                   UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 00-30929



                           VIVIAN PIPER,

                                               Plaintiff-Appellant,


                               VERSUS


        ANN VENEMAN, Secretary, Department of Agriculture,
                      National Finance Center,

                                                Defendant-Appellee.




            Appeal from the United States District Court
                For the Eastern District of Louisiana
                           (98-CV-3647-L)
                           June 13, 2001
Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON,
District Judge.*

ROBERT M. PARKER, Circuit Judge:**

       Plaintiff Vivian Piper appeals the summary judgment awarded

defendant Daniel Glickman, Secretary, Department of Agriculture,

  *
   District Judge of the Southern District of Texas, sitting by
designation.
  **
    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opinion should not be published and is not precedent except under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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National Finance Center (“NFC”), in her employment discrimination

suit.    We affirm.

                         I. FACTS AND PROCEDURAL HISTORY

      Piper, an African-American female, is a Systems Accountant at

NFC’s office in New Orleans, Louisiana.                     She has been employed

there since June 1974 and in her current position since 1985.                       She

brought suit pursuant to Title VII of the Civil Rights Act of 1964,

codified    in     42    U.S.C.      §   2000(e)   et    seq.,    alleging   that   NFC

discriminated against her because of her race, sex, and age,1 and

retaliated against her because of her prior complaints to the Equal

Employment Opportunity Commission (“EEOC”).

      On August 27, 1980, Piper filed a formal complaint against NFC

alleging that NFC had discriminated against her because race, sex

and in reprisal for her previous EEOC activities. She specifically

alleged that she was not selected for promotion; she was denied

training; part of her job duties were transferred to others; she

was     harassed        by    her    supervisor;     she    was     denied   overtime

assignments;       and       she    received   a   low   performance    rating.      On

September 25, 1985, the EEOC entered a finding of discrimination

with regard to NFC’s issuance of Piper’s performance appraisal, her

non-promotion, and the denial of overtime.                       NFC was directed to



  1
   Although Piper mentions that she is asserting an age
discrimination claim, that claim is without merit as it was not
supported by evidence or argued in the district court or in this
court.

                                               2
promote Piper to the position of Supervisory Operating Accountant,

reimburse her for the overtime pay she would have received absent

discrimination and take appropriate disciplinary action against the

decision-makers at NFC who were responsible for the discrimination.

See Piper v. Department of Agriculture, Appeal No. 01832501 (EEOC

Office of Review and Appeals Sept. 25, 1985).

     Piper filed suit against NFC in federal district court in

1991, alleging that NFC had continued to discriminate against her.

The parties reached a settlement agreement and an agreed judgment

of dismissal was entered on June 22, 1994.

     Piper filed the present suit in December 1998, alleging that

she was denied promotions because she is African-American, female

and is perceived as a trouble-maker for filing 32 EEOC complaints

and a law suit against NFC.   She also claimed that she had been

given a low performance rating and improper evaluations, denied

cash awards, passed over for promotions while other employees with

lesser qualifications were promoted, evaluated with subjective

criteria, given fewer job responsibilities, and reassigned to

positions outside her line of work.

     Defendants moved for summary judgment.     The district court

found that the summary judgment evidence, taken in the light most

favorable to Piper, supported a prima facie case of discrimination

and retaliation as to her failure to promote claims.   Although it

was unclear whether her allegations of other discriminatory and



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retaliatory acts by NFC were independent claims, the district court

held that none of them were ultimate employment actions protected

by Title VII, citing Schackelford v. Deloitte & Touche, LLP, 190

F.3d 398, 406-07 (5th Cir. 1999).

       The   burden        then     shifted          to    NFC       to      articulate      a

nondiscriminatory         reason    for    failing        to   promote         Piper.      NFC

explained that other candidates were better qualified for the

positions to which Piper applied.                    First, NFC explained that it

awarded a position of Chief of Payroll/Personnel Branch (NFC 97-

004)   to    a   candidate        who    had       nineteen    years      of    supervisory

experience, seventeen of which were in the payroll/personnel area.

