conclusions.”   Id. (quoting Boeing Co. v. Shipman,

411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other

grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th

Cir. 1997)).

                                III

     We look first to Butler’s hostile work environment claim.    We

begin by determining whether the district court erred in rejecting

Butler’s “continuing violation” theory with respect to her hostile

work environment claim.   We must then decide whether the district

court erred in granting MBNA’s motion for judgment as a matter of

law on the claim.

                                 A

     In order to rely on a continuing violation theory, a plaintiff

must show that the harassment within the limitations period and the

harassment outside the limitations period constituted “a series of

related acts” and that “an organized scheme led to and included the

present violation.”   See Pegram v. Honeywell, Inc., 361 F.3d 272,

                                 4
279 (5th Cir. 2004); Felton v. Polles, 315 F.3d 470, 485 (5th Cir.

2002) (citing Celestine v. Petroleos de Venezuela SA, 266 F.3d 343,

352 (5th Cir. 2001)).      This court has looked to at least three

factors in determining whether acts are sufficiently related to

constitute a continuing violation:       (1) whether the alleged acts

involve the same type of discrimination, tending to connect them in

a continuing violation; (2) whether the acts are in the nature of

recurring events, or are more in the nature of isolated events; and

(3) whether the act or acts have the degree of permanence that

should alert an employee to assert his rights.        Huckabay v. Moore,

142 F.3d 233, 239 (5th Cir. 1998).      When we examine the facts here

in the light of these legal considerations, we find that the

district court did not err.

     First,   we   will   assume,   notwithstanding   a   difference   in

character, that the alleged events are sufficiently similar in type

to the event within the statutory period to permit a showing that

they are part of a continuing violation.      Butler filed her initial

complaint with the EEOC on November 5, 2001.          As such, the only

events that the district court could consider in ruling on her

hostile work environment claim were those that occurred within the

three hundred days preceding November 5 –- i.e., events that took

place on or after January 10, 2001.       See National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 105-05 (2002); Huckabay, 142 F.3d at

238 (citing 42 U.S.C. § 2000e-5(e)(1)).       Butler alleges only one


                                    5
act of harassment within that period –- the posted picture of

Taliban leader Mullah Mohammed Omar in October 2001.2                 Butler

contends that the picture offended her because it included a

quotation in which Omar used the term “jihad.”              Butler testified

that she found the association of the term “jihad” with the war in

Afghanistan offensive because, “Jihad has nothing to do with war.

Jihad is a religious thing that people pray and sacrifice their

lives and meditate . . . .”

     We believe that Butler’s claims concerning the Mullah Omar

picture   are     best   described       as   allegations     of   religious

discrimination.    Butler admits that she is not of Afghani national

origin and that she is not in any way affiliated with the Taliban.

Further, her arguments relating to the use of the term “jihad” make

it clear that the source of her displeasure was the misuse of an

important tenet of the Muslim religion.          By contrast, none of the

events that occurred prior to the statute of limitations period

were religious in nature.      Instead, each of the prior incidents

involved discrimination based specifically on Butler’s Iranian




     2
        The posted picture of Mullah Omar included the following
text: “A hard lesson that some have yet to learn: October 2001-
Taliban supreme leader Mullah Mohammed Omar: ‘The situation where
we are now, there are two things: either death or victory. To
those who are fighting and bombarding us, they should understand
the Afghan man is a fighter willing to die for jihad.’ June 1944-
General George S. Patton: ‘I want you to remember that no bastard
ever won a war by dying for his country. He won it by making the
other poor dumb bastard die for his country.’”

                                     6
national origin or, in one case, on her being of Middle Eastern

descent.

     Nevertheless, we will assume that Islam is the dominant

religion of Iran and the Middle East in general, and that the

religion is often closely associated with the region in American

popular perception. Thus, we will assume that, on these particular

facts, the alleged harassment based on nationality and the alleged

harassment based on religion could be shown to be sufficiently

similar to be connected in an “organized scheme”.                     As we note

below, however, Butler fails to make such a showing.

     Second, Butler has not shown that the alleged acts occurred

with sufficient frequency to support a continuing violation theory.

She alleges    five   incidents    of       harassment   over   the    course   of

approximately five years.         Further, only one event outside the

limitations period –- the alleged comments by Don Little in 1995 or

1996 –- involved harassment by the same person as the Mullah Omar

incident in October 2001.    More than five years passed between the

two incidents.    This court has held that a “three year break” will

defeat any attempt to establish a continuing violation. Felton, 315

F.3d at 486.     As such, we conclude that Butler’s allegations are

more in the nature of isolated work incidents than a continuing

violation.

     Third, as to the question of the permanence of the harassment,

we find that the four alleged incidents outside the statute of

                                        7
limitations period were significantly more likely to put Butler on

notice that the harassment was an ongoing thing and that her rights

had been violated, than the one incident within the period.             The

four alleged incidents were all directed specifically toward Butler

and all involved derogatory comments about her Iranian national

origin or Middle Eastern descent.         This court has previously said

that “where a pattern of harassment spreads out over years, and it

is evident long before the plaintiff sues that she was a victim of

actionable harassment, she cannot reach back and base her suit on

conduct   that   occurred   outside       the   statute   of   limitations.”

