Case: 16-60223    Document: 00513725437      Page: 1   Date Filed: 10/19/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 16-60223                       United States Court of Appeals
                              Summary Calendar                              Fifth Circuit

                                                                          FILED
                                                                   October 19, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
JACKIE OUTLEY,
                                            Plaintiff–Appellant,
versus
LUKE & ASSOCIATES, INCORPORATED,
                                            Defendant–Appellee.




                Appeal from the United States District Court
                  for the Southern District of Mississippi




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Jackie Outley appeals a summary judgment dismissing her claims of
race-based employment discrimination and retaliation. Because she has not
presented evidence sufficient to make a prima facie case of discrimination or
to create a fact issue regarding pretext, we affirm.

                                       I.
      Luke & Associates, Inc. (“Luke”), and the Air Force entered into a Clin-
ical Services Support Agreement under which Luke agreed to provide medical
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                                     No. 16-60223
personnel to various Air Force facilities, including Keesler Air Force Base. The
agreement provided that the Air Force would (1) provide all equipment and
supplies used by the medical personnel; (2) direct the manner in which duties
were performed; (3) schedule the hours of medical personnel; and (4) supervise
all medical personnel.

      Luke entered into a Contractor Agreement with Jackie K. Outley, LLC, 1
under which Outley agreed to provide inpatient pharmacy services at Keesler.
The agreement provided, in part, that “if Luke should receive a request by the
Government that the services of [Outley] be terminated for cause, then such
services will be terminated in accordance with such request.”

      On May 16, 2011, Major Thuy Vo, Outley’s Air Force supervisor, sub-
mitted a Memorandum for Record, which noted that Outley had prepared and
sent intravenous fluids that did not match the physician’s order and had
ignored the “constructive intervention” of another pharmacist. On May 18, Vo
submitted a second memorandum, this time because of an “intensive argu-
ment” between Outley and another pharmacist “at the front line of the in-
patient pharmacy.” Outley and the other pharmacist were “counseled” for “un-
professional behavior” and were informed that the Air Force would file a com-
plaint with Luke if such behavior were repeated. Finally, on July 14, Vo sub-
mitted a third memorandum concerning a “Prepacking Error Due to Inatten-
tion to Detail,” describing Outley’s mislabeling of medication.

      In August 2011, Air Force staff notified Luke of their concerns regarding
Outley’s performance. On August 29, Air Force staff met with representatives



      1 The parties dispute whether Outley was an independent contractor or an employee
of Luke’s. This issue bears on whether she has standing to bring a Title VII claim. But
because we affirm on the assumption that she could bring her claim, we need not reach this
issue.
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                                     No. 16-60223
of Luke and with Outley to discuss those concerns and to inform them that
Outley would no longer be permitted to work as an inpatient pharmacist.
According to Luke, to avoid terminating Outley’s contract, it proposed a trans-
fer, and the Air Force and Outley agreed to a transfer in lieu of termination.

       Outley denies consenting to that arrangement. She was transferred to
an outpatient pharmacy, then in December 2011 to a second outpatient phar-
macy. Before that, in October, she requested a “merit adjustment raise.” Luke
informed her that it was unable to grant the request but that in January it
would reassess after discussing her performance with the Air Force.

                                            II.
       On August 11, 2011, Outley had emailed Colonel Richard McBride to
notify him of “prejudices/double standards/hostility/harassment and being
singled out in the workplace.” McBride instructed Outley to “notify both your
Contractor and EEO if you honestly feel you are working in a hostile environ-
ment.” Outley filed a formal complaint with the Air Force on August 29, 2011,
then sued, alleging race-based discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. 2

       The district court entered summary judgment for Luke because Outley
had not established a prima facie case of discrimination. It also found that
Luke had provided legitimate, nondiscriminatory reasons for the transfer.
With respect to retaliation, the court found that, even assuming that Outley
had presented a prima facie case, Luke had presented sufficient non-
discriminatory reasons.        Outley’s appeal of the summary judgment also



       2Outley initially named Quarterline Consulting Services, LLC, as a second defendant,
but because Outley and that entity settled, the district court addressed only the claims
against Luke.
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                                       No. 16-60223
challenges the denial of her motion to compel responses to interrogatories.

