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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 30, 2010

                                     No. 10-30607                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LINDA A. THOMAS,

                                                   Plaintiff - Appellant
v.

STATE OF LOUISIANA, Department of Social Services,

                                                   Defendant - Appellee


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:08-cv-04977


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Linda A. Thomas was terminated from her employment
with Defendant-Appellee the Louisiana Department of Social Services. Thomas
sued the defendant, alleging, inter alia, that she was terminated in violation of
Title VII. The District Court for the Eastern District of Louisiana granted
defendant’s motion for summary judgment on all of Thomas’s claims.                         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30607

                I. F ACTUAL AND P ROCEDURAL B ACKGROUND
      Thomas was employed by the Terrebonne Parish Office of Family Support
of the Louisiana Department of Social Services (“DSS”). Thomas’s employment
responsibilities at DSS included determining applicants’ eligibility for state
financial assistance and issuing electronic benefits transaction (“EBT”) cards,
which qualified applicants used to purchase groceries.
      On November 1, 2007, Thomas received a letter from DSS stating that her
employment was terminated, effective November 8, 2007. DSS stated that
Thomas had been terminated because she had violated DSS policy by improperly
authorizing benefits for family members and friends.
      Thomas appealed her dismissal to the Louisiana Civil Service Commission
(“CSC”).   The CSC determined that her dismissal was proper because she
“performed unauthorized computer transactions resulting in the wrongful
issuance of food stamp benefits to her nephew, niece and live in boyfriend and
. . . she certified and activated a disaster food stamps EBT card through use of
her daughter’s social security number.”
      Thomas then filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). In her charge, she claimed that DSS had
discriminated against her because of her race in violation of Title VII and in
retaliation for complaints about matters protected by Title VII. On July 21,
2008, the EEOC sent Thomas a “right to sue” letter, which notified her that it
had dismissed her charge and that she had ninety days to commence a lawsuit
against DSS.
      On October 17, 2008, Thomas commenced the instant litigation against
DSS in Louisiana state court. She alleged that: (1) while working for DSS, she
had “experienced continuous racial, religion, and sex discrimination;” (2) DSS
“retaliated, and used reprisal against the plaintiff;” (3) DSS had her falsely
arrested and falsely imprisoned for theft; (4) DSS defamed her by wrongly

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accusing her of theft; and (5) she had been wrongfully terminated in retaliation
for disclosing improper acts by DSS employees in violation of the Louisiana
whistleblower statute, Louisiana Revised Statutes (“L.R.S.”) § 42:1169.
       DSS removed Thomas’s entire claim to the District Court for the Eastern
District of Louisiana on the basis of federal question jurisdiction, noting that one
of claims in Thomas’s complaint arose under Title VII.1                          After Thomas’s
complaint was removed to federal court, she was charged with criminal theft
from DSS, and the proceedings in Thomas’s civil suit were stayed pending the
outcome of her criminal trial. On September 16, 2009, Thomas was found guilty
of misdemeanor theft. Thomas was sentenced to a short jail term, placed on
twelve months’ supervised probation, and ordered to pay $2,133.00 in restitution
to DSS.
       Once Thomas’s civil trial resumed, DSS moved for summary judgment on
all of her claims. DSS argued that Thomas could not establish a prima facie case
on any of her claims because she had been terminated for good cause. DSS also
argued that Thomas was precluded from re-litigating the cause of her dismissal
under the doctrines of claim preclusion and issue preclusion.2 Finally, DSS
argued that the district court lacked subject matter jurisdiction to hear Thomas’s
whistleblower claim because such claims may only be heard by the Louisiana
Board of Ethics.
       The district court granted DSS’s motion for summary judgment on all of
Thomas’s claims, wholly adopting the Order and Reasons on Motion of the



       1
          Title VII of the Civil Rights Act of 1964 (“Title VII”) is codified at 42 U.S.C.
§§ 2000e–e-17. Under Title VII, it is unlawful for an employer to “discharge any
individual . . . because of such individual’s race, color, religion, gender, sex, or national origin.”
§ 2000e-2(a)(1).
       2
         The legal concepts of claim preclusion and issue preclusion are both codified under
a Louisiana statute entitled “Res Judicata,” L.R.S. § 13:4231. To avoid confusion, we refer to
traditional res judicata as claim preclusion and collateral estoppel as issue preclusion.

