Case: 14-30204      Document: 00512826702         Page: 1    Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30204
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JOANNE STONE,                                                            November 5, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

LOUISIANA DEPARTMENT OF REVENUE,

              Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-3022


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Joanne Stone, proceeding pro se, appeals the district court’s
dismissal of her Title VII and state law defamation claims against Appellee
Louisiana Department of Revenue. For the following reasons, we AFFIRM the
district court’s dismissals of Stone’s discrimination and harassment claims, we
REVERSE the district court’s dismissals of Stone’s retaliation and defamation
claims, and we REMAND to the district court for further proceedings
consistent with this opinion.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30204
                                           I.
      Stone, an African American, worked as a Revenue Tax Auditor for the
Louisiana Department of Revenue. She initially worked in the New Orleans
office from July 2001 until August 2010. Stone then transferred to the
Department’s Houston office, where she was employed until her resignation in
March 2012. On August 12, 2010, Stone filed a complaint with the Equal
Employment Opportunity Commission (EEOC), alleging race discrimination
and retaliation. She later amended her charge to include allegations of
harassment based on her race. The EEOC issued Stone a right to sue letter on
her claims for her discrimination, harassment, and retaliation claims. On
December 12, 2012, Stone filed suit in the United States District Court,
alleging constructive discharge. She amended her suit on September 12, 2013,
to include allegations of racial discrimination, harassment, and retaliation.
      To support her claims of discrimination and harassment, Stone alleges
that her supervisor, Vendetta Lockley, intended to eliminate Stone’s position
within the New Orleans Department. To further this agenda, Stone asserts
that Lockley began to harass Stone by questioning Stone’s work performance
in meeting audit targets, 1 despite Lockley having previously indicated that
Stone and the employees in her group had met their audit targets. Stone also
asserts that Lockley failed to give her credit for all Stone’s audit hours,
approved completed audit hours too late to be counted toward Stone’s year-end
production number, and assigned Stone to “desk audits,” which she alleges had
lower assets than the audits assigned to a Caucasian co-worker. She further
alleges that her Caucasian co-workers were assigned as lead auditors, and a
racially derogatory comment was made about African Americans.



      1 Employees’ work included “chargeable” audit hours and non-audit hours, which were
not chargeable to the office.
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                                No. 14-30204
      Stone alleges that Lockley created a hostile working environment when
Lockley accused Stone of losing an audit document. Stone asserts that this
accusation slowed down her transfer to Houston and reduced her
telecommuting privileges. She further alleges that her telecommuting days
were reduced from three days per week to one day per week due to the
relationship between her former manager in New Orleans and her new
manager in Houston. She asserts that Caucasian employees were granted
more telecommuting privileges. Stone further alleges a hostile work
environment was created when Lockley and another supervisor searched for
the missing audit document in her office without Stone’s permission.
      In April 2011, Stone requested an out-of-state position near her home in
Mobile, Alabama. Her request was denied. She renewed her request in August
2011. That request was also denied. Stone alleges the denials were based on
her race because Caucasian employees were being granted similar requests. In
February 2012, Stone submitted a letter of resignation, which she later
withdrew. In March 2012, Stone required time off due to illness. Stone’s
supervisor Elsie Thomas informed her that her leave would be approved after
she obtained a note from her physician, which would then be verified by human
resources. Stone asserts that this constituted harassment and contributed to a
hostile work environment. Stone alleges that this continued harassment
ultimately led to her second resignation letter on March 26, 2012. Her final
day of employment with the Department was April 9, 2012.
      To support her claim of constructive discharge, Stone argues that she
was forced to resign after the Department refused her requests to either
continue to telecommute three days a week or permit her to conduct out-of-
state audits near her home in Alabama.
      On February 28, 2013, Stone filed a second EEOC charge alleging race
discrimination, retaliation, constructive discharge, and harassment for the
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                                  No. 14-30204
same dates covered in her first EEOC charge. The EEOC issued a right to sue
letter on the second charge, closing the investigation due to Stone’s filing suit
in federal court.
      Before the district court, the Department filed a Motion to Dismiss and,
Alternatively, Motion for Summary Judgment, alleging that Stone’s claims
were barred by res judicata, that Stone failed to state a prima facie case for her
Title VII claims, and that Stone failed to exhaust her administrative remedies
or the claims were prescribed. The parties consented to proceed before a
magistrate judge. The magistrate judge declined to dismiss Stone’s complaint
as barred by res judicata, but granted the motion to dismiss for failing to state
a claim pursuant to Rule 12(b)(6). Stone timely appealed.
                                       II.
                                       A.
      The Department argues that Stone’s suit is barred by res judicata. Stone
filed a lawsuit against the Department in September 2012, seeking reversal of
the denial of her unemployment benefits. The court dismissed the lawsuit with
prejudice on Stone’s own motion. The Department argues that Stone was
asserting her Title VII claims in that lawsuit, citing to her discussion of her
EEOC charges and the attachment of the EEOC charge to the complaint. The
magistrate judge found that Stone’s current suit was not barred by res
judicata.
      Res judicata bars the litigation of claims that were previously litigated
or should have been raised in an earlier suit. See Test Masters Educ. Servs.,
Inc. v. Singh, 