                                             III.
       Title VII prohibits discrimination “because of” a protected characteristic,
including race. 42 U.S.C. § 2000e–2(a)(1). 3 Under the burden-shifting frame-
work of McDonnell Douglas Corp. v. Green, 

 (1973), the plaintiff
must first demonstrate a prima facie case, and then the burden of production
shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its
action. Vaughn v. Woodforest Bank, 

, 636 (5th Cir. 2011). If it
does that, “the presumption of discrimination disappears.” Id. The plaintiff,
who always has the ultimate burden, must then “produce substantial evidence
indicating that the proffered legitimate nondiscriminatory reason is a pretext
for discrimination.” 4

                                             A.
       To establish a prima facie case, Outley must provide evidence “that she
(1) is a member of a protected class; (2) was qualified for her position; (3) was
subject to an adverse employment action; and (4) was replaced by someone
outside the protected class, or, in the case of disparate treatment, shows that
others similarly situated were treated more favorably.” 5 She meets the first
two prongs: She is black and therefore a member of a protected class, and
although Luke disputes whether she was qualified as an inpatient pharmacist,



       3 Although Outley bases her claims on Title VII and Section 1981, we refer only to
Title VII, because “[w]hen used as parallel causes of action, Title VII and [S]ection 1981 re-
quire the same proof to establish liability,” and “it would be redundant to refer to [both] of
them.” Shackelford v. Deloitte & Touche, LLP, 

, 403 n.2 (5th Cir. 1999).
       4Burton v. Freescale Semiconductor, Inc., 

, 233 (5th Cir. 2015) (quoting
Laxton v. Gap Inc., 

, 578 (5th Cir. 2003)).
       5 Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 

, 512–13 (5th Cir. 2001)
(footnote and quotation marks omitted).
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                                       No. 16-60223
we agree with the district court’s inference that her initial hiring demonstrates
her qualification. Moreover, Luke’s request for her transfer, instead of termin-
ation, suggests that she is qualified.

       With respect to the third prong, Outley maintains that her transfers
from inpatient facilities at Keesler to outpatient facilities constitute adverse
employment actions. It is well-settled that a “purely lateral transfer” is not an
adverse employment action. 6 A transfer might be purely lateral if the new
position had “the same job title, benefits, duties, and responsibilities” as the
old position. Id. A transfer can be an adverse action if it is “the equivalent of
a demotion,” such that the new position proves “objectively worse.” 7

       In the district court, Outley contended that her transfers were adverse
employment actions because her hours were reduced “at times” and her new
work schedule was “not as favorable.” On appeal, she presents additional evi-
dence that, in her outpatient role, she (1) was unable to work overtime;
(2) served up to four times as many patients; and (3) was required to attend
training for her new role. As a general rule, “[w]hen evidence exists in the
summary judgment record but the nonmovant fails even to refer to it in the
response to the motion for summary judgment, that evidence is not properly




       6 Burger v. Cent. Apartment Mgmt., Inc., 

, 879 (5th Cir. 1999) (“Our view
comports with the clear trend of authority in other circuits holding that a purely lateral
transfer is not an adverse employment action.”) (quotation marks omitted); see also Hockman
v. Westward Commc’ns, LLC, 

, 331 (5th Cir. 2004).
       7Thompson v. City of Waco, 

, 503 (5th Cir. 2014) (citing Alvarado v. Tex.
Rangers, 

, 612–15 (5th Cir. 2007); Sharp v. City of Hous., 

, 933 (5th
Cir. 1999) (explaining that a transfer “can be a demotion if the new position proves objectively
worse―such as being less prestigious or less interesting or providing less room for ad-
vancement”) (citations omitted).
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                                         No. 16-60223
before the district court.” 8 This rule extends to pro se plaintiffs such as Outley. 9

