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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40619                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
GARY COFFMAN; PATRICIA COFFMAN,                                              April 6, 2016
                                                                           Lyle W. Cayce
              Plaintiffs - Appellants                                           Clerk

v.

ALVIN COMMUNITY COLLEGE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:11-CV-361


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       The Coffmans are a married couple who work on the faculty of Alvin
Community College. During a period of declining enrollment and restricted
finances, the College reduced the workload and course offerings of both Dr. and
Mrs. Coffman. They sued claiming the changes in their working conditions
were the result of unlawful age discrimination and retaliation. The magistrate
judge granted summary judgment for the College on all of the Coffmans’


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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claims. Because the Coffmans failed to show a municipal policy or policymaker
was responsible for the decisions they protest, we AFFIRM the grant of
summary judgment for the College on the Coffmans’ § 1983 retaliation claims.
Because Mrs. Coffman failed to introduce evidence of pretext by offering
sufficient comparators and failed to offer evidence of a retaliatory adverse
employment action, we AFFIRM the grant of summary judgment for the
College on her Age Discrimination in Employment Act retaliation and age
discrimination claims.
                                         I.
      Dr. Coffman, 65 years old, is a full-time instructor at Alvin Community
College (“the College”) while Mrs. Coffman, 66 years old, is a part-time
instructor. The events that led to this lawsuit began in 2009 when the Sports
and Human Performance Department (“the Department”), facing a thirty
percent decline in enrollment, began to reduce teaching loads in order to lower
costs without cutting staff. The Department attempted to provide full-time
instructors their required minimum course load by having them take on some
responsibilities in other departments.
      As part of this reassignment process, College administrators proposed
having Dr. Coffman teach some courses in the English Department that fall.
Dr. Coffman complained that he was not qualified for the suggested positions
and was offered an opportunity in the reading lab instead. Once again, Dr.
Coffman insisted that the position was outside his area of expertise and wrote
to the head of the Department, the College Provost, and the College President
to insist that he be allowed to remain in the Department and suggesting that
other faculty lose courses in the Department instead. He wrote again to the
College President and Provost and received a response from the President
informing Dr. Coffman that he would be allowed to remain exclusively in the
Department in the fall of 2009.
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      The College tried to meet Dr. Coffman’s demands to teach only in the
Department and to teach only particular courses within the Department.
Because other full-time faculty needed their remaining courses in the
Department to retain full-time status, the College could only give Dr. Coffman
courses assigned to part-time instructors. The only courses taught by part-time
instructors in the fall of 2009 that Dr. Coffman expressed an interest in
teaching were taught by Mrs. Coffman. The College re-assigned two classes
that had been assigned to Mrs. Coffman to Dr. Coffman. Dr. Coffman was again
unhappy with the assignments and asked to exchange courses with his wife.
The Department complied with his request. In the final schedule, Dr. Coffman
was set to teach five courses and Mrs. Coffman was set to teach two. One of
Mrs. Coffman’s classes was cancelled because it failed to meet the enrollment
requirement.
      After the cancellation, which left Mrs. Coffman teaching only a single
course, she filed an administrative grievance through the College’s internal
process and simultaneously filed a charge of discrimination with the Equal
Employment Opportunity Commission alleging age discrimination and
retaliation. Mrs. Coffman alleged that other younger part-time instructors
were not losing classes and that the Department’s decision to reassign her
classes to a man (Dr. Coffman) evidenced gender discrimination. Mrs. Coffman
based her inference of discrimination solely on the College’s actions, not on any
particular statements. 1 The College abated the internal grievance process
during the EEOC’s consideration of her accusations.



      1 During her deposition, opposition counsel asked why Mrs. Coffman believed her age
motivated the College’s decision and she responded:
             Well, they would give – they wouldn’t give them [the courses she was
      not asked to teach] to me. … I felt picked on because of taking away my classes
      and making my husband teach them. The whole thing was trying to get my
      husband to quit. They went after my husband trying to make him quit and
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       One year later, in September 2010, Dr. Coffman filed a grievance with
the College. He argued that the College was limiting enrollment in his classes
by conducting maintenance in the gymnasium and that other faculty in the
Department would be teaching overload courses while he was not offered any
overload courses. The College responded that the maintenance related to safety
concerns and that the overload class was permitted in the fall because that
instructor’s non-overload class was over-subscribed, requiring an additional
section. Dr. Coffman sought to appeal his grievance but withdrew his appeal.
During the following summer, Dr. Coffman taught two courses. College policy
dictates that an instructor only be paid for a single course during a summer
semester unless more than 15 students enrolled in each of the courses. Dr.
Coffman’s courses had only 16 students combined.
       The Coffmans filed a complaint in federal court alleging retaliation, age
and gender discrimination 2 against Mrs. Coffman, and due process and first
amendment retaliation against Dr. Coffman. After discovery, the College
moved for summary judgment and the court 3 granted summary judgment in
favor of the College on all the Coffmans’ claims.
                                            II.
       We review a grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is proper when
there is no genuine dispute as to any material fact and the moving party is




