                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                        In The United States Court Of Appeals                           February 7, 2007
                                For The Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                          No. 06-20752
                                        Summary Calendar


RUBY PRESTON,

                Plaintiff — Appellant,

                v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

                Defendant — Appellee.



                         Appeal from the United States District Court
                             For the Southern District of Texas
                                     No. 4:05-CV-334


Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

          Ruby Preston sued the Texas Department of Family and Protective Services (TDFPS),

alleging race discrimination and unlawful retaliation in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e (Title VII). The district court granted TDFPS’s

motion for summary judgment on all of Preston’s Title VII claims, and Preston appeals. We

affirm.


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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

       Preston, who is African-American, began working for TDFPS in 1990. In late 2001,

she was assigned to a position in a unit supervised by Krista Rodriguez, who is white.

Preston received positive evaluations from Rodriguez during 2001 and 2002. In October

2002, Preston reported to Rodriguez that other employees were complaining that Dory Allen,

a white supervisor under Rodriguez’s supervision, was discriminating against them because

they were African-American.

       Preston contends that Rodriguez began to treat her differently after she reported

Allen’s discrimination. Preston received her first “unsuccessful” evaluation from Rodriguez

for the period from January to July 2003. In January 2004, Preston filed an internal

administrative complaint against Rodriguez alleging, inter alia, race discrimination. A

TDFPS investigation concluded that there was no evidence of discrimination.

       On Friday, April 23, 2004, Preston was the “on-call” caseworker for child death cases.

At 9:00 p.m., she received a referral for a case involving an infant that had died of massive

internal injuries, in which the father was the alleged perpetrator. The infant’s mother and

a surviving sixteen-month old sibling had taken the infant to the hospital, and the father’s

whereabouts were unknown. This case was given a Priority I designation, which means that

the caseworker must initiate the investigation within 24 hours of receiving the assignment.

In cases involving physical or sexual abuse of a child, TDFPS and law enforcement conduct

a joint investigation, and the TDFPS caseworker must first contact the Houston Police

Department (HPD) dispatcher in order to make contact with the police officers assigned to

                                             2
the case.

       After receiving the Priority I call, Preston called the hospital to locate the mother and

sibling, but she was told that they had left the hospital with police officers to go to a

relative’s house. Preston then called HPD and left voice mail messages for the two officers

assigned to the case. Preston never called the HPD dispatcher to make contact with the

officers. Preston attempted to contact the officers over the weekend, but was told that they

were off duty until Monday. Preston also made two visits to the family’s home over the

weekend, but the home was empty on both occasions. In her deposition, Preston admitted

that she did not expect the family to be at the home and that she did not wear professional

attire during these visits. Preston finally made contact with one of the officers on Monday

afternoon, and he told her where the mother and sibling were staying. On Tuesday, four

days after receiving the case, Preston finally made contact with the mother and sibling, and

she took the sibling into custody at that time.

       Jennifer Williams, the TDFPS risk director, e-mailed Preston on April 26, 2004 to ask

about the child death case. Over the course of the next few days, in a series of emails and

phone calls, Preston made several disrespectful comments about Williams and Rodriguez and

accused them of calling her a liar.

       On April 23, 2004, in another TDFPS case, Preston left a message on a client’s

answering machine, and the client complained to TDFPS that the message was

unprofessional and discourteous.       Rodriguez and Bella Alex, the TDFPS program

administrator, independently listened to the message and determined that it was

                                               3
unprofessional and in violation of department policy, and Preston’s involvement with that

case was terminated. Preston maintained that the message was appropriate.

       On April 29, 2004, Preston was involved in another Priority I case. Preston told

Rodriguez that she staffed the case with Dorothy Oakes, another supervisor, but Preston did

not include this information in the reports that she submitted on May 27, 2004 and June 1,

2004. On June 2, 2004, Rodriguez contacted Oakes who said that Preston had never placed

her on the case.

       On May 6, 2004, Rodriguez met with Preston to discuss several violations of

department policy, and in late May of 2004 Preston received two sets of Rodriguez’s written

conference notes from this meeting. In response to this meeting, Preston filed a second

administrative complaint against Rodriguez at the end of May 2004, alleging that Rodriguez

was retaliating against her for filing the earlier complaint. On June 9, 2004, Rodriguez and

Alex recommended that Preston be terminated for violating several department policies.

Rodriguez informed Preston of the recommendation on June 21, 2004. Randy Joiner, the

TDFPS Regional Director, terminated Preston’s employment on June 29, 2004. Preston

appealed her dismissal internally, and an administrative law judge upheld the termination

after finding that Preston had violated department policy.          Next, Preston filed a

discrimination charge with the Equal Employment Opportunity Commission (EEOC) and

received a right-to-sue letter. Preston then filed this suit.