, 571 (5th Cir. 2005). This court reviews de novo “the
res judicata effect of a prior judgment.” 

Rule 12(b)(6) on
res judicata grounds is appropriate when the elements of res judicata are
apparent on the face of the pleadings.” Murray v. Gen. Servs. Admin., 

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                                  No. 14-30204
App’x 362, 364 (5th Cir. Jan. 2, 2014) (citing Kansa Reinsurance Co. v. Cong.
Mortg. Corp. of Tex., 

, 1366 (5th Cir. 1994)).
      There are four elements that must be met for a claim to be barred by res
judicata: whether (1) “[t]he parties are identical or in privity; (2) the judgment
in the prior action was rendered by a court of competent jurisdiction; (3) the
prior action was concluded to a final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.” Southmark Corp. v.
Coopers & Lybrand (In re Southmark Corp.), 

, 934 (5th Cir. 1999)
(internal quotations and citations omitted).
      It is clear from the context of the complaint in the first lawsuit that Stone
was raising one claim−reversal of the denial of her unemployment benefits by
a state administrative review board. While it is true that Stone discussed facts
that also support her Title VII claims, and attached her EEOC charge to the
complaint, her reference to the EEOC charge and its underlying facts was to
counter the administrative board’s finding that she was “merely dissatisfied
with her employment” and was therefore deemed to have quit. Such discussion
does not, as the defendants contend, establish that Stone was “clearly
attempting” to litigate her Title VII claims. In fact, Stone states in her
complaint that her EEOC claims were still being investigated, evidencing that
she did not intend to raise specific Title VII claims.
      Importantly, the only claim Stone raised a state law claim over which
the federal court had no jurisdiction. A claim for unemployment benefits must
be filed in the state district court of the domicile of the claimant. See LA. REV.
STAT. ANN. § 23:1634. Because the district court did not have jurisdiction over
the lawsuit, there could be no final judgment from a court of competent
jurisdiction.




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                                    No. 14-30204
      Because at least one element for res judicata to apply cannot be satisfied,
we find that the district court did not err in denying the Department’s motion
to dismiss based on res judicata.
                                        B.
      Having determined that the lawsuit underlying this appeal is not barred
by res judicata, we must next determine which of Stone’s claims are ripe for
our review.
1.    Exhaustion and Timeliness of 2013 EEOC Charge
      The Department argues that Stone did not exhaust her administrative
remedies with respect to her 2013 EEOC charge. Specifically, the Department
asserts that the 2013 EEOC charge was not perfected, as there is no evidence
that a signed, verified charge was filed with the EEOC. The Department
argues that the only evidence of a charge is a notice of the filing of the charge
from the EEOC, which states “a copy of the perfected charge will be mailed to
you once it has been received from the Charging Party.” Alternatively, the
Department argues that the 2013 charge was untimely as it was not filed
within 300 days of the last complained of discriminatory conduct.
      Stone has not produced a signed, verified charge evidencing that her
2013 charge was perfected. Instead, she produced a letter from an EEOC
investigator certifying that it received a charge of discrimination on February
25, 2013, and a notice of dismissal from the EEOC, dismissing the
investigation of the 2013 charge on the basis that Stone had filed a federal
lawsuit.
      We pretermit whether Stone perfected her 2013 EEOC charge, because
even if she had, the charge was untimely. Stone was required to file an
employment discrimination claim with a designated state agency or the EEOC
within 300 days of the alleged unlawful employment action. See Nat’l R.R.