       Even with the additional facts, Outley’s transfers were not adverse
employment actions. Merely changing working hours or imposing a higher
workload does not qualify. 10 Moreover, Outley’s hourly pay remained the
same, and she retained her full-time status. 11 The fact that she had to attend
training does not mean that the transfer was a demotion; indeed, training may
be required for even a coveted promotion. Finally, Outley has presented no
evidence that her outpatient role was objectively viewed as less prestigious or
desirable than her inpatient role—a fact that is crucial. 12 In sum, Outley has
not shown that her transfer resulted in a position that was “objectively worse.”
Thompson, 764 F.3d at 503.

       Outley additionally suggests that she suffered an adverse employment
action because she was denied a “merit adjustment raise” in October 2011.
Although the denial of a pay increase can be an adverse employment action, 13


       8 Malacara v. Garber, 

, 405 (5th Cir. 2003); see also Ragas v. Tenn. Gas
Pipeline Co., 

, 458 (5th Cir. 1998) (“Rule 56 does not impose upon the district
court a duty to sift through the record in search of evidence to support a party’s opposition to
summary judgment.”); Nissho–Iwai Am. Corp. v. Kline, 

, 1307 (5th Cir. 1988)
(explaining that it is not necessary “that the entire record in the case . . . be searched and
found bereft of a genuine issue of material fact before summary judgment may be properly
entered”); cf. United States v. Dunkel, 

, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in briefs.”).
       9E.E.O.C. v. Simbaki, Ltd., 

, 484 (5th Cir. 2014) (“Despite our general
willingness to construe pro se filings liberally, we still require pro se parties to fundamentally
abide by the rules that govern the federal courts. . . . Pro se litigants must properly . . .
present summary judgment evidence”) (quotation marks omitted).
       10   See Benningfield v. City of Hous., 

, 376–77 (5th Cir. 1998).
       11 Outley concedes that once she informed Air Force staff that her new schedule
resulted in her losing hours, her schedule was changed so that she worked at least forty hours
per week.
        Compare Click v. Copeland, 

, 110 (5th Cir. 1992) with Serna v. City of
       12

San Antonio, 

, 485 (5th Cir. 2001).
       13   Fierros v. Tex. Dep’t of Health, 

, 194 (5th Cir. 2001), overruled on other
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                                          No. 16-60223
Outley did not present that argument in the district court. Assuming arguendo
that she did, she has satisfied prong three with respect to the denial of her
merit adjustment raise.

       Outley must next show “that others similarly situated were treated more
favorably” with regard to the pay raise, 14 meaning that they must be under
“nearly identical circumstances,” 15 which requires that
    the employees being compared held the same job or responsibilities,
    shared the same supervisor or had their employment status determined
    by the same person, and have essentially comparable violation histor-
    ies. And, critically, the plaintiff's conduct that drew the adverse employ-
    ment decision must have been “nearly identical” to that of the proffered
    comparator who allegedly drew dissimilar employment decisions.[ 16]
Even accepting, as true, that other employees received a merit raise, Outley
provided no evidence that they were similarly situated to her. In particular,
she has not shown that any of them shared her history of on-the-job violations.
Thus, she has not established the fourth prong and accordingly has not made
a prima facie case of discrimination.

                                                B.
       Assuming, again for the sake of argument, that Outley had shown a
prima facie case, the burden would shift to Luke to provide legitimate, non-
discriminatory reasons for its decisions. Those reasons must be “clear and




grounds by Desert Palace, Inc. v. Costa, 

 (2003).
       14Okoye, 245 F.3d at 513. It is possible that Outley could satisfy prong four with
regard to her transfer, because she alleges that she was replaced in the inpatient facility by
LeRoy Jacobs, who is white. See Okoye, 245 F.3d at 513. But even if she had provided evi-
dence in support, it would be immaterial because, as we have said, the transfer was not an
adverse employment action.
       15   Lee v. Kan. City S. Ry. Co., 

