     Case: 11-30267     Document: 00511584772         Page: 1     Date Filed: 08/26/2011




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

                                                                            FILED
                                                                          August 26, 2011

                                     No. 11-30267                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MICHAEL R. MURRAY,

                                                  Plaintiff – Appellant
v.

STATE OF LOUISIANA-DIVISION OF ADMINISTRATION-OFFICE OF
PLANNING AND BUDGET; RAY STOCKSTILL,

                                                  Defendants – Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CV-254


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Michael Murray appeals the district court’s grant of
summary judgment in favor of Defendants–Appellees on his Title VII retaliation
claim. We conclude that Murray failed to establish a prima facie case of
retaliation, and therefore 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30267

               FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff Michael R. Murray began working for the State of Louisiana in
its Office of Planning and Budget (“OPB”) in 1979. In 2000, a co-worker named
Ann Bland complained that OPB had discriminated against her on the basis of
her sex in violation of Title VII of the Civil Rights Act of 1964. Bland’s complaint
resulted in an investigation by the Louisiana Division of Administration’s Office
of Human Resources, which interviewed Murray in connection with Bland’s
complaint in July 2000. Murray also testified at a related hearing in July 2001.
In both instances, he spoke in support of Bland’s complaint.
      On August 30, 2006, Murray filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”). Murray stated in his
charge that beginning in 2000, after he supported Bland’s complaint, he was
subject to retaliation in the form of consistently poor ratings on his annual
Performance Planning and Reviews (“PPRs”). As a result, Murray alleged that
he had been denied merit-based pay raises, consideration for promotions,
bonuses, and opportunities to obtain other employment.
      After receiving his Notice of Right to Sue from the EEOC, Murray filed
this suit against OPB and Ray Stockstill, OPB’s State Budget Director (together,
“Defendants”).      In his complaint, Murray alleged numerous claims of
discrimination, retaliation, and other violations of rights. Defendants moved for
summary judgment on all of Murray’s claims. The district court adopted the
report and recommendation of the magistrate judge, and granted the motion
over Murray’s objection. Murray appeals only as to his claim for retaliation
under Title VII, 42 U.S.C. § 2000e–3(a).
                                  DISCUSSION
      We review the grant of summary judgment de novo, viewing the evidence
in the light most favorable to the nonmoving party. Cerda v. 2004-EQR1 L.L.C.,
612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper “if the movant

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                                       No. 11-30267

shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
       A plaintiff establishes a prima facie case for unlawful retaliation under 42
U.S.C. § 2000e–3(a) by showing: “(i) he engaged in a protected activity, (ii) an
adverse employment action occurred, and (iii) there was a causal link between
the protected activity and the adverse employment action.” Hernandez v. Yellow
Transp., Inc., 641 F.3d 118, 129 (5th Cir. 2011). Summary judgment in favor of
the defendant is appropriate if the plaintiff cannot support all three elements.
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).
       Murray satisfied the first element by participating in the Title VII
investigation in 2000, an activity protected under Title VII. See 42 U.S.C.
§ 2000e–3(a) (defining “protected activity” to include making a charge, testifying,
assisting, or participating in any manner in a Title VII investigation, proceeding,
or hearing). Murray argues, and Defendants do not contest, that he also
satisfied the second element by showing that an adverse employment action
occurred within three hundred days of the filing of his EEOC complaint.1
Murray complains of the following actions that occurred during this statutory
period: denial of a $1500 bonus given to OPB staff for “extraordinary work”
related to Hurricanes Katrina and Rita in August 2006; denial of a promotion to
State Budget Manager in January 2006; and two negative PPRs resulting in
denial of merit pay raises.          Assuming arguendo that all of these actions


       1
          We consider only those adverse employment actions that occurred on or after
November 4, 2005, the date three hundred days before Murray filed his charge of
discrimination on August 30, 2006. See 42 U.S.C. § 2000e–5(e)(1); Janmeja v. Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll., 96 F. App’x 212, 214 (5th Cir. 2004) (in
a “deferral state” like Louisiana, a plaintiff must file his charge within three hundred days of
the complained-of conduct, rather than within the one hundred eighty days that would
otherwise apply). To the extent that Murray argues that we should consider discrete
employment actions as far back as 2000 under the “continuing violation” doctrine applicable
to hostile work environment claims, the Supreme Court has rejected this argument. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

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                                       No. 11-30267

constitute actionable adverse employment actions,2 Murray is unable to show
that there was a causal link between his protected activity and these actions and
thus fails to establish the third element of a prima facie case of retaliation.
       The record establishes that Ann Bland was Murray’s direct supervisor
during the three hundred days prior to the filing of his EEOC charge. In her role
as Murray’s supervisor, Bland gave Murray the poor ratings in his PPRs, and
was thereby directly responsible for the denial of Murray’s merit raises. Murray
directs the court’s attention to multiple affidavits from former co-workers that
counter some of the negative evaluations in his PPRs. Although this evidence
certainly raises doubts as to Bland’s evaluation of Murray’s work performance,
it fails to create a genuine issue of material fact as to retaliatory animus.
Murray himself admitted in his deposition that Bland’s conduct could not have
been retaliatory given that the “protected activity” underlying Murray’s
retaliation claim was his support for Bland in her Title VII complaint against
OPB.
       Murray also alleges that his poor PPRs resulted in his failure to obtain
promotions, bonuses, and opportunities for other employment. To the extent
that Murray argues that these adverse employment actions are attributable to
Ray Stockstill, rather than to the poor PPR ratings he received from Bland, he
does not provide any evidence that Stockstill’s actions were taken in retaliation
for Murray’s protected activity back in 2000. Several of the affidavits contain


       2
           An “adverse employment action” is one that “a reasonable employee would have found
. . . [to be] materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotation marks
omitted). Although it is clearly established that the denial of a promotion is an actionable
adverse employment action, see, e.g., Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir.
2007), it is less clear whether a negative evaluation such as Murray’s PPRs or the denial of a
bonus constitute actionable adverse employment actions. Given the Defendants’ failure to
brief this issue and the unnecessariness of addressing this second element, we decline to
answer those questions here.

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                                  No. 11-30267

attestations that Stockstill made negative comments about Murray during
management meetings.         While this evidence certainly paints a picture of
Stockstill’s dislike for Murray, it does not shed any light on the reason for this
dislike and therefore does not create a genuine issue of material fact as to
whether Stockstill’s alleged actions were in retaliation for Murray’s participation
in the 2000 investigation.
                                 CONCLUSION
      Murray has failed to provide sufficient evidence to establish a prima facie
case for unlawful retaliation. The district court therefore properly granted
summary judgment in Defendants’ favor. AFFIRMED.




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