     Case: 19-50450      Document: 00515223446         Page: 1    Date Filed: 12/04/2019




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

                                    No. 19-50450
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                    December 4, 2019
                                                                        Lyle W. Cayce
LISA L. WATSON,                                                              Clerk


              Plaintiff - Appellant

v.

MARK ESPER, Secretary, Department of the Army,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:17-CV-01280


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Lisa Watson, proceeding pro se, filed suit against Mark Esper, Secretary
of the Department of the Army, in his official capacity, claiming race
discrimination, retaliation, and hostile work environment. The district court
granted summary judgment to the defendant on all 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50450
                                    I. Background
       Lisa Watson, an African American, began her term appointment as a
Medical Records Administrative Specialist for the Army in June 2012, her term
to end on June 17, 2015. She struggled in her job from the beginning. After
failing an initial quality assurance review, she was given ninety days to earn
a passing score. She never did. 1 The Army then placed her on a performance
improvement plan (“PIP”), but even after weekly meetings with supervisors,
one-on-one trainings with audit specialists, and practice audits, Watson’s work
product did not pass muster. Citing her subpar performance, the defendant
terminated Watson on July 19, 2013.
       While employed and after her termination, Watson applied to three
permanent positions in the Army, but each application was rejected. On
January 10, 2013, the Army also denied Watson’s request to attend
professional training, determining she had to first meet her productivity goals.
That same day, Watson contacted the Equal Employment Opportunity
Commission (“EEOC”) to complain of harassment and a hostile work
environment. She filed a formal complaint two months later.
       Watson eventually filed the instant action, alleging employment
discrimination, retaliation, and harassment in violation of Title VII of the Civil
Rights Act. 2 The district court dismissed Watson’s claims on summary
judgment. She now appeals. She also filed a motion for immediate release of
back pay with interest.




       1  Watson underwent three performance reviews but never achieved the required
accuracy standard of 93% on her assessments. She fared no better in her “live” audit; amongst
the litany of errors committed, she incorrectly copy-and-pasted a generic error message 140
times.
        2 42 U.S.C. § 2000e.

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                                    No. 19-50450
                                     II. Analysis
A. Title VII Claims
      We review a district court’s grant of summary judgment de novo. 3
Summary judgment is appropriate when there exists no genuine dispute of
material fact, and the moving party is entitled to judgment as a matter of law. 4
1. Discrimination Claim
      Title VII prohibits employment discrimination against any individual on
the basis of race. 5 A plaintiff may establish a prima facie case of discrimination
by presenting direct evidence of discrimination or by relying on circumstantial
evidence using the McDonnell Douglas burden-shifting analysis. 6 Under this
analysis, the plaintiff must show: “(1) she is a member of a protected class, (2)
she was qualified for her position, (3) she suffered an adverse employment
action, and (4) others similarly situated were more favorably treated.” 7 Once
that is established, the employer has the burden of establishing a legitimate,
nondiscriminatory reason for the adverse employment action. 8 The burden
then again shifts back to the employee, who must produce “substantial
evidence” that the reason offered was in fact pretext for discrimination. 9
      The district court based its summary judgment dismissal of Watson’s
claims on her inability to establish a prima facie case of discrimination and her
failure to rebut her employer’s nondiscriminatory reason for its action. On
appeal, Watson argues she has shown a genuine issue of material fact that she
was the subject of discrimination, citing to a long list of incidents. Watson



      3 Lamb v. Ashford Place Apartments L.L.C., 914 F.3d 940, 943 (5th Cir. 2019).
      4 FED. R. CIV. P. 56(a).
      5 42 U.S.C.A. § 2000e-2(a)(1).
      6 Wittmer v. Phillips 66 Co., 915 F.3d 328, 332 (5th Cir. 2019).
      7 Willis v. Coca Cola Enterprises, Inc., 445 F.3d 413, 420 (5th Cir. 2006) (quoting

Rutherford v. Harris Cty., Tex., 197 F.3d 173, 184 (5th Cir. 1999)).
      8 Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004).
      9 Id.; Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007).

