            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-50563
                                          Summary Calendar
                                          _______________

                                    LAWANDA L BRYANT,
                                                              Plaintiff-Appellant,
                                               VERSUS

                    CITICORP DATA SYSTEMS, INCORPORATED,
                                                              Defendant-Appellee.
                                    _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                         (SA-97-CV-1410)
                                  _________________________

                                          November 18, 1999

Before SMITH, BARKSDALE, and                         basis of her race and that in “extending” the
  PARKER, Circuit Judges.                            reprimand, CDSI retaliated against her for
                                                     filing a complaint.
PER CURIAM:*
                                                                             II.
   Lawanda Bryant appeals an adverse                    We review a summary judgment de novo,
summary judgment on her race discrimination          employing the same standards as did the
and retaliation claims. Finding no genuine           district court. See Urbano v. Continental
issue of material fact, we affirm.                   Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),
                                                     cert. denied, 119 S. Ct. 509 (1998). Summary
                        I.                           judgment is appropriate when, viewing the
   Bryant, who is black, was employed as a           evidence in the light most favorable to the
customer service representative for Citicorp         nonmoving party, there is no genuine issue of
Data Systems, Inc. (“CDSI”). In April 1997,          material fact and the moving party is entitled
she had a confrontation with her supervisor,         to judgment as a matter of law. See Celotex
Sharon Dreiling. Based on this confrontation         Corp. v. Catrett, 477 U.S. 317, 322-24
and prior lack of professionalism, CDSI placed       (1986); see also FED. R. CIV. P. 56(c). An
Bryant on “final corrective action.” Bryant          issue is genuine if the evidence is sufficient for
sued CDSI pursuant to title VII, alleging that       a reasonable jury to return a verdict for the
CDSI thereby discriminated against her on the        nonmoving party. Anderson v. Liberty Lobby,
                                                     Inc., 477 U.S. 242, 248 (1986). “The mere
                                                     existence of a scintilla of evidence in support
   *
      Pursuant to 5TH CIR. R. 47.5, the court has    of the plaintiff’s position will be insufficient;
determined that this opinion should not be           there must be evidence on which the jury could
published and is not precedent except under the      reasonably find for the plaintiff.” Id. at 252.
limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                        III.                           unprofessional conduct, and therefore there is
    For the first time on appeal, Bryant asserts       no factual dispute regarding violation of a
a claim for racial harassment separate from her        work rule.
claims of discrimination and retaliation. Not
only does she present no evidence that such               Bryant therefore argues that an employee of
harassment has taken place, but she is barred          another race was treated differently under
from raising such a claim for the first time on        similar circumstances. Loretta Walker, a
appeal. See Nissho-Iwai Co. v. Occidental              Hispanic, also had a confrontation with
Crude Sales, Inc., 729 F.2d 1530, 1549 (5th            Dreiling and was placed on “formal corrective
Cir. 1984).                                            action,” a reprimand one step below that
                                                       received by Bryant. Walker’s treatment does
                     IV.                               not establish a prima facie case of
    Bryant claims CDSI placed her on “final            discrimination, however, because the
corrective action” because of her race. We             circumstances were not “nearly identical.” See
articulated the analysis for title VII                 id. Walker had no history of insubordination
discrimination cases in Mayberry v. Vought             or unprofessional conduct, the confrontation
Aircraft Co., 55 F.3d 1086, 1089-90 (5th Cir.          did not involve a customer call, and she
1995):                                                 responded appropriately following the
                                                       confrontation.
   The plaintiff must establish a prima facie
   case that the defendant made an
   employment decision that was motivated
   by a protected factor. Once established,
   the defendant bears the burden of
   producing evidence that its employment
   decision was based on a legitimate
   nondiscriminatory reason. The burden
   then shifts back to the plaintiff to prove
   that the defendant’s proffered reasons
   were a pretext for discrimination. But,
   if the defendant has offered a legitimate
   nondiscriminatory reason for its action,
   the presumption of discrimination
   derived from the plaintiff's prima facie
   case simply drops out of the picture, and
   the ultimate question is discrimination
   vel non.

(Internal quotation marks and citations
omitted.) Because this case arises on summary
judgment, to prevail Bryant need only
demonstrate a genuine issue of material fact
regarding pretext.

   In work-rule violation cases such as this
one, Bryant may establish a prima facie case
by showing either that she did not violate the
rule or that, if she did, other employees not of
her race who engaged in similar acts were not
punished similarly. See id. at 1090. Bryant
does not deny that she engaged in the

                                                   2
   Even accepting, arguendo, Bryant's
contention that Walker's treatment established                 AFFIRMED.
a prima facie case, she has not established a
genuine issue of material fact as to whether
CDSI’s proffered legitimate nondiscriminatory
reason for placing her on final corrective
action (namely, the past misconduct and the
insubordination to Dreiling) was pretext.
There is no evidence either that the proffered
reason is false or that race was the real reason
for the action, both of which are required for
Bryant to prevail. See St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993);
Mayberry, 55 F.3d at 1091.

                        V.
    To establish a prima facie case of
retaliation, Bryant must show that (1) she
participated in a statutorily protected activity,
(2) she received an adverse employment
action, and (3) a causal connection exists
between the protected activity and the adverse
action. See Mayberry, id. at 1092. Bryant
fails to establish the second component.1 She
contests an “extension” of her final corrective
action past the standard six-month period.
The evidence indicates that final corrective
action affects all CDSI employees in the same
manner and that Bryant was treated no
differently in this regard.

    Further, even if her treatment were
considered an extension, such extension did
not constitute an adverse effect. Bryant
presents no evidence that she was denied any
promotion, transfer, or voluntary shift bid after
her six-month final corrective action ended.
The only demonstrated effect is that she
received only fourteen out of fifteen possible
first choice vacation days (She received her
second choice for the fifteenth day.). An
employee cannot maintain a retaliation cause
of action unless he has suffered some adverse
employment action. See Watts v. Kroger Co.,
170 F.3d 505, 511-12 (5th Cir. 1999).

         1
            Assuming, arguendo, that Bryant has
demonstrated the second component, she presents no
evidence of the thirdSSthat “but for” the complaint, she
would not have received the “extension.” See
Mayberry, 55 F.3d at 1092.

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