Case: 11-50706     Document: 00511897219         Page: 1     Date Filed: 06/22/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 22, 2012

                                       No. 11-50706                        Lyle W. Cayce
                                                                                Clerk

ERNEST B. REYNA, JR.,

                                                  Plaintiff - Appellant
v.

MICHAEL B. DONLEY, Secretary, Department of the Air Force, or his
substitution; JOHN C. FOBIAN, General, Retired,


                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                                  5:10-cv-00919


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
        Appellant Ernest Reyna appeals the district court’s dismissal of Appellee
General John Fobian and its grant of summary judgment on Reyna’s claims
against Appellee Secretary Michael Donley of age and national origin
discrimination, retaliation, and wrongful termination. We affirm for the
following reasons.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50706

                                       I.
      Reyna was employed by the United States Air Force Reserve at Lackland
Air Force Base in San Antonio as a “dual status” Air Force Reserve Technician
(ART) and a civilian structural repair technician with the 433rd Airlift Wing
Maintenance Squadron. Reyna was subject to a Collective Bargaining
Agreement (CBA) in conjunction with his employment as a structural repair
technician.
      On August 25, 2008, Squadron Commander General Fobian issued a
memorandum requiring all ART employees to wear military uniforms while in
civilian status. Reyna refused to wear his uniform, believing the order to be in
violation of the CBA. Reyna was reprimanded and eventually suspended without
pay for five days for “deliberate defiance of authority and refusal to comply with
established regulatory requirements.” After learning that a younger co-worker
was suspended without pay for five days but lost only three days of pay because
his suspension took place over a weekend, Reyna filed an age discrimination
complaint with the Equal Employment Opportunity Commission (EEOC).
      Reyna was suspended a second time after an inappropriate email sent
from his government email account was forwarded to his co-workers. Reyna was
suspended without pay for 10 days for misuse of government property and “a
total disregard for Air Force directives and appropriate standards of control.”
Two of Reyna’s co-workers also forwarded the inappropriate email and were
verbally reprimanded but not suspended. Because of the difference in
punishments, Reyna filed a second EEOC complaint, alleging age and national
origin discrimination, and retaliation for engaging in protected EEOC activity.
      Reyna filed suit with the United States District Court against General
Fobian and Secretary Donley, alleging age and national origin discrimination,
retaliation, and wrongful termination. Fobian filed a motion to dismiss pursuant
to Rule 12(b)(6) or, alternatively, a motion for summary judgment. The district

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                                  No. 11-50706

court granted Fobian’s motion to dismiss on the grounds that an individual
federal employee cannot be sued for employment discrimination under the Age
Discrimination in Employment Act (ADEA). In a separate order, the district
court granted summary judgment in favor of the Secretary.
                                        II.
      We review both a district court’s dismissal under Rule 12(b)(6) and its
grant of summary judgment de novo. Sullivan v. Leor Energy, LLC, 

, 546 (5th Cir. 2010); Offshore Drilling Co. v. Gulf Copper & Mfg. Corp., 

, 225 (5th Cir. 2010) (citation omitted). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

, 678
(2009) (quotations omitted). Summary judgment is proper when “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
      We find no error with the district court’s holdings. General Fobian was
properly dismissed because he was not the appropriate defendant. See Honeycutt
v. Long, 

, 1349 (5th Cir. 1988); see also 42 U.S.C. § 2000e-16(c).
With respect to Reyna’s claim stemming from his five day suspension, summary
judgment was appropriate because Reyna failed to initiate EEO counseling
within 45 days of the alleged age discrimination stemming from his 5 day
suspension. See Ramsey v. Henderson, 

, 269 (5th Cir. 2002); 29
C.F.R. § 1614.105; see also Pacheco v. Rice, 

, 906 (5th Cir. 1992)
(rejecting defendant’s argument that the time limitation did not begin to run
until an employee discovered the disparate treatment of a co-worker).
      With respect to Reyna’s claim stemming from his 10 day suspension,
summary judgment was appropriate because Reyna failed to establish a prima
facie case of either discrimination or retaliation. Reyna asserts that his 10 day
suspension was the result of age and national origin discrimination because he

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was treated less favorably than similarly situated employees. Reyna argues that
Dennis Carper and Chun Alsip, civilian employees, received more favorable
treatment for forwarding the same email when they were reprimanded but not
suspended. To establish his disparate treatment claim, Reyna must show, among
other things, that “others similarly situated were treated more favorably.” Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr., 

, 512-13 (5th Cir. 2001)
(quotations omitted). An employee must proffer a comparator who was treated
more favorably “under nearly identical circumstances,” which is satisfied when
“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 histories.” Lee v. Kansas City S. Ry.
Co., 

, 260 (5th Cir. 2009). Reyna proffers co-workers Carper and
Alsip as comparators, who did not share the same job, responsibilities, or
supervisor as Reyna. The circumstances of how the email was forwarded
differed, and Reyna had a history of misconduct that affected the severity of his
punishment.
      Reyna failed to establish a prima facie case of retaliation based on his 10
day suspension. Reyna did not establish that the alleged adverse employment
action—his suspension—would not have occurred but for the protected activity
of filing a charge of discrimination with the EEOC. Holtzclaw v. DSC Commc’ns
Corp., 

, 259 (5th Cir. 2001). As noted by the district court, Reyna
made no attempt to establish a causal link between his protected activity and his
10 day suspension. See Sherrod v. Am. Airlines, Inc., 

, 1122 (5th
Cir. 1998) (finding no prima facie case where plaintiff failed to demonstrate “a
conflict in substantial evidence on the ultimate issue of retaliation”).
      Finally, Reyna forfeited his challenge to the district court’s finding that he
failed to exhaust his administrative remedies on his wrongful termination claim
because he failed to first file a charge with the EEOC. See 29 U.S.C. § 626(d).

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                              No. 11-50706

AFFIRMED.




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