Piper v. Veneman

United States Court of Appeals
Fifth Circuit
F I L E D
May 11, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30677
Summary Calendar
_______________
VIVIAN O. PIPER,
Plaintiff-Appellant,
VERSUS
ANN VENEMAN,
SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendant-Appellee.
____________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:04-CV-960
_____________________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Vivian Piper appeals a summary judgment
in favor of her employer, the Department of
Agriculture (“USDA”), on her claims of
employment discrimination under title VII,
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
(continued...)
*(...continued)
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
42 U.S.C. § 2000e et seq. We affirm.
I.
When she filed her initial complaint with the
Equal Employment Opportunity Commission
(“EEOC”), Piper, a fifty-four-year-old black
woman, had been employed at the National
Finance Center (“NFC”), a division of the
United States Department of Agriculture
(“USDA”), for twenty-nine years and held the
position of Lead Systems Accountant. After
exhausting available administrative remedies
on her employment discrimination claims, Pi-
per sued the USDA. On the USDA’s motion,
the district court dismissed, on timeliness
grounds, the claims asserted in the initial com-
plaint. Piper, however, had filed an Amending
and Supplemental Complaint asserting ad-
ditional claims that were ripe for federal court
review; those claims thus survived the motion
to dismiss.
In her Amending and Supplemental Com-
plaint, as clarified by her Second Amending
and Supplemental Complaint, Piper alleges
she was denied the opportunity to compete for
a temporary position as Supervisory Systems
Accountant, subsequently was not selected for
a promotion to the permanent position of Su-
pervisory Systems Accountant, and was re-
moved from the Leave Donor Program1 on ac-
count of age, sex, and race and in retaliation
for her history of filing complaints with the
EEOC. She accordingly asserts that the
USDA violated title VII when it took the
relevant actions.2
The USDA moved for summary judgment,
arguing that, on each of her claims, Piper had
not presented evidence sufficient to support a
finding of discrimination. The USDA asserts
that Piper was declared ineligible to apply for
the temporary Supervisory Systems Accoun-
tant position because she was employed out-
side the area of consideration, and further
notes that she suffered no disparate treatment
in this regard because all employees outside
the area of consideration were deemed ineligi-
ble to apply.3
The USDA argues that Piper was not se-
lected for the permanent promotion to Super-
visory Systems Accountant because Dennis
Jack, the selectee, was the most qualified
1 The Leave Donor Program is offered to NFC
employees who meet certain criteria and who have
exhausted their sick and voluntary annual leave.
The program allows participants to receive addi-
tional days of paid leave through the donations of
voluntary annual leave by other employees.
2 Although she alleges age discrimination, Piper
does not claim a violation of the Age Discrimina-
tion in Employment Act (“ADEA”), 29 U.S.C. §
621 et seq. She bases her claims solely on title
VII, which does not list age as a protected charac-
teristic. Accordingly, we do not consider Piper’s
allegations of age discrimination with regard to the
USDA’s determination that she was ineligible to
apply for the temporary Supervisory Systems
Accountant position, its failure to select her for a
permanent promotion, or its removal of her from
the Leave Donor Program.
3 The temporary position, as officially adver-
tised, limited eligibilitySSalbeit mistakenlySSto
employees within the Controller Operations Divi-
sion (“COD”) of the NFC; Piper was not employed
in that division. The USDA contends that the fact
that the individual responsible for posting the
position erred in limiting eligibility to COD em-
ployees is of no consequence. The USDA asserts
that regardless of the error, it was the posted
limitation, and not Piper’s age, sex, race, or history
of filing EEOC claims, that led the department to
consider her ineligible for the position.

