     Case: 09-20493        Document: 00511145736         Page: 1     Date Filed: 06/17/2010




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

                                                   FILED
                                                                              June 17, 2010

                                          No. 09-20493                        Lyle W. Cayce
                                                                                   Clerk

MATHAI MUTTATHOTTIL

                                                      Plaintiff - Appellant
v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs, Department
of Veterans Affairs

                                                      Defendant - Appellee




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:07-CV-3797


Before JOLLY and GARZA, Circuit Judges, and MILLER, District Judge * .
PER CURIAM:**
        Mathai Muttathottil appeals the district court’s grant of summary
judgment in favor of Gordon H. Mansfield, Acting Secretary of Veterans Affairs
in the Department of Veterans Affairs (the “VA”), dismissing his retaliation
claim brought under Title VII, 42 U.S.C. § 2000e-3(a). For the following reasons,
we AFFIRM.


       *
            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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 09-20493

                                         I
         Muttathottil has been employed by the VA since 1984 as a medical
technologist. He previously filed three Equal Employment Opportunity (“EEO”)
complaints, but subsequently withdrew all of the charges. Three years after his
last filing of an EEO complaint, Muttathottil began having problems at work
with a co-worker known as “JT.” Muttathottil and JT had previously been close
friends, but a quarrel between their families created a rift between the two men.
         Muttathottil verbally complained on several occasions to Margaret
Wooten, his supervisor, about JT’s use of company phones to conduct personal
calls. Apprised of these complaints, JT responded by twice complaining to
Wooten that Muttathottil suffered from uncontrolled rage at work. Muttathottil
reacted by filing a written complaint against JT, alleging that JT interrupted
Muttathottil’s work by “rushing towards” him. Pending investigation of the
complaint, Muttathottil was moved to a different shift and instructed to avoid
contact with JT.
         After Muttathottil filed the last complaint, Wooten met with him and his
union representative. At the meeting, Wooten requested that Muttathottil
withdraw his written complaint and commented, “You filed too many EEO
complaints.” After the meeting, Wooten issued written counseling memoranda
to both Muttathottil and JT, Muttathottil was returned to his original shift, and
no further action was taken. As the counseling letters were not considered to be
formal discipline, they were not placed in the employees’ permanent personnel
files.
         Approximately six months later, Muttathottil filed another EEO
complaint, asserting seven different bases for discrimination: race, age, color,
sex, national origin, disability, and reprisal for prior EEO activity. After an
administrative judge investigated and dismissed his complaint, Muttathottil
filed suit alleging retaliation under Title VII based on Wooten’s statement

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regarding his prior filing of EEO complaints. Muttathottil’s complaint purported
to “allege[ ] all of the retaliation claims that are referred to in the Administrative
Judge’s decision.” However, the magistrate judge found that Muttathottil had
properly pled only the single Title VII retaliation count and declined to address
any of the other alleged grounds for relief in his report and recommendation,
which advised granting the VA’s summary judgment motion. Adopting the
magistrate judge’s report and recommendation in full, the district court granted
summary judgment for the VA on the single count of retaliation based on
Muttathottil’s filing of EEO complaints.
                                          II
      We review a district court’s grant of summary judgment de novo. Condrey
v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). “Summary judgment
is proper when the pleadings and evidence demonstrate that no genuine issue
of material fact exists and the movant is entitled to judgment as a matter of
law.” Id. (citation omitted). When reviewing a grant of summary judgment, “the
court must draw all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
                                         III
      Muttathottil argues that the district court erred in failing to address
claims presented to the Administrative Judge but not specifically pled in his
complaint except by reference to the Administrative Judge’s decision.
Muttathottil contends there was no pleading deficiency, and even if there were,
the district court should have granted Muttathottil leave to amend his complaint
rather than dismissing the improperly pled claims outright. We discuss each of
these arguments in turn.