        they were doing everything they could think of to punish him. … Everything
        that happened to me was because I was married to him. Because when he
        wouldn’t teach the stupid English classes, they were like ‘Well we’re going to
        get his wife and that’s the way we’re going to punish him.’ They went after me
        because of him.
        2 Mrs. Coffman later voluntarily dismissed her gender discrimination claim. It is not

part of this appeal.
        3 The parties consented to adjudication of the summary judgment motion by the

magistrate judge.
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                                      No. 15-40619
entitled to judgment as a matter of law. F.R.C.P. 56(a). The court may “affirm
summary judgment on any ground supported by the record, even if it is
different from that relied on by the district court.” Reed, 701 F.3d at 438
(quoting Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010)).
                                             A.
       We begin by examining Dr. Coffman’s claims. All of Dr. Coffman’s claims
are constitutional claims that arise under § 1983. See 42 U.S.C. § 1983. The
Coffmans sued the College, which as an instrument of the state of Texas, Tex.
Educ. Code § 130.0011, enjoys sovereign immunity. The Fourteenth
Amendment permits Congress to abrogate that immunity in certain cases,
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59 (1996), but under § 1983,
that immunity is only abrogated when the injury to the plaintiff is attributed
to “action pursuant to official municipal policy,” Monell v. Dept. of Soc. Servs.
of New York, 436 U.S. 658, 691 (1978). Dr. Coffman must show “proof of three
elements: a policymaker; an official policy; and a violation of constitutional
rights whose ‘moving force’ is the policy or custom.” Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell, 436 U.S. at 694).
       Dr. Coffman does not argue that the College President or others involved
qualify as policymakers. 4 Similarly, he does not point to any policy established
by the College’s Board (which state law establishes as the policymaker for the
College, Tex. Educ. Code § 130.082) delegating authority to the President or
Department head nor does he identify any College policy pursuant to which
the Department deprived him of his constitutional rights. If anything, Dr.
Coffman’s assertions are that the College impermissibly deviated from official


       4 The requirement for a policy maker “is not an opaque requirement.” Piotrowski, 237
F.3d at 578. This court has emphasized that “actual or constructive knowledge of [a] custom
must be attributable to the governing body of the municipality or to an official to whom that
body has delegated policy-making authority.” Webster v. City of Houston, 735 F.2d 838, 842
(5th Cir. 1984) (en banc).
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                                       No. 15-40619
policy by disregarding rules regarding reduction of faculty. The magistrate
judge concluded that Dr. Coffman failed to “identify what ACC policy,
promulgated by its Board of Trustees, was the moving force behind the
violation of their constitutional rights.” Coffman v. Alvin Community College,
G:11-cv-361, 2015 WL 1548953 at *3 n.8 (S.D. Tex. Apr. 7, 2015). Dr. Coffman
offers nothing on appeal to disturb that conclusion. As a result, Dr. Coffman’s
§ 1983 claims alleging First and Fourteenth Amendment retaliation fail as a
matter of law.
                                              B.
       Mrs. Coffman asserts two claims grounded in the Age Discrimination in
Employment Act. 5 29 U.S.C. § 621–34. First, she argues that she was
discriminated against on the basis of her age when her course load was
reduced. 29 U.S.C. § 623(a)(2). Second, she argues that the reduction in course
load and the College’s decision to abate her internal grievance violate the
ADEA’s provision prohibiting retaliation. 29 U.S.C. § 623(d).
                                              1.
       A plaintiff asserting an age discrimination claim must show that age was
the but-for cause of the adverse employment action taken against her. Jackson
v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010). When, as
here, a plaintiff relies on circumstantial evidence to show age discrimination,
her claims are weighed under the burden shifting scheme established in
McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973); Moss v. BMC Software