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                                       No. 14-30204
Passenger Corp. v. Morgan, 

, 109 (2002) (citing 42 U.S.C. § 2000e–
5(e)(1)). “A claim is time barred if it is not filed within these time limits.” 

that the filing of her 2013 charge was timely under the
“continuing violations” doctrine. The continuing violation doctrine “reliev[es] a
plaintiff of establishing that all of the complained-of conduct occurred within
the actionable period if the plaintiff can show a series of related acts, one or
more of which falls within the limitations period.” Huckabay v. Moore, 

, 238 (5th Cir. 1998) (quoting Messer v. Meno, 

, 134–35 (5th
Cir. 1997)). The plaintiff must “show an organized scheme leading to and
including a present violation, such that it is the cumulative effect of the
discriminatory practice, rather than any discrete occurrence, that gives rise to
the cause of action.” Celestine v. Petroleos de Venezuella SA, 

, 352
(5th Cir. 2001). Stone fails to identify any discriminatory conduct occurring
later than March 31, 2012, the date of her resignation. Thus, Stone had until
January 25, 2013, to timely file claims of discrimination based on her 2013
EEOC charge. Because she did not file until February 28, 2013, her 2013
discrimination charge was untimely. 2




       2  Stone also argues that her claim is not time barred due to equitable tolling. Stone
argues that the deadline to file her 2013 charge should be tolled due to her unsuccessful
attempts to have counsel appointed by the court. The plaintiff has the burden of providing a
sufficient factual basis for tolling the filing deadline. Conaway v. Control Data Corp., 

, 362 (5th Cir. 1992). This court has applied equitable tolling when (1) a suit is
pending between the parties in the incorrect forum; (2) the claimant is unaware of facts
supporting her claim because the defendant intentionally concealed them; and (3) the
claimant is misled by the EEOC about her rights. See Manning v. Chevron Chem. Co., LLC,

, 880 (5th Cir. 2003). We have also found equitable tolling excused an untimely
filing “in rare and exceptional circumstances when a plaintiff is actively misled by the
defendant about the cause of action or is prevented in some extraordinary way from asserting
his rights.” Lovett v. Barbour Intern., Inc., 211 F. App’x 281, 283 (5th Cir. 2006) (per curiam)
(unpublished) (citation and internal quotation marks omitted). Although this list is not
exhaustive, Stone has not provided any arguments or cited to any case law that would
support equitable tolling.
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                                 No. 14-30204
2.    Exhaustion of 2010 EEOC Charges
      The Department argues that Stone’s complaint includes allegations not
raised in her 2010 EEOC charge and therefore she did not exhaust her
administrative remedies as to these allegations. In her August 2010 EEOC
charge, Stone alleged race discrimination and harassment. In her November
2010 EEOC charge, she included allegations of retaliation. In her untimely
2013 EEOC charge, Stone alleged disparate treatment and/or disparate
impact. In her complaint filed with the district court, Stone alleged
constructive discharge for the first time.
      “Title VII requires employees to exhaust their administrative remedies
before seeking judicial relief.” 

(internal citations
omitted). An employee may file a lawsuit “not only upon the specific complaints
made by the employee’s initial EEOC charge, but also upon any kind of
discrimination like or related to the charge’s allegations, limited only by the
scope of the EEOC investigation that could reasonably be expected to grow out
of the initial charges of discrimination.” Fellows v. Universal Rests., Inc., 

, 451 (5th Cir. 1983). “‘[A] charging party’s rights should [not] be cut
off merely because [s]he fails to articulate correctly the legal conclusion
emanating from his factual allegations.’” Simmons–Myers v. Caesars Entm’t
Corp., 515 F. App’x 269, 272 (5th Cir. 2013) (quoting Sanchez v. Standard
Brands, Inc., 

, 462 (5th Cir. 1970)). We must determine whether
the EEOC charge “stated sufficient facts to trigger an EEOC investigation and
to put an employer on notice of the existence and nature of the charges”. 

