                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         August 10, 2006
                                    FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                       _________________                                    Clerk
                                           No. 06-40004

                                       (Summary Calendar)
                                       _________________


JOHN KEBIRO,


                               Plaintiff - Appellant,

versus


WALMART,


                               Defendant - Appellee.



                           Appeal from the United States District Court
                                For the Eastern District of Texas
                                    USDC No. 4:04-CV-177



Before HIGGINBOTHAM, WIENER and GARZA, Circuit Judges.

PER CURIAM:*

         Plaintiff-Appellant John Kebiro (“Kebiro”) appeals the district court’s grant of summary

judgment in favor of Wal-Mart Stores, Inc. (“Wal-Mart”) after holding that Kebiro failed to establish




         *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
a prima facie case of discrimination, retaliation, or harassment on account of his age, national origin

or complaints to the EEOC. Kebiro also challenges the district court’s dismissal of his racial and

gender discrimination claims for lack of subject matter jurisdiction.

       Kebiro began working as a cashier at Wal-Mart in 2000. In 2003 and 2004, he applied for

several management positions including multiple assistant manager training program positions, two

customer service manager positions, two support manager positions and a department manager

position. He did not receive any of these promotions. During his tenure at Wal-Mart, Kebiro was

disciplined three times for various infractions of company policy.

       Kebiro filed two complaints with the EEOC as a result of his failed promotion applications:

one alleging that Wal-Mart discriminated against him on the basis of his age; the other alleging that

Wal-Mart discriminated against him on the basis of his national origin and in retaliation for filing his

first EEOC complaint.1 The EEOC could not determine that Wal-Mart had acted illegally with

respect to Kebiro.

       Kebiro then filed suit in federal district court claiming that Wal-Mart had discriminated against

him on the basis of his age, national origin, race, and gender; retaliated against him for lodging a

complaint with the EEOC; and harassed him, all in violation of 42 U.S.C. § 2000e-2(a)(1) and 29

U.S.C. § 621 et seq. The district court dismissed Kebiro’s claims of racial and gender discrimination

for lack of subject matter jurisdiction because he had not exhausted his administrative remedies. After

discovery ended, the district court granted summary judgment in favor of Wal-Mart on Kebiro’s

remaining claims. Kebiro appeals both the dismissal of his racial and gender discrimination claims and



       1
         Kebiro is a black male from Kenya and was approximately 59 years old at the time he applied
for the various promotions.

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the summary judgment.

       We review a dismissal for lack of subject matter jurisdiction de novo. Johnson v. Housing

Authority of Jefferson Parish, 442 F.3d 356, 359 (5th Cir. 2006). In a discrimination case, the

district court does not have subject matter jurisdiction until the “EEOC has first had the opportunity

to obtain voluntary compliance.” Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006). The

relevant question is whether the claims presented in the district court could “reasonably be expected

to grow out of the charge of discrimination” to the EEOC. Id. Kebiro’s filings with the EEOC never

mentioned anything but his age, national origin, and prior filings with the EEOC. Furthermore, the

persons who received the positions for which Kebiro had applied were only mentioned in terms of

their age and their status as non-Kenyans. His racial and gender discrimination claims therefore could

not have been expected to grow out of Kebiro’s filings with the EEOC, and the district court properly

dismissed them.

       We review the grant of summary judgment de novo. Blow v. City of San Antonio, 236 F.3d

293, 296 (5th Cir. 2001). “Summary judgment is appropriate only if the full record discloses ‘no

genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter

of law.’” Id. (quoting FED R. CIV. P. 56(c)). The court “view[s] all facts in the light most favorable

to the non-moving party.” Id.

       When determining whether summary judgment was the proper means of adjudicating a

discrimination claim, we apply the burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Kebiro carries the initial burden of

establishing a prima facie case of discrimination. Median v. Ramsey Steel Co, 238 F.3d 674, 680

(5th Cir. 2001). To do so, he must show that: 1) he is a member of a protected class; 2) he sought


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and was qualified for a position; 3) he was rejected for the position; and 4) the employer continued

to seek or promoted applicants with the plaintiff’s qualifications. Id. at 680-81.

       Kebiro admitted in his deposition that he did not know what the qualifications were for the

various management positions for which he had applied. Wal-Mart’s summary judgment evidence

makes clear, however, that only employees with past supervisory experience or exceptional

employees with no past supervisory experience were considered for the positions for which Kebiro

applied. Kebiro presented no evidence that he has ever had a supervisory position in the past or that

he was an exceptional employee. In fact, all his employee evaluations state that he was rated “meets

expectations,” except once when he was rated “exceeds expectations.” Kebiro has presented no

evidence that he was qualified for any of the management positions for which he applied.

