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

                                                                            FILED
                                                                        December 12, 2007

                                       No. 06-20960                   Charles R. Fulbruge III
                                                                              Clerk

DONNA J. ARENSDORF,

                                                  Plaintiff–Appellant,
v.

JOHN W. SNOW, Secretary of Treasury,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  No. H-05-2622


Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Donna Arensdorf appeals the district court’s grant of summary judgment
to John W. Snow, Secretary of Treasury in this employment discrimination and
retaliation suit. We affirm.
                                              I
       Arensdorf, a white female over the age of forty, worked for the Internal
Revenue Service (IRS) as a revenue officer beginning in 1985.                      In 1995,
Arensdorf opted to participate in the IRS’s Flexiplace program, which allowed


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 06-20960

certain revenue officers who maintained a “fully successful” performance rating
to work from home on most days.       From May 2002 through August 2005
Arensdorf was supervised by James Gibson, a white male over the age of forty.
      Gibson gave Arensdorf a “fully successful” job performance rating in her
annual review in July 2003. In November 2003, Gibson gave Arensdorf a mid-
year evaluation that found her performance to be below “fully successful”; she
had failed in specific performance categories (such as “case analysis” and
“communication”) in several of her cases that he had reviewed. Gibson informed
Arensdorf that unless her performance improved she would receive an
“unacceptable” rating at her next annual review and would face other related
consequences.
      In January 2004, Gibson reviewed more of Arensdorf’s cases and then sent
a letter to Arensdorf summarizing his findings.        Gibson found several
deficiencies in these cases and gave Arensdorf failing marks in various
categories.
      On June 3, 2004, Gibson sent Arensdorf a memorandum of his review of
additional cases. Gibson found that Arensdorf had failed in several areas.
      On June 7, 2004, Arensdorf sent an e-mail to Martin Arnold, Gibson’s
supervisor and an African-American over the age of forty, requesting re-
assignment to a supervisor other than Gibson. Her stated reasons were: her
recent performance review with failing marks, Gibson’s alleged statement to her
that she would be receiving an unacceptable rating for her next annual review
(scheduled for July 2004), Gibson’s failure to address her rebuttals to her
reviews, and that her “physical and mental health” was “stretched to the limit
after 18 years of this behavior.” Arnold denied Arensdorf’s request, explaining
that the reasons she gave were insufficient for reassignment.




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      On June 15, 2004, Gibson revised his June 3 review, raising several
categories from failing to “marginal, improvement needed.” He retained failing
marks in two categories.
      On July 14, 2004, Arensdorf filed an administrative complaint with the
Treasury Department’s Equal Employment Opportunity (EEO) office that
alleged that she was discriminated against on the basis of her age and race when
Arnold denied her request to transfer.
      On July 26, 2004, Arensdorf received her 2004 annual evaluation. She
received failing marks in three of the fifteen evaluation categories, resulting in
an overall rating of “unacceptable.” Consequently, on August 18, 2004, Gibson
informed Arensdorf that she was no longer qualified for the Flexiplace program
and needed to select an office work space and to turn in her phone card.
      On August 31, 2004, Gibson met with Arensdorf and gave her an
“opportunity letter” that placed her on a “performance improvement period”
(PIP) for ninety days. The PIP provided Arensdorf with an on-the-job instructor
and required her to meet with Gibson every other week to review her progress.
At the end of the meeting, Arensdorf gave Gibson a note from her physician
stating that Arensdorf would be unable to work from September 1 through
October 1 due to an unnamed medical condition. Gibson approved the medical
leave for the requested period and instructed Arensdorf to meet him in his office
on October 4, 2004.
      On September 24, 2004, Arensdorf filed a second complaint of
discrimination, alleging that she was discriminated against because of her age
and in retaliation for her earlier complaint, when Gibson gave her the negative
annual review, removed her from the Fleixplace program, and placed her on the
PIP. She also alleged that she was subjected to a hostile work environment by
Gibson and Arnold.



