                  CORRECTED October 30, 2009
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                          October 26, 2009

                                     No. 09-30346                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


CINDY BOUVIER

                                                  Plaintiff-Appellant
v.

NORTHROP GRUMMAN SHIP SYSTEMS, INC.

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-cv-9418


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The district court granted summary judgment to Northrop Grumman Ship
Systems, Inc. (“Northrop”) on all counts of Cindy Bouvier’s gender discrimination
case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Bouvier claims that Northrop disciplined her more harshly than her male
coworkers after an alleged safety incident and that Northrop delayed a


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
departmental transfer due to her gender.          Bouvier also claims Northrop
retaliated after she complained of the way the company treated her. The district
court granted summary judgment on her retaliation claim for failing to exhaust
her administrative remedies and on her gender discrimination claims because
Bouvier did not establish a genuine issue of material fact as to pretext. Bouvier
appeals. We affirm the district court’s grant of summary judgment.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Bouvier worked as a gantry crane rigger for Northrop on an Avondale,
Louisiana shipyard. After expressing an interest in training as a crane operator,
Northrop placed her in operator training.        After approximately a year of
training, Bouvier underwent a final evaluation of her crane operating skills on
December 4, 2006 (the “Initial Skill Level Checklist”). As part of the Initial Skill
Level Checklist, Bouvier’s supervisor, Mike Norman, and foreman, Robert
Thomas, assessed Bouvier and a fellow trainee, Jonathan Sallinger, at the
highest initial crane operator skill level, and submitted department transfer
forms placing Bouvier and Sallinger in the crane operator department. The
transfer did not involve a change in pay. Due to a delay in paperwork, Northrop
approved Bouvier’s transfer form on February 28, 2007, and Sallinger’s on
March 1, 2007.     Once transferred, Northrop would issue Bouvier a crane
operator license to display on her badge.
      Despite the delay in paperwork, Bouvier began work as a crane operator.
On February 6, 2007, Norman reprimanded Bouvier for swinging a crane over
an occupied guard tower.       Northrop suspended both Bouvier and Darryl
Henderson, the crane rigger working with her at the time; and temporarily
reassigned Bouvier to the crane rigger department.
      Bouvier filed a grievance with her union, alleging that Norman harassed
her and unjustly suspended her. She did not allege any discrimination due to
gender in the grievance. Northrop offered to reinstate her as crane operator on
the condition that she promise to work safely, heed work instructions, and treat
others with dignity and respect. She declined the offer and continued to work
as a crane rigger.
      Bouvier filed an EEO charge alleging sex discrimination. She alleged that
there was no safety violation, that Norman screamed and talked to her in a
rough manner but laughed and joked with her male coworkers, and that
Northrop unfairly delayed her crane operator assignment until February 2007.
Bouvier checked only the sex discrimination box, leaving the retaliation box
blank.
      Bouvier brought this lawsuit after receiving her right to sue letter from
the EEOC. She alleged gender discrimination, retaliation, and a hostile work
environment. At her deposition, Bouvier testified that no one at Northrop had
made derogatory remarks relating to gender and that Norman screamed and
yelled at employees regardless of gender.
      Northrop moved for summary judgment on all claims. Along with her
opposition to Northrop’s motion for summary judgment, Bouvier filed a sworn
statement that she had previously complained to Norman and others that she
was treated differently than her male coworkers. Her statement also said that
coworkers often remarked over the radio that “it was a man’s world,” and that,
as part of his supervisory duties, Norman monitored the radio and did nothing
to stop these comments.
      The district court granted summary judgment in favor of Northrop. The
court found that Bouvier had not administratively exhausted her remedies with
respect to her retaliation claim. As to her gender discrimination claim, the court
refused to consider Bouvier’s sworn statement in opposition to the motion
because it found her assertions inconsistent with her prior deposition testimony.
Bouvier appeals the grant of summary judgment with respect to her retaliation

                                        3
claim and her gender discrimination claim.