       5 The magistrate judge concluded that “Mrs. Coffman, who is an at-will employee, fails
to substantiate her allegations by pointing to any state law or contract that supports that she
has a protected property interest protected by the Due Process Clause.” Mrs. Coffman states
that “no such due process claim was asserted on Patricia Coffman’s part below.” By so stating,
and by failing to brief a constitutional claim, Mrs. Coffman waived whatever claim she may
have had. Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 n.5 (5th Cir. 2003) (“Issues not
briefed on appeal are waived.”); see also Johnson v. Zerbst, 304 U.S. 458, 464 (“[W]aiver is
ordinarily an intentional relinquishment or abandonment of a known right or privilege.”).
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Inc., 610 F.3d 917, 922 (5th Cir. 2010). First, the plaintiff “must put forth a
prima facie case, at which point the burden shifts to the employer to provide a
legitimate, non-discriminatory reason for the employment decision.” Berquist
v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). “If the employer
articulates a legitimate, non-discriminatory reason for the employment
decision, the plaintiff must then be afforded an opportunity to rebut the
employer’s purposed explanation, to show that the reason given is merely
pretextual.” Moss, 610 F.3d at 922. “A plaintiff may show pretext ‘either
through direct evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.’” Id. (quoting
Jackson, 602 F.3d at 379).
      Mrs. Coffman established her prima facie case by showing that she is
over forty, she was previously regularly called upon to teach as many as four
or five courses in a semester and, since 2009, her work load has been severely
reduced. The College meets its burden to offer a non-discriminatory reason for
the reduction in her workload by pointing to the decline in enrollment and
financial hardships facing the Department. Mrs. Coffman attempts to prove
that the College’s explanation is pre-textual by drawing comparisons between
her situation and those of two other part-time instructors who did not
experience as much of a reduction in course load as Mrs. Coffman. Her
comparison fails to show disparate treatment because her comparators are not
similarly situated. Although both, like Mrs. Coffman, are part-time instructors
in the Department, both taught activity courses while Mrs. Coffman, by her
own admission, taught only lecture courses. They, unlike Mrs. Coffman, both
had certifications relating to the courses they continued to teach when Mrs.
Coffman’s course load was reduced. See McElroy v. PHM Corp., 622 F. App’x
388, 391 (5th Cir. 2015) (“[E]mployees are not nearly identical when their
positions require different levels of skill and responsibility—even where they
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perform the same job duties.”). Finally, the courses that Mrs. Coffman no
longer taught were reassigned not to other part-time faculty but to a full-time
faculty member (Dr. Coffman) who indicated that he would not teach the
courses taught by Mrs. Coffman’s comparators. Without direct evidence of
discrimination and without adequate comparators, Mrs. Coffman bases her
allegations solely on her own subjective perception of discrimination. “This
type of evidence is insufficient to create a fact issue as to pretext.” Britt v.
Grocers Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992).
                                       2.
      Mrs. Coffman’s remaining claim alleges that the College’s decision to
abate her grievance during the pendency of her EEOC complaint constituted
retaliation in violation of Title VII and the AEDA. The EEOC agreed with Mrs.
Coffman’s contentions, concluding that (1) the College’s abatement effectively
denied her access to the grievance process; (2) deprivation of access to the
grievance process constituted an adverse employment action; and (3) the
abatement was made in retaliation for Mrs. Coffman’s EEOC filing. The EEOC
dismissed the College’s argument that the abatement avoided duplicative
proceedings and suggested conciliation while also providing Mrs. Coffman a
right to sue letter.
      In order to establish a retaliation claim, a plaintiff must show that: “(1)
she participated in an activity protected by Title VII; and (2) her employer took
an adverse employment action against her; and (3) a causal connection exists
between the protected activity and the materially adverse action.” Aryain v.
Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008). “Adverse
employment actions include only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating.” Walker v.
Thompson, 214 F.3d 615, 629 (5th Cir. 2000). To establish causation, an
employee must show that but for the protected activity, the adverse
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                                 No. 15-40619
employment action would not have occurred. Seaman v. CSPH Inc., 179 F.3d
297, 301 (5th Cir. 1999).
      The College does not dispute that filing a complaint with the EEOC is a
protected activity under Title VII and Mrs. Coffman has likely introduced
sufficient evidence to create a triable issue of fact regarding whether her EEOC
complaint caused the abatement of her internal grievance. To survive
summary judgment, Mrs. Coffman must also show that the abatement of her
internal grievance pending the EEOC’s determination was an adverse
employment action.
      In order to establish an adverse employment action, the Supreme Court
requires that: “a plaintiff must show that 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.’” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). In cases decided before Burlington Northern, this court has
held that although an employee demonstrated her employer “failed to resolve
her internal grievance,” among other slights, “she did not allege an ultimate
employment decision” that could constitute an adverse employment action.
Messer v. Meno, 130 F.3d 130, 140 (1997); accord Gregory v. Tex. Youth Com’n,
111 Fed. App’x 719, 721 (5th Cir. 2004) (held that employer’s actions “denying
[the plaintiff] proper access to the internal grievance process [was] not [an]
ultimate employment decision[].”). The Fifth Circuit has not directly addressed
the issue after Burlington Northern, although district courts in the circuit have
continued to find that denial of access to an internal grievance process does not
constitute an adverse employment action. Vasquez v. Nueces County, No. C-11-
45, 2012 WL 401056, at *5 (S.D. Tex. Feb. 6, 2012) (citing Gregory); Lynch v.
Baylor University Medical Center, No. 3:05-cv-0931, 2006 WL 2456493, at *7–
*9 (N.D. Tex. Aug. 23, 2006).
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       Assuming, arguendo, that Burlington Northern altered the standard for
determining whether an adverse employment action occurred, 6 the abatement
of an internal grievance does not satisfy Burlington Northern’s test any more
than it satisfied the prior test for an adverse employment action. In Burlington
Northern, the Supreme Court held that an employee suffered an adverse action
when he was suspended without pay for more than a month and, on his return,
was reassigned to a “more arduous and dirtier” position that was less
prestigious than his prior position. 548 U.S. at 58. In other cases using the
Burlington Northern standard, this court has held against claimants alleging
adverse employment actions occurred based on: assignment of janitorial duties
on rehiring, Wheat v. Florida Parish Juvenile Justice Com’n, 811 F.3d 702, 707
(2016), verbally harassing behavior from coworkers, Aryain v. Wal-Mart Stores
Texas LP, 534 F.3d 473, 479–80 (5th Cir. 2008), denial of leave of absence and
statements from supervisors to coworkers that the employee “was creating
problems,” Holloway v. Dept. of Veterans Affairs, 309 F. App’x 816, 817 (5th
Cir. 2009).
       Mrs. Coffman did not suffer any permanent or serious alteration in her
employment because of the abatement. See Burlington N., 548 U.S. at 67 (“The
antiretaliation provision protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.”). The reduction in her


