     Case: 14-51348      Document: 00513167733         Page: 1    Date Filed: 08/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51348                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 25, 2015
VAN JOHNSON,                                                               Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

ROBERT A. MCDONALD, Secretary of Veterans Affairs,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC: 5:14-CV-368


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       In 2011, Van Johnson’s performance evaluation rated him “fully
successful,” two steps below the “outstanding” rating he received in 2010.
Johnson claims the two-step drop was retaliation for a discrimination claim he
settled in 2009.       Both the Equal Employment Opportunity Commission
(“EEOC”) and district court dismissed Johnson’s Title VII retaliation claim,
42 U.S.C. § 2000e-3(a). We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-51348
                               BACKGROUND
        In 2009, Johnson filed the first of two complaints with the EEOC. The
complaint alleged that Johnson’s supervisor, Dr. Kimberly Summers
reassigned duties from two white female employees to Johnson who is an
African-American male. Accordingly, Johnson claimed that the reassignments
constituted race and gender discrimination. On December 16, 2009, Johnson
and his employer, the U.S. Department of Veterans Affairs (“VA”), settled the
complaint. Under the agreement, the Agency agreed to relieve Johnson of the
added responsibilities in exchange for Johnson dropping his complaint.
        On November 16, 2011, almost two years after the settlement, Johnson
received his yearly performance evaluation. The evaluation criticized Johnson
for shirking responsibilities that were the center of the 2009 complaint and
settlement. As a result, Johnson’s immediate supervisor gave him a “fully
successful” rating, two steps below the “outstanding” rating he received in
2010.     After Johnson pointed out that the evaluation faulted him for
abandoning responsibilities that in fact were not his, Johnson’s immediate
supervisor recommended rating him “outstanding.”              His supervisor’s
supervisor, Dr. Summers, allegedly refused to approve the better rating.
        This resulted in Johnson’s second EEOC complaint.        This time, in
addition to alleging race and gender discrimination, Johnson asserted that
Dr. Summers refused to approve a higher rating as retaliation for the 2009
complaint.    Johnson alleges that the lower rating cost him a bonus and
jeopardized prospective promotions. The complaint was later amended to add
another retaliation claim after Johnson was again rated “fully successful” in
2012. Like the 2011 rating, Johnson asserted the 2012 rating was “due to the
influence of Dr. Summers.”




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                                         No. 14-51348
       An administrative judge dismissed all of Johnson’s claims. Because at
least two years passed between the 2009 settlement and the “low” 1 rating, the
administrative judge held that no retaliatory motive could be inferred.
Johnson then filed this lawsuit in federal district court. The government
immediately moved to dismiss all Johnson’s claims under Rule 12(b)(6). A
magistrate      judge     recommended          granting      the    motion      for   Johnson’s
discrimination claims and denying it for the retaliation claims. The district
court dismissed all Johnson’s claims. The court held that Johnson’s “low”
ratings were not an adverse employment action and, therefore, Johnson had
not stated a retaliation claim. Johnson now appeals only the dismissal of his
retaliation claim.
                               STANDARD OF REVIEW
       This court reviews de novo a district court’s dismissal under Rule
12(b)(6), accepting as true all well-pleaded facts and viewing those facts most
favorably to the plaintiff. Warren v. Chesapeake Exploration, LLC, 759 F.3d
413, 415 (5th Cir. 2014). “To survive a [ ] motion to dismiss, plaintiff[] must
plead enough facts to state a claim for relief that is plausible on its face.” Id.
(internal citation omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 679, 129 S. Ct. 1937, 949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).




       1 We have previously remarked that it is “difficult to ascribe as low a ‘fully satisfactory’
rating.” Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 n.11 (5th
Cir. 1998). The VA’s rating system is essentially the same as the one at issue in Douglas
and, accordingly, we do not consider Johnson’s “fully successful” rating low. It is only “low”
relative to Johnson’s 2010 rating.
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                                 No. 14-51348
                                DISCUSSION
      Title VII imposes liability for retaliation against individuals who invoke
its protections.   42 U.S.C. § 2000e-3(a).      Retaliation claims have three
elements: (1) the employee must engage in activity protected by Title VII,
(2) the employer must take an adverse employment action against the
employee, and (3) there must be a causal connection between that protected
activity and the adverse employment action.        Douglas v. DynMcDermott
Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998). Johnson has not
sufficiently pleaded facts that support the second and third elements.
      Johnson’s brief asserts that as a result of being rated “fully successful”
he was denied bonuses and promotions, which amounts to an adverse
employment action.     Johnson recognizes that this court has held a low
performance evaluation alone is not an adverse employment action, Douglas,
144 F.3d at 373 n.11, but invites us to resolve a question we have previously
left unanswered—whether a low evaluation coupled with other tangible effects
(like denial of a bonus) is an adverse employment action. Murray v. La.-Div.
of Admin. Office of Planning & Budget, 439 F. App’x 349, 351 (5th Cir. 2011)
(unpublished). We decline Johnson’s invitation.
      Even assuming that a low evaluation coupled with other tangible effects
is an adverse employment action, Johnson’s complaint is unspecific on what—
if any—effect the “low” ratings had. It baldly asserts that the “low” rating
resulted in loss of “performance awards” and had a “negative impact on [his]
ability to be promoted.” The only fact supporting these allegations is that in
2010, when Johnson was rated “outstanding,” he received a bonus. But that
says nothing about Johnson’s entitlement to an award in 2011 or 2012. There
is no indication that performance pay is automatic upon achieving a specified
rating. Nor does Johnson allege that individuals who were rated “outstanding”
in those years received bonuses. Consequently, Johnson’s allegation that he
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                                        No. 14-51348
was denied performance pay is speculative at best. Likewise, Johnson does not
allege any facts suggesting that he was or will be denied promotions based on
these ratings.
       Johnson also has not shown there is a causal connection between the
2009 settlement and the “low” ratings. Johnson would have us infer a causal
connection from the fact that Dr. Summers originally suggested the
reassignment that formed the basis of the 2009 complaint and subsequently
refused to approve an increased rating. Yet according to Johnson’s own EEOC
testimony, the 2009 activity “did not involve Dr. Summers.” 2                       The 2009
complaint was actually lodged against a different doctor who had supervisory
responsibility, Dr. Melby. And it was Dr. Melby, not Dr. Summers, who signed
the 2009 settlement.          These facts suggest that Dr. Summers was likely
oblivious to Johnson’s 2009 complaint and negates any retaliatory motive on
her part. See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir.
2003) (“We have determined that, in order to establish the causation prong of
a retaliation claim, the employee should demonstrate that the employer knew
about the employee's protected activity.”) Even if Dr. Summers knew about
the 2009 complaint, the nearly two year gap between the settlement and
alleged retaliation also refutes any causal link between the two events. See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-274, 121 S. Ct. 1508, 1511
(2001) (holding that a 20-month gap between protected activity and adverse
employment action is insufficient evidence of causality).




       2 This statement comes from the administrative judge’s opinion, which the
government attached to its motion to dismiss. “ ‘Documents that a defendant attaches to a
motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.’ ” Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d
429, 431 (7th Cir. 1993)). Both requirements are met here. Accordingly, Johnson’s EEOC
complaint is part of his pleadings and may be considered in resolving this appeal.
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                               No. 14-51348
                             CONCLUSION
     Because Johnson’s complaint does not allege sufficient facts to support
his retaliation claim, we AFFIRM.




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