                               II. DISCUSSION
      We review the district court’s grant of summary judgment de novo.
McIntosh v. Partridge, 540 F.3d 315, 319 (5th Cir. 2008) (citing Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995)). Summary judgment is
appropriate when there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Lee v. Kansas City S. Ry. Co., 574 F.3d
253, 257 (5th Cir. 2009). Fact issues are viewed in the light most favorable to
the nonmovant. McIntosh, 540 F.3d at 319. “Unsupported allegations or
affidavit or deposition testimony setting forth ultimate or conclusory facts and
conclusions of law are insufficient to defeat a motion for summary judgment.”
Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).
A.    Admission of Bouvier’s Sworn Statement
      As a preliminary matter, we must decide whether to consider Bouvier’s
sworn statement in opposition to the summary judgment motion. Affidavits
submitted in opposition to a motion for summary judgment may supplement
deposition testimony, but cannot contradict prior testimony without explanation.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996). In other
words, the summary judgment affidavit may supplement deposition testimony
by clarifying or amplifying the facts with greater detail but may not simply
“tell[] the same story differently.” Id.
      The district court correctly excluded Bouvier’s sworn statement. The
statement contradicted her deposition testimony that no one at Northrop said
anything negative or derogatory to her because she is a woman. Bouvier also
testified in her deposition that Northrop retaliated against her for complaining
about the delay in receiving her operator license, but she did not mention gender

                                           4
as a reason for that retaliation. Her sworn statement contradicts this testimony
by saying she complained on multiple occasions that the license would not be
delayed if she were a man. Therefore, the portions of Bouvier’s testimony that
are inconsistent with her prior testimony were properly excluded.
B.    Administrative Exhaustion of Retaliation Claim
      “Title VII requires employees to exhaust their administrative remedies
before seeking judicial relief.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273
(5th Cir. 2008) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006)).
Filing an administrative charge with the EEOC satisfies this requirement. Id.
Although Bouvier filed a sex discrimination charge with the EEOC, she never
referenced a possible claim for retaliation. While this court will read the EEO
charge “somewhat broadly” to determine “what EEOC investigations it can
reasonably be expected to trigger,” Pacheco, 448 F.3d at 792, Bouvier’s failure
to reference retaliation in the EEO charge defeats her retaliation claim.
      Bouvier’s EEO charge fails to mention any prior complaints of sex
discrimination or allege any facts that would put the EEOC on notice to
investigate retaliation. A reasonable investigation by the EEOC would not have
uncovered a potential retaliation claim. We have previously recognized that
discrimination and retaliation claims are distinct, and the allegation of one in
an EEO charge does not exhaust a plaintiff’s remedies as to the other. See, e.g.,
Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (finding failure
to exhaust a racial discrimination claim when the EEOC charge only included
reprisal). We affirm the district court’s finding that Bouvier had not exhausted
her retaliation claim.
C.    Prima Facie Discrimination Claim
      For purposes of the summary judgment motion, the district court assumed
that Bouvier had established a prima facie case of gender discrimination, but we

                                        5
ask whether Bouvier introduced sufficient evidence to survive summary
judgment on her gender discrimination claim. Bouvier put forth two theories on
gender discrimination: (1) Northrop unfairly discriminated against her by
delaying her the official crane operator license after the Initial Skill Level
Checklist, and (2) Northrop unfairly reprimanded her after a “fabricated” safety
violation.
       Bouvier carries the initial burden of establishing a prima facie case of
discrimination, which she can do by satisfying the four-prong test set forth by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell Douglas, Bouvier must show: (1) she is a member of protected
class, (2) she was qualified to be a crane operator, (3) she suffered adverse
employment action, and (4) others outside the protected class were treated more
favorably. See id. at 802. The first two prongs are not in dispute. As a woman,
Bouvier is a member of a protected class, and she demonstrated she was
qualified for the operator position during the Initial Skill Level Checklist. The
final two factors are contested on both of Bouvier’s theories.
       1.     Crane Operator License
       Bouvier claims gender discrimination caused the delay of her official
transfer to the crane operator position. Although Bouvier’s male coworker
Sallinger did not receive his official transfer until March 1, 2007–the day after
Bouvier’s official transfer–Bouvier claims that she saw Sallinger wearing the
license on his badge in January 2007.1 Even viewing this in the light most
favorable to Bouvier, her delay in obtaining a license to wear on her badge was


