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

                                                                            FILED
                                                                        December 10, 2008

                                     No. 08-50448                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MICHAEL SMART

                                                  Plaintiff-Appellant
v.

PETE GEREN, Secretary of the Army

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                             Western District of Texas
                              USDC No. 3:07-CV-291


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Michael Smart appeals the district court’s order granting summary
judgment in favor of Pete Geren on Smart’s claims of race discrimination and
retaliation for protected activities under Title VII of the Civil Rights Act of 1964.
Finding no error, we affirm.
       Smart, an African-American, was fired by the Department of the Army
during his initial probationary period as a police officer. His supervisor issued


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-50448
a discharge letter that stated Smart had falsely identified himself to a military
member, exhibited discourteous behavior, failed to salute military members, and
refused to follow instructions from supervisors. Following his termination,
Smart applied for a similar position at a different Army installation while
claiming still to be employed as an officer. His previous supervisor offered a
negative recommendation that included information on Smart’s termination.
Smart was not selected.
      Smart then filed a formal complaint of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging that the negative job
reference stemmed from racial discrimination, retaliation, and disparate
treatment. After an investigation, the EEOC determined that Smart’s non-
selection was based upon his work history and termination from his previous
employment. Smart then filed two more EEOC complaints. Smart alleged race
discrimination and retaliation for protected activity as the basis for his
termination from his first job. The EEOC also found these claims to be without
merit.
      Once his administrative appeals were final, Smart filed suit in district
court. The district court found that Smart could not establish a prima facie case
for discrimination or retaliation as the basis for his termination or non-selection.
Even assuming that Smart met his prima facie burden, the district court further
concluded that Smart could not demonstrate that the legitimate reasons for
termination and non-selection given by the Department of the Army were a
pretext for discrimination or retaliation.
      This court reviews a district court’s grant of summary judgment de novo.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is
proper “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue




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as to any material fact.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)
(quoting Fed. R. Civ. P. 56(c)).
      A prima facie claim for retaliation for an activity protected under Title VII,
requires proof that “(1) [a plaintiff] engaged in an activity protected by Title VII;
(2) he was subjected to an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse employment action.” Davis
v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
      As to his claim of retaliatory termination from his law enforcement
position, Smart did not demonstrate that before termination, he had either
“(1) ‘opposed any practice made an unlawful employment practice’ by Title VII
or (2) ‘made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing’ under Title VII.” Long v. Eastfield Coll.,
88 F.3d 300, 304 (5th Cir. 1996)(quoting 42 U.S.C. § 2000e-3(a)). Although
Smart filed two unfair labor practices charges before being terminated, nothing
in either form indicates that the complaints concerned the infraction of a right
with redress under Title VII. He thus raised no fact issue that he engaged in
“protected activity” while employed for purposes of Title VII.
      Smart also contends that his non-selection resulted from retaliation for
Title VII protected activity. Although Smart did not file an EEOC complaint
until after he had been rejected for the second position, he argues in his brief
that he attempted to file and made contact with an EEOC office immediately
after he was fired. Smart, however, does not show that a causal link exists
between this action and his non-selection for the second job. To the contrary, the
record demonstrates that Smart’s non-selection was based on his termination
from his earlier position, at which he had falsely claimed still to be working.
With nothing more than assertions to maintain his retaliation claim, Smart
cannot meet his prima facie burden.



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      Smart’s claim of retaliation for protected religious activity was not brought
up in any of his EEOC complaints. He has failed to exhaust his administrative
remedies with regard to this claim and we do not consider it. See Randel v.
United States Dep't of Navy, 157 F.3d 392 (5th Cir. 1998).
      Finally, before the EEOC and district court, Smart claimed that he was
discriminated against based on his race. After reviewing Smart’s brief and
finding no related arguments, we find this claim waived on appeal. “[A]lthough
we liberally construe the briefs of pro se appellants, we also require that
arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).
      For the reasons stated, the judgment of the district court is AFFIRMED.




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