                                               II

       The first issue on appeal, subject to de novo review, is whether Preston exhausted her

                                               4
administrative remedies before filing suit.1 A plaintiff must file a charge of discrimination

with the EEOC before a court may consider her Title VII claims.2 We must examine

Preston’s complaint in light of the charges filed in her administrative complaint to determine

whether she satisfied this requirement as to each of her claims.

       Two dueling principles govern our determination of whether the Preston exhausted

her administrative remedies: (1) “[c]onsistent with the remedial purposes underlying Title

VII, we construe employment discrimination charges with the ‘utmost liberality,’ bearing in

mind that such charges are generally prepared by laymen untutored in the rules of pleading,”3

and (2) the charge must contain an adequate factual basis so that it puts the employer on

notice of the existence and nature of the charges and so the EEOC may have an “opportunity

to attempt to obtain voluntary compliance.”4 Based on these principles, a Title VII suit “may

be based, not only upon the specific complaints made by the employee’s initial EEOC

charge, but also upon any kind of discrimination like or related to the charge’s allegations,

limited only by the scope of the EEOC investigation that could reasonably be expected to

grow out of the initial charges of discrimination.”5



       1
        See Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.), cert. denied 127 S. Ct. 299 (2006).
       2
        Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).
       3
        Price v. Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982).
       4
        Sanchez, 431 F.2d at 467; Price, 687 F.2d at 78; Manning v. Chevron Chem. Co., 332 F.3d
874, 878-79 (5th Cir. 2003).
       5
        Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983).

                                                5
       Preston alleges that TDFPS discriminated and retaliated against her in numerous

ways, including assigning her too much work, assigning her work that was not assigned to

white workers, assigning her work that was outside of her job description, and refusing to

pay her for overtime. In the charge filed with the EEOC, however, Preston only alleged

discrimination and retaliation in connection with two written admonishments, given on May

24, 2004 and the first week of June 2004, and with her termination. The crucial element of

a charge of discrimination is the factual statement contained therein.6 Therefore, Preston

satisfied the prerequisite of filing an administrative complaint with the EEOC prior to

initiating her Title VII lawsuit only as to the discrimination and retaliation claims involving

the two written admonishments and Preston’s termination. Preston failed to exhaust her

administrative remedies as to her other allegations.

                                              III

       Having determined which issues were properly included in Preston’s complaint, we

must next determine whether the district court’s grant of summary judgment to TDFPS on

these issues was proper. We review a district court’s grant of summary judgment de novo.7

Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter



       6
        Sanchez, 431 F.2d at 462.
       7
        Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004).

                                              6
of law.”8 An issue as to a material fact is “genuine” if the evidence would permit a

reasonable jury to return a verdict for the non-moving party.9 We construe the evidence in

the light most favorable to the non-moving party and draw all reasonable inferences in her

favor.10 “We may affirm summary judgment on any legal ground raised below, even if it was

not the basis for the district court’s decision.”11

                                                    A

         A plaintiff may prove a Title VII discrimination claim through direct or circumstantial

evidence.12 Absent direct evidence of discrimination, McDonnell Douglas Corp. v. Green13

and its progeny establish the burden-shifting analysis to be applied. In order to overcome

a motion for summary judgment on her discrimination claim, the plaintiff must first establish

a prima facie case of discrimination, which entitles her to a presumption of discrimination.14

The defendant may rebut this presumption by presenting a legitimate, nondiscriminatory




         8
          FED. R. CIV. P. 56(c).
         9
        Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
         10
              Id.
         11
              Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir.
2003).
         12
              Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
         13
              411 U.S. 792 (1973).
         14
              Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).

                                                    7
reason for its actions.15 Under the traditional McDonnell Douglas analysis, the plaintiff must

then offer sufficient evidence to create a genuine issue of material fact that the defendant’s

proffered reasons for its action are pretextual.16

       To establish a prima facie case of discrimination, a plaintiff must provide evidence

that she “(1) is a member of a protected class; (2) was qualified for her position; (3) was

subject to an adverse employment action; and (4) was replaced by someone outside the

protected class, or, in the case of disparate treatment, shows that others similarly situated

were treated more favorably.”17 There is no dispute as to the first two elements of Preston’s

prima facie case. Preston’s claim that TDFPS unlawfully discriminated against her by giving

her two written admonishments, however, does not survive the third element. As to

discrimination claims, “Title VII was designed to address ultimate employment decisions,

not to address every decision made by employers that arguably might have some tangential

effect upon those ultimate decisions.”18 Written admonishments do not rise to the level of

ultimate employment actions.

       Preston’s claim that TDFPS unlawfully discriminated against her by terminating her

fails at the fourth element. Because Preston failed to present any evidence that she was


       15
            Id.
       16
            Id.
       17
            Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
       18
         Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (per curiam); see also Burlington N.
& Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2410-14 (2006) (discussing the differences in the
adverse employment actions prohibited by Title VII’s substantive and anti-retaliation provisions).

