     Case: 11-50481     Document: 00512011525         Page: 1     Date Filed: 10/05/2012




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

                                                                            FILED
                                                                          October 5, 2012

                                     No. 11-50481                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RAQUEL ALLARD,

                                                  Plaintiff-Appellant
v.

ERIC H. HOLDER, JR., Attorney General, United States Department of
Justice,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No: 3:09-CV-338


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Bureau of Prisons (“BOP”) employee Raquel Allard appeals on various
grounds the district court’s grant of summary judgment against her in this
employment discrimination and retaliation action brought pursuant to Title VII
of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and the




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50481

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. We AFFIRM.
                        FACTS AND PROCEEDINGS
      Allard has worked in various capacities at FCI La Tuna, a BOP facility in
Anthony, Texas, since 1989. On June 23, 2005, Allard filed a discrimination
complaint with an Equal Employment Opportunity (“EEO”) counselor, alleging
that she was discriminated against on the basis of her race, sex, age, sexual
orientation, religion, and national origin when one of her superiors gave her the
second highest possible, but not the highest possible, rating on a performance
review. According to her supervisor, she did not rate as "outstanding," as she
had in prior years, because she missed a major work assignment. On October 2,
2007, Allard filed a second EEO complaint, alleging that she was suspended
from work for five days in retaliation for filing her first complaint. According to
her employer, Allard was suspended after an internal investigation revealed that
she failed to show up for work for a two-day period in June 2006 without
notifying her supervisor of her absence. Allard later attempted to claim sick
leave for the days in question but failed to produce a doctor's note justifying the
leave request.
      Allard’s two complaints – the first relating to her performance review and
the second relating to her suspension – were consolidated and heard by an
administrative law judge, who issued an order on May 7, 2009, holding that
Allard had failed to provide persuasive evidence that her rating was motivated
by discrimination or that her suspension had resulted from retaliation and not
from her failure to follow sick leave procedures.
      Allard then filed the instant suit against Attorney General Eric H. Holder,
Jr., in his capacity as head of the Department of Justice, of which the Bureau of
Prisons is a subdivision. In her complaint, she asserted that her performance
review was discriminatory and retaliatory, that her being placed on AWOL



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                                  No. 11-50481

status was discriminatory, that her suspension was retaliatory, and that she had
been subjected to a hostile work environment.
      On March 23, 2011, the district court granted Holder’s motion for
summary judgment. In its order, the district court dismissed Allard’s claim with
respect to her AWOL status because it had not been properly administratively
exhausted. The court also held that Allard had failed to plead a prima facie case
of discrimination regarding her personnel evaluation and that, at any rate,
Holder had provided a legitimate, nondiscriminatory, nonpretextual reason for
the evaluation. It also dismissed her claim that the personnel evaluation was
retaliatory because Allard had not participated in any protected activity prior
to the evaluation for which she could have been retaliated against, and
dismissed her retaliation claim based on her suspension for failure to show the
causation necessary to plead a prima facie case. Finally, the district court held
that Allard had failed to plead a prima facie case with respect to her hostile work
environment claim.
      Allard now appeals. Appearing pro se, she argues that summary judgment
was improperly granted.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo. LeClerc
v. Webb, 419 F.3d 405, 413 (5th Cir. 2005). “Summary judgment is appropriate
if the moving party can show that ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” United States
v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting FED. R. CIV. P.
56(A)). We “‘may affirm the district court’s summary judgment on any ground
raised below and supported by the record.’” Ballard v. Devon Energy Prod. Co.,
L.P., 678 F.3d 360, 365 (5th Cir. 2012) (quoting Aryain v. Wal-Mart Stores Tex.
LP, 534 F.3d 473, 478 (5th Cir. 2008)).



