Filed: Feb. 16, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 16, 2007 _ Charles R. Fulbruge III Clerk No. 06-20287 Summary Calendar _ LAXMI SARWAL, Plaintiff-Appellant, versus ANTHONY PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Texas, Houston Division No. H-04-1942 Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges. PER CURIA
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 16, 2007 _ Charles R. Fulbruge III Clerk No. 06-20287 Summary Calendar _ LAXMI SARWAL, Plaintiff-Appellant, versus ANTHONY PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee. On Appeal from the United States District Court for the Southern District of Texas, Houston Division No. H-04-1942 Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges. PER CURIAM..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 06-20287
Summary Calendar
_______________________
LAXMI SARWAL,
Plaintiff-Appellant,
versus
ANTHONY PRINCIPI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
No. H-04-1942
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Laxmi Sarwal appeals the district court’s grant of
summary judgment to defendant Anthony Principi on retaliation
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et. seq. Sarwal fails to present a prima facie case of
reprisal, and we therefore AFFIRM.
I. BACKGROUND
Sarwal worked as a Staff Assistant in the Women’s Health
Center within the Veterans Affairs Medical Center (“VA”) in
*
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opinion should not be published and is not precedent except under the limited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.
Houston, Texas, performing primarily administrative duties. In
November 2000, Sarwal filed a discrimination complaint with the VA
Office of Employment Discrimination, which she amended in March
2001, August 2001, and May 2002. In her initial charge and the
subsequent amendments, Sarwal alleged twelve incidents or grounds
on which her employer discriminated against her on the basis of
race, national origin, sex, and color, and improperly retaliated
against her for prior EEO filings.
On August 27, 2002, the VA Office of Employment
Discrimination issued a Final Agency Decision dismissing Sarwal’s
first claim for untimeliness and failure to state a claim and
dismissing the remainder of her claims for lack of evidence of
discrimination. Sarwal appealed to the United States Equal
Employment Opportunity Commission (“EEOC”). On appeal, Sarwal
focused on her claim that she was improperly issued a letter of
counseling for failing to comply with the VA’s dress code.
On February 14, 2004, the EEOC determined that Sarwal had
presented a prima facie case of reprisal and ordered the VA to
remove all documentation of the letter of counseling from Sarwal’s
personnel file. However, the EEOC also determined that Sarwal
failed to establish that the VA discriminated against her based on
race, national origin, sex, or color.
On May 13, 2004, Sarwal filed the present action in
federal court, focusing on the letter of counseling regarding the
dress code and on a claim that the VA improperly retaliated against
2
her by denying her a monetary incentive award. On March 2, 2006,
the district court granted the defendant’s motion for summary
judgment on both counts. The court found that Sarwal was unable to
establish that the VA took an “adverse employment action” against
her, and therefore she did not present a prima facie case of
retaliation. Sarwal filed a timely appeal before this court.
II. DISCUSSION
We review a district court’s grant of summary judgment de
novo, applying the same standards as the trial court. MacLachlan
v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003). A court
should grant summary judgment when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c).
Courts analyze a motion for summary judgment in Title VII
retaliation claims using the McDonnell Douglas three-step, burden-
shifting framework. Hockman v. Westward Commc’ns, L.L.C., 407 F.3d
317, 330 (5th Cir. 2004); see McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03,
93 S. Ct. 1817, 1824 (1973). Under this
framework, Sarwal first must establish a prima facie case by
presenting evidence that: (1) she engaged in protected conduct,
(2) she was thereafter subjected to an adverse employment action,
and (3) the adverse employment action was taken in response to her
3
protected conduct. Hockman, 407 F.3d at 330. The burden then
shifts to the defendant to articulate a legitimate, nonretaliatory
reason for the adverse employment action.
Id. Once such a reason
is given, Sarwal must present evidence showing that the proffered
rationale is pretextual.
Id.
The district court determined that Sarwal failed to
present a prima facie case of retaliation because the actions taken
by the defendant, placing the counseling letter in her file and
refusing the monetary incentive award, did not constitute “ultimate
employment decisions.” See Mattern v. Eastman Kodak Co.,
104 F.3d
707-08 (5th Cir.), cert. denied,
522 U.S. 932,
118 S. Ct. 336
(1997). Sarwal argues that this contravenes the Supreme Court’s
recent ruling in Burlington N. & Santa Fe Ry. Co. v. White, __ U.S.
__,
126 S. Ct. 2405 (2006), in which the Court rejected the
“ultimate employment decision” framework and held that a plaintiff
need only “show that a reasonable employee would have found the
challenged action materially adverse” in order to state a prima
facie case for retaliation.
Id. at 2415.
We need not determine whether the actions asserted by
Sarwal meet this new standard for an adverse employment action as
her claims fail on other grounds. With respect to the counseling
letter, Sarwal is unable to establish that it was ever put into her
personnel folder, and she presented no summary judgment evidence
4
that the letter had any disciplinary effect.1 As such, it cannot
be considered an adverse employment action, and the district court
properly granted summary judgment.
As to the incentive award, the record is devoid of any
evidence that the alleged discriminating individual, Sarwal’s
supervisor Smith, participated in the decision to refuse the award.
In fact, the evidence shows that Smith recommended that Sarwal
receive the award; her authority, however, was limited to
nominating an individual, and Dr. Ella Curry made the final
decision. Contrary to Sarwal’s claim that Smith retaliated against
her, the defendants presented an email dated August 23, 2000, in
which the Administrative Officer for the VA Chief of Staff informed
Smith that Curry had denied the award to Sarwal. Sarwal argues
that in her deposition, Curry could not recall denying the award.
This deposition, given five years after the fact, is insufficient
to establish a genuine issue of material fact as to whether Smith
discriminated against Sarwal in denying the award. See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87,
106 S. Ct. 1348, 1356 (1986) (“When the moving party has carried
its [initial] burden ... its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts....
1
Although the EEOC did order the letter removed from Sarwal’s
personnel file, Sarwal presented no evidence to this court or the district court
that the letter was ever there, and the EEOC’s finding is not entitled to
deference. Smith specifically denied that the letter was placed in Sarwal’s file,
and Sarwal admitted that she had never actually seen the file.
5
[T]he nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial”) (internal citations and
quotation marks omitted) (emphasis in original). As there is no
evidence that Smith took any adverse action regarding the award,
let alone evidence that she did so with a discriminatory intent,
the district court properly granted summary judgment to the
defendant.
III. CONCLUSION
Sarwal is unable to present a prima facie case of
retaliation, as she cannot produce evidence that the defendants
took any adverse employment action against her. The district
court’s grant of summary judgment is AFFIRMED.
6