                                                  8
replaced, her burden “was to establish that the misconduct for which she was discharged was

nearly identical to that engaged in by” an employee of another race whom TDFPS retained.19

While Preston points to the alleged preferential treatment given to several employees to

satisfy this burden, she fails to present any evidence that those employees engaged in “nearly

identical” misconduct for which she was terminated. Preston only cited the case of one

employee that was arguably similar to her situation. TDFPS claims that one of the reasons

that Preston was terminated was for failing to make contact with the mother and surviving

sibling in a Priority-I child death case within 24 hours. In her deposition, Preston claimed

that Stephanie Hammond, a white employee, was not terminated even though she did not

make contact with a family for five days in a child death case with a surviving sibling. But

Preston admitted that she “had no idea” about the circumstances of that case but had “heard”

that the family “left for Mexico” so Stephanie Hammond “couldn’t have possibly made

contact within five days.” Preston presented no other evidence about that case. Preston’s

unsubstantiated assertion is insufficient to raise a fact issue that a similarly situated employee

was treated more favorably.20 Accordingly, Preston has failed to establish a prima facie case

on her discrimination claims.

                                                   B



       19
            Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. 1982).
       20
         See Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004) (“[T]he
nonmovant cannot satisfy [her] burden with conclusory allegations, unsubstantiated assertions, or
only a scintilla of evidence.”).

                                                   9
       The same burden-shifting analysis applicable to Preston’s Title VII discrimination

claims also applies to Preston’s Title VII retaliation claims.21 To establish a prima facie case

of unlawful retaliation, the plaintiff must provide evidence that (1) she engaged in activity

protected by Title VII, (2) an adverse employment action occurred, and (3) a causal link

existed between the protected activity and the adverse employment action.22 If the plaintiff

establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate

a legitimate, non-retaliatory reason for the action.23 If the defendant articulates a legitimate

reason, the burden then shifts back to the plaintiff to show that the defendant’s stated reason

is pretextual.24 Under this final burden, the plaintiff must show that “but-for” the protected

activity, the adverse action would not have occurred.25

       TDFPS contends that Preston failed to establish a prima facie case of unlawful

retaliation. We need not make that determination in this case, however, because Preston has

failed to create a fact issue at the third step of the burden shifting analysis. We therefore

assume without deciding that Preston established a prima facie case.

       Under the second step of the burden-shifting analysis, where there is a close timing

between an employee’s protected activity and an adverse employment action, the employer


       21
            Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
       22
            Id.
       23
            Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001).
       24
            Id.
       25
            Id.

                                                  10
must offer “a legitimate, nondiscriminatory reason that explains both the adverse action and

the timing.”26 TDFPS has articulated several legitimate, non-discriminatory reasons for the

two written admonishments, Preston’s termination, and the timing of those decisions.

TDFPS contends that it gave Preston the two admonishments in late May 2004 and

terminated her in June 2004 because Preston violated several department policies in April,

May, and June 2004. Preston allegedly violated department policies in late April 2004 when

she mishandled a child death case by failing to make contact with the family within 24 hours,

failing to call the police dispatch, and failing to contact her supervisor or the risk director

after she did not make contact with the family within 24 hours. TDFPS also maintains that

Preston violated department policies in April, May and June 2004 by wearing inappropriate

attire during an investigation; engaging in unprofessional written and verbal communications

with her co-workers, supervisors, and clients; and misrepresenting to her supervisor that she

had staffed a case with another supervisor.

       At the third step of the analysis, the burden shifts to Preston to show that TDFPS’s

proffered legitimate reasons are pretextual. Preston must rebut each legitimate reason

articulated by TDFPS.27 Our inquiry is not whether TDFPS’s proffered reasons were

incorrect; instead, our concern is whether TDFPS’s legitimate reasons, accurate or not, were

the real reasons for her written admonishments or termination.28 Preston did present some

       26
            Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
       27
            See Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       28
            Id. at 579.

                                                  11
evidence of pretext on two of TDFPS’s proffered reasons: (1) Preston’s failure to make face-

to-face contact with the family within 24 hours and (2) Preston’s failure to contact her

supervisor or the risk director in a timely manner. However, Preston failed to rebut TDFPS’s

other articulated reasons. Preston failed to produce any evidence that her (1) failure to call

police dispatch in the child death case; (2) inappropriate attire; (3) inappropriate written and

verbal    communications      with    her   co-workers,     supervisors,    and   clients;   or

(4) misrepresentation to her supervisor were not TDFPS’s real reasons for the

admonishments or her termination. Preston failed to create a genuine issue of material fact

that TDFPS’s proffered reasons were pretextual.

         For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment for TDFPS on all of Preston’s Title VII claims.




                                              12
