                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 November 8, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 03-21150




ANNA L. KOLPAKCHI, Medical Doctor,

                                      Plaintiff-Appellant,

versus


ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

                                      Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                          H-02-CV-2683
                      --------------------

Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.
                            *
BENAVIDES, Circuit Judge:

     In this direct civil appeal, Anna L. Kolpakchi, Appellant,

challenges the district court’s ruling granting summary judgment

to Anthony J. Principi, Secretary of Veterans Affairs, Appellee.

For the reasons that follow, we affirm.

I. Background

     Physician Anna L. Kolpakchi began working for the Department


     *
          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that this opinion should not be published and is not precedent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.

                                  1
of Veterans Affairs Medical Center (“VAMC”) in Houston on July 1,

1987.   In July 1995, she was promoted to Employee Health

Physician for the Medical Center, which, although not technically

categorized as supervisory, included the duty of overseeing

subordinates.   As of 1998, the Chief of Staff at the VAMC was Dr.

Thomas B. Horvath.

     On July 19, 2000, Dr. Horvath declared the Employee Health

Physician position “vacant” and asked for applications,

indicating that now the position would include new supervisory

duties.   One requirement added to the job description was that

any applicant must have at least fifteen years of clinical

experience.   According to Dr. Kolpakchi, she was confused by the

new job description, believing she already performed supervisory

duties, and was deterred from applying because she only had

thirteen years of clinical experience.   Because of this and the

fact that she had performed her duties to date well, Dr.

Kolpakchi deduced she was the target of discrimination due to her

status as a female, a Jew, and a Russian immigrant.   She held

this belief in spite of the fact that, when Dr. Horvath informed

her of the pending employment action, he encouraged her to apply

for the new job.   Dr. Kolpakchi filed a discrimination grievance

with the office of Joint Management Resolutions (“EEO”).

     After Dr. Kolpakchi filed her complaint, Dr. Horvath sent

her a letter, once again, encouraging her to apply for the new

position.   This encouragement was echoed by her EEO counselor,

                                 2
Ms. Charlyn F. Stewart.   Dr. Kolpakchi voiced her concern about

the fifteen-year requirement and the vacancy announcement was

amended, with that requirement removed.   However, Dr. Kolpakchi

did not apply for the position.   She claims she was unaware of

the requirement change.

     On October 18, 2000, Dr. Horvath sent a letter to Dr.

Kolpakchi informing her that a different doctor, Dr. Jamie Oritz-

Toro, would be filling the Employee Health Physician position and

that, effective October 29, 2000, she was reassigned to the Prime

Care Section of Medical Services to serve as a primary physician.

Upon learning her replacement was male (and in her opinion less

qualified), Dr. Kolpakchi filed a second grievance with the EEO

office, alleging sex discrimination.   After a final,

unsatisfactory agency decision on Dr. Kolpakchi’s claims was

issued on April 17, 2002, she filed a sex discrimination suit

against Anthony J. Principi, Secretary of Veterans Affairs, under

Title VII.

     The complaint, filed on July 17, 2002, alleged

discrimination based on sex, religion, and national original, in

addition to threatened retaliation.    Defendant Principi filed a

motion to dismiss, under Federal Rule of Civil Procedure 56.     The

district court granted the motion to dismiss.   This appeal of

that order followed.

II. Discussion



                                  3
     This Court reviews grants of summary judgments under Rule 56

de novo, applying the same standards the district court used.

Am. Home Assurance Co. v. United Space Alliance, 378 F.3d 482,

486 (5th Cir. 2004).    “A summary judgment motion is properly

granted only when, viewing the evidence in the light most

favorable to the nonmoving party, the record indicates that there

is no genuine issue as to any material fact, and that the moving

party is entitled to judgment as a matter of law.”    Id.   Facts

are material only if they could affect the lawsuit’s outcome.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).       Any

factual controversy will be resolved in the nonmovant’s favor,

but only “when both parties have submitted evidence of

contradictory facts.”    Olabisiomotosho v. City of Houston, 185

F.3d 521, 525 (5th Cir. 1999).

          A. Prohibited Discrimination Under Title VIII

     Dr. Kolpakchi argues that VAMC’s treatment of her violated

Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C.

§§ 2000(e) et seq.   When considering employment discrimination

claims lacking direct evidence, the Supreme Court has set forth a

methodology for determining “the order and allocation of proof.”

