                                                                                                                           United States Court of Appeals
                                                                                                                                    Fifth Circuit
                                                                                                                                     F I L E D
                                 IN THE UNITED STATES COURT OF APPEALS
                                                                                                                                      August 25, 2003
                                                    FOR THE FIFTH CIRCUIT
                                                                                                                               Charles R. Fulbruge III
                                                                                                                                       Clerk

                                                               No. 02-51156
                                                            (Summary Calendar)




FREDIA BUTLER,

                                                                                                                            Plaintiff-Appellant,

                                                                        versus

INTERNAL REVENUE SERVICE; ET AL,

                                                                                                                                       Defendants,

PAUL O’NEILL, former SECRETARY, DEPARTMENT OF TREASURY,
in his Individual Capacity; JOHN SNOW, SECRETARY,
DEPARTMENT OF TREASURY, in his Official Capacity,

                                                                                                                      Defendants-Appellees.



                                         Appeal from the United States District Court
                                             for the Western District of Texas
                                                     (A-00-CA-600-SS)



Before SMITH, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*




           *
            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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited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.
        Freida Butler (“Butler”) appeals the district court’s grant of summary judgment to the

defendants regarding her Title VII claims and her challenge of the Merit Systems Protection Board’s

(“MSPB’s”) decision upholding her termination. For the following reasons, we affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND

        Butler, an African-American female, was employed as a tax examining clerk with the Internal

Revenue Service (“IRS”) in Austin, Texas from December 1982 to June 1998. At the time of her

termination, Butler was one of seventeen employees in the Tele-TIN Unit (“Unit”), under the

supervision of Thomas Theis (“Theis”). It is undisputed that Butler had a strained relationship with

Theis. As the defendants point out, their strained relationship was “exacerbated by, inter alia, Theis’

admitted dislike and callused disrespect for Butler as a person and an employee, and Butler’s

demonstrated resentment for her performance being constantly and publicly evaluated at a level

significantly lower than she had historically received in other (Agency) departments.”

        The facts surrounding Butler’s termination are as follows. On September 4, 1997, Michael

Wright (“Wright”), a work leader in the Unit, discovered a work folder inappropriately placed in the

stripping basket (i.e. a basket destined for disposal/destruction). As a result of Wright’s finding, Theis

began a practice of monitoring the stripping basket to determine whether there was a pattern of

discarding work assignments. On September 5, 1997, Theis discovered another suspicious folder in

the stripping basket, which was determined to belong to Charlotte Jones (“Jones”). As a result of this

discovery, Theis and another supervisor, devised a tracking system to follow the assigned work of

Jones through the Unit. The system confirmed Jones’ continued improper disposal of work

assignments and also discovered that Patricia Johns (“Johns”) participated in this practice as well.

Both Jones and Johns are African-American. Based on this additional discovery, Theis instituted a


                                                    2
broader tracking system, including video surveillance, which ultimately uncovered Butler’s disposal

of a work assignment in the stripping basket.

       On April 3, 1998, Butler received notice of proposed removal. Butler gave an oral reply in

opposition to the proposed removal through her union representative. On June 12, 1998, the IRS

deciding official, Thomas Dega, informed Butler that her employment was being terminated. Pursuant

to the union’s grievance procedure, Butler challenged her removal and also brought claims of racial

and gender discrimination before an arbitrator. The arbitrator sustained the IRS’s decision to

terminate Butler’s employment and dismissed her discrimination claims as improperly raised under

the collective bargaining agreement. Butler appealed the arbitrator’s decision to the MSPB. The

MSPB upheld the arbitrator’s ruling and also found her discrimination claims to be meritless. Butler

filed suit in the district court seeking a review of the MSPB’s decision to uphold her termination and

denial of relief under Title VII for her race and discrimination claims. The defendants moved for

summary judgment, which the district court granted. Butler now appeals.

                                    STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. Mowbray v. Cameron

County, Tex., 274 F.3d 269, 278 (5th Cir. 2001). Summary judgment is appropriate only when the

record indicates “no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56. “In a ‘mixed case’ appeal from the MSPB, we

review de novo discrimination claims raised administratively.” Aldrup v. Caldera, 274 F.3d 282, 285-

86 (5th Cir. 2001); United States v. Gomez, 869 F.2d 852, 855-87 (5th Cir. 1989) (holding that a

mixed case occurs when a plaintiff seeks review of an administrative decision on a nondiscriminatory

claim and also asserts a Title VII claim of discrimination). We review determinations of non-

                                                  3
discrimination claims based on the administrative record, and will uphold the MSPB’s determination

unless it is clearly arbitrary and capricious, unsupported by substantial evidence or otherwise not in

accordance with law. Aldrup, 274 F.3d at 287.

                                            DISCUSSION

I.     Did the district court err in granting summary judgment regarding Butler’s Title VII claims?

       Butler argues that the defendants discriminated against her on the basis of her race.1 To

establish a prima facie case o f discrimination, Butler must show that: (1) she is a member of a

protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse

employment action, and (4) that others similarly situated were more favorably treated. See Urbano

v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). If a plaintiff has established a prima

facie case of discrimination, the employer must respond with a legitimate, nondiscriminatory reason

for its decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 ( 1973). If the employer

carries this burden of production, the burden shifts back to the plaintiff, who must prove that the

legitimate reasons offered by the employer for its decision were not its true reasons, but were a

pretext for discrimination. Id. at 804.

       The district court held that Butler failed to show that she was treated differently than others

similarly situated. Butler avers that she, along with two other African-American females, were

subjected to disparate treatment when compared to the other employees who improperly disposed

of assignments. Butler maintains that over ninety-two work assignments were unaccounted for in the

Unit, however only she and two other African-Americans were terminated or disciplined. Even



       1
        Although Butler raised a gender discrimination claim below, she did not brief this issue. As
such, we will not consider it on appeal.

                                                   4
assuming Butler showed disparate treatment, we find that the defendants have put forth a legitimate

non-discriminatory reason for her termination - the placement of an unworked file in the stripping

basket. Butler has failed to raise a genuine issue of material fact on this issue. With respect to pretext,

although Butler persuasively argues that Theis and various supervisors demonstrated racial animus

toward her, as the district court noted, the record does not show that the ultimate decisionmakers or

those involved in the grievance procedure exhibited any racial animus toward her. Butler was

terminated because of her placement of unworked material in the stripping basket, not because of her

race. The tracking system was implemented to monitor all improper dispositions in the Unit, not just

Butler’s or African-Americans in general. As a result, the district court did not err in granting

summary judgment to the defendants on Butler’s race discrimination claim.2

II.     Did the district court err in upholding the MSPB’s decision?

        Butler argues that the MSPB’s decision to uphold her termination was not supported by

substantial evidence. We disagree. The record clearly demonstrates that Butler improperly placed

unfinished work in the stripping basket. Although Butler challenges the sufficiency of Theis’ tracking

system, it does not change the fact that Butler improperly disposed of her assigned work. As such,

we find that the district court did not err in granting summary judgment to the defendants on this

issue. AFFIRMED.




        2
          Butler also argues that Theis retaliated against her as a result of complaints she made about
him to his superior regarding low performance ratings he gave her in March 1996. Assuming that her
claim is not time-barred and that she has made out a prima facie case of retaliation, as discussed
above, the defendants put forth a non-discriminatory reason for her termination. As a result, her
retaliation claim fails.

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