(citing Manning v. Chevron Chem. Co., 

, 878 (5th Cir. 2003);

)).
      Stone did not allege any facts in her 2010 EEOC charges that reasonably
encompass her later claims for constructive discharge, disparate impact or
disparate treatment. See Pacheco v. Mineta, 

, 788–92 (5th Cir.
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                                  No. 14-30204
2006). At the time she filed her 2010 EEOC charge she was still employed with
the Department. Stone also fails to identify a facially neutral Department
policy or practices that was applied to her in a discriminatory way. See Stout
v. Baxter Healthcare Corp., 

, 860 (5th Cir. 2002). She further failed
to allege facts sufficient to show she suffered disparate treatment. In her
EEOC charge, she states only that she saw her supervisor “react differently”
by making a face when an African American co-worker arrived late and have
no reaction when a Caucasian employee arrived late. In her amended charge
she stated that a Caucasian co-worker was not required to quote “applicable
law” when presenting audits, but Stone was. This also is insufficient to trigger
an EEOC investigation and to put an employer on notice of a disparate
treatment claim. See 

; 

.
      Thus, Stone’s subsequent claims fall outside “the scope of the EEOC
investigation” and could not reasonably be expected to grow out of her initial
charge of race discrimination and harassment. As such, Stone has failed to
exhaust her administrative remedies on these later raised claims.
                                        C.
      Stone argues that the district court erred in granting the Department’s
motion to dismiss on her claims for race discrimination, harassment, and
retaliation pursuant to Federal Rule of Civil Procedure 12(b)(6). We review a
district court’s dismissal pursuant to Rule 12(b)(6) de novo, accepting all well-
pleaded facts as true and viewing all well-pleaded facts in the light most
favorable to the plaintiff. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 

, 854 (5th Cir. 2012) (en banc). To survive dismissal, a
plaintiff must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). “A claim has
facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
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                                 No. 14-30204
alleged.” Ashcroft v. Iqbal, 

, 678 (2009). However, the complaint
must allege enough facts to move the claim “across the line from conceivable to
plausible.” 

. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.”

(citations omitted). The court may not go outside the
complaint, but it may consider documents attached thereto. Kennedy v. Chase
Manhattan Bank USA, NA, 

, 839 (5th Cir. 2004). Because Stone
is proceeding pro se, her pleadings are held “to less stringent standards than
formal pleadings drafted by lawyers.” Calhoun v. Hargrove, 

, 733
(5th Cir. 2002) (internal quotation and citations omitted).
      The district court applied incorrect standards when it dismissed Stone’s
discrimination, harassment, and retaliation claims for failure to plead a prima
facie case. Although the McDonnell Douglas framework governs the standard
of proof at trial, “a plaintiff need not make out a prima facie case of
discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure
to state a claim.” Raj v. Louisiana State Univ., 

, 331 (5th Cir.
2013). The district court, by requiring Stone “to make a showing of each prong
of the prima facie test . . . at the pleading stage,” improperly substituted “an
‘evidentiary standard’ for a ‘pleading requirement.’” 

v. Sorema N.A., 

, 512 (2002)). Applying McDonnell Douglas at the
pleading stage is particularly problematic where, as here, the plaintiff alleges
direct evidence of discrimination. As the Supreme Court has explained:
      [I]f a plaintiff is able to produce direct evidence of discrimination,
      he may prevail without proving all the elements of a prima facie
      case. . . . It thus seems incongruous to require a plaintiff, in order
      to survive a motion to dismiss, to plead more facts than he may
      ultimately need to prove to succeed on the merits if direct evidence
      of discrimination is discovered.”

–12.