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).       In

the McDonnell Douglas case, the Court dictated that the

plaintiff, in this case Dr. Kolpakchi, carries the initial burden

to set forth a prima facie case of discrimination.    Id. at 802.


                                  4
Under the McDonnell Douglas framework, “a plaintiff satisfies

this initial burden by showing that (1) he belongs to a protected

group; (2) he was qualified for the position sought; (3) he

suffered an adverse employment action; and (4) he was replaced by

someone outside the protected class.”       Manning v. Chevron Chem.

Co., 332 F.3d 874, 881 (5th Cir. 2003).

     There are essentially two employment actions in this case.

First, Dr. Kolpakchi was removed from her old position, which was

eliminated through a restructuring process.      She does not

challenge this portion of the employment action.      Second, Dr.

Kolpakchi was not given the new position created in this

reorganization process in lieu of her old one and was instead

given a less desirable post.    This is the employment action she

claims violated her Title VII rights.

     The district court assumed that Dr. Kolpakchi had made out a

prima facie case.    She is a female, a Jew, and a Russian

immigrant.   Discrimination based on national origin, religion, or

sex is prohibited by Title VII.       See Desert Palace, Inc. v.

Costa, 539 U.S. 90, 92 (2003).    Dr. Kolpakchi did not receive the

promotion to the new position and instead received a less

desirable one – undoubtedly constituting an adverse employment

action.   And she was replaced by a man–someone outside her

protected class.    Finally, the evidence suggests Dr. Kolpakchi

was qualified for the job.    She was the incumbent holder of the


                                  5
position, and, even though its duties were augmented, she was

encouraged by her superiors to apply.   However, she failed to

adequately seek the position by applying for it and thus did not

meet the second requirement to establish a prima facie case.1

     The question of whether a plaintiff in the Title VII context

actually applied for a particular position goes to the question

of whether the plaintiff has proffered a prima facie case.   The

second McDonnell Douglas prong (“he was qualified for the

position sought”) requires the position to actually be sought –

without that, normally a plaintiff cannot be denied employment.

     Citing an opinion by the Third Circuit, Dr. Kolpakchi argues

that she did not have to actually apply for the position because

she “made every reasonable attempt to convey [her] interest in

the job.”   EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.

1990).   And she was effectively discouraged from filing a formal

application because the original job announcement had a

requirement of fifteen years of clinical experience, which Dr.

Kolpakchi did not have.    Metal Service Co. states that “failure

to formally apply for a job opening will not bar a Title VII

plaintiff from establishing a prima facie claim” in “failure to

promote cases.”   Id.   In that case, the court found that the

plaintiffs “did everything reasonably possible to make known to


     1
     Although the district court granted Defendant’s motion on
other grounds, we may affirm for different reasons. Kerr v.
Comm’r of Internal Revenue, 292 F.3d 490, 494 (5th Cir. 2002).

                                  6
[the defendant] their interest in applying for a job,” including

attempting to apply directly at the office, going through the

hiring department, “periodically check[ing] on their

applications,” and again trying to apply directly.     Id. at 349.

     The Third Circuit cites two other circuit court cases that

also hold the failure to apply does not necessary bar the

establishment of a prima facie case under Title VII.    The Fourth

Circuit found that an African-American plaintiff did not need to

file a formal application where he was told he would be

considered for the position and was not asked to file an

application, and where the defendant “had actively discouraged

[African-Americans] from applying for sales jobs.”     Holsey v.

Armour & Co., 743 F.2d 199, 208-09 (4th Cir. 1984).    In Paxton v.

Union National Bank, the plaintiff had expressed an interest in

the position prior to its vacancy, but, once it did become

vacant, no notice was posted and it was filled without his

knowledge.   688 F.2d 552, 568 (8th Cir. 1982).

     Metal Service Co. and other cases like it are the progeny of

the Supreme Court’s ruling in International Brotherhood of

Teamsters v. United States.   431 U.S. 324 (1977).    The Court held

that, even if one does not apply for a particular position,

individuals can “suffer from discriminatory employment practices”

when “[a] consistently enforced discriminatory policy” deters

them from applying because they “are aware of it and are


                                 7
unwilling to subject themselves to the humiliation of explicit

and certain rejection.”     Id. at 365.   See also Shackelford v.

