                                IN THE UNITED STATES COURT OF APPEALS

                                                  FOR THE FIFTH CIRCUIT



                                                             No. 00-60549
                                                          (Summary Calendar)



ANN E. LUSK,
                                                                                                                       Plaintiff-Appellant,

                                                                     versus

DONALD H. RUMSFELD, Secretary, Department
of Defense (Defense Contract Audit Agency),
                                                                                                                    Defendant-Appellee.



                                     Appeal from the United States District Court
                              for the Southern District of Mississippi, Southern Division
                                                  1:96-CV-122-GR

                                                               May 07, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

           Ann E. Lusk (“Lusk”) appeals from the district court’s grant of judgment as a matter of law,

pursuant to Fed. R. Civ. P. 52, on her Title VII claims of race and sex discrimination and creation of

a hostile work environment. For the following reasons, we affirm the district court’s ruling.

                                  FACTUAL AND PROCEDURAL BACKGROUND

           After exhausting her administrative remedies, Lusk brought claims against the Secretary of



     *
      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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
the United States Department of Defense (“the Secretary”), under 42 U.S.C. § 2000e-16(c) of the

Civil Rights Act of 1964 (“Title VII”). Lusk, a white female, alleged discrimination on the bases of

race and sex.

        Lusk was employed with the Defense Co ntract Audit Agency (“the Audit Agency”), an

agency of the United States Department of Defense (“the Department of Defense”), from March 1974

to May 21, 1999. She worked as a supervisory auditor, with a rating of GS-511-13, at Ingalls

Shipbuilding in Pascagoula, Mississippi. Effect ive January 16, 1994, Lusk received an in-grade

reduction to the position of auditor, with a rating of GS-511-12. She received this demotion as a

result of a non-separation reduction in force.

        Auditors at the Audit Agency are evaluated on a five-level rating system. The possible ratings

are “Outstanding,” “Exceeds Fully Successful,” “Fully Successful,” “Minimally Acceptable,” and

“Unacceptable.” In determining which auditors would be subject to the reduction in force, one of the

criteria used was the employee’s ratings for the years 1991, 1992, and 1993. Lusk did not receive

a rating higher than “Fully Successful” during those years. In fact, as a supervisory auditor, she never

received a rating higher than “Fully Successful.” In her suit against the Secretary, Lusk complained

that she was treated differently from three similarly situated white males and a black female, all of

whom received better evaluations than she and were not subjected to a loss of grade and position.

She also claimed that she was harassed and ostracized by management and, as a result, transferred.



        John Compton (“Compton”), a white male, became Lusk’s supervisor in 1991. He conducted

Lusk’s performance review during the relevant period. Compton and Lou Esposito (“Esposito”), the

regional audit manager, agreed to reexamine Lusk’s evaluation when Lusk challenged her 1993


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performance rating. As part of this reexamination, Lusk was expected to provide specific reasons

as to why she considered her performance ratings inaccurate. Instead, she merely disagreed with the

ratings and requested that Compton provide specific instances to justify the ratings. Upon further

review of Lusk’s work, Compton found no reason to change the ratings.

        In his deposition, Compton stated that he had used the same methodology in evaluating Lusk

as he had used in rating Rose Mary Taylor (“Taylor”), a black female who received an “Exceeds Fully

Successful” rating. He also stated that Lusk’s performance did not warrant an “Exceeds Fully

Successful” rating because of her deficiencies in leadership ability, quality of audit services

supervised, and staff supervision. Moreover, Compton testified that he did not know that Lusk’s

rating would have an adverse effect on her position.

        Following a nonjury trial, the district court made findings of fact and conclusions of law

pursuant to Fed. R. Civ. P. 52. The court concluded that Lusk had failed to provide evidence, other

than her own subjective assertions, to support her claims of race and sex discrimination. Regarding

her hostile work environment claim, the court found t hat Lusk had failed to show that her

performance evaluations were based on her sex or that she had informed anyone that she received the

evaluations because of her sex. The district court granted the Secretary judgment as a matter of law

and dismissed Lusk’s suit with prejudice.1 Lusk now appeals the court’s ruling.

