                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                          F I L E D
                                                In the                                      May 11, 2006
                        United States Court of Appeals                               Charles R. Fulbruge III
                                     for the Fifth Circuit                                   Clerk
                                          _______________

                                            m 05-30677
                                          Summary Calendar
                                          _______________




                                          VIVIAN O. PIPER,

                                                             Plaintiff-Appellant,

                                               VERSUS

                                          ANN VENEMAN,
                   SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,

                                                             Defendant-Appellee.


                            ____________________________________

                            Appeal from the United States District Court
                               for the Eastern District of Louisiana
                                         m 2:04-CV-960
                           _____________________________________




Before SMITH, GARZA, and PRADO,                         Vivian Piper appeals a summary judgment
  Circuit Judges.                                    in favor of her employer, the Department of
                                                     Agriculture (“USDA”), on her claims of
PER CURIAM:*                                         employment discrimination under title VII,


   *                                                     *
     Pursuant to 5TH CIR. R. 47.5, the court has          (...continued)
determined that this opinion should not be pub-      lished and is not precedent except under the limited
                                   (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
42 U.S.C. § 2000e et seq. We affirm.                     relevant actions.2

                        I.                                  The USDA moved for summary judgment,
    When she filed her initial complaint with the        arguing that, on each of her claims, Piper had
Equal Employment Opportunity Commission                  not presented evidence sufficient to support a
(“EEOC”), Piper, a fifty-four-year-old black             finding of discrimination. The USDA asserts
woman, had been employed at the National                 that Piper was declared ineligible to apply for
Finance Center (“NFC”), a division of the                the temporary Supervisory Systems Accoun-
United States Department of Agriculture                  tant position because she was employed out-
(“USDA”), for twenty-nine years and held the             side the area of consideration, and further
position of Lead Systems Accountant. After               notes that she suffered no disparate treatment
exhausting available administrative remedies             in this regard because all employees outside
on her employment discrimination claims, Pi-             the area of consideration were deemed ineligi-
per sued the USDA. On the USDA’s motion,                 ble to apply.3
the district court dismissed, on timeliness
grounds, the claims asserted in the initial com-            The USDA argues that Piper was not se-
plaint. Piper, however, had filed an Amending            lected for the permanent promotion to Super-
and Supplemental Complaint asserting ad-                 visory Systems Accountant because Dennis
ditional claims that were ripe for federal court         Jack, the selectee, was the most qualified
review; those claims thus survived the motion
to dismiss.
                                                            2
                                                              Although she alleges age discrimination, Piper
   In her Amending and Supplemental Com-                 does not claim a violation of the Age Discrimina-
plaint, as clarified by her Second Amending              tion in Employment Act (“ADEA”), 29 U.S.C. §
and Supplemental Complaint, Piper alleges                621 et seq. She bases her claims solely on title
she was denied the opportunity to compete for            VII, which does not list age as a protected charac-
a temporary position as Supervisory Systems              teristic. Accordingly, we do not consider Piper’s
Accountant, subsequently was not selected for            allegations of age discrimination with regard to the
                                                         USDA’s determination that she was ineligible to
a promotion to the permanent position of Su-
                                                         apply for the temporary Supervisory Systems
pervisory Systems Accountant, and was re-                Accountant position, its failure to select her for a
moved from the Leave Donor Program1 on ac-               permanent promotion, or its removal of her from
count of age, sex, and race and in retaliation           the Leave Donor Program.
for her history of filing complaints with the
EEOC. She accordingly asserts that the                      3
                                                               The temporary position, as officially adver-
USDA violated title VII when it took the                 tised, limited eligibilitySSalbeit mistakenlySSto
                                                         employees within the Controller Operations Divi-
                                                         sion (“COD”) of the NFC; Piper was not employed
                                                         in that division. The USDA contends that the fact
                                                         that the individual responsible for posting the
   1
     The Leave Donor Program is offered to NFC           position erred in limiting eligibility to COD em-
employees who meet certain criteria and who have         ployees is of no consequence. The USDA asserts
exhausted their sick and voluntary annual leave.         that regardless of the error, it was the posted
The program allows participants to receive addi-         limitation, and not Piper’s age, sex, race, or history
tional days of paid leave through the donations of       of filing EEOC claims, that led the department to
voluntary annual leave by other employees.               consider her ineligible for the position.