Also, the selectee had been acting as a branch chief in his

supervisor’s absence. In 1996, NFC selected another candidate with

nineteen     years    of       relevant    experience          for    the      position     of

Supervisory Systems Accountant (NFC 95-087) who had also been

section head for the branch for the eight preceding years.                                 The

individual       chosen    for     the    position        of   Branch        Chief    of   the

Accounting Reconciliation Branch (NFC 94-017) had served as section

chief for six years.            The selecting official for the position of

Supervisory Systems Accountant (NFC 93-044) was an African-American

female   who     chose     a    candidate          with   seven      years     of    specific

experience and strong analytical skills.                          For the position of

Accounting Reporting Branch Chief (NFC 97-064), NFC promoted an

African-American female with eighteen years of experience in the



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Accounting     Reporting        Branch   and    nine   years   of     supervisory

experience as a section head.                 A sixteen-year veteran who had

managed and supervised the Billings and Collection Branch was

chosen for the position of Billings and Collections Branch Chief.

Finally, NFC stated that an individual with nineteen years of

experience with the Payroll Accounting Section was chosen to be

head of Payroll Accounting Section (NFC 97-045).

       The district court determined that NFC’s articulation of non-

discriminatory reasons for not promoting Piper shifted the burden

back    to   Piper   to     demonstrate       that   the   reasons    given    were

pretextual.     After considering Piper’s allegations and summary

judgment evidence, the district court found that the evidence did

not raise a genuine issue of material fact concerning whether the

defendant’s non-discriminatory explanations were pretextual. Piper

had only one year of supervisory experience while each of the other

candidates served from nine to nineteen years as supervisors.

Contrary to Piper’s allegations, NFC selected both women and

African-Americans         for   supervisory      positions.      In    fact,   one

supervisor who did not select Piper for a promotion is herself an

African-American woman.

       Finally, the district court held that the evidence does not

support Piper’s retaliation claim.              The court determined that she

was not promoted because she was not as well-qualified as other

candidates, ans she had offered only her belief that she was denied

a promotion because of her prior EEOC complaints.                     Even if her

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history of discrimination complaints contributed to the decisions

not to promote her, the district court held that she cannot

establish liability for unlawful retaliation if NFC would have

denied her promotions notwithstanding her complaints to the EEOC,

citing Long v. Eastfield College, 88 F.3d 300, 305 n.4. (5th Cir.

1996).

                               II. ANALYSIS

A. Standard of Review

     We review a grant of summary judgment de novo and apply the

same standards as the district court.              Benningfield v. City of

Houston, 157 F.3d 369, 374 (5th Cir. 1998).                    If the summary

judgment evidence shows that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law, the summary judgment entered by the district

court will be affirmed.    See FED.R.CIV.P. 56(c).

B. Proof of Past Discrimination

     Piper contends on appeal that the district court erred in by

failing to properly consider NFC’s past discrimination against her.

     First,   Piper   argues    that       the   Title   VII   burden-shifting

construct articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973), and Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 249-50 (1981), must be modified in this case because

NFC had discriminated against her in the past.             Piper reasons that

once she made out her prima facie case and proved that NFC had

                                       6
previously discriminated against her, the burden shifted to NFC to

prove by clear and convincing evidence (rather than preponderance

of the evidence) that its decisions regarding her employment were

motivated by legitimate, non-discriminatory reasons.             For this

proposition, she relies on a line of cases stemming from Keyes v.