                                            DISCUSSION

        Lusk challenges t he district court’s grant of judgment as a matter of law in favor of the



    1
     In a previous ruling, the district court granted the Secretary’s summary judgment motion on
Lusk’s claims relating to her 1992 evaluation for failure to timely exhaust her administrative remedies.
The court determined, however, that the circumstances of the evaluation could be “considered in the
chain of events used for determining the remainder of the plaintiff’s charges.”

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Secretary. She claims that she presented sufficient evidence to support her claims of discrimination,

creation of a hostile work environment, and retaliation. Lusk also claims that the district court erred

in failing to address her allegations that the Department of Defense obstructed the investigation of

the Equal Employment Opportunity Commission (“EEOC”) into her complaint. Specifically, she

asserts that Compton instructed employees to be uncooperative with the investigators.

I.     Standard of Review

       “A federal court of appeals reviews a judgment on the merits of a nonjury civil case applying

the usual standards of review.” Jarvis Christian Coll. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.,

197 F.3d 742, 745 (5th Cir. 1999). We review the district court’s factual findings for clear error and

its legal conclusions de novo. See id. at 745-46. We will find a district court’s factual determination

to be clearly erroneous only “‘[w]hen after an examination of the entire evidence, we are ‘left with

the definite and firm conviction that a mistake has been committed.’” Luhr Bros. Inc., v. Shepp (In

re Luhr Bros. Inc.), 157 F.3d 333, 338-39 (5th Ci r. 1998) (quoting Justiss Oil Co., Inc. v. Kerr-

McGee Ref. Corp., 75 F.3d 1057, 1062 (5th Cir. 1996)). Furthermore, “[i]f the district court’s

account of the evidence is plausible in light of the record reviewed as a whole, [we] may not reverse

even if [we are] convinced that, had [we] been sitting as the trier of fact, [we] would have weighed

the evidence differently.” Jarvis Christian College, 197 F.3d at 746.

II.    Waived Claims

       As an initial matter, we note that Lusk did not present her claim of retaliation to the district

court, and thus we will not consider it in this appeal. See Texas v. United States, 730 F.2d 339, 358

n.35 (5th Cir. 1984). Similarly, we decline to consider her claim that the Department of Defense




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obstructed the investigation into her complaint, as this claim was not presented to the district court.2

III.       Lusk’s Claims of Sex and Race Discrimination

           To prevail on a Title VII discrimination claim, a plaintiff is required to establish a prima facie

case of discrimination. See Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 901-02 (5th Cir.

2000). Specifically, she must show that (1) she is a member of a protected class; (2) she suffered an

adverse employment action; (3) she was at all times qualified for her position; and (4) she was treated

differently than similarly situated employees outside of the protected class. See Lacy v. Sitel Corp.,

227 F.3d 290, 293 (5th Cir. 2000). The defendant “then has the opportunity to rebut the inference

of discrimination by producing a legitimate, non-discriminatory business justification for the action,

under the familiar burden-shifting approach first articulated by the Supreme Court in McDonnell

Douglas.”3 Id. The plaintiff must then show that she was subjected to discrimination and that any

asserted non-discriminatory justification is merely pretext. See id. at 293-94.

           Recently, the Supreme Court resolved a split among the circuits on the issue of whether a

defendant is entitled to judgment as a matter of law where a discrimination plaintiff’s case consists

only of a prima facie case under McDonnell Douglas and sufficient evidence for a reasonable trier of

fact to reject the defendant’s legitimate, nondiscriminatory explanation for its decision. See Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140 (2000). The Court found that such evidence

is sufficient for a plaintiff to withstand a grant of judgment as a matter of law in favor of the

defendant. Id. at 148. This Court has on several occasions articulated the post-Reeves standard.


       2
    The Secretary also argues that the tort claims asserted by Lusk in her complaint have not been
administratively exhausted and are preempted under Title VII. As Lusk has not addressed the tort
claims in this appeal, we consider them abandoned.
   3
       See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

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See, e.g., Evans v. City of Bishop, 238 F.3d 586, 591 (5t h Cir. 2000) (finding that a plaintiff may

survive summary judgment once she has “established a prima facie case of discrimination and put

forth sufficient evidence for a fact finder to find [the employer’s] proffered reasons to be pretextual”);

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000) (“‘[A] plaintiff’s prima facie

case, combined with sufficient evidence to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated.’”). Thus, to avoid a

grant of judgment as a matter of law, a prima facie showing by Lusk coupled with sufficient evidence

of pretext may have been sufficient.

