     Case: 17-30373   Document: 00514557882     Page: 1   Date Filed: 07/17/2018




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

                                 No. 17-30373                         FILED
                                                                  July 17, 2018
                                                                 Lyle W. Cayce
JOHN F. STROY,                                                        Clerk

             Plaintiff – Appellant,

v.

SLOAN GIBSON, Interim Secretary on behalf of Department of Veterans
Affairs,

             Defendant – Appellee.




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before ELROD, COSTA, and HO, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      John Stroy filed suit against his employer, the Department of Veterans
Affairs, alleging racial discrimination and retaliation under Title VII of the
Civil Rights Act of 1964. The district court dismissed Stroy’s retaliation claim
for lack of subject matter jurisdiction and granted summary judgment in favor
of the VA on Stroy’s discrimination claim. For the reasons below, we AFFIRM.
                                       I.
      John Stroy is an African-American male employed by the Department of
Veterans Affairs as a primary care physician. He practices at the Lafayette
Community Based Outpatient Clinic. In 2011, Stroy examined and ordered
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                                  No. 17-30373
lab tests for a patient with a history of bladder cancer, urinary tract infections,
prostate cancer, and lung cancer. Two days later, a different clinic physician
saw the same patient, and then six days after that, another clinic physician
saw the patient. About two weeks later, Stroy saw the patient again, ordered
lab tests, and adjusted the patient’s medications. Stroy was on leave when the
results from the lab tests were ready, and he did not review the results. Two
days after Stroy saw the patient the second time, a clinic psychiatrist saw the
patient, and, that same day, the patient was admitted with acute renal failure
to the Alexandria Veterans Affairs Medical Center.
      Under the VA’s policies, there are specific events that may trigger peer
review of a doctor’s patient care. Relevant here, the VA may conduct a peer
review: (1) after abnormal lab results are not reviewed by a physician; or (2)
after a patient is admitted to the hospital within three days of an ambulatory
care visit. The peer review process is meant to improve patient care, and the
information gathered during the process “may not be used for personnel
actions, disciplinary action, to affect privileges, or to affect employment.”
      A peer review committee looked into Stroy’s medical care of the patient
who suffered acute renal failure and determined that “[m]ost experienced
competent practitioners would have managed the case differently.” When
Stroy learned about the peer review committee and its determination, he
requested both an opportunity to respond and an explanation for
“inconsistencies” in the peer review procedure.             A second peer review
committee meeting was scheduled, cancelled, and rescheduled.              After the
second meeting was rescheduled but before it was held, Stroy contacted an
EEO counselor, claiming racial discrimination based on this allegedly
improper peer review.


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                                     No. 17-30373
       When the second peer review committee met, Stroy participated via
video teleconference. The committee revised its finding and determined that
“most experienced competent practitioners would have managed the case in a
similar manner.” Despite the committee’s revised finding, Stroy subsequently
filed an official EEO complaint of discrimination in December 2011.
      About nine months after Stroy filed his discrimination claim, Stroy
allegedly left a patient unattended in an examination room. This incident was
reported to Dr. Suzanne Taylor, the Acting Chief of Staff for the Alexandria
Veterans Medical Center. Stroy insists that the patient was waiting for further
counseling from either a nurse or social worker, so Stroy took his normal lunch
break because everyone was busy. Taylor investigated the incident, and Stroy
was required to travel to Alexandria for a fact-finding meeting. Eventually, a
memorandum was issued, detailing the incident and concluding that “Stroy
left a Veteran in a room for a period of time without addressing his needs for
medications.” Taylor also sent Stroy a memorandum, addressing this incident
and outlining expectations for his behavior in the future.
       Based on these incidents, Stroy sought to amend his administrative
complaint to include a claim of retaliation. The EEO administrative judge
denied his motion to amend his original EEO complaint of discrimination to
add this retaliation claim. On February 5, 2013, Stroy submitted a separate
EEO complaint alleging retaliation. The Office of Resolution Management
accepted the complaint on March 4, 2013. 1 On August 2, 2013, crucially fewer
than 180 days from when Stroy filed his EEO complaint, Stroy filed—in federal
court—a pro se complaint, alleging race discrimination and retaliation.



       1 Stroy’s administrative case was eventually dismissed because of the pending action
in federal court.
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                                  No. 17-30373
      The district court dismissed Stroy’s retaliation claim for lack of subject
matter jurisdiction. It determined that Stroy filed his claim in federal court
prematurely and thus failed to exhaust his administrative remedies. As a
result, the district court reasoned, it did not have subject matter jurisdiction
over Stroy’s retaliation claim.    The district court also granted summary
judgment in favor of the VA on Stroy’s discrimination claim because it
determined that he had not established a prima facie case of racial
discrimination. Stroy filed a motion to amend the judgment arguing that the
district court should have remanded the retaliation claim to the agency rather
than dismissed it with prejudice, but the district court denied this motion.
      On appeal, Stroy argues that the district court should not have dismissed
his retaliation claim for a lack of subject matter jurisdiction. According to
Stroy, Title VII’s administrative exhaustion requirement is not a jurisdictional
requirement. He also insists that he did establish a prima facie case of racial
discrimination. Specifically, he asserts that the VA discriminated against him
when his patient care was subjected to peer review while the care provided by
white physicians, who also provided medical care to that same patient, was not
reviewed.
                                      II.
      We review the question of subject matter jurisdiction de novo. See Nat’l
Football League Players Ass’n v. Nat’l Football League, 874 F.3d 222, 225 (5th
Cir. 2017). We also review de novo a grant of summary judgment. Banks v. E.
Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). Summary
judgment is appropriate only if “the movant shows that there is no genuine