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                                         A
      Muttathottil’s complaint plainly states that he seeks relief for retaliation
based on filing of EEO complaints. However, paragraph 25 of Muttathottil’s
complaint notes: “In addition, Plaintiff hereby alleges all of the retaliation claims
that are referred to in the Administrative Judge’s decision.”          Neither this
decision nor the referenced claims were attached to the complaint, and
consequently, the district court found them not to be part of the complaint,
pursuant to F ED. R. C IV . P. 10(c) and Shelter Mutual Insurance Co. v. Public
Water Supply District No. 7, 747 F.2d 1195, 1198 (8th Cir. 1984) (“A pleading
incorporating allegations from other documents must clarify which statements
are to be incorporated.”). However, the VA attached the Administrative Judge’s
decision as Exhibit 2 of its motion for summary judgment. Muttathottil contends
that the permissive nature of Rule 10(c) does not require a plaintiff “to attach to
her complaint documents upon which her action is based,” and that instead “a
defendant may introduce certain pertinent documents if the plaintiff failed to do
so.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993). Thus, Muttathottil argues that the VA’s inclusion of the Administrative
Judge’s opinion cures any deficiencies in his complaint.
      Rule 10(c) states that “[a] statement in a pleading may be adopted by
reference elsewhere in the same pleading or in any other pleading or motion. A
copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” This court has acknowledged that “documents that
a defendant attaches to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to her claim.”
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).
However, while Rule 10(c) “permits references to pleadings and exhibits in the
same case, . . . there is no rule permitting the adoption of a cross-claim in a
separate action in a different court by mere reference.” Tex. Water Supply Corp.

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v. Reconstr. Fin. Corp., 204 F.2d 190, 196 (5th Cir. 1953) (emphasis added). The
administrative decision to which Muttathottil refers is a separate action heard
before a different court, and therefore could not be pled by mere reference to the
decision in its entirety.
      Of course, this case differs from Texas Water Supply in that the VA was
aware of the claims to which Muttathottil referred, and even litigated as if these
claims were properly stated in the complaint. However, the Texas Water Supply
court noted that “[t]he ‘notice’ theory of pleading cannot strike from Rule 8(a) . . .
the plain and definite requirement that ‘A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or third-party claim,
shall contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.’” Id. (quoting F ED. R. C IV. P. 8(a)); see also Shelter
Mut. Ins., 747 F.2d at 1198 (disapproving of a party’s attempt to incorporate by
reference a “lengthy” document incorporating “thirty-six pages of allegations”
and noting that “[a] pleading incorporating allegations from other documents
must clarify which statements are to be incorporated”). In other words, mere
reference to a sixty-five-page administrative decision in which Muttathottil’s
additional claims are purportedly described is insufficient to meet Rule 8’s
pleading requirements.
      Thus, while the VA may have been on notice regarding the claims that
Muttathottil seeks to incorporate, Muttathottil did not plead those claims within
the four corners of his complaint, and the district court did not err in declining
to address those claims in its summary judgment decision.
                                          B
      Muttathottil contends in the alternative that he should have been given
leave to amend his complaint rather than have his complaint dismissed outright.
F ED. R. C IV. P. 15(a)(2) provides that “[a] court should freely give leave” to amend
pleadings “when justice so requires,” but the decision to grant or deny leave to