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applicant. Additionally, the department asserts
that Piper was not “removed” from the Leave
Donor Program, but rather, her participation in
that program merely expired according to the
medical documentation she had provided.
Finally, the USDA asserts that even if Piper
had been “removed” from the Leave Donor
Program, her removal does not qualify as an
adverse employment action necessary to sup-
port a prima facie case of discrimination,
because it was not an “ultimate employment
decision.”
The district court granted summary judg-
ment, dismissing all of Piper’s claims with pre-
judice. Piper appeals, challenging only the
summary judgment on her claim that the
USDA declined to promote her on account of
age, sex, and race.4
II.
Rule 56(c) of the Federal Rules of Civil
Procedure states that summaryjudgment “shall
be rendered forthwith if the pleadings, deposi-
tions, answers to interrogatories, and admis-
sions on file, together with affidavits, if any,
show that there is no genuine issue as to any
material fact and that the moving party is en-
titled to a judgment as a matter of law.” FED.
R. CIV. P. 56(c). We review a grant of sum-
mary judgment de novo, using the same crite-
ria as employed by the district court. Pat-
terson v. Mobil Oil Corp., 335 F.3d 476, 487
(5th Cir. 2003).
Absent direct evidence, to establish a prima
facie case of employment discrimination under
title VII, a plaintiff must show that “(1) he
belongs to a protected group; (2) he was quali-
fied for the position sought; (3) he suffered an
adverse employment action; and (4) he was re-
placed by [or passed over in favor of] someone
outside the protected class.” Price v. Fed.
Express Corp., 283 F.3d 715, 720 (5th Cir.
2002) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973)). If the
plaintiff succeeds in establishing his prima fa-
cie case, under the McDonnell Douglas frame-
work “a presumption of discrimination arises
and . . . the burden shifts to the defendant to
produce a legitimate, nondiscriminatory justi-
fication for its actions.” Id.
The defendant can satisfy this burden “by
producing evidence, which, taken as true,
would permit the conclusion that there was a
nondiscriminatory reason for the adverse ac-
tion.” Id. (internal quotations and citations
omitted). If the defendant carries this burden
successfully, “the mandatory inference of dis-
crimination created by the plaintiff’s prima
facie case drops out.” Id.
The plaintiff then has the opportunity to
demonstrate that the defendant’s proffered
reason for the adverse action is pretextual. Id.
“On summary judgment, in this third step, the
plaintiff must substantiate his claim of pretext
through evidence demonstrating that discrimi-
nation lay at the heart of the employer’s deci-
sion.” Id. With regard to a nonpromotion
claim, in this step the plaintiff must show that
he is “clearly better qualified [than the indi-
vidual selected] for the position in question.”
Odom v. Frank, 3 F.3d 839, 845 (5th Cir.
1993). If the plaintiff can demonstrate that the
4 Read liberally, Piper’s brief argues only that
the USDA’s contention that Jack was hired be-
cause of his superior qualifications is pretextual.
She makes no argument regarding the temporary
Supervisory Systems Accountant position or the
Leave Donor Program; she makes no argument re-
garding retaliation, even with respect to her non-
promotion claim. “It has long been the rule in this
circuit that any issues not briefed on appeal are
waived.” United States v. Thibodeaux, 211 F.3d
910, 912 (5th Cir. 2000).

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defendant’s asserted justification for the action
is pretextual,
this showing, coupled with a prima facie
case, may permit the trier of fact to con-
clude that the employer discriminated
against the plaintiff without additional evi-
dence. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000).
However, such a showing will not always
be enough to prevent summary judgment,
because there will be cases where a plaintiff
has both established a prima facie case and
set forth sufficient evidence to reject the
defendant’s explanation, yet “no rational
factfinder could conclude that the action
was discriminatory.” Id. Whether sum-
mary judgment is appropriate depends on
numerous factors, including “the strength
of the plaintiff’s prima facie case, the pro-
bative value of the proof that the employ-
er’s explanation is false, and any other evi-
dence that supports the employer’s case
and that properly may be considered.” Id.
at 148-49.
Price, 283 F.3d at 720.
As we have noted, Piper cannot success-
fully state a claim of age discrimination under
title VII, because age is not a characteristic
protected by the statute. Additionally, she fails
to establish a prima facie case of race dis-
crimination, because the person selected for
the promotion in her stead, Jack, is also black.
Piper has, however, successfully established
a prima facie case of sex discrimination: (1)
She is a member of a protected class (women);
(2) she was qualified for the position sought,
as evidenced by the NFC’s placement of her,
along with five other individuals, on the Roster
of Best Qualified for the permanent Supervi-
sory Systems Accountant position; (3) she was
not promoted, which is an adverse employ-
ment action, see Felton v. Polles, 315 F.3d
470, 486 (5th Cir. 2002); and (4) the person
selected for the position is a man.
The USDA states that it promoted Jack in-
stead of Piper because he was the most quali-
fied applicant. According to the USDA, a Su-
pervisory Systems Accountant is responsible
“for managing, through subordinate sections,
activities relating to the reconciliation, evalua-
tion, and preparation of financial and account-
ing reports required by the Department of the
Treasury . . . and other agencies serviced by
the NFC.” Because of his “extensive experi-
ence,” including his service as Section Chief
and Branch Chief in the Financial Reporting
Branch of the Controller Operations Division
of the NFC, the selecting official deemed Jack
“an expert in financial government reporting”
and thus superiorly qualified for the position.
It is Piper’s burden to rebut this asserted
nondiscriminatory justification, and she has
brought forth no evidence indicating that she
is “clearly better qualified” than is Jack to
serve as a Supervisory Systems Accountant.
Accordingly, the summary judgment is AF-
FIRMED.

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