       1
         Bouvier made this assertion in her sworn statement in opposition to Northrop’s
summary judgment motion, but this particular allegation did not contradict previous
testimony, and may therefore be considered. See, e.g. Taylor v. Coastal Secs., Ltd., 45 Fed.
App’x 326 (5th Cir. 2002) (striking only the portions of an affadavit that were inconsistent with
deposition testimony).

                                               6
not an adverse employment action. See Benningfield v. City of Houston, 157
F.3d 369, 378 (5th Cir. 1998) (finding that a delay in promotion was not an
adverse employment action where the plaintiff received the promotion with
retroactive pay and seniority). We have held that, for Title VII discrimination
claims, an adverse employment action “‘include[s] only ultimate employment
decisions such as hiring, granting leave, discharging, promoting, or
compensating.’” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)
(per curiam) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657
(5th Cir. 2002)).2 Because the delay in promotion was temporary, it was not an
“ultimate employment decision” and the district court correctly granted
summary judgment.
       2.     Discipline for Safety Violation
       Bouvier also contends that she suffered an adverse employment action
when Northrop suspended her for two days and temporarily reassigned her to
crane rigger with a conditional opportunity for reinstatement as crane operator
after the February 6, 2007 incident. It is not readily apparent that this was an
adverse employment action because crane operator and rigger are similar jobs
and she had an opportunity for reinstatement as crane operator. Cf. Alvarado
v. Texas Rangers, 492 F.3d 605, 614 (5th Cir. 2007) (“[D]enial of a transfer may
be the objective equivalent of the denial of a promotion, and thus qualify as an
adverse employment action . . . if the position sought was objectively better . . .


       2
         The Supreme Court has held that Title VII’s anti-retaliation provisions prohibit more
conduct than its anti-discrimination provisions. See Burlington Northern & Santa Fe Ry. Co.
v. White, 548 U.S. 53 (2006). Expressly limiting its holding to retaliation claims, the Supreme
Court abrogated the “ultimate employment test” and held that employees much show that a
reasonable employee would have found the challenged action materially adverse. Id. at 67.
However, the “ultimate employment test” still applies to cases alleging discrimination. See
McCoy, 492 F.3d at 559–60 (“In Burlington Northern, the Court expressly limited its holding
to Title VII retaliation claims . . . .”) (emphasis in original).

                                              7
.”) (emphasis in original); Benningfield, 157 F.3d at 378 (finding temporary delay
in promotion insufficient to support a discrimination claim). However, due to
Bouvier’s testimony and declarations of her coworkers, we conclude that Bouvier
put forward sufficient evidence that the transfer to crane rigger involved a loss
of prestige and responsibility. The training required to become a crane operator
also demonstrates that employees coveted the operator position and considered
it a promotion from crane rigger. See Alvarado, 492 F.3d at 614–15 (listing
several factors for determining whether a denial of a transfer is an adverse
employment action including how the respective positions are viewed among
employees and the skills and training required to transfer).
      We now ask whether Bouvier has put forward sufficient evidence that
similarly situated males were treated more favorably under the “nearly
identical” standard. Perez v. Texas Dep’t of Criminal Justice, Inst’l Div., 395
F.3d 206, 213 (5th Cir. 2004) (“We . . . have explained consistently that for
employees to be similarly situated those employees’ circumstances, including
their misconduct, must have been ‘nearly identical.’”). “[N]early identical” is not
synonymous with “identical,” and whether similarly situated males were treated
more favorably turns on whether the violations were of “‘comparable
seriousness.’” Lee, 574 F.3d at 260–61 (citing McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n.11 (1976)).
      Viewing the evidence in the light most favorable to Bouvier, she has
produced sufficient evidence to create a factual issue as to whether Northrop
treated similarly situated males more favorably. Although Bouvier received the
same discipline as Henderson, the male crane rigger involved in the incident,
Northrop demoted only Bouvier. Bouvier also points to sufficiently similar
safety violations involving male crane operators that Northrop may have treated
more favorably. Although none of the other incidents in the record involved a