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      Arensdorf did not return to work after her sick leave. Instead, she
submitted a letter from a therapist notifying the IRS that she would not be able
to perform her work responsibilities through November 2004. The letter gave
no medical reason for her inability to work. Gibson replied by letter, telling
Arensdorf that the letter from the therapist was insufficient to establish medical
leave for the additional two month period. Gibson gave Arensdorf one week to
submit a doctor’s certificate supporting her request or to return to work on
October 13, 2004. Gibson warned Arensdorf that she would be placed on
Absence Without Leave (AWOL) status, and her previously-approved sick leave
period would be converted to AWOL status, if she did not follow those
instructions. Arensdorf submitted a disability certificate from a physician on
October 11, 2004 that stated she was unable to work and would be reevaluated
on October 29, 2004. She also submitted a note from a doctor at another clinic
stating that she was incapacitated until November 30, 2004.            Arensdorf
remained on sick leave until November 30, 2004.
      On November 12, 2004, Arensdorf’s administrative complaints were
supplemented and consolidated into a complaint of a hostile work environment
on the basis of age, race, and retaliation, based on actions occurring between
June 2004 and August 2004. The specific allegations were enumerated in a
letter from Arensdorf to the EEO office. The EEO office investigated and held
a hearing before an administrative judge. Before the administrative law judge
rendered a decision, Arensdorf filed a motion to dismiss her complaint, which the
administrative law judge granted.
      Arensdorf filed this suit two weeks later, complaining of a hostile work
environment on the basis of her age, race, and prior EEO activity. She also
complained generally that her supervisors “singled her out for disparate
treatment.” The Secretary filed a motion for summary judgment. The district
court issued a 39-page memorandum opinion and final judgment.                The


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memorandum opinion held that Arensdorf had exhausted administrative
remedies (and therefore perfected federal court jurisdiction) for her
“race/age/reprisal-based hostile work environment claim and a retaliation claim,
stemming from events which occurred between June and October 2004.” The
court held that Arensdorf had exhausted her administrative remedies with
respect to nine specific factual allegations; the court also held that those
allegations could be used to support both the hostile work environment claim
and as individual acts of discrimination.1 The district court held that Arensdorf
had not exhausted any claims relating to disparate impact2 or to claims arising
from events subsequent to October 2004; the court therefore held that it did not
have jurisdiction over such claims or events. After carefully analyzing the law
and evidence for each claim, the district court granted the Secretary’s motion for
summary judgment. Arensdorf timely appealed.
                                              II
      We first address Arensdorf’s argument that the district court erred when
it denied her request to unseal a document during discovery. We review the
district court’s decision for abuse of discretion.3




      1
        The exhausted events were:
      (1) [Gibson] screamed at [Arensdorf] in June 2004,
      (2) [Arensdorf] received a negative job review in June 2004,
      (3) [Arensdorf’s] transfer request was denied,
      (4) [Arensdorf] received an “unacceptable” rating on her July 2004 annual
      review,
      (5) [Arensdorf] was removed from the Flexiplace program,
      (6) [Arensdorf] was asked to return her phone card,
      (7) [Arensdorf] was placed on a PIP,
      (8) [Arensdorf] was not afforded a job coach when she received her first negative
      review in November 2003, and
      (9) Gibson threatened to change [Arensdorf’s] sick leave to AWOL.
      2
          See Hebert v. Monsanto, 682 F.2d 1111, 1116 (5th Cir. 1982).
      3
          See DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 682 (5th Cir. 2003).

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      The document in question is a report of the Treasury Office of the
Inspector General (OIG).4 This report was apparently created by the OIG in the
context of its investigation of the case of Robinson v. Snow.5 Vera Robinson was
an IRS employee who sued the IRS for discrimination she alleged occurred in
1998. With the parties’ consent, the district court in that case issued a Privacy
Protective Order pursuant to 5 U.S.C. § 552a(b)(11) and FED. R. CIV. P. 26(c).
This order did not “seal” any documents. Instead, it required the plaintiff in that
case to keep confidential Treasury discovery documents containing private
information about third parties, and to destroy her copies of discovery documents
after litigation was complete.
      Arensdorf moved the district court to “unseal[]” the OIG report, claiming
it was relevant to her case. The district court denied this request, stating that
there did not appear to be any relationship between the Robinson case and
Arensdorf’s case. On appeal, Arensdorf argues that the district court’s decision
was an abuse of discretion and that the OIG report “should demonstrate that
[she] made certain statements to the OIG that were relevant to their
investigation and that she has been retaliated against by management for
making said statements.”
      The district court did not abuse its discretion. Arensdorf failed to explain
how her statements to investigators in the 1998 Vera Robinson investigation
would be relevant to this case, which is founded upon actions in 2004.
                                                III
      We next address Arensdorf’s arguments that the district court erred when
it granted summary judgment to the Secretary. We review the district court’s




      4
          Report of Investigation 97-4-090-I.
      5
          No. 4:03-CV-859 (S.D. Tex. Feb. 10, 2004) (consent privacy protective order).