Deloitte & Touche, L.L.P., 190 F.3d 398, 406 (5th Cir. 1999)

(applying Teamsters).     The Court further expounded on this issue,

presenting the reasoning behind the rule:

     If   an  employer   should   announce   his   policy   of
     discrimination by a sign reading “Whites Only” on the
     hiring-office door, his victims would not be limited to
     the few who ignored the sign and subjected themselves to
     personal rebuffs. The same message can be communicated to
     potential applicants more subtly but just as clearly by
     an employer’s actual practices . . . .

Teamsters, 431 U.S. at 365.

     The Supreme Court’s holding in Teamsters would seem to bar

Dr. Kolpakchi’s claim because she has not set forth any facts to

show a policy of discrimination that dissuaded her from applying

for the position.   At best, the facts, as alleged by Dr.

Kolpakchi, may show that Dr. Horvath did not believe Dr.

Kolpakchi was the ideal employee for the position.     However, the

holdings in Paxton and Metal Service Co. indicate an expansion of

this principle to encompass situations where, through the fault

of the employer, an employee’s desire to hold a position is not

recognized or properly considered.     We have not explicitly

adopted our sister circuits’ rules with regards to the necessity

of a formal application; nor have we specifically rejected such a

more expansive rule.    The District Court for the Southern

District of Texas has accepted it, though.      See DuPont-Lauren v.


                                   8
Schneider (USA), Inc., 994 F. Supp. 802, 818 (S.D. Tex. 1998)

(stating that “a formal application will not be required where a

vacant position was not posted”); Lenihan v. Boeing Co., 994 F.

Supp. 776, 794 (S.D. Tex. 1998) (same).

     Even if we were to apply this more lenient standard, Dr.

Kolpakchi’s case does not satisfy it.   In her statement, she

claims she “was not notified of the last [corrected] posting or

[o]f any change in the 15 years of clinical experience

requirement, prior to the closing of the posting.”   This is

directly contradicted by the statement of her EEO counselor, Ms.

Charlyn F. Stewart, who stated in a deposition that she informed

Dr. Kolpakchi of the change in the requirement.   Whether or not

Dr. Kolpakchi knew of the requirement change is an issue of fact

and we must assume Dr. Kolpakchi’s version is correct.   However,

the following facts, which can be taken as true either because

they are asserted by Dr. Kolpakchi or because she has not

contested them, completely undermine her argument:

     (1) Dr. Horvath told Dr. Kolpakchi to apply for the position
     during their initial meeting on July 13, 2000, when he told
     her about the pending employment action: “Dr. Horvath told
     me that they wanted me to be the first person to see the
     announcement. . . . Dr. Horvath then told me that I should
     apply for the job. He further advised me that he would
     personally see to it that the committee would not be biased
     toward me and that if I did not get the position he was
     posting, he would guarantee that I would have a job within
     the Medical Center.”

     (2) On July 17, 2000, shortly after the meeting in which Dr.
     Horvath told Dr. Kolpakchi about the change in her position,
     he sent her a letter stating that he hoped she would apply

                                9
     for the new position: “As part of our overall Reorganization
     we are restructuring Employee Health. We decided to create
     a Supervisory Physician, who will report directly to me. . .
     . It is an interesting and challenging position, and I would
     encourage you to consider it. I would be happy to discuss
     it with you – please call Ms. Jackson at ext. 7011, ASAP. .
     . . I would hope to get a number of local applications,
     including one from our current employee health physician.”

     (3) Dr. Horvath knew that Dr. Kolpakchi did not have fifteen
     years of clinical experience when he encouraged her to apply
     for the position.

     (4) The position vacancy announcement was twice amended to
     correct errors in the requirements due to Dr. Kolpakchi’s
     complaints. In addition, Dr. Horvath informed Ms. Stewart
     that the fifteen-year requirement in the original
     announcement was an error and said to her, “Please tell your
     client to apply.”

     (5) Dr. Kolpakchi made a conscious decision not to apply for
     the position.

     In light of these facts, it cannot be said that, whatever

impediment the incorrect job posting with the fifteen-year

requirement posed to Dr. Kolpakchi’s applying for the position,

it rose to the level of Paxton and Metal Service Co.      Despite her

assertions, and unlike the plaintiff in Metal Service Co., Dr.