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magistrate judge. Addressing Thomas’s federal retaliation and discrimination
claims, the magistrate judge applied the test articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The magistrate judge concluded that DSS
had provided a legitimate, non-discriminatory reason for her termination
because it presented evidence that Thomas had been terminated for theft. The
magistrate judge concluded that Thomas had not met her burden of producing
evidence that this reason was a pretext for discrimination or retaliation. The
magistrate judge also concluded that Thomas had not come forward with
sufficient evidence to create a triable issue of fact on her state law claims. The
magistrate judge did not reach DSS’s preclusion and subject matter jurisdiction
arguments. Thomas appealed, pro se,3 arguing that the district court erred in
granting DSS’s motion for summary judgment.
                              II. S TANDARD OF R EVIEW
      This court reviews “an order granting summary judgment de novo,
applying the same standards as the district court” and viewing evidence “in the
light most favorable to the non-moving party.”             Compliance Source, Inc. v.
GreenPoint Mortg. Funding, Inc., 624 F.3d 252, 258 (5th Cir. 2010) (internal
citations and quotation marks omitted). Summary judgment is proper when the
“movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a).
                                     III. A NALYSIS
      Thomas argues that the district court erred in granting summary
judgment on all of her claims against DSS. We first address her federal claims
and then address her claims under Louisiana state law.




      3
          Thomas was represented by counsel before the district court.

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A. Thomas’s Federal Claims
      1. Waiver
      The only federal claims Thomas has preserved for appeal are her Title VII
racial discrimination and her retaliation claims. In her complaint, Thomas
stated she that had “experienced continuous racial, religion, and sex
discrimination,” and that DSS had “retaliated, and used reprisal against the
plaintiff and has a pattern and practice of . . . allowing racial, sex, and age
motivate[d] working conditions.” Thomas’s appellate brief, however, mentions
only retaliation and racial discrimination.      Although this court liberally
construes the briefs of pro se litigants, such litigants must nonetheless brief an
issue to preserve it for appeal. Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir.
2007). Because Thomas discussed only retaliation and racial discrimination in
her brief before this court, she has abandoned her claims of religious, gender,
and age discrimination.
      2. Claim Preclusion
      DSS argues that the doctrine of claim preclusion prevents Thomas from
re-litigating the reason for her termination in her remaining claims. DSS points
to three prior adjudications of Thomas’s federal claims. First, a CSC referee
found her termination was justified. The CSC denied the application for review
of the referee’s decision, and it became a final decision of the CSC. Second, an
administrative law judge denied Thomas’s claim for unemployment benefits
because she was terminated for misconduct. This decision was affirmed by the
state trial court. Third, Thomas was convicted in Louisiana state court for theft
from DSS.
      Because the judgments in this case were rendered by Louisiana courts and
agencies, Louisiana law governs the preclusive effect of those judgments. St.
Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir. 2000). Under
Louisiana law,

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      [e]xcept as otherwise provided by law, a valid and final judgment is
      conclusive between the same parties, except on appeal or other
      direct review, to the following extent:
      ....
      (2) If the judgment is in favor of the defendant, all causes of action
      existing at the time of final judgment arising out of the transaction
      or occurrence that is the subject matter of the litigation are
      extinguished and the judgment bars a subsequent action on those
      causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is
      conclusive, in any subsequent action between them, with respect to
      any issue actually litigated and determined if its determination was
      essential to that judgment.
L.R.S. § 13:4231 (2006).
      An administrative decision involving Title VII claims that is not reviewed
by a state or federal court may not preclude a subsequent Title VII claim. See
Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986) (“Congress did not intend
unreviewed state administrative proceedings to have preclusive effect on Title
VII claims.”). It is not clear from the record before us whether Thomas appealed
the CSC ruling that her termination was justified to the state court.
Accordingly, we decline to give the CSC ruling preclusive effect.
      We also decline to give preclusive effect to the decision of the
administrative law judge denying Thomas unemployment benefits. A finding of
law or fact made in determining eligibility for unemployment benefits
      shall not be used as conclusive evidence in any separate or
      subsequent action or proceeding between an individual and his or
      her present or prior employer brought before an arbitrator, court, or
      judge of the state of Louisiana or the United States, regardless of
      whether the prior action was between the same or related parties or
      involved the same facts.




