     Case: 13-10159       Document: 00512395423         Page: 1     Date Filed: 10/03/2013




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

                                                                            FILED
                                                                          October 3, 2013
                                     No. 13-10159
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




DEREK WILLIAM THOMAS,

                                                  Plaintiff–Appellant,

versus

JANET NAPOLITANO,
Secretary of the Department of Homeland Security,

                                                  Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-265
                              USDC No. 3:11-CV-889
                             USDC No. 3:11-CV-3398




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-10159

      Derek Thomas appeals a judgment dismissing his claims regarding his
federal job. We affirm.


                                        I.
                                        A.
      Thomas is a Federal Air Marshal (“FAM”) at the Federal Air Marshal Ser-
vice’s (“FAMS”) Dallas Field Office (“DFO”) under the Transportation Security
Administration (“TSA”). Hired in January 2002, Thomas was diagnosed in
October 2007 with Type I diabetes mellitus, a fact he reported to the FAMS Med-
ical Branch that same month. Soon thereafter, the DFO—in compliance with
regulations in effect from November 1997 to December 2007 that disqualified an
individual with a clinical diagnosis of diabetes mellitus from being a FAM—
removed Thomas from flight status.
      In November 2007, Thomas requested he be placed in a light-duty assign-
ment while the FAMS Medical Unit evaluated how well his diabetes could be
controlled; that request was denied. In March 2008, however—at the request of
the Office of the Director of FAMS—Thomas was placed in a light-duty assign-
ment, and in October 2008 the Medical Unit cleared him to return to full duty.
Throughout the time he was denied a light-duty assignment, Thomas used 192
hours of annual leave and over 88 hours of sick leave; that leave was not
restored.
      Thomas first complained of discrimination to the Office of Civil Rights and
Liberties in July 2008, alleging that he was subject to a hostile work environ-
ment based on his disability (diabetes), reprisal, and sex (male). It was that dis-
criminatory attitude toward his disability and sex—Thomas alleges—that served
as the impetus for denial of his request for a light-duty assignment and for the
DFOs not restoring his sick and annual-leave time spent upon its denial, among
other conditions supporting his claim of a hostile work environment. These

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                                  No. 13-10159

issues was later accepted for investigation by the TSA in October 2008.


                                        B.
      In October 2009SSa year after Thomas had returned to full dutySSFAMS
Director Robert Bray announced a newly instituted Senior Federal Air Marshal
(“Senior FAM”) program intended to recognize FAMs who serve as role models,
have a broad knowledge base of the FAMS, and have a significant experience
flying-mission status. Bray also provided the minimum qualifications for desig-
nation as a Senior FAM.
      In evaluating its own FAMs for designation as Senior FAMs, the DFO
added to the minimum qualifications stated by Bray: The applicant must also
be above the office average in both their Quarterly Fitness Assessments (“QFA”)
and their Practical Pistol Course (“PPC”). Although Thomas met all of the mini-
mum qualifications, he was below the office average in his QFA and PPC and,
as a result, was not selected as a Senior FAM.
      Additionally, the following year Thomas’s flight schedule was altered on
two separate occasions without notice of the change, although email notice was
received by his flight partner. Thomas learned of the change only because he
routinely checks his TSA online schedule portal.
      In response, Thomas filed two more Equal Employment Opportunity
(“EEO”) complaints that allege discrimination on the basis of race (black) and
reprisal (previous EEO activity). It was this intent to discriminate and retaliate,
the complaints allege, that led to the DFO’s use of the QFA and PPC metric,
which kept him from being selected as a Senior FAM, and that precipitated the
change in Thomas’s work schedule without notice. The TSA accepted the issues
in these complaints for investigation in May 2010 and February 2011.




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                                       No. 13-10159

                                              C.
       Based on the foregoing events, Thomas sued, alleging discrimination based
on race, sex, retaliation, and hostile work environment under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; perceived disability under the
Rehabilitation Act, 29 U.S.C. § 701 et seq.; and the American with Disabilities
Act, 42 U.S.C. § 12101 et seq.; and a hostile work environment. The district
court held a three-day bench trial on these claims during which eighteen wit-
nesses testified. In a thorough, forty-one-page opinion, the court found Thomas’s
claims to be unproven by a preponderance of the evidence and dismissed them
on the merits.