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amend a complaint lies within the discretion of the district court. Little v.
Liquid Air Corp., 952 F.2d 841, 845 (5th Cir. 1992), rev’d on other grounds, 37
F.3d 1069 (5th Cir. 1994). In making this decision, a court may consider:
      undue delay, bad faith or dilatory motive on the part of the movant,
      repeated failures to cure deficiencies by amendments previously
      allowed, undue prejudice to the opposing party by virtue of
      allowance of the amendment, futility of amendment, etc.
Id. (quoting Foman v. Davis, 371 U.S. 179 (1962)).
      In the instant matter, we have the unique situation wherein the VA
believed the claims Muttathottil sought to incorporate from the EEO decision
were properly pled in the complaint. Consequently, the record on these issues
has been sufficiently developed for us to determine that none of these additional
claims has merit. Because amendment of his complaint would have been futile,
the district court did not err in declining to grant Muttathottil leave to amend
his complaint to include these other claims. See Halbert v. City of Sherman, 33
F.3d 526, 530 (5th Cir. 1994) (concluding that remand to consider plaintiff’s
additional claims would be “a waste of judicial resources” when the record
demonstrated that the claims would “fail as a matter of law”).
                                       IV
      Muttathottil argues that the district court erred in granting summary
judgment against him on the merits of the retaliation claim pled in his
complaint.   Title VII’s anti-retaliation clause forbids employer actions that
discriminate against an employee because he has opposed an impermissible
practice under Title VII or has participated in a Title VII proceeding. 42 U.S.C.
§ 2000e-3(a). “A plaintiff establishes a prima facie case for unlawful retaliation
by proving (1) that she engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link existed between
the protected activity and the adverse employment action.” Long v. Eastfield
Coll., 88 F.3d 300, 304 (5th Cir. 1996).

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      In Burlington Northern & Santa Fe Railway. Co. v. White, 548 U.S. 53, 67
(2006), the Supreme Court noted that Title VII’s “antiretaliation provision
protects an individual not from all retaliation, but from retaliation that produces
an injury or harm.” The Supreme Court further noted that “material adversity”
is distinct from “trivial harms.” Id. at 68. A materially adverse action is one
that “well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Id.
      Muttathottil points to Wooten’s statement that Muttathottil “filed too
many EEO complaints” as a valid basis for the VA to be liable to him for
retaliation. Muttathottil contends this statement might dissuade a worker from
making future complaints, as the worker would be under the impression that
Wooten would not take these claims seriously.          However, Muttathottil is
presuming that Wooten’s statement of opinion is, in and of itself, a retaliatory
action. This interpretation of Burlington Northern is overbroad and would
permit mere expressions of opinion by employers, without any subsequent
retaliatory act, to form the basis for a retaliation cause of action, running the
risk of intruding on the First Amendment’s freedom-of-speech guarantees.
      The doctrine of constitutional avoidance instructs a court to avoid
statutory interpretations that create constitutional difficulty when a reasonable
alternative is available. See Clark v. Suarez Martinez, 543 U.S. 371, 381–82
(2005). Thus, in the instant matter, we interpret § 704(a) to prohibit threatened
or actual retaliatory action, not mere speech. See Holloway v. Dep’t of Veterans
Affairs, 309 F. App’x 816, 819 (5th Cir. 2009) (finding that a supervisor’s
criticism of an employee’s EEO complaints did not constitute such material
adversity as to dissuade a reasonable worker from making a discrimination
charge). Here, both Muttathottil and JT were warned against future disruptive
or unprofessional behavior in the workplace; Muttathottil was not singled out.
Wooten made no express threat of reprisal for Muttathottil’s EEO activity, and

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he suffered no job loss, suspension, salary reduction, reduction of job duties, or
any other form of discipline by Wooten.               Indeed, Muttathottil himself was
undeterred by Wooten’s comment: a few months later he filed an EEO complaint
alleging seven distinct forms of discrimination, an act which had no
repercussions on his employment status. Consequently, Muttathottil has not
shown that he has suffered from an adverse employment action,1 and therefore
has not articulated a prima facie case of retaliation.
                                               V
       For the foregoing reasons, we AFFIRM.




       1
         Muttathottil contends that the Administrative Judge’s finding that a number of
Wooten’s actions presented actionable, adverse actions under Burlington Northern is
admissible in this case, citing Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976).
However, that the Administrative Judge’s opinion was admissible does not require the district
court to be bound by it. Thus, the district court did not err in failing to give preclusive weight
to the Administrative Judge’s findings regarding Wooten’s alleged retaliatory actions.

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