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

                                                                            FILED
                                                                         January 16, 2008

                                     No. 07-20477                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


LINDA O. GORDON

                                                  Plaintiff-Appellant
v.

MARY E. PETERS, SECRETARY, DEPARTMENT OF TRANSPORTATION

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:05-CV-3689


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Linda Gordon, a Federal Aviation Administration (FAA) employee, appeals
the adverse summary judgment against her sex-discrimination claim against the
Secretary of Transportation, brought pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
       On 23 October 2003, Gordon, a FAA employee since 1982, applied for an
Operations Supervisor (OS) position in the Air Route Traffic Control Center in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20477

Houston, Texas. The next day, she applied for an Operations Manager (OM)
position in the same center. Both positions were considered promotions; the OM
position was the higher promotion. Having applied for two positions, Gordon
was considered for both; she was promoted to the OS position.
      Although she had been promoted, Gordon filed an Equal Employment
Opportunity Complaint, claiming sex discrimination because she was not
promoted to the OM position. An Administrative Law Judge (ALJ) held a
hearing, finding Gordon established a prima facie case.         The ALJ found,
however, that Gordon had not shown the Agency’s proferred legitimate
nondiscriminatory reasons for not offering her the OM position were pretextual.
      Gordon filed this action in November 2005. In April 2007, the court
granted summary judgment to the FAA on the following bases: (1) Gordon had
failed to exhaust her disparate-impact claim; (2) she did not suffer an adverse
employment action when she was not promoted to the OM position; and (3)
Gordon did not meet her burden of demonstrating the FAA’s reasons for not
selecting her for that position were pretextual.
      A summary judgment is reviewed de novo, applying the same standard as
did the district court. E.g., Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007) (citation omitted). “In other words, we ask whether the movant has shown
the nonexistence of any genuine issues of material fact and that he is entitled to
judgment as a matter of law.” Johnson v. Crown Enters., Inc., 398 F.3d 339, 341
(5th Cir. 2005) (citing FED. R. CIV. P. 56(c)). Similarly, we review de novo a
district court's ruling on whether the exhaustion requirement is satisfied.
Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006) (citations omitted).
Essentially for the reasons stated in the district court’s comprehensive and
detailed opinion, summary judgment was proper.
      Regarding the disparate-impact claim, the district court ruled Gordon had
not exhausted her administrative remedies because her administrative

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complaint raised only disparate treatment. Needless to say, disparate impact
and disparate treatment are two distinct claims under Title VII. Pacheco, 448
F.3d at 787 (5th Cir. 2006) (citing Int’l Bhd. of Teamsters v. United States, 432
U.S. 324 (1977)). As explained in Pacheco:
      Disparate-treatment discrimination addresses employment actions
      that treat an employee worse than others based on the employee's
      race, color, religion, sex, or national origin. In such
      disparate-treatment cases, proof and finding of discriminatory
      motive is required. Disparate-impact discrimination, on the other
      hand, addresses employment practices or policies that are facially
      neutral in their treatment of these protected groups, but, in fact,
      have a disproportionately adverse effect on such a protected group.
      In disparate-impact cases, proof or finding of discriminatory motive
      is not required.

Id. (internal citations omitted). Gordon’s administrative complaint raised only
disparate treatment; that is, how she was treated vis-à-vis the other applicants
outside her protected class (i.e., men). She alleged no facially neutral policy
employed by the FAA that has a disproportionately adverse impact on women
as required to sustain a disparate-impact claim. See id. at 792. Therefore, as in
Pacheco, “we hold that a disparate-impact investigation could not reasonably
have been expected to grow out of [Gordon’s] administrative charge”. Id. at 793.
      Concerning Gordon’s disparate-treatment claim, Gordon applied for two
positions and was promoted to one of them, having never expressed her
preference for either position. Accordingly, the district court concluded that
Gordon did not suffer an adverse employment action. In the alternative, it held
Gordon had not created a material fact issue on pretext or mixed motives.
      A failure to promote is an adverse employment action under Title VII; the
prima facie case requires the plaintiff to demonstrate:
      (1) [s]he is a member of a protected class; (2) [s]he applied for and
      was qualified for a promotion, (3) [s]he was considered for and
      denied the promotion; and (4) other employees of similar


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      qualifications who were not members of the protected class received
      promotions at the time the plaintiff's request for promotion was
      denied.

Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000) (citation
omitted); see also Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th Cir. 2007)
(citation omitted). Under these elements, it is at least arguable Gordon may
have suffered an adverse employment action through the FAA’s not promoting
her to the OM position, regardless of her contemporaneous promotion to OS.
      We need not reach this issue, however, because Gordon did not show a
genuine issue of material fact on whether the FAA’s proffered legitimate
business reason for not promoting her to OM was pretextual.            The FAA
proceeded under an established selection process stated in the Air Traffic Career
Progression Plan, which is discussed in detail in the district court’s opinion.
Based on this process, it was determined that Gordon was not the most qualified
applicant, despite her extensive experience.       Among other things, other
candidates had more experience analogous to that required of an OM, Gordon
scored comparatively low on a questionnaire administered to all applicants, and
the promotion committee, made up of supervisors, gave Gordon only a “slightly
recommend” rating. Having proffered a non-discriminatory reason for not
promoting Gordon to OM, the burden shifted to her to show a material fact issue
on whether either:    (1) this reason was pretext, or (2) regardless of the
nondiscriminatory reason, her sex was also a motivating factor. Alvarado, 492
F.3d at 611 (citation omitted). She did not do so. Gordon presented no evidence
of pretext or mixed motive; rather, she merely alleged discriminatory animus
could be inferred from the fact that no women were hired for the OM positions.
      AFFIRMED.




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