     Case: 10-50037     Document: 00511249788          Page: 1    Date Filed: 09/30/2010




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

                                                  FILED
                                                                        September 30, 2010

                                     No. 10-50037                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ANNIE L. MZYK,

                                                   Plaintiff-Appellant
v.

NORTH EAST INDEPENDENT SCHOOL DISTRICT,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 5:08-CV-00344


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Annie L. Mzyk appeals the district court’s entry of
summary judgment dismissing all of Mzyk’s claims against her employer. For
the reasons stated herein, we affirm the district court’s judgment.
                                              I.
        Mzyk filed pro se various discrimination claims against her employer,
Defendant-Appellee North East Independent School District (“NEISD”), in the


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-50037

district court. Specifically, she has raised claims pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq. (“Title VII”) for
discrimination based on her national origin (Polish American), a hostile work
environment, and retaliation; claims pursuant to the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”), for age discrimination and
retaliation; and claims pursuant to the Americans with Disabilities Act, 42
U.S.C. §§ 12102, et seq. (“ADA”) for disability discrimination, failure to
accommodate, and retaliation.
      Mzyk is employed as an administrative assistant by NEISD. Construing
her pro se complaint and other documents in the record in a favorable light,
Mzyk generally asserts the following facts: that NEISD refused her repeated
requests to increase the pay grade of her position to compensate her for
increases in duties and work load – primarily the responsibility given to her for
answering the NEISD main telephone line – which is purportedly inconsistent
with NEISD’s treatment of other similarly situated employees who have received
pay increases and reduced work loads; that such actions are allegedly due to her
Polish national origin and her age, as well as retaliation for previous charges of
discrimination; and that NEISD has allegedly refused to accommodate her
requests for changes in work duties that she has made due to her various
physical ailments. As relief, Mzyk seeks back wages and benefits, various kinds
of injunctive relief related to the distribution of her work duties, other
compensatory damages, and litigation costs and fees.
      The district court assigned all pre-trial proceedings to a magistrate judge,
including NEISD’s motion for summary judgment. The magistrate judge issued
a report to the district court recommending that all of Mzyk’s claims should be
dismissed upon NEISD’s motion for summary judgment (the “Report”). The
magistrate judge noted that subsequent to filing her complaint, Mzyk expressly
waived her Title VII claims of national origin discrimination and hostile work

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environment, while choosing to maintain her other claims: (1) ADEA
discrimination and retaliation; (2) ADA discrimination, failure to accommodate,
and retaliation; and (3) Title VII retaliation.
       Reciting the undisputed facts, the magistrate judge determined that Mzyk
failed to prove two elements of her prima facie age discrimination claim under
ADEA: (1) that she suffered an adverse employment action; and (2) that others
similarly situated but outside the protected group received more favorable
treatment.1 The magistrate judge concluded that Plaintiff had not stated an
adverse employment action because she had simply alleged that the salary level
for the administrative assistant position that she held was inadequate and
discriminatory. She did not allege that failure to increase her pay as compared
to other employees who held the same position was discriminatory.2                          The
magistrate judge determined that Plaintiff failed to prove the second prima facie
element of her age discrimination claim, noted above, because she failed to
provide any competent summary judgment evidence that other employees with
whom she compared herself were truly comparable. See Lee v. Kansas City S.
Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (“[A]n employee who proffers a fellow
employee as a comparator” must “demonstrate that the employment actions at
issue were taken under nearly identical circumstances.”) (internal quotation
marks omitted).




       1
          The Report recites the prima facie requirements for an age discrimination claim
based on disparate treatment that the magistrate judge applied. The Plaintiff was required
to show: (1) that she belongs to a protected group of persons over the age of forty; (2) that she
was qualified for the position; (3) that she suffered an adverse employment action; and (4) that
others similarly situated but outside the protected group received more favorable treatment.
See Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006); Rutherford v. Harris
County Tex., 197 F.3d 173, 184 (5th Cir. 1999).
       2
        Mzyk does not deny having received annual within-pay-grade increases or an actual
pay-grade increase in July 2008.