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                                   No. 19-50450
challenges (1) her termination and (2) the Army’s rejection of her various job
applications as discriminatory adverse employment actions. 10
      Even if this court were to accept Watson’s assertions that she has
established a prima facie case of discrimination, she still fails to rebut the
Army’s reasons as pretextual. The Army made clear to Watson that her
performance was subpar, and it offered her ample opportunity to meet its
required thresholds. Yet she repeatedly failed to meet preestablished accuracy
standards, as evidenced by her assessments and performance on her PIP. Her
shortcomings provide a nondiscriminatory explanation as to both the Army’s
decision to terminate her employment and its decision to hire other candidates
for the various positions to which she applied. Because Watson offers no
evidence to rebut the Army’s reasons, summary judgment is appropriate. 11
2. Retaliation Claim
      Watson next argues that she established a prima facie case of retaliation.
She contends the training she underwent, coupled with her rejected job
applications, constitutes retaliation. Her claim fails as a matter of law.
      Title VII forbids employers from retaliating against employees who
report workplace discrimination. The elements of a prima facie retaliation
claim are: (1) the plaintiff engaged in protected activity, (2) the employer knew
about the protected activity, and (3) the employer retaliated against the
employee because of the protected activity. 12 The same McDonnell Douglas
burden-shifting framework then applies. 13
      Once again, even if this court were to accept that Watson has established
a prima facie case of retaliation, the defendant has provided a legitimate, non-


      10 McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007).
      11 Watson admits in her brief that the Army explained to her she was terminated
“because [she] failed the PIP” without explaining how the reason was pretextual.
      12 Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 241 (5th Cir. 2019).
      13 Id.

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                                      No. 19-50450
retaliatory basis for its behavior. Watson has not shown that the Army fired
her for reasons other than her subpar work performance. “‘[C]onclusory
allegations, speculation, and unsubstantiated assertions are inadequate to
satisfy’ the nonmovant’s burden in a motion for summary judgment.” 14 A
reasonable factfinder could not conclude that she would not have been fired
and passed over for positions but for her decision to engage in activity protected
by Title VII.
3. Harassment Claim
       Under Title VII, to establish a claim of hostile work environment,
Watson must show (1) she belongs to a protected group, (2) she was subjected
to unwelcome harassment, (3) the harassment was based on race, (4) the
harassment affected a term, condition, or privilege of employment, and (5) the
Army knew or should have known of the harassment and failed to take prompt
remedial action. 15 To survive summary judgment, Watson must show the
alleged harassment was “sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment.” 16
       No one disputes that Watson, as an African American, belonged to a
protected group. Yet she fails to show she was subjected to unwelcome
harassment, or that the alleged harassment was based on race. While Watson
points to several incidents that she believes establish harassment, she fails to
show how these incidents—such as not being able to attend a training and
being placed on a PIP—were tied to her race. Furthermore, these incidents are
neither sufficiently severe nor pervasive to amount to an abusive working




       14 Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting Douglass v. United
Services Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc)).
       15 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
       16 Id. (internal citation and quotation marks omitted).

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                                      No. 19-50450
environment. 17     For    the   foregoing       reasons,   summary      judgment      was
appropriate.
B. Motion to Reconsider
       Lastly, Watson argues the district court erred in denying her motion to
reconsider. “[W]hen the district court denies a motion to reconsider a grant of
summary judgment, but, in doing so, considers any materials attached thereto
and still grants summary judgment, our review is de novo, as those materials
become part of the summary judgment record.” 18 Watson argues the district
court improperly excluded recordings, which validate her claims. These
recordings, however, do not support Watson. If anything, the tapes provide
further evidence that the Army’s reasons for her termination were not
pretextual. The district court properly rejected Watson’s motion to reconsider.
                                    III. Conclusion
       For these reasons, the judgment of the district court is AFFIRMED.
Watson’s motions filed on October 1, 2019 are DENIED.




       17  See Ramsey, 286 F.3d at 269 (5th Cir. 2002) (finding various “vague assertions of
racial animus” insufficient absent more concrete, specific incidents).
        18 McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018).

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