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                                  No. 17-30373
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
                                         III.
                                         A.
      Before seeking relief in federal court, Title VII plaintiffs must exhaust
their administrative remedies. Davis v. Fort Bend Cty., 893 F.3d 300, 303 (5th
Cir. 2018). Administrative exhaustion has not been satisfied until either: “(1)
the employee receives notice of final agency action or by the EEOC upon appeal
from an agency decision, or (2) 180 days have passed from the filing of the
administrative complaint or appeal thereof without final agency action.” Ruiz
v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (citing 42 U.S.C. § 2000e-16(c)).
      As Stroy admits, he failed to exhaust his administrative remedies
because he filed in federal court prematurely, two days shy of the statutorily-
mandated 180 days. See 42 U.S.C. § 2000e-16(c). Based on Stroy’s premature
filing, the district court dismissed his action for lack of subject matter
jurisdiction. As we have held, however, Title VII’s administrative exhaustion
requirement is not a jurisdictional requirement.       Davis, 893 F.3d at 306;
Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 169 (5th Cir. 2018);
see also Womble v. Bhangu, 864 F.2d 1212, 1213 (5th Cir. 1989). Rather, it is
only a precondition to filing suit, subject to waiver or estoppel defenses. Davis,
893 F.3d at 306.
      Nevertheless, the district court’s error makes no difference in this case.
Stroy does not offer a waiver or estoppel argument to excuse his failure to
exhaust, and he only insists that his “good faith effort” to comply with the
regulations is enough to save his claim. Even though Stroy insists that a court
can exercise its equitable powers to excuse his premature filing, he fails to
articulate a reason why we should do so in this particular case. Indeed, in the
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district court, he gave no justification for his failure to abide by the filing rules.
“Administrative exhaustion is important because it provides an opportunity
for voluntary compliance before a civil action is instituted.” Id. at 307. Even
though administrative exhaustion is not a jurisdictional requirement, it is still
a requirement.       Given that Stroy offers no justification for his failure to
exhaust, we affirm the district court’s dismissal of Stroy’s retaliation claim. 2
                                             B.
       Stroy also argues that the district court erred when it granted summary
judgment in favor of the VA on his racial discrimination claim. Title VII
plaintiffs may prove a racial discrimination claim either by direct or
circumstantial evidence. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007).     We use the well-known burden-shifting analysis set forth in
McDonnell Douglas for cases, such as this one, with only circumstantial
evidence of discrimination. Id. Under the McDonnell Douglas framework, the
plaintiff must first make out a prima facie case for race discrimination, by
showing that he “(1) is a member of a protected group; (2) was qualified for the
position at issue; (3) was discharged or suffered some adverse employment
action by the employer; and (4) was replaced by someone outside his protected
group or was treated less favorably than other similarly situated employees
outside the protected group.” Id. If the plaintiff makes this showing, the




       2 When a district court dismisses a claim for failure to exhaust under Federal Rule of
Civil Procedure 12(b)(6), the dismissal is without prejudice so that a plaintiff may return to
court after he has exhausted his administrative remedies. Martin K. Eby Constr. Co. v. Dall.
Area Rapid Transit, 369 F.3d 464, 467 n.5 (5th Cir. 2004). Even though the district court
here dismissed Stroy’s claim under Rule 12(b)(1), not Rule 12(b)(6), the result is the same:
dismissal without prejudice.
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burden then shifts to the employer to set forth some legitimate, non-
discriminatory reason for its decision. Id. at 557.
       As the district court held, Stroy failed to raise a genuine issue of material
fact as to the third element of the prima facie case of racial discrimination. 3
The VA’s peer review process is not an “adverse employment action” under
Title VII. Adverse employment actions are “‘ultimate employment decisions’
such       as   hiring,   firing,   demoting,     promoting,      granting     leave,    and
compensating.” Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014).
As we have explained, “[a]n employment action that does not affect job duties,
compensation, or benefits is not an adverse employment action.” Id. (quoting
Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)). The VA’s policy
is clear: the information gathered through the peer review process “may not be
used for personnel actions, disciplinary action, to affect privileges, or to affect
employment.”         We have a “stringent” standard for showing an adverse
employment action. Pegram, 361 F.3d at 282–83. Stroy offered no evidence
that he suffered a reduction in privileges, job responsibilities, or pay as a result
of the peer review process. In fact, the peer review committee eventually
revised its determination as to Stroy’s patient care, finding that “[m]ost
experienced competent practitioners would have managed the case in a similar
manner.” Based on Stroy’s failure to show an adverse employment action, the




       3 The parties do not dispute that Stroy was a member of a protected class and qualified
for his position, satisfying both the first and second elements.
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                                        No. 17-30373
district court did not err in granting the VA’s motion for summary judgment
on Stroy’s racial discrimination claim. 4
       AFFIRMED. 5




       4 In any event, Stroy failed to establish the fourth element of his prima facie case of
racial discrimination. As the district court correctly determined, Stroy did not raise a genuine
issue of material fact with respect to his allegation that other similarly situated persons, i.e.,
other physicians, were treated more favorably. The physicians that Stroy employed as
comparators were not similarly situated because either: (1) the type or (2) the timing of their
medical care did not meet the criteria for peer review under the VA’s policy.

       5 The district court also denied Stroy’s motion to alter or amend the judgment.
Because Stroy did not brief this issue, his challenge to that ruling is forfeited. United States
v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (holding that an issue was “not adequately
presented” when the brief did “not discuss it in any depth”).
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