School District No. 1, 413 U.S. 189 (1973).         In Keyes, the Supreme

Court “thrust upon the School Board the burden of justifying its

conduct by clear and convincing evidence” because the school had a

history of segregation coupled with the discharge of a large number

of African-American teachers incident to desegregation.            Id. at

209.   The Fifth Circuit has required local boards of education to

meet the stringent Keyes evidentiary burden when plaintiffs have

proved an immediate past history of racial discrimination in a

recently desegregated school district.       See Lee v. Conecuh County

Board of Education, 634 F.2d 959, 963 (5th Cir. 1981); see also Lee

v. Washington County Board of Education, 625 F.2d 1235, 1237 (5th

Cir. 1980).   Although this circuit has imposed a similar burden in

Title VII class action cases, see Baxter v. Savannah Sugar Refining

Corp., 495 F.2d 437 (5th Cir. 1974), that burden is not applicable

in the context of individual discrimination cases.

       Keyes and its progeny shifted the burden of persuasion in

cases where the defendant had a history of discrimination and where

significant   numerical   disparities     existed    in   the   employer’s

treatment of minority employees.       Piper’s case does not fall into

                                   7
that category of cases.            Piper alleges, instead, that NFC has a

history of discriminating against her personally.                  The Supreme

Court has consistently held that the ultimate burden of persuading

the    trier   of   fact    that    the   defendant     discriminated    against

plaintiff in an individual, disparate-treatment case remains at all

times with the plaintiff.          Burdine, 450 U.S. at 256.      We therefore

find that the district court did not err in rejecting Piper’s Keyes

analysis.

       In related grounds of error, Piper complains that the district

court    failed     to     adequately     take   into    consideration    NFC’s

predisposition      toward    discrimination     which    she   established   by

proffering evidence that NFC had previously discriminated against

her.    As the district court noted, Piper did not offer evidence

which refuted the district court’s conclusion that the individuals

who were selected for promotions were better qualified for the

positions than she was. See Nichols v. Loral Vought Systems Corp.,

81 F.3d 38, 42 (5th Cir. 1996) (holding that in order to rebut

employer’s articulated non-discriminatory reason that plaintiff was

not as well-qualified as the workers that employer had selected,

plaintiff must offer sufficiently specific basis for claim that he

was in fact the better-qualified worker).                Moreover, one of the

promoted employees was African-American, another was female, and

one of the selecting officials in another promotion was an African-

American female.         We find no error in the district court’s view of


                                          8
the evidence.

C. Interim change in Title VII law

     The district court filed its Order and Reasons on June 7,

2000, and the Final Judgment on June 14, 2000.    In the interim, on

June 12, 2000, the Supreme Court resolved a split among the

circuits on the issue of whether a defendant is entitled to

judgment as a matter of law where a plaintiff’s case consists only

of a prima facie case under McDonnell Douglas and sufficient

evidence for a reasonable trier or fact to reject the defendant’s

legitimate, non-discriminatory explanation for its decision.     See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140

(2000).   The Supreme Court held that such evidence is sufficient

for a plaintiff to withstand a grant of judgment as a matter of law

in favor of the defendant.   Id. at 148.   Even if the district court

had applied the new Reeves standard, Piper’s case cannot survive

summary judgment because she did not present evidence sufficient

for a reasonable trier of fact to reject NFC’s nondiscriminatory

explanation for its decisions.

D. Actionable Adverse Employment Actions

     Piper next alleges that the district erred by focusing only

on NFC’s failure to promote her and denying her relief on her

claims of discrimination and retaliation related to performance

evaluations, cash awards, assignment of duties, and supervision by

a lower-grade employee.      Piper identifies no evidence, and our


                                  9
review of the record has uncovered none, that she suffered any

actionable employment actions other than NFC’s failure to promote

her.

       Piper contends in a related argument that she has alleged

twelve instances of tangible employment action in addition to the

four that the district court examined in detail.       Having examined

the record, we agree with the district court that the summary

judgment evidence presents no genuine issue of material fact

concerning   Piper’s   additional   allegations   of   “non-promotional

claims,” which consist of her twelve EEOC complaints that did not

pertain to NFC’s failure to promote her.

                          III. CONCLUSION

       We therefore conclude that the district court did not err in

denying Piper relief on her claims for relief based on any of the

alleged employment decisions, and we affirm the entry of summary

judgment for NFC.

       AFFIRMED.




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