                                              II.
       “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Coe v.
Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). Because
there is no dispute on appeal as to the law of this circuit regarding Thomas’s
claims of sex and race discrimination under Title VII,1 disability discrimination
under the Rehabilitation Act,2 hostile work environment under Title VII,3 and

       1
              To establish a prima facie case of racial discrimination in employ-
              ment, an employee must demonstrate that (1) he is a member of
              a protected class, (2) he was qualified for the position at issue,
              (3) he was the subject of an adverse employment action, and
              (4) he was treated less favorably because of his membership in
              that protected class than were other similarly situated employees
              who were not members of the protected class, under nearly iden-
              tical circumstances.

Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
       2
              To qualify for relief under the Rehabilitation Act, a plaintiff must
              prove that (1) he is an individual with a disability; (2) who is
              otherwise qualified; (3) who worked for a program or activity
              receiving Federal financial assistance; and (4) that he was dis-
                                                                                     (continued...)

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retaliation,4 and a de novo review finds this law to be properly understood and
applied by the district court, we focus on the main issue on appeal: whether the
court ignored credible evidence and erred in finding there to be no discrimination
or discriminatory intent in the DFO’s actions.
       There is broad agreement as to the facts as presented above. The only dis-
agreement concerns whether those actions constitute actionable discrimination
or retaliation. Determinations of intentional discrimination and discriminatory




       2
           (...continued)
                  criminated against solely by reason of her or his disability.

Hileman v. City of Dall., Tex., 115 F.3d 352, 353 (5th Cir. 1997) (citation and internal quota-
tion marks omitted).
       3
                 To state a hostile work environment claim under Title VII, the
                 plaintiff must show that: (1) the victim belongs to a protected
                 group; (2) the victim was subjected to unwelcome harassment;
                 (3) the harassment was based on a protected characteristic;
                 (4) the harassment affected a term, condition, or privilege of
                 employment; and (5) the victim’s employer knew or should have
                 known of the harassment and failed to take prompt remedial
                 action.

EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).
       4
         “To state a claim for retaliation, a plaintiff must establish that: (1) he engaged in
protected activity, as described in Title VII; (2) he suffered an adverse employment action; and
(3) a causal nexus exists between the protected activity and the adverse employment action.”
Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). To show that
he has suffered an adverse employment action, “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

       Although Thomas argues that the district court made an error of law in additionally
considering whether the actions in question constitute “ultimate employment decisions” under
Fifth Circuit jurisprudence after the Supreme Court in Burlington seemingly abrogated this
approach in the retaliation context, see McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.
2007), we need not address that issue because the court’s application of the definition of
“adverse employment action” in Burlington is sufficient to dispose of this case.

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                                           No. 13-10159

intent are findings of fact governed by Federal Rule of Civil Procedure 52(a).5
         Under Rule 52(a), “[f]inding of fact, whether based on oral or other evi-
dence, must not be set aside unless clearly erroneous.”6 “A finding is clearly
erroneous if it is without substantial evidence to support it, the court misinter-
preted the effect of the evidence, or this court is convinced that the findings are
against the preponderance of credible testimony.”7 Additionally, “[w]e will
reverse under the clearly erroneous standard only if we have a definite and firm
conviction that a mistake has been made.”8
         Where, as here, the findings of fact are largely based on credibility,
Rule 52(a) states that “the reviewing court must give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.” This has been inter-
preted to “demand[ ] even greater deference to the trial court’s findings; for only
the trial judge can be aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding of and belief in what is said.”
Anderson, 270 U.S. at 575.
         Based on our reading of the record and in light of this highly deferential
standard, the findings are not clearly erroneous. The district court, in its role as
finder of fact, made credibility determinations regarding the witnesses. Accord-
ing to those logical and plausible decisions, the court found no intentional dis-
crimination or discriminatory intent based on sex, race, or disability in the


         5
        See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985) (stating that “a
finding of intentional discrimination is a finding of fact”); Pullman–Standard v. Swint, 456
U.S. 273, 285–87 (1982) (reversing the Fifth Circuit and holding that discriminatory intent is
a finding of fact).
         6
             See also Petrohawk Props., L.P. v. Chesapeake La., L.P., 689 F.3d 380, 388 (5th Cir.
2012).
         7
             Id. (citation and internal quotation marks omitted).
         8
        French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011) (citation and internal
quotation marks omitted).

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                                 No. 13-10159

DFO’s actions, whether it be denying Thomas’s request for a light-duty assign-
ment, failing to restore his sick and annual leave, utilizing the QFA and PPC in
awarding Senior FAM status, or rescheduling his work schedule without notice.
The court also found that there was not enough evidence to suggest these same
actions constituted retaliation based on the very same findings regarding the
oral evidence, both in terms of not meeting the standard of an adverse employ-
ment action and in not showing a causal nexus between his protected activity
and the adverse employment action.
      The judgment is AFFIRMED.




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