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                                           No. 06-20960

grant of summary judgment de novo.6 We construe the evidence in the light
most favorable to Arensdorf, the non-moving party, and draw all reasonable
inferences in her favor.7 We note here that Arensdorf has not challenged the
district court’s determination of which claims and events were exhausted and
the jurisdictional consequences of that determination.
         Arensdorf argues that the district court erred in granting summary
judgment to the Secretary on her age discrimination (disparate treatment) claim.
The district court held that Arensdorf had not made a prima facie case on this
claim8 because none of the actions she complained of9 were “ultimate
employment actions.”10 On appeal, Arensdorf fails to allege any error in the
district court’s analysis. For the first time on appeal, Arensdorf also argues that
Gibson’s grant of a performance award in 2004 to another employee who was
under the age of 40 and who (like Arensdorf) received a failing mark on an
evaluation constituted an adverse employment action. The evidence Arensdorf
cites shows, at most, that the other employee received a certificate of good
performance.11 Failing to give Arensdorf such an award is not an “ultimate
employment action.”
         Arensdorf also contends that certain events that occurred after October
2004, such as her termination in 2005, were discriminatory. However, as stated
above, Arensdorf has not challenged the district court’s exhaustion and


         6
             Roberson v. Alltel Info. Servs., 373 F.3d 647, 650 (5th Cir. 2004).
         7
             Id. at 651.
         8
              See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir.
2001).
         9
             See supra note 1.
         10
        See Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006).
         11
              See Record Excerpts at Tab 5, 603-05.

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                                        No. 06-20960

jurisdictional holding, so events occurring later than October 2004 are not
properly before us. We therefore reject Arensdorf’s argument regarding her age
discrimination claim.
      Arensdorf next argues that the district court erred in granting summary
judgment on her retaliation claim. The district court held that Arensdorf had
failed to make a prima facie case on this claim because the facts could not
support an inference that her EEO complaint caused any of the adverse
actions.12 In particular, Arensdorf had received three negative performance
evaluations prior to her protected activity (filing the EEO complaint), so it was
not possible to infer that the negative performance reviews were caused by the
protected activity. On appeal, Arensdorf fails to point to any facts that would
tend to establish that the IRS’s adverse actions were caused by her EEO
complaint. We find no error in the district court’s determination that she failed
to establish her prima facie case.
      The district court also held that even if Arensdorf had made her prima
facie case of retaliation, the Secretary had articulated legitimate, nonretaliatory
reasons for its actions, and Arensdorf had failed to produce any evidence that the
Secretary’s stated reasons were pretextual.13 Arensdorf disagrees and argues
that she met her burden. But she cites no evidence that would tend to establish
that the Secretary’s stated reasons for the actions in the exhausted claims were
pretextual. She merely states that the low performance evaluations were caused
by animus (but cites no evidence of this) and argues that her later removal was
not conducted in accordance with the applicable statutes and regulations (but
her removal was not an element of the exhausted claims). We find no error in
the district court’s analysis of this argument. We therefore hold that the district



      12
           See Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
      13
           See id.

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court did not err in granting summary judgment on Arensdorf’s retaliation
claim.
      Arensdorf finally argues that the district court erred in granting summary
judgment on her hostile work environment claim. The district court held that
she was unable to establish the second, third, and fourth prongs of her prima
facie case:14 she did not establish that she was subject to unwelcome harassment,
that there was harassment based upon a protected characteristic, or that there
was harassment that affected a term, condition, or privilege of employment. On
the third (protected characteristic) prong, in particular, there was no evidence
that any of the actions taken by Gibson (a Caucasian male over 40) or Arnold (an
African-American male over 40) were based on Arensdorf’s age or race. On
appeal, Arensdorf does not point to facts in the record that would establish
factual issues on these prongs but instead sets forth a narrative of workplace
slights she has perceived for the past seventeen years. We find no error in the
district court’s grant of summary judgment on the hostile work environment
claim.
                                      *        *         *
      For these reasons, we AFFIRM the judgment of the district court.




      14
           See Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003).

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