     Case: 11-31070       Document: 00512067573         Page: 1     Date Filed: 11/29/2012




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

                                                                            FILED
                                                                        November 29, 2012
                                     No. 11-31070
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

IDELLA CORLEY,

                                                  Plaintiff-Appellant,

v.

STATE OF LOUISIANA THROUGH DIVISION OF ADMINISTRATION,
OFFICE OF RISK MANAGEMENT; WHITMAN J. KLING, JR., individually
and in his official capacity as Division of Administration Appointing Authority;
BARBARA GOODSON, individually and in her official capacity as Appointing
Authority; ANNE GRAHAM, individually and in her official capacity as Human
Resource Director; JULIAN S. THOMPSON, JR., individually and in his official
capacity as State Risk Director; PATRICIA H. REED, individually and in her
official capacity as State Risk Assistant Director,

                                                  Defendants-Appellees.


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:06-CV-882


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       The district court granted partial summary judgment against Idella Corley
(“Corley”) dismissing her race discrimination, hostile work environment, and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-31070

state intentional infliction of emotional distress and retaliation claims, against
the Defendants in connection with her employment with, and termination from,
the Division of Administration, Office of Risk Management for the State of
Louisiana (“DOA-ORM”). Only Corley’s federal retaliation claims pursuant to
Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq., and 42
U.S.C. § 1981, survived. A jury reached a verdict against her on those remaining
claims. Proceeding pro se, Corley timely appealed on all claims. We AFFIRM.
      We review a district court’s grant of partial summary judgment de novo.
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991–92 (5th Cir. 2005).
Summary judgment is proper when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
      We analyze Corley’s race discrimination claims under the burden shifting
framework set out in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802–04 (1973). To establish a prima facie case of race discrimination, a plaintiff
must show that: (1) she was a member of a protected group; (2) she was qualified
for the position at issue; (3) she suffered an adverse employment action; and (4)
she was treated less favorably than similarly situated employees outside of her
protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
Adverse employment actions are limited to ultimate employment decisions,
which include hiring, granting leave, discharging, promoting, or compensating.
Id. at 559–60. If a prima facie case is made, then the burden shifts to the
defendant to “articulate a legitimate, nondiscriminatory reason for the
questioned employment action.” Frank v. Xerox Corp., 347 F.3d 130, 137 (5th
Cir. 2003). If such a reason is given, then the plaintiff is left with the burden of
showing that the stated reason was pretextual. Id.
      Summary judgment was proper as to Corley’s race discrimination claims
because she failed to carry her burden under the McDonnell Douglas framework.
We agree with the district court that the “ultimate employment decisions” at

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issue are Corley’s: (1) reduction in pay equal to a one-day suspension in March
2006, (2) denial of the staff officer’s position in May 2006, and (3) termination in
December 2006.1 As explained by the district court, Corley failed to show a
prima facie case with regard to the first two actions because, inter alia, she did
not present evidence that similarly situated non-black employees were treated
more favorably. As for the third action, Corley met her prima facie burden. The
Defendants then presented evidence that Corley was terminated for legitimate,
nondiscriminatory         reasons—namely,           her    insubordinate        behavior      and
inappropriate communications. Corley failed to raise a genuine issue of material
fact as to whether these reasons were pretextual.
       Summary judgment as to Corley’s race-based hostile work environment
claim was also proper. To prevail, a plaintiff must show: “(1) she belongs to a
protected group; (2) she was subjected to unwelcome harassment; (3) the
harassment complained of was based on race; (4) the harassment complained of
affected a term, condition, or privilege of employment; (5) the employer knew or
should have known of the harassment in question and failed to take prompt
remedial action.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). As
noted by the district court, although Corley presented numerous acts showing
hostility between her and her coworkers, she failed to show that this hostility
was related to her race.
       Corley’s state intentional-infliction-of-emotional-distress claim also fails.
To prevail, a plaintiff must show: “(1) that the conduct of the defendant was
extreme and outrageous, (2) that the emotional distress suffered by the plaintiff
was severe, and (3) that the defendant desired to inflict severe emotional distress


       1
         In addition to these three actions, Corley asserted a long list of other alleged adverse
employment actions pertaining to salary, promotions, and accommodation. Many of those
actions were not “ultimate employment decisions” under McCoy. 492 F.3d at 556. Even
assuming arguendo that they were ultimate employment decisions, for the reasons stated in
the district court’s order, Corley failed to show a prima facie case with respect to those actions.


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or knew that severe emotional distress would be certain or substantially certain
to result from his conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La.
1991). As explained by the district court, Corley failed to raise a genuine issue
of material fact as to whether any of the Defendants’ acts were extreme or
outrageous.
       Moreover, Corley cannot prevail on her state retaliation claims.
Retaliation based on race does not fall within the scope of Louisiana
Employment Discrimination Law. La. Rev. Stat. Ann. § 23:301. Corley also
failed to respond to Defendants’ motion for summary judgment regarding her
Longshoremen’s and Harbor Workers’ Compensation Act claim. § 23:1361(B).
Further, Corley failed to show that any of the alleged retaliatory acts were an
actual violation of Louisiana law, which is a requirement to recover under
Louisiana Whistleblower Statute.2 § 23:967.
       The evidence was sufficient to support the jury verdict against Corley on
her remaining federal retaliation claims. Corley’s appeal of the jury verdict is
reviewed for plain error because she failed to move for judgment as a matter of
law at the close of all the evidence. See McKenzie v. Lee, 259 F.3d 372, 374 (5th
Cir. 2001). Accordingly, our review is limited to determining “whether there was
any evidence to support the jury verdict.” Flowers v. S. Reg’l Physician Servs.
Inc., 247 F.3d 228, 238 (5th Cir. 2001). The record shows that the Defendants
presented evidence of a legitimate, non-retaliatory reasons—namely, Corley’s
insubordinate behavior and inappropriate communications—for each of the
allegedly retaliatory acts. Therefore, Corley cannot show that there was no
evidence to support the jury’s verdict.
       For the foregoing reasons, we AFFIRM the partial summary judgment of


       2
         The district court also granted summary judgment in favor of defendant Whitman
J. “Whit” Kling, Jr. (“Kling”), on all retaliation claims. Summary judgment in favor of Kling
was proper because all viable aspects of Corley’s retaliation claims occurred after Kling’s
tenure as appointing authority for DOA-ORM ended in March 2005.

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the district court and the judgment based on the jury’s verdict.




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