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                                  No. 14-30204
       We will address Stone’s claims under the proper standard, examining
whether Stone has “pleaded factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”

; see Sobranes Recovery Pool I, LLC v. Todd & Hughes
Const. Corp., 

, 221 (5th Cir. 2007) (“[T]his court may affirm the
district court’s judgment on any grounds supported by the record . . . .” (internal
quotation marks omitted)). Although Stone need not plead a prima facie case,
she is not exempt from her obligation to “allege facts sufficient to state all the
elements of her claim.” Mitchell v. Crescent River Port Pilots Ass’n, 265 F. App’x
363, 370 (5th Cir. 2008) (quoting Jordan v. Alternative Res. Corp., 

, 346 (4th Cir. 2006)).
1.     Stone’s Discrimination Claims
       Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race. . . .” 42 U.S.C. § 2000e–2(a)(1).
We use the shorthand term “adverse employment action” to refer to an
employment decision that negatively affects the compensation, terms,
conditions, or privileges of employment. See Pegram v. Honeywell, Inc., 

, 281–82 (5th Cir. 2004). In the context of a racial discrimination
claim, adverse employment actions involve “ultimate employment decisions”
such as hiring, firing, demoting, promoting, granting leave, and compensating.
See Alvarado v. Tex. Rangers, 

, 612 (5th Cir. 2007); 

. Because an adverse employment action is an element of a racial
discrimination claim, a plaintiff must allege that she suffered an adverse
employment action because of racial discrimination. See 

.
       Stone did not sufficiently allege that she suffered an adverse
employment action.       Stone alleges that she was denied telecommuting
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                                  No. 14-30204
privileges that were granted to Caucasian employees. She also alleges that she
was assigned “desk audits,” which have lower assets then the audits assigned
to Caucasian employees. Stone further alleges that Caucasians were assigned
as lead auditors. She alleges that her performance was called into question by
her supervisor and that her supervisor improperly delayed approval of her
audit hours, which impacted Stone’s year end production numbers. Finally,
Stone alleges that she was subjected to a racially derogatory remark from her
supervisor.
       Even under liberal reading of Stone’s complaint, the only fact she alleges
that could implicate an “ultimate employment decision” was that she was
denied the opportunity to be a lead auditor. However, Stone fails to allege facts
suggesting that being a lead auditor was akin to being denied a promotion,
would affect her compensation, or otherwise be considered a benefit rising to
the level of an ultimate employment action. In fact, the entirety of her
allegations about being a lead auditor is that her supervisor “once assigned the
white employee, Annette Broadway as lead on the out-of-state audit even
though [Stone] had more experience and time within the department.” This
allegation, without more, does not provide enough factual content to state a
plausible claim for relief. Because Stone has failed to allege that she suffered
an adverse employment action, she has failed to state a claim for racial
discrimination.
2.     Stone’s Harassment Claims
       To state a claim for harassment based on a hostile work environment
theory, a plaintiff must allege, inter alia, that she was harassed because of her
race, affecting a condition or privilege of her employment. See Ramsey v.
Henderson, 

, 268 (5th Cir. 2002). To affect a condition or privilege
of employment, the harassment must be “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
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                                 No. 14-30204
environment.” 

and citations omitted). “Whether an
environment is hostile or abusive depends on a totality of circumstances,
focusing on factors such as the frequency of the conduct, the severity of the
conduct, the degree to which the conduct is physically threatening or
humiliating, and the degree to which the conduct unreasonably interferes with
an employee’s work performance.” Weller v. Citation Oil & Gas Corp., 

, 194 (5th Cir. 1996).
      Stone alleges that Lockley, her supervisor, created a hostile working
environment by accusing Stone of losing an audit document, which had the
effect of slowing Stone’s transfer to Houston and reducing her telecommuting
privileges. She also alleges that Lockley assigned Stone more “desk audits,”
which have lower assets then the audits assigned to Caucasian employees, that
Lockley incorrectly called her performance into question, and that her
supervisor improperly delayed approval of her audit hours, which impacted
Stone’s year end production numbers. She further alleges that her
telecommuting days were reduced from three days per week to one day per
week due to the relationship between her former manager in New Orleans and
her new manager in Houston. Additionally, Stone alleges a hostile work
environment was created when Lockley and another supervisor searched for
the missing document in her office without Stone’s permission. Finally, Stone
alleges that the Department’s request that she obtain a doctor’s note
constituted harassment.
      We agree with the magistrate judge that Stone failed to allege facts that,
taken as true, demonstrate that she faced harassment “sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive
working environment.” 