       6  Before Burlington Northern, courts in the Fifth circuit seem to have used a
materiality standard, asking whether the action “effect[ed] a material change in the terms of
employment.” Dupre v. Harris County Hosp. Dist., 8 F. Supp. 2d 908, 924 (S.D. Tex. 1998).
Burlington Northern adopted a two-prong test, asking for both materiality and a reasonable
objective expectation that the material change would deter an employee from filing a claim.
Burlington Northern, 548 U.S. at 68. After Burlington Northern, this court has continued to
reference pre-Burlington decisions when deciding whether an adverse employment action
occurred. See Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (analyzing whether
an adverse employment action occurred with reference to Burlington Northern; Pegram v.
Honeywell, Inc., 361 F.3d 272, 281–82 (5th Cir. 2004); Hunt v. Rapides Healthcare Sys.,
L.L.C., 277 F.3d 757, 770 (5th Cir. 2001); Forsyth v. City of Dall., 91 F.3d 769, 774 (5th Cir.
1996)).
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course load and the associated decline in pay occurred before her filing with
the EEOC—they were, in fact, the basis of her EEOC complaint. The only
action the College took against Mrs. Coffman after her complaint was to abate
the internal grievance she filed in parallel with her EEOC complaint. The
abatement did not diminish Mrs. Coffman’s position at the College; at worst it
may have delayed Mrs. Coffman’s chances of improving her situation by
convincing the administration to reassign courses to her. It seems unlikely she
could have obtained that outcome, even without abatement of the grievance,
because the Department suffered the same enrollment difficulties in 2010 and
2011 that first caused the reduction and Mrs. Coffman’s qualifications
remained the same in comparison with other teachers throughout the process.
The College’s decision to abate its internal grievance pending the EEOC
complaint is a transient harm that does not rise to the level of materiality
required by Burlington Northern. See 548 U.S. at 68 (“We speak of material
adversity because we believe it is important to separate significant from trivial
harms.”). The abatement is not an outcome that would “dissuade[] a reasonable
worker from making or supporting a charge of discrimination.” Id. (quoting
Rochon v. Gonzales, 483 F.3d 1211, 1219 (D.C. Cir. 2006).
      Because the abatement of her grievance does not qualify as an adverse
employment action, Mrs. Coffman has not introduced facts creating a dispute
about whether the College took illegal retaliatory actions that harmed her.
                                      III.
      Because the Coffmans have failed to create a genuine issue of fact: (1)
that a policy or policymaker was responsible for the actions against Dr.
Coffman; (2) that the College’s reasons for the reduction in Mrs. Coffman’s
course load were pretextual; and (3) that Mrs. Coffman suffered an adverse
employment action after filing her EEOC complain, we AFFIRM the grant of
summary judgment in favor of the College.
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