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L.R.S. § 23:1636. There is no dispute that the instant action is separate from
Thomas’s claim for unemployment benefits. Therefore, these claims are not
barred by the administrative law judge’s decision denying her those benefits.
      Finally, Thomas’s criminal conviction for theft does not preclude her Title
VII racial discrimination and retaliation claims. The plaintiff and defendant in
both suits must be identical for the subsequent claim to be precluded.
Burguieres v. Pollingue, 843 So. 2d 1049, 1054 (La. 2003). The parties need not
share the same “physical identity,” but “must appear in the same capacities in
both suits” for a final judgment in the first litigation to preclude a second suit.
Id. Nonetheless, DSS was not a “party” to Thomas’s criminal trial for purposes
of claim preclusion. DSS’s role in Thomas’s criminal prosecution was that of a
victim; it did not prosecute her for her theft and the ultimate responsibility for
proving her guilt did not rest with DSS. See Hawthorne v. Couch, 946 So.2d 288,
296–7 (La. Ct. App. 2006) (concluding that claim preclusion did not apply to a
party on whose behalf prior lawsuit was brought, but who was not a party in any
capacity in the prior lawsuit). In Thomas’s civil suit, by contrast, DSS itself
must justify Thomas’s termination because a seemingly legitimate reason for
termination, like theft, does not insulate it from liability for that termination if
it is a pretext for an illegal employment action. See McDonnell Douglas, 411
U.S. at 805. Thus, claim preclusion does not bar Thomas’s Title VII racial
discrimination and retaliation claims.
      3. Issue Preclusion
      DSS also argues that Thomas’s criminal conviction for theft precludes her
from re-litigating whether she violated DSS policy and whether good cause
existed to terminate her.    Under Louisiana’s doctrine of issue preclusion a
“judgment in favor of either the plaintiff or defendant is conclusive, in any
subsequent action between them, with respect to any issue actually litigated and
determined if its determination was essential to that judgment.”             L.R.S.

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§ 13:4231(3).    To be guilty of theft a defendant must “misappropriat[e] or
tak[e] . . . anything of value which belongs to another, either without the consent
of the other to the misappropriation or taking, or by means of fraudulent
conduct” with “[a]n intent to deprive the other permanently.” L.R.S. § 14:67.
      DSS must prove that Thomas’s violation of DSS policy and DSS’s
justification for firing Thomas were essential to her criminal conviction and
actually litigated in her criminal trial. Given the language of the statute under
which Thomas was convicted, the Louisiana state court necessarily found that
Thomas misappropriated or took DSS property without DSS’s consent or by
fraudulent conduct. Although the criminal trial may have addressed whether
Thomas had violated DSS policy and whether DSS terminated her for cause,
neither finding would have been essential to finding her guilty of theft from DSS.
Furthermore, DSS has not in any way demonstrated that Thomas actually
litigated her violation of DSS policy or DSS’s justification for terminating her in
the criminal trial. Therefore, we conclude that Thomas’s criminal conviction
does not preclude her from re-litigating whether she had violated DSS policy and
whether she had been terminated for cause. See Kelty v. Brumfield, 633 , 633 So.
2d 1210, 1215 (La. 1994) (“The doctrine of [claim and issue preclusion] cannot
be invoked unless all its essential elements are present, . . . and each necessary
element must be established beyond all question.” (internal citations omitted)).
      4. Thomas’s Title VII Discrimination and Retaliation Claims
      There is no dispute that Thomas’s remaining claims under Title VII are
governed by the McDonnell Douglas burden-shifting framework applied by the
magistrate judge. Under the McDonnell Douglas framework, the plaintiff bears
“the initial burden . . . of establishing a prima facie case of racial discrimination.”
411 U.S. at 802. “The burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If the
employer meets this burden, then the plaintiff must “demonstrate by competent

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evidence that the presumptively valid reasons for his rejection were in fact a
coverup for a racially discriminatory decision.” Id. at 805.
      To establish a prima facie case of racial discrimination, Thomas must
establish that she
      (1) is a member of a protected class; (2) was qualified for the
      position; (3) was subject to an adverse employment action; and (4)
      was replaced by someone outside the protected class, or, in the case
      of disparate treatment, . . . that other similarly situated employees
      were treated more favorably.
Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). As evidence
that her termination was racially motivated, Thomas notes that the DSS
administrator for her office, Ms. Bonnie Rehage, “segregated [her] from other
black co-workers, by putting [her] in a room with all White co-workers.” Thomas
also alleges that Rehage failed to reprimand two white co-workers who were
involved in a dispute with Thomas.
      DSS did not dispute that Thomas stated a prima facie case of racial
discrimination because it “did not wish to list the elements necessary for plaintiff
to establish a prima facie case.” Instead, DSS provided the district court with
a legitimate, non-discriminatory reason for Thomas’s termination: her improper
processing of benefits for family members and her live-in boyfriend in violation
of DSS policy. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.
2001) (a violation of employer’s written policies that could result in termination
is a legitimate, non-discriminatory reason for termination under Title VII).
Thus, the burden shifted back to Thomas to prove that DSS’s rationale for her
termination was a pretext for its allegedly racially motivated decision to
terminate her.
      Thomas has not met this burden. She has not provided any evidence from
which the district court could conclude that she was replaced with someone
outside of her protected class. Nor has Thomas presented any evidence that DSS