Celestine, 266 F.3d at 344 (quoting Hardin v. S.C. Johnson & Son,

Inc., 167 F.3d 340, 344 (7th Cir. 1999)).            The several directly

offensive comments made outside the statute of limitations period

would seem far more likely to alert an employee to the existence of

a hostile work environment than the posting of an indirectly

offensive quote within a co-worker’s cubicle. As a result, we hold

that Butler had sufficient notice of a basis for violation of her

rights, long before the single incident within the statute of

limitations.

     As a matter of further analysis, we should observe that Butler

fails to offer any coherent explanation linking the separate

alleged incidents into an “organized scheme”.             Her only argument

that even remotely touches on this point is that all four of the

individuals who allegedly harassed her had access to her “working


                                      8
file”;   therefore,       they   should       have    been    aware    of    her   prior

complaints of discriminatory conduct. This suggests that Butler is

alleging a systemic failure of MBNA managers to keep up to date on

the contents of the working files of their subordinates.                       Butler’s

theory, however, is purely speculative; she offers no evidentiary

support for her contention that there was any such failure or that

the alleged harassment against her had a causal connection with

such failure.        As such, she fails to “show that there has been a

pattern or policy of discrimination” connecting the alleged acts

into a “continuing violation”.            Celestine, 266 F.3d at 352.

                                          B

       We now turn to the specific question of whether the district

court erred in granting MBNA’s motion for judgment as a matter of

law.   To sustain a hostile work environment claim under Title VII,

a plaintiff must show, inter alia, that the alleged harassment

affected    a    “term,    condition,         or     privilege    of    employment.”

Celestine, 266 F.3d at 353.           For harassment to affect a “term,

condition, or privilege of employment,” it must be “sufficiently

severe or pervasive so as to alter the conditions of employment and

create an abusive working environment.”                 Id.

       Without   a     continuing    violation,          Butler’s      hostile      work

environment claim consists of only one alleged incident -- the

Mullah Omar picture and quote posted by Don Little.                         We think it

almost impossible that a single alleged incident of harassment

                                          9
could be considered “pervasive.”               Compare,    e.g., Shepherd v.

Comptroller of Public Accounts, 168 F.3d 871, 875 (5th Cir. 1999)

(finding   that   four   sexual     comments    and   several    instances   of

touching over a two-year period were not sufficient to create a

material issue of fact as to severe or pervasive harassment);

Celestine, 266 F.3d at 354 (finding that the plaintiff could not

establish severe or pervasive harassment based on eight incidents

of alleged racial harassment during a two-year period).

       Likewise, we conclude that the conduct alleged here was not

particularly “severe.”      The essence of the alleged harassment was

Butler’s disapproval of a quotation that she felt took a tenet of

her religion out of context.         There is no evidence in the record

that Little intended the posting to serve as a commentary on the

Muslim religion; construed in the most favorable light for the

plaintiff, it might be seen as an expression of Little’s dislike of

the    Taliban,   with   which,    however,    Butler     is   not   affiliated.

Further, when Butler complained that the Mullah Omar picture

offended her, MBNA’s personnel department promptly investigated and

had the picture removed.          For these reasons, we find that Butler

did not show that the alleged harassment was sufficiently severe or

pervasive to sustain a hostile work environment claim under Title

VII.    Thus, the district court did not err in granting MBNA’s

motion for judgment as a matter of law on the claim.

                                      IV


                                       10
     We turn now to the significantly simpler matter of reviewing

the jury verdict that rejected Butler’s Title VII discrimination

claim.   The jury, pursuant to a specific interrogatory, found that

Butler had not suffered an “adverse employment decision”. As noted

before, we review the jury’s verdict for MBNA only to determine

whether it is supported by substantial evidence. See Snyder, 142

F.3d at 795.

     To assert a prima facie claim of retaliatory discrimination,

Butler must show (1) that she engaged in protected activity under

Title VII; (2) that she suffered an adverse employment decision;

and (3) that there is a causal link between the protected activity

and the employment decision.     See Burger v. Central Apartment

Management, Inc., 168 F.3d 875, 878 (5th Cir. 1999); Anderson v.

Douglas & Lomason Co., Inc., 26 F.3d 1277, 1300 (5th Cir. 1994).

The parties do not dispute that Butler engaged in activities

protected under Title VII.   Thus, the only issue before us is the

jury’s finding that Butler’s reassignment was not an “adverse

employment decision.”

     This court has determined that an employment action that “does

not affect job duties, compensation or benefits” is not an adverse

employment action.   Banks v. East Baton Rouge Parish Sch. Bd., 320

F.3d 570, 575 (5th Cir. 2003) (quoting Hunt v. Rapides Healthcare

Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001)).    It is undisputed

that Butler presented no evidence at trial that her compensation,


                                 11
    responsibilities, or benefits were reduced as a result of her

    complaints to management.       Further, the jury heard testimony from

    Butler and other MBNA employees that, in fact, her compensation and

    responsibilities     remained   unchanged      after   her   complaints   and

    reassignment as a “Tier 2" software engineer.           As a result, it is

    clear   that   the   jury’s   verdict    was   supported     by   substantial

    evidence.

         Having held (1) that the district court properly granted

    MBNA’s motion for judgment as a matter of law and (2) that the

    jury’s verdict for MBNA was supported by substantial evidence, we

    conclude that the judgment of the district court is in all respects

1                                                                       AFFIRMED.




                                        12