        The Secretary argues that Lusk failed to establish a prima facie case of race or sex

discrimination and that she did not rebut his legitimate, nondiscriminatory reasons for her 1993

performance evaluation. “Because the ebb and flow of the burden-shifting is intended to apply at

interim stages of a proceeding, i.e., when a party’s rights are affected by a record containing less than

full proof, . . . a reviewing court need not examine the adequacy of the showing at any stage of the

burden-shifting framework after a case has been fully tried on the merits.” Boehms v. Crowell, 139

F.3d 452, 457-58 (5th Cir. 1998). Thus, because Lusk and the Secretary “have been allowed to

present their full proof,” our task “is simply to determine ‘whether there was sufficient evidence from

which a reasonable trier of fact could have concluded that [race or sex] discrimination occurred.’”

Id. at 458 (quoting Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252-53 (5th Cir. 1996)). We find

that there was not.

        The Secretary asserts that Lusk’s race discrimination claims are based solely on conjecture

and that her allegations are conclusory. We agree. Because three similarly situated employees who

received higher evaluations than Lusk are white, Lusk’s claim that she was treated differently because


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of her race can only be with respect to Taylor, the only nonwhite supervisory auditor. However,

Lusk’s claim that she was treated less favorably than Taylor, a black female supervisory auditor,

because of race is simply not supported by any evidence. In fact, Lusk only points to an amorphous

threat by Taylor to file a claim with the EEOC if Taylor received a rating less than “Exceeds Fully

Successful.” Assuming that there was a genuine threat, that one employee has intimidated her

superviso r to treat her more favorably than another employee is not a basis for a claim of race

discrimination because race was not the motivation for the different treatment. Rather, the threat was

the motivating factor. Therefore, assuming that Lusk has established a prima facie case of racial

discrimination, she has offered nothing, other than her own opinion, to rebut the Secretary’s

legitimate, nondiscriminatory reason for giving her a lower evaluation than Taylor. Moreover, that

three other white supervisory auditors received higher ratings than Lusk strongly indicates that race

was not a factor in Lusk’s evaluation.

       With respect to her sex discrimination claim, Lusk has offered no evidence beyond the prima

facie case other than her own subjective opinions. She simply argues that she does not feel that she

was evaluated fairly, particularly given that other auditors regularly sought advice from her and

thought highly of her ability. Regarding Compton, she stated the following opinion in her deposition:

“I don’t think it was that [Compton] didn’t like me. I think he did not like a female that had more

knowledge than him.” However, Lusk also conceded that she had never, even before Compton

became her supervisor, received a rating higher than “Fully Successful” while she was a supervisory

auditor. Moreover, when given the opportunity by Esposito to provide specific reasons as to why

she considered her performance ratings inaccurate, Lusk only disagreed with her ratings in a

subjective manner.


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        “[M]ere acceptance of an employee’s favorable assessment of his own qualifications generally

cannot permit a factfinder to conclude that an employer’s reasons for a challenged employment action

are pretextual.” Boehms, 139 F.3d at 459. There must be some other evidence from which to infer

discriminatory intent. While Lusk does point to an incident in which Compton yelled at her in the

presence of other supervisory auditors, it is insufficient to establish discriminatory intent in light of

the other evidence, namely that Lusk had never received a rating higher than “Fully Successful” and

that another woman, Taylor, received an “Exceeds Fully Successful”rating from Compton.

Accordingly, we find that the district court’s conclusion that Lusk offered no evidence to support a

finding of intentional discrimination is not clearly erroneous.

IV.     Lusk’s Claims of Hostile Work Environment

        To support a claim of hostile work environment, a plaintiff must demonstrate the following:

“(1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment (3)

based on sex, (4) which affected a term, condition, or privilege of her employment; and (5) that her

employer knew, or should have known, of the harassment and failed to take prompt remedial action.”

Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999). Lusk has

wholly failed to establish a hostile work environment claim. In fact, she only states in a very

conclusory fashion that she was subjected to an “abusive work environment.” Furthermore, as the

district court found, Lusk has not shown that she informed anyone that she was subjected to abuse

because of her sex. Thus, we do not find that the district court erred in dismissing her hostile work

environment claim.

                                           CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of judgment as a matter of


                                                   8
law in favor of the Secretary and its dismissal of Lusk’s Title VII claims.

AFFIRMED.




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