                                        8
crane swinging a load over an occupied guard tower, the law does not require
that the incident be “identical,” but only of “comparable seriousness.” Lee, 574
F.3d at 260–61.
      Bouvier presents evidence that a crane operated by a male began rolling
toward another crane and the operator did not respond to repeated attempts to
stop the crane, which included radioing his crane, blowing a whistle, and the
other crane sounding its horn. The crane stopped only after other operators
threw the emergency switch. Northrop did not discipline the male operator in
question after the investigation revealed that his travel gear “stuck a little.”
While not overwhelmingly similar, this incident, combined with other serious
incidents for which male operators received little discipline, sufficiently
establishes the fourth McDonnell Douglas prong for purposes of summary
judgment. We find that Bouvier introduced sufficient evidence to make her
prima facie case with respect to Northrop’s discipline for the alleged safety
violation.
D.    Legitimate Nondiscriminatory Reason
      Once the plaintiff establishes her prima facie case, the defendant must
articulate a legitimate nondiscriminatory reason for its actions. McDonnell
Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts to the
plaintiff to rebut the defendant’s explanation either by showing that the reason
given is pretext for unlawful discrimination, or the proffered reason, while true,
is only one of the reasons for its conduct, and another motivating factor is the
plaintiff’s protected characteristic. Burrell v. Dr. Pepper/Seven Up Bottling
Group, Inc., 482 F.3d 408, 411–12 (5th Cir. 2007). In this case, Northrop
articulates a legitimate reason: the February 6, 2007 safety violation witnessed
by Norman.
      Bouvier argues she has put forth sufficient evidence of pretext by alleging

                                        9
Norman fabricated the safety violation.         However, the plaintiff has not
necessarily proven pretext by showing the facts underlying the employer’s
reason for the adverse employment action are factually incorrect. See Little v.
Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991) (“The existence of
competing evidence about the objective correctness of a fact underlying a
defendant’s proffered explanation does not in itself make reasonable an inference
that the defendant was not truly motivated by its proffered justification.”) (citing
Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507 (5th Cir. 1988).
Bouvier’s testimony is consistent with an honest mistake by Norman, namely
that he misperceived the crane in relation to the guard tower and cited Bouvier
when the crane had not in fact passed over the guard tower.
      Bouvier puts forth no evidence to discredit Northrop’s assertion that
Norman’s perception of the incident motivated the reprimand. The evidence
shows Northrop reasonably believed Norman had witnessed a safety violation
and Northrop acted in good faith. See Waggoner v. City of Garland, 987 F.2d
1160, 1165 (5th Cir. 1993) (“The real issue is whether the employer reasonably
believed the employee’s allegation and acted on it in good faith . . . .”). To find
that Northrop’s proffered reason was mere pretext, a jury could only speculate
as to Norman’s and Northrop’s motives.          See Grizzle v. Travelers Health
Network, Inc., 14 F.3d 261, 267–68 (“Reviewing the entire record, we find that
[plaintiff] has introduced no evidence which would support a reasonable jury
finding of retaliatory motive without engaging in impermissible speculation.”).
We find that Bouvier failed to establish a genuine issue of material fact as to
pretext.
                               III. CONCLUSION
      Because Bouvier failed to administratively exhaust her retaliation claim
and failed to put forward sufficient evidence of gender discrimination, the

                                        10
district court was correct to grant summary judgment. We therefore AFFIRM.
     AFFIRMED.




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