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                                  No. 11-50481

      We agree with the district court that Allard failed to exhaust
administratively her claim that she was discriminated against when she was
placed on AWOL status. “As a precondition to seeking . . . judicial relief [in Title
VII cases], complaining employees must exhaust their administrative remedies
by filing a charge of discrimination with the EEO division of their agency.”
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). Similarly, before filing suit
under the ADEA, a plaintiff must either file an EEO complaint or give notice of
an intent to sue to the Equal Employment Opportunity Commission (“EEOC”).
29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201.                Allard argues that she
administratively exhausted this claim by challenging the suspension she was
given for her absence in a later EEO complaint. However, that complaint was
not filed until over a year after she was placed on AWOL status, and Allard was
required to have “initiate[d] contact with a Counselor within 45 days of the
matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). Because the
complaint she relies on to establish administrative exhaustion was untimely, the
district court correctly dismissed Allard’s claim with respect to her placement on
AWOL status.
      We analyze both Title VII and ADEA claims based on circumstantial
evidence under the burden shifting framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 896 n.2 (5th Cir. 2002). McDonnell Douglas first requires a plaintiff
to set out a prima facie case of discrimination or retaliation. If the plaintiff
meets that burden, the defendant must state a legitimate, nondiscriminatory
reason for its allegedly discriminatory action, and, if it is able to do so, the
plaintiff is left with the burden of showing that the defendant’s stated reason
was pretextual. See McDonnell Douglas, 411 U.S. at 802-05. To establish a
prima facie case of discrimination, a plaintiff must show (1) that she was a
member of a protected group; (2) that she was qualified for the position at issue;

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                                  No. 11-50481

(3) that she suffered an adverse employment action; and (4) that she was treated
less favorably than similarly situated employees outside of her protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To establish a
prima facie case of retaliation, a plaintiff must show (1) that she participated in
an activity protected by Title VII; (2) that she suffered an adverse employment
action; and (3) that the adverse employment action was causally related to the
protected activity. Id. at 556-57.
      Allard has failed to present a prima facie case of discrimination or
retaliation with respect to her personnel evaluation. For discrimination claims,
“‘[a]dverse employment actions include only ultimate employment decisions such
as hiring, granting leave, discharging, promoting or compensating.’” Id. at 559
(alteration in original) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d
642, 657 (5th Cir. 2002)). Allard’s sub-optimal evaluation alone does not qualify
as an adverse action under this standard. With respect to her retaliation claim,
Allard has failed to introduce any evidence at all that she had participated in
any activity protected by Title VII prior to her evaluation.
      Allard has also failed to show the requisite causation to sustain her
argument that her suspension was retaliatory. Allard has presented no evidence
that – and therefore has created no genuine dispute of material fact as to
whether – the decision makers involved in her suspension knew of her prior
protected activity. Additionally, even if Allard could show that they were aware
of her first EEO complaint, over two years passed between the time she filed
that complaint and her suspension. Such a delay is indicative of a lack of the
required causal nexus between the protected activity and adverse employment
action at issue. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
For mere temporal proximity between an employer's knowledge of protected
activity and an adverse employment action to be sufficient evidence of causality,



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                                  No. 11-50481

the temporal proximity must be "very close"—far closer than it was here. See
Breeden, 532 U.S. at 273 (rejecting 20-month period as not close enough).
         Summary judgment was also properly entered with respect to Allard's
hostile work environment claim. Pleading a prima facie case of discrimination
on the basis of a hostile work environment requires a plaintiff to show that, inter
alia, the alleged hostile environment “affected a term, condition, or privilege of
employment.” Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir. 1986). To meet
that standard, the complained-of conduct must be “‘so severe and pervasive that
it destroys a protected classmember’s opportunity to succeed in the work place.’”
Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 326 (5th Cir. 2004)
(quoting Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.
1999)). The minor incidents that Allard complains of – including, for example,
a supervisor’s asking her what was for dessert when Allard provided him lunch
and the same supervisor’s giving Allard a “real evil look” while saying “good
morning” to her – are so insignificant and infrequent that they cannot possibly
meet this standard. See Shepherd, 168 F.3d at 872-74 (declining to find a hostile
work environment despite plaintiff’s assertions of an extended course of
harassing conduct involving explicitly sexual comments and unwanted physical
contact).
         Finally, to the extent that Allard’s voluminous pro se filings raise
additional issues for the first time on appeal, we decline to consider them. See
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000).
                                 CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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