, 260 (5th Cir. 2009).
       16 Id. (citations omitted); see also Wallace v. Methodist Hosp. Sys., 

, 221
(5th Cir. 2001); Okoye, 245 F.3d at 514.
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                                      No. 16-60223
reasonably specific.” 17 It points to the three memoranda, which document Out-
ley’s performance issues. “Job performance is a legitimate . . . reason for ter-
mination.” LeMaire v. La. Dep’t of Transp. & Dev., 

, 391 (5th Cir.
2007). Moreover, under the Contractor Agreement, Luke was required to ter-
minate Outley if the Air Force requested dismissal for cause, which the Air
Force did. 18 Thus, Luke has met its burden of production.

                                             C.
       Continuing to assume a prima facie case, the burden would then shift
back to Outley to “produce substantial evidence indicating that the proffered
legitimate nondiscriminatory reason is a pretext for discrimination.” Laxton,
333 F.3d at 578. “A plaintiff may establish pretext either through evidence of
disparate treatment or by showing that the employer’s proffered explanation
is false or unworthy of credence.” Id. (quotation marks omitted). As explained
above, Outley has not shown disparate treatment, because she has not pre-
sented any similarly situated comparators. Nor does she dispute that she
engaged in misconduct. Although she asserts that one of the memoranda was
based on an “incorrect[t]” report by a fellow pharmacist, she offers no response
to the other two.

       Instead, Outley urges that she faced a “hostile work environment” in the
inpatient pharmacy, and that raises an inference of pretext. 19 She provides
eleven examples—none of which was presented to the district court—of times


        Okoye, 245 F.3d at 514 (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 

,
       17

258 (1981).
       18See id. at 513 (concluding that defendant had met its burden to show a legitimate,
nondiscriminatory reason because it was under a contractual obligation to remove an
employee from a jail assignment upon request of the Sheriff).
       19To the extent Outley’s brief can be construed as raising a hostile-work-environment
claim under Title VII, such a claim has been waived. See Royal v. CCC&R Tres Arboles,
L.L.C., 

, 400 (5th Cir. 2013).
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                                       No. 16-60223
when she faced discrimination. Most of those instances are unrelated to race.
For example, she states that Master Sergeant McCune yelled at her and that
Major Vo did not intervene. Thus, those examples are not relevant to her race-
based discrimination claim. 20

       Outley identifies three instances that, drawing all reasonable inferences
in her favor, can be connected to race:
       (1) Coworker Stephanie Bosarge referred to Outley as “that.”
       (2) Vo stated that “Asians and Blacks like to show off.”
       (3) Coworker Amie Douglas “remarked [that] she had seen security stop-
       ping the cars driven by Black people, and asked [Staff Sergeant] Smith,
       who is Black, ‘What’d you all do?’”
That evidence is insufficient to establish pretext. Outley points to comments
from three different speakers. She provides no evidence that Bosarge or Doug-
las had any authority over her transfer or her denied pay increase. 21 Nor has
she shown how Vo, employed by the Air Force and not by Luke, had authority
to deny her a pay increase. Moreover, the fact that Luke suggested a transfer
in lieu of termination weighs against a finding of pretext. In sum, Outley has
not met her burden to show that Luke’s legitimate, nondiscriminatory reasons
are pretext for racial discrimination.

                                             IV.
       McDonnell Douglas’s burden-shifting framework also applies to retalia-
tion claims under Title VII. Outley must first establish a prima facie case by
showing that “(1) she participated in an activity protected under the statute;




        See Hernandez v. Yellow Transp., Inc., 

, 651 (5th Cir. 2012); Jackson v.
       20

Cal-W. Packaging Corp., 

, 380 (5th Cir. 2010).
       21 See Jackson, 602 F.3d at 380 (“We have explained that comments are evidence of
discrimination only if they are . . . made by an individual with authority over the employment
decision at issue . . . .”).
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                                        No. 16-60223
(2) her employer took an adverse employment action against her; and (3) a
causal connection exists between the protected activity and the adverse
action.” McCoy v. City of Shreveport, 

