      Case: 13-30088          Document: 00512319773              Page: 1       Date Filed: 07/24/2013




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

                                                                                        FILED
                                                                                       July 24, 2013

                                          No. 13-30088                                 Lyle W. Cayce
                                        Summary Calendar                                    Clerk



MICHAEL J. RILEY,

                                                          Plaintiff - Appellant
v.


JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,

                                                          Defendant - Appellee




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:11-CV-187


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Michael J. Riley appeals: the district court’s granting Janet Napolitano’s
motion for summary judgment and dismissing, with prejudice, Riley’s claim
alleging discriminatory discharge from his employment with the Federal
Emergency Management Office (“FEMA”); and the court’s denying Riley’s


        *
          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 R. 47.5, the court has determined that this opinion should not be published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. 13-30088

motion for a new trial. AFFIRMED.


                      I. Facts and Procedural History
      Riley was hired by FEMA as an Equal Rights Officer in January 2006.
On July 11, 2007, Riley sent an e-mail to then-Acting Cadre Manager Louis
Cleveland, which Riley copied to Director Pauline Campbell, stating various
complaints about his status in the department. Although his e-mail contained
the statement “I feel as if I am being mistreated”, he did not elaborate further
as to what the mistreatment was or how he was being mistreated; nor did the
e-mail assert his complaint was based on a protected status such as age,
gender, or race.     Shortly thereafter, James Montgomery, then-immediate
supervisor to Riley, decided, with the consent of Campbell, to terminate Riley’s
employment as a result of unauthorized use of his Government-issued travel
charge card in an amount exceeding $7,000.00. He was terminated officially on
August 1, 2007.
      Upon termination, Riley filed a discrimination complaint with the FEMA
Office of Equal Rights, alleging unlawful retaliatory discharge. Riley thereafter
filed the instant suit against Napolitano, on January 27, 2011. Napolitano
moved for summary judgment pursuant to Federal Rule of Civil Procedure 56;
the motion was granted on November 15, 2012. On November 21, 2012, Riley
moved for a new trial; the motion was denied on December 17, 2012. Riley’s
appeal challenges both decisions of the district court.
                               II. Discussion
      The district court’s grant of summary judgment is reviewed de novo.


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E.g., Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011) (internal
citation omitted). “The court shall grant summary judgment if 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.” Fed. R. Civ. P. 56(a). Whether a
dispute of material fact exists requires our considering the evidence in the
record as a whole, drawing all reasonable inferences in favor of the non-movant;
in so doing, we will neither make credibility determinations nor weigh the
evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). If the record, viewed in the light most favorable to the non-movant,
“could not lead a rational trier of fact to find for [the non-movant], there is no
genuine issue for trial, and summary judgment is proper.”                 Kelley v.
Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993).
      To survive summary judgment, Riley must demonstrate that there exists
a prima facie claim of retaliation under Title VII: “(1) [he] engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action”. Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Napolitano
contends, and the district court held, Riley did not meet these requirements
because he failed to demonstrate that he engaged in an activity protected by Title
VII. Specifically, Riley’s July 11, 2007 e-mail did not constitute protected activity
within the meaning of Title VII because it did not refer to any practice made an
unlawful employment practice under Title VII. Riley maintains his sending the
e-mail constituted a protected activity sufficient to satisfy this element of a prima
facie claim.
      “An employee has engaged in protected activity when [he] has (1) ‘opposed


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                                  No. 13-30088

any practice made an unlawful employment practice’ by Title VII [opposition
clause] or (2) ‘made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing’ under Title VII [participation clause].”
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir.
1998) (quoting 42 U.S.C. § 2000e-3(a)). Because Riley did not file a formal
complaint until after his termination, and he has not offered evidence of any
other action under the participation clause, he has failed to establish that he
engaged in protected activity under that clause. Nor did the July 11, 2007 e-mail
“oppose[] any practice made an unlawful employment practice by Title VII.” Riley
admits his e-mail did not complain of mistreatment based on a protected status
such as gender, age, or race. As the district court noted correctly, our court has
consistently held that a vague complaint, without reference to an unlawful
employment practice under Title VII, does not constitute protected activity. See
Riley v. Napolitano, No. 11-187, 2012 WL 5818146, at *4 (E.D. La. Nov. 15, 2012);
see also Davis v. Dallas Indep. Sch. Dist, 448 F. App’x 485, 493 (5th Cir. 2011);
Tratee v. BP N. Am. Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008). Because
Riley has not engaged in protected activity, he fails to demonstrate a prima facie
claim of retaliation sufficient to survive Napolitano’s motion for summary
judgment.
      Riley further contends FEMA’s stating his termination was based on his
alleged abuse of a Government-issued credit card was pretext.           Had Riley
established a prima facie claim, the burden would have shifted to Napolitano to
articulate a “legitimate, non-discriminatory reason” for Riley’s termination; if
Napolitano carried that burden, only then would Riley have the opportunity to
offer evidence that, inter alia, the reason for termination was mere pretext for
discrimination. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).


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Because Riley has failed to establish a prima facie claim of retaliation, our
inquiry ends there.
                             III. Conclusion
      For the foregoing reasons, the judgments of the district court are
AFFIRMED.




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