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retained similarly situated employees who had violated the same or similar DSS
policies, which would be necessary to establish a disparate treatment claim. See
Wallace, 271 F.3d at 221 (“We have held that in order for a plaintiff to show
disparate treatment, she must demonstrate that the misconduct for which she
was discharged was nearly identical to that engaged in by an employee not
within her protected class whom the company retained.” (citation and internal
quotation marks omitted)).
      Thomas did allege that Rehage sided against her in a dispute with white
co-workers. However, Thomas does not claim that she suffered an adverse
employment action as a result of this dispute. Instead, she cryptically hints at
testimony she will produce at trial from co-workers “about the goings on at the
Terrebonne Office of Family Support.” Even read broadly, this statement is not
sufficient to create a genuine issue of material fact as to whether her
termination was the result of racially motivated employment discrimination in
violation of Title VII. See Douglass v. United Servs. Auto. Ass’n., 79 F.3d 1415,
1430 (5th Cir. 1996) (“It is more than well-settled that an employee’s subjective
belief that he suffered an adverse employment action as a result of
discrimination, without more, is not enough to survive a summary judgment
motion, in the face of proof showing an adequate nondiscriminatory reason.”).
Therefore, the district court properly granted DSS’s motion for summary
judgment on Thomas’s Title VII racial discrimination claim.
      To establish a prima facie case of retaliation for opposing DSS’s
discriminatory practices, Thomas must prove that (1) she “engaged in protected
activity”; (2) she “suffered an adverse employment decision”; and (3) “a causal
link exists between the protected activity and the adverse employment decision.”
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001). Thomas
claims her termination was in retaliation for filing a grievance against her
supervisors and for being part of a potential class action lawsuit against several

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DSS supervisors for harassment of DSS employees. Rehage was named in the
grievance and subsequently became the administrator of the DSS office where
Thomas worked. Thomas claims that, in retaliation for the grievance Thomas
filed against her, Rehage initiated the investigation that resulted in her
termination.
      As with Thomas’s racial discrimination claim, DSS does not argue that
Thomas has failed to make a prima facie case of retaliation, but rather justifies
her termination by stating that Thomas violated DSS policy. This meets DSS’s
burden of stating a legitimate, non-discriminatory reason for termination. See
Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1301–02 (5th Cir. 1994).
      Thomas again fails to meet her burden of demonstrating that DSS’s stated
reason for her termination was merely a pretext for retaliatory termination.
Thomas has not pointed to any evidence that DSS retained other employees who
violated similar policies and filed grievances against DSS administrators and
supervisors. See id. Therefore, the district court properly granted DSS’s motion
for summary judgment on Thomas’s retaliation claim.
B. Thomas’s Louisiana State Law Claims
      1. Thomas’s False Arrest and False Imprisonment Claims
      Thomas argues that the district court erred in granting DSS’s motion for
summary judgment on her false arrest and false imprisonment claims. DSS
correctly counters that those claims are barred by the favorable termination rule
of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held
that a plaintiff was barred from bringing a claim under 42 U.S.C. § 1983 that
would challenge the validity of an outstanding criminal conviction when such a
claim would “necessarily require the plaintiff to prove the unlawfulness of his
conviction or confinement.” Heck, 512 U.S. at 486. Instead, a plaintiff could only
bring a § 1983 claim challenging the constitutionality of her conviction or
sentence if she proved “that the conviction or sentence has been reversed on

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direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a district
court’s issuance of a writ of habeas corpus.” Id. at 487. Thomas has never
contested the fact of her criminal conviction and has not presented any evidence
that it was terminated in her favor. Furthermore, her claims for false arrest and
false imprisonment against DSS would necessarily require the district court to
re-evaluate the lawfulness of her arrest and criminal conviction because proof
of those claims requires proof that both were unlawful. See Harrison v. State
Through Dept. of Pub. Safety & Corrs., 721 So. 2d 458, 461 (La. 1998). Thus, the
favorable termination rule bars her state law false imprisonment and false
arrest claims.4
       Nevertheless, Thomas urges us not to apply the favorable termination rule
to her complaint because “she is no longer in prison and has already served her
term.” This argument is unavailing, however, because this circuit applies the
favorable termination rule even when the plaintiff is no longer in custody. See
Randell v. Johnson, 227 F.3d 300, 301–02 (5th Cir. 2000) (per curiam).5