, 556–57 (5th Cir. 2007). It
is undisputed that Outley participated in protected activity by complaining to
Colonel McBride on August 11. And, as explained above, her denial of a pay
increase was an adverse employment action. 22                   Finally, the close timing
between her protected activity and the denial of a raise—about two months—
is sufficient to show causal connection for purposes of a prima facie case. 23

       Luke can satisfy its burden to show legitimate, nondiscriminatory rea-
sons by pointing to Outley’s performance issues and Luke’s contractual obliga-
tions. The burden then shifts back to Outley to show that Luke’s reasons are
pretext for retaliation. She must demonstrate that “the adverse action would
not have occurred ‘but for’ [Luke’s] retaliatory motive.” 24

       Although the close timing was sufficient to establish a prima facie case,
it is insufficient to show pretext. 25 Rather, Outley points to evidence that on
August 2, 2011, Vo threatened to write an incident report on Outley if she
complained about discrimination. Outley did not identify that evidence to the
district court in opposing summary judgment. But even assuming she had, she


       22 In the district court and on appeal, Outley identified her transfer only as a retalia-
tory employment action. As explained above, her transfers were not adverse employment
actions. Though she did not claim that her denied pay increase was retaliatory, we assume
for the sake of argument that she did.
       23See Evans v. Hous., 

, 354 (5th Cir. 2001) (noting that “a time lapse of
up to four months” may be sufficiently close); LeMaire, 480 F.3d at 390 (stating that a lapse
of two weeks suggests a causal connection).
       24Feist v. La. Dep’t of Justice, 

, 454 (5th Cir. 2013) (quoting Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 

, 2533 (2013)); see also Long v. Eastfield Coll., 

, 308 (5th Cir. 1996).
       25Aryain v. Wal-Mart Stores Tex. LP, 

, 487 (5th Cir. 2008) (“[T]emporal
proximity standing alone is insufficient to establish an issue of fact as to pretext after an
employer has provided a non-retaliatory reason.”).
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has not met her burden to show pretext. The connection between Vo’s threat
and Luke’s denial of a merit pay adjustment is too attenuated. Outley provides
no evidence that Vo had authority to set Outley’s hourly rate; to the contrary,
her Contractor Agreement with Luke specifies her compensation. Moreover,
her documented performance issues provide a reasonable basis to deny a “merit
adjustment raise.” In sum, Outley has not provided evidence that “but for” her
complaints to the Air Force, Luke would have given a pay raise.

                                            V.
       As part of her appeal of the summary judgment, Outley questions the
denial of her motion to compel responses to interrogatories. The court denied
her motion as untimely because she filed it a week after the deadline for dis-
covery requests. “Discovery rulings are ‘committed to the sound discretion of
the trial court’ and will not be reversed on appeal unless ‘arbitrary or clearly
unreasonable.’” 26 Outley maintains that the district court abused its discretion
because she filed her interrogatories—the object of her motion to compel—on
October 19, before the close of discovery. But the Uniform Local Rules of the
Northern and Southern Districts of Mississippi require that all “discovery
motions must be filed sufficiently in advance of the discovery deadline so as
not to affect the deadline.” 27 Outley provides no good cause for waiting until
the last month of discovery to submit her interrogatories, particularly given
that the court had already extended the discovery period by three months. The
court did not abuse its discretion in denying the motion to compel.

       The summary judgment is AFFIRMED.



       26McCreary v. Richardson, 

, 654 (5th Cir. 2013) (quoting Williamson v.
U.S. Dep’t of Agric., 

, 373, 382 (5th Cir. 1987)).
       27 Prideaux v. Tyson Foods, Inc., 387 F. App’x 474, 478 (5th Cir. 2010) (citing Unif.
Loc. R. 7.2(B)(2)). The relevant local rule is currently located at 7(b)(2)(C).
                                            11