. As such, the magistrate
judge properly dismissed Stone’s harassment claims.


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                                        No. 14-30204
3.     Stone’s Retaliation Claim
       “Title VII prohibits retaliation against employees who engage in
protected conduct,” such as filing a charge of harassment or discrimination.
Perez v. Region 20 Educ. Serv. Ctr., 

, 325 (5th Cir. 2002). To state
a claim for retaliation in violation of Title VII, the plaintiff must allege that
her employer took an adverse employment action against her in retaliation for
engaging in protected conduct.            Notably, the standard for establishing an
adverse employment action in the retaliation context differs from the standard
in the discrimination context. See Burlington N. & Santa Fe Ry. Co. v. White,

, 66–68 (2006) (noting that the anti-retaliation provisions of Title
VII are broader than the anti-discrimination provisions). For purposes of a
retaliation claim, an adverse employment action is one that “a reasonable
employee would have found . . . materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” 

(internal quotations and citations
omitted). “[T]he significance of any given act of retaliation will often depend
upon the particular circumstances. Context matters.” 

Normally,
“petty slights, minor annoyances, and simple lack of good manners will not
create such deterrence.” 

.
       The standard for adverse employment action is tied to the challenged
retaliatory act, “not the underlying conduct that forms the basis of the Title
VII complaint.” 

of Stone’s allegations supporting her claim for
retaliation occurred prior to her filing an internal grievance 3 in May 2010 and
the EEOC charge in August 2010. As such, any facts claimed as retaliation
prior to May 2010 do not have “a causal connection between the protected
activity and the adverse employment action.” See 

–57.


       3   The internal grievance was mitigated upon Stone’s transfer to the Houston office.
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                                 No. 14-30204
      As for events occurring after May 2010, Stone alleges that Lockley
singled her out by not giving her credit for all of her audited cases, returned
her audited cases too late to be counted toward Stone’s end-of-the-year
production numbers, delayed Stone’s transfer to Houston by falsely accusing
her of misplacing a form, and convinced Stone’s supervisors in Houston to limit
Stone’s telecommuting privileges. We conclude that these actions “might well
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington 

. Taking Stone’s allegations as
true, Lockley retaliated against Stone by hindering her professional
development, impeding her physical transfer to a new office, and limiting her
telecommuting privileges once she arrived in Houston. Especially in light of
the less stringent standards applied to pro se pleadings, this is enough to state
a claim for retaliation. Cf. Burlington 

(“[T]o retaliate by
excluding an employee from a weekly training lunch that contributes
significantly to the employee’s professional advancement might well deter a
reasonable employee from complaining about discrimination.”); Rodriguez-
Vives v. Puerto Rico Firefighters Corps of Puerto Rico, 

, 285 (1st
Cir. 2014) (holding that plaintiff stated claim for retaliation where employer
denied her certain assignments and “subjected her to repeated unpleasant and
inequitable treatment.”); Crawford v. Carroll, 

, 974 (11th Cir.
2008) (“[Plaintiff] suffered a materially adverse action in the form of the
unfavorable performance review she received (that affected her eligibility for a
merit pay increase) after she complained of racial discrimination.”).
Accordingly, we reverse the district court’s judgment with regard to Stone’s
retaliation claim.
                                      III.
      After dismissing Stone’s federal claims, the district court declined to
exercise supplemental jurisdiction over Stone’s state law defamation claim.
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                                  No. 14-30204
Because we now reverse the dismissal of Stone’s retaliation claim, we also
reverse the district court’s dismissal of Stone’s state law claim.
                                       IV.
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Stone’s discrimination and harassment claims, we REVERSE the district
court’s dismissal of Stone’s retaliation claim and her state law defamation
claim, and we REMAND to the district court for further proceedings consistent
with this opinion.




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