                                                     2
applicant. Additionally, the department asserts           terson v. Mobil Oil Corp., 335 F.3d 476, 487
that Piper was not “removed” from the Leave               (5th Cir. 2003).
Donor Program, but rather, her participation in
that program merely expired according to the                  Absent direct evidence, to establish a prima
medical documentation she had provided.                   facie case of employment discrimination under
Finally, the USDA asserts that even if Piper              title VII, a plaintiff must show that “(1) he
had been “removed” from the Leave Donor                   belongs to a protected group; (2) he was quali-
Program, her removal does not qualify as an               fied for the position sought; (3) he suffered an
adverse employment action necessary to sup-               adverse employment action; and (4) he was re-
port a prima facie case of discrimination,                placed by [or passed over in favor of] someone
because it was not an “ultimate employment                outside the protected class.” Price v. Fed.
decision.”                                                Express Corp., 283 F.3d 715, 720 (5th Cir.
                                                          2002) (citing McDonnell Douglas Corp. v.
   The district court granted summary judg-               Green, 411 U.S. 792, 802-05 (1973)). If the
ment, dismissing all of Piper’s claims with pre-          plaintiff succeeds in establishing his prima fa-
judice. Piper appeals, challenging only the               cie case, under the McDonnell Douglas frame-
summary judgment on her claim that the                    work “a presumption of discrimination arises
USDA declined to promote her on account of                and . . . the burden shifts to the defendant to
age, sex, and race.4                                      produce a legitimate, nondiscriminatory justi-
                                                          fication for its actions.” Id.
                       II.
    Rule 56(c) of the Federal Rules of Civil                 The defendant can satisfy this burden “by
Procedure states that summaryjudgment “shall              producing evidence, which, taken as true,
be rendered forthwith if the pleadings, deposi-           would permit the conclusion that there was a
tions, answers to interrogatories, and admis-             nondiscriminatory reason for the adverse ac-
sions on file, together with affidavits, if any,          tion.” Id. (internal quotations and citations
show that there is no genuine issue as to any             omitted). If the defendant carries this burden
material fact and that the moving party is en-            successfully, “the mandatory inference of dis-
titled to a judgment as a matter of law.” FED.            crimination created by the plaintiff’s prima
R. CIV. P. 56(c). We review a grant of sum-               facie case drops out.” Id.
mary judgment de novo, using the same crite-
ria as employed by the district court. Pat-                  The plaintiff then has the opportunity to
                                                          demonstrate that the defendant’s proffered
                                                          reason for the adverse action is pretextual. Id.
   4
     Read liberally, Piper’s brief argues only that       “On summary judgment, in this third step, the
the USDA’s contention that Jack was hired be-             plaintiff must substantiate his claim of pretext
cause of his superior qualifications is pretextual.       through evidence demonstrating that discrimi-
She makes no argument regarding the temporary             nation lay at the heart of the employer’s deci-
Supervisory Systems Accountant position or the            sion.” Id. With regard to a nonpromotion
Leave Donor Program; she makes no argument re-            claim, in this step the plaintiff must show that
garding retaliation, even with respect to her non-
                                                          he is “clearly better qualified [than the indi-
promotion claim. “It has long been the rule in this
                                                          vidual selected] for the position in question.”
circuit that any issues not briefed on appeal are
waived.” United States v. Thibodeaux, 211 F.3d
                                                          Odom v. Frank, 3 F.3d 839, 845 (5th Cir.
910, 912 (5th Cir. 2000).                                 1993). If the plaintiff can demonstrate that the

                                                      3
defendant’s asserted justification for the action       not promoted, which is an adverse employ-
is pretextual,                                          ment action, see Felton v. Polles, 315 F.3d
                                                        470, 486 (5th Cir. 2002); and (4) the person
   this showing, coupled with a prima facie             selected for the position is a man.
   case, may permit the trier of fact to con-
   clude that the employer discriminated                    The USDA states that it promoted Jack in-
   against the plaintiff without additional evi-        stead of Piper because he was the most quali-
   dence. Reeves v. Sanderson Plumbing                  fied applicant. According to the USDA, a Su-
   Prods., Inc., 530 U.S. 133, 148 (2000).              pervisory Systems Accountant is responsible
   However, such a showing will not always              “for managing, through subordinate sections,
   be enough to prevent summary judgment,               activities relating to the reconciliation, evalua-
   because there will be cases where a plaintiff        tion, and preparation of financial and account-
   has both established a prima facie case and          ing reports required by the Department of the
   set forth sufficient evidence to reject the          Treasury . . . and other agencies serviced by
   defendant’s explanation, yet “no rational            the NFC.” Because of his “extensive experi-
   factfinder could conclude that the action            ence,” including his service as Section Chief
   was discriminatory.” Id. Whether sum-                and Branch Chief in the Financial Reporting
   mary judgment is appropriate depends on              Branch of the Controller Operations Division
   numerous factors, including “the strength            of the NFC, the selecting official deemed Jack
   of the plaintiff’s prima facie case, the pro-        “an expert in financial government reporting”
   bative value of the proof that the employ-           and thus superiorly qualified for the position.
   er’s explanation is false, and any other evi-
   dence that supports the employer’s case                 It is Piper’s burden to rebut this asserted
   and that properly may be considered.” Id.            nondiscriminatory justification, and she has
   at 148-49.                                           brought forth no evidence indicating that she
                                                        is “clearly better qualified” than is Jack to
Price, 283 F.3d at 720.                                 serve as a Supervisory Systems Accountant.
                                                        Accordingly, the summary judgment is AF-
    As we have noted, Piper cannot success-             FIRMED.
fully state a claim of age discrimination under
title VII, because age is not a characteristic
protected by the statute. Additionally, she fails
to establish a prima facie case of race dis-
crimination, because the person selected for
the promotion in her stead, Jack, is also black.

   Piper has, however, successfully established
a prima facie case of sex discrimination: (1)
She is a member of a protected class (women);
(2) she was qualified for the position sought,
as evidenced by the NFC’s placement of her,
along with five other individuals, on the Roster
of Best Qualified for the permanent Supervi-
sory Systems Accountant position; (3) she was

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