       Furthermore, Kebiro has tendered no evidence that persons with his qualifications were

promoted to those positions. By contrast, Wal-Mart submitted affidavits from various employees

who stated, inter alia, that all the persons who were promoted did have supervisory experience.

Because Kebiro fails to establish either the second or fourth elements of a prima facie case of

discrimination, Wal-Mart is entitled to summary judgment on that claim.

       We also applythe McDonnell Douglas burden-shifting framework when determining whether

summary judgment was proper for a retaliation claim. See Rios v. Rossotti, 252 F.3d 375, 380 (5th

cir. 2001).   Kebiro must make a prima facie showing of retaliation by establishing that: 1) he

engaged in an activity protected by Title VII or the ADEA; 2) he suffered an adverse employment

action; and 3) a causal link exists between the protected activity and the adverse employment action.

Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Kebiro’s complaint to the EEOC




                                                 -4-
satisfies the first element. Assuming that Kebiro has also suffered adverse employment actions,2

however, he still has not provided any evidence of a causal link between his filing a complaint with

the EEOC and the adverse employment actions. Kebiro has not identified any individual who even

knew that he had filed a complaint. By contrast, several Wal-Mart employees whom Kebiro accuses

of retaliating against him submitted affidavits stating that they had no knowledge of any complaint

to the EEOC. Because Kebiro has not established a prima facie case of retaliation, the district court

properly granted summary judgment to Wal-Mart on this claim. See Rios 252 F.3d at 380.

       Finally, to survive Wal-Mart’s summary judgment motion on his harassment claim, Kebiro

once again carries the initial burden of establishing a prima facie case. Celestine v. Petroleos de

Venezuella SA, 266 F.3d 343, 354 (5th Cir. 2001). To do so, he must show: 1) he is a member of

a protected class; 2) he was subjected to unwelcome harassment; 3) the harassment was motivated

by his membership in a protected class; and 4) the harassment affected a term, condition or privilege

of his employment. Id at 353. The fourth element of this test is met only if the harassment was

“sufficiently severe or pervasive so as to . . . create an abusive working environment.” Id. “In

determining whether a workplace constitutes a hostile work environment, courts must consider the

following circumstances: the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th



       2
         The Supreme Court recently issued an opinion altering the standard for an adverse
employment action. Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006).
The Court held that an act of retaliation is actionable if “a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Id. at 2415 (internal
quotation omitted).

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Cir. 2002).

       To support his claim, Kebiro asserts that he had a difficult time with a Workers’

Compensation claim, that he was frequently made to work as a cashier against his doctor’s orders,

and that he was not allowed to take a half-hour lunch break. This court has upheld district courts’

summary judgments on the ground that the plaintiff has not produced evidence of an abusive work

environment on facts far more egregious than these. See Hockman v. Westward Communications,

LLC, 407 F.3d 317 (5th Cir. 2004) (affirming summary judgment despite evidence of repeated

touching and offensive remarks of a sexual nature);3 Derouen v. Carquest Auto Parts, 275 F.3d 42

(5th Cir. 2001) (same);4 Shepard v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871

(5th Cir. 1999) (same).5     Because Kebiro has not presented evidence of an abusive work

environment, the district court’s grant of summary judgment was proper.

       For the foregoing reasons, we AFFIRM the judgment of the district court.



       3
         “Hockman claims that soon after she returned to Westward, Rogers . . . commented on the
body of a former Westwood employee, Sheila Ledesma. Specifically, Hockman claims that ‘[Rogers]
would tell her that Sheila had a nice behind.’ Next, Hockman claims . . . Rogers would brush up
against her breasts and behind. Third, Hockman claims that on one occasion Rogers ‘slapped [her]
behind with a newspaper.’ Fourth, Rogers once attempted to kiss Hockman. Fifth, on more than one
occasion, Rogers asked Hockman to come in early so that they could be alone together.” Id. at 321.
       4
        “Derouen claims co-worker attempted to grab her breast and later put his hand on and
rubbed her thigh.” Id.
       5
          “According to Shepherd's deposition, on one occasion Moore stood in front of Shepherd's
desk and remarked ‘your elbows are the same color as your nipples.’ Shepherd testified that Moore
remarked once ‘you have big thighs’ while he simulated looking under her dress. Shepherd claimed
Moore stood over her desk on several occasions and attempted to look down her clothing. According
to Shepherd, Moore touched her arm on several occasions, rubbing one of his hands from her
shoulder down to her wrist while standing beside her. Shepherd alleged additionally that on two
occasions, when Shepherd looked for a seat after coming in late to an office meeting, Moore patted
his lap and remarked ‘here's your seat.’” Id. at 872.

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