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       With regard to Mzyk’s claims under the ADA (disparate treatment and
failure to accommodate), the magistrate judge determined on the basis of the
undisputed facts that Plaintiff could not meet the prima facie requirements for
either ADA claim because she presented no evidence that she suffered from a
“disability,” as defined by the ADA.3 Relying on the testimony of Mzyk’s doctor,
the magistrate judge noted that the physician had diagnosed Plaintiff with
various physical ailments and with stress, but not with any condition
substantially impairing one or more of her major life activities, as generally
required to meet the ADA’s definition of “disability.” See Pryor v. Trane Co., 138
F.3d 1024, 1026 (5th Cir. 1998) (“Temporary, non-chronic impairments of short
duration, with little or no longer term or permanent impact, are usually not
disabilities.”); Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242
F.3d 610, 614 (5th Cir. 2001) (“[N]ot all impairments are serious enough to be
considered disabilities under the statute.”)). The magistrate judge concluded
that Plaintiff had presented no evidence from which a reasonable jury could
conclude that she had a disability under the ADA definition.
       Finally, regarding Plaintiff’s retaliation claims under ADEA and ADA,4 the
magistrate judge concluded on the basis of the undisputed facts that, even



       3
          The magistrate judge recited the prima facie elements that she applied to Plaintiff’s
ADA claims. To establish a prima facie case of disparate treatment due to disability, Plaintiff
was required to show: (1) she is disabled; (2) she was nonetheless qualified to do the job; (3)
an adverse employment action was taken against her; and (4) she was replaced by or treated
less favorably than non-disabled employees. See Aldrup v. Caldera, 274 F.3d 282, 286 (5th
Cir. 2001); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000). To
establish a prima facie case of discrimination based on failure to accommodate a disability,
Plaintiff was required to show: (1) the employer is covered by the statute; (2) she is an
individual with a disability; (3) she can perform the essential functions of the job with or
without reasonable accommodation; and (4) the employer had notice of the disability and failed
to provide accommodation. See, e.g., Bridges v. Dep’t of Soc. Serv., 2001 WL 502797, *1 (5th
Cir. Apr. 27, 2001) (citing Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1515 (2d Cir. 1995)).
       4
          The magistrate judge determined that Mzyk abandoned her Title VII retaliation
claim by failing to present evidence in support thereof.

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                                       No. 10-50037

assuming Plaintiff had established prima facie retaliation claims, she failed to
provide evidence sufficient to raise a genuine issue of material fact regarding the
causation element of the retaliation claims. Specifically, the magistrate judge
determined that Mzyk did not present evidence capable of showing that NEISD
made any employment decisions concerning her that would not have been made
“but for” her protected activity, as required to sustain such claims. See, e.g.,
Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005).
       The district court reviewed the magistrate judge’s Report and conducted
an independent review of the entire record and a de novo review of those matters
in the Report to which the Plaintiff objected.5 The district court then accepted
the magistrate judge’s recommendations in its Order Accepting Report and
Recommendation of the United States Magistrate Judge, dated December 10,
2009, thereby dismissing all of Plaintiff’s claims on summary judgment.
                                              II.
       This court reviews the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court.                  Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is
appropriate when the record reveals that “there is no genuine issue as to any
material fact and that the movant is entitled to summary judgment as a matter
of law.”   F ED. R. C IV. P. 56(c)(2). In making this determination, the court
considers the facts and the inferences to be drawn from them in the light most
favorable to the nonmoving party. Turner, 476 F.3d at 343 (citing Wyatt v. Hunt
Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir. 2002)). But a nonmoving party
“cannot defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’” Turner, 476 F.3d at 343 (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

       5
         Plaintiff filed objections to various elements of the Report’s recitations of fact and
conclusions of law.

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                                   No. 10-50037



                                       III.
      In seeking to challenge the district court’s grant of summary judgment on
this pro se appeal, the Appellant makes no more than conclusory allegations and
assertions. See Plaintiff-Appellant’s Brief at 13-17. In her brief, Appellant does
not raise any material doubts about the legal or factual accuracy of the
magistrate judge’s Report.    After reviewing the record and considering the
briefing of the parties, we conclude that the magistrate judge and the district
court correctly read the record and applied the correct legal standards with
respect to all of Mzyk’s claims.    Accordingly, we affirm the district court’s
judgment.




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