Kolpakchi did not make “every reasonable attempt to convey [her]

interest in the job.”    892 F.2d at 348.   Simply put, she failed

to apply for the position despite Dr. Horvath’s and Ms. Stewart’s

entreatments.   That would have been the most reasonable way for

her to convey her interest in the position.     And, unlike the

plaintiff in Paxton, she knew full well about the opening and

chose not to apply.     See 688 F.2d at 568.   Dr. Kolpakchi cannot

reasonably claim that this rises to the level of non-notice of

                                  10
the opening.    She did not apply for the position and thus cannot

make out a prima facie case of employment discrimination.2

     Because she failed to apply for the desired position, Dr.

Kolpakchi cannot present a prima facie case.

               B. Prohibited Retaliation Under Title VII

     Dr. Kolpakchi alleges retaliation on the part of VAMC

because of her employment complaints.     Title VII of the Civil

Rights Act of 1964 outlaws any discrimination against an

employee, because that employee “has opposed any practice made an

unlawful employment practice” by the Act.    42 U.S.C. § 2000e-

3(a).    To establish a prima facie case of retaliation under Title

VII, Dr. Kolpakchi must show (1) that her activity was protected

by Title VII; (2) that she has suffered an adverse employment

action; and (3) that there existed a “causal link” between the

action and the protected activity.     See Roberson v. Alltel Info.



     2
      Dr. Kolpakchi responds that she did not need to apply for
the job because there is direct evidence of discrimination. The
Supreme Court has held that, in situations where the promotion
policy is discriminatory on its face, questions about whether or
not there were actual openings applied for is irrelevant. Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). This
is because, with such direct evidence, the case no longer fits
into the McDonnell Douglas burden shifting analytic framework.
Only as part of that framework in a lawsuit based on
circumstantial evidence must a prima facie case be established.
In Trans World, the policy at issue explicitly penalized pilots
because of their age, advantaging younger pilots. See id. Dr.
Kolpakchi has not alleged such a discriminatory policy in this
case. At best, she can hyperbolically argue that the “hiring
process . . . could not have been [more] evasive and confusing.”
This does not make it discriminatory on its face.

                                  11
Servs., 373 F.3d 647, 655 (5th Cir. 2004).

     Dr. Kolpakchi claims that she engaged in protected activity

by filing claims of discrimination.   This element is uncontested.

She states that she has also suffered a number of adverse

employment actions: “(1) [D]eclaring her position to be vacant

while she was the incumbent; (2) Posting of an incumbent’s

position; (3) Removing her from her incumbent position; (4)

Transferring her to a position that has fewer responsibilities

and; (5) [R]eplacing her with a male physician . . . .”    All of

these actions are really derived from or are the result of two

actions: (1) eliminating her position and creating a new one in

its place; and (2) not hiring her for the new position.

     The Supreme Court has instructed that “[a] tangible

employment action constitutes a significant change in employment

status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision

causing a significant change in benefits.”   Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998).   Undoubtedly, both

actions meet this standard.   However, the first of these, the

recharacterization and vacating of Dr. Kolpakchi’s position,

occurred prior to her protected behavior, as she filed her

complaint in response to that action.   Therefore, the only

adverse action at issue was Dr. Horvath’s decision not to hire

Dr. Kolpakchi.


                                12
     Finally, Dr. Kolpakchi must show a “causal link” between not

being hired for the Employee Health position and her filing of

the EEO complaint.    Assuming arguendo that Dr. Kolpakchi did

apply for the position, she has alleged no facts showing a causal

link between the decision not to hire her and her protected

activity.    Her only argument is “that soon after [she]

participated in a protected activity an adverse employment action

occurred.”    She is right that we have found that “[c]lose timing

between an employee’s protected activity and an adverse action

against him may provide the ‘causal connection’ required to make

out a prima facie case of retaliation.”     Swanson v. Gen. Servs.

Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).     “However, once the

employer offers a legitimate, nondiscriminatory reason that

explains both the adverse action and the timing, the plaintiff

must offer some evidence from which the jury may infer that

retaliation was the real motive.”     Id.

     Because Dr. Kolpakchi’s old position was eliminated and a

new one just created, Dr. Horvath needed to hire someone to fill

that position.    Since Dr. Kolpakchi filed her complaint shortly

after that first adverse employment action, the hiring decision

for the new position necessarily had to be in close temporal

proximity to her complaint.    Timing alone, in this instance,

holds no probative value.

     Thus, the District Court correctly concluded that Dr.


                                 13
Kolpakchi failed to make a prima facie showing of retaliation in

violation of Title VII.

     Accordingly, we AFFIRM the district court’s ruling.

                                                           AFFIRMED




                               14