       4
           Although Heck applied to a claim under 42 U.S.C. § 1983 for unconstitutional
imprisonment, Thomas has never argued that it does not apply with equal force to state law
claims. Therefore, she has “waived any argument that [her] state-law claims should be
addressed apart from Heck.” DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 n.3 (5th Cir.
2007).
        Assuming the favorable termination rule does not bar Thomas’s state law claims for
false arrest and false imprisonment, the district court’s judgment was still proper. The torts
of false arrest and false imprisonment both require Thomas to prove that she was detained
and that the detention was unlawful. Harrison, 721 So. 2d at 461, 465 n.9. As DSS rightly
points out, Thomas cannot state a claim for either false arrest or false imprisonment because
she was convicted of the crime for which she was arrested and imprisoned. See id. at 465 n.9
(“[A] person who provides the police with accurate information upon which the police exercise
judgment is not liable for false arrest.”); Restrepo v. Fortunato, 556 So. 2d 1362, 1363 (La. Ct.
App. 1990) (“As [plaintiff] was convicted of the crime for which he was arrested and indicted,
and the conviction was affirmed by this court, he cannot show that his detention was
unlawful.”).
       5
         In Randell, we noted that several other circuits do not apply Heck’s favorable
termination rule when the plaintiff is no longer in custody. 277 F.3d at 301. The Supreme

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       2. Thomas’s Defamation Claim
       In her complaint, Thomas stated that she “was wrongly accused of theft
and was slandered and defamed as a result.”               In its motion for summary
judgment, DSS argued that Thomas could not make out a prima facie case for
defamation because any statements regarding Thomas’s theft of DSS property
were true. See L.R.S. § 13:3602 (“it shall be lawful for the defendant to plead in
justification the truth of the slanderous, defamatory or libelous words or
matter”). Thomas’s attorney did not address this argument—or otherwise assert
a defamation claim—in Thomas’s response to DSS’s motion for summary
judgment, thereby waiving any argument that statements regarding her theft
were false. See, e.g., Keenan v. Tejada, 290 F.3d 252, 262 (5th Cir. 2002) (“If a
party fails to assert a legal reason why summary judgment should not be
granted, that ground is waived and cannot be considered or raised on appeal.”
(citation and internal quotation marks omitted)). Therefore, the district court
properly granted DSS’s motion for summary judgment on her defamation claim.
       3. Thomas’s Louisiana Whistleblower Claim
       Thomas’s complaint alleged that DSS had violated L.R.S. § 42:1169 when
it fired Thomas in retaliation for her testimony against DSS employees. In its
motion for summary judgment, DSS argued that the district court lacked subject
matter jurisdiction over Thomas’s claim under L.R.S. § 42:1169 because that
statute does not provide for a private right of action. In Thomas’s response, she
conceded that L.R.S. § 42:1169 “may only provide an administrative remedy.”
Thomas makes an identical concession in her brief before this court, so we need
not address whether Thomas had a valid claim under that statute.



Court has suggested that this issue is unsettled. See Muhammad v. Close, 540 U.S. 749, 752
n.2 (2004). Regardless of this uncertainty, Randell remains good law in this circuit, and we
share its reluctance to “announce for the Supreme Court that it has overruled one of its
decisions.” Randell, 227 F.3d at 301.

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      In response to DSS’s motion for summary judgment, Thomas also argued
that “public employees could also have a valid cause of action under [L.R.S. §]
23:967.” Section 23:967 prohibits an employer from taking “reprisal against an
employee.” However, as defined by statute, “reprisal” does not “prohibit an
employer from enforcing an established employment policy, procedure, or
practice or exempt an employee from compliance with such.”               L.R.S.
§ 23:967(C)(1). As DSS points out, the reason for Thomas’s termination was her
violation of DSS policy. Thomas has not disputed her violation of these policies
beyond conclusory statements in her pleadings here and below. Nor has she
stated how she is otherwise entitled to relief under L.R.S. § 23:967. Therefore,
the district court properly granted DSS’s motion for summary judgment on
Thomas’s whistleblower claim.
                              IV. C ONCLUSION
      For the above reasons, we AFFIRM the judgment of the district court
granting DSS’s motion for summary judgment on all of Thomas’s claims.




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