Kolpakchi v. Principi

* 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that this opinion should not be published and is not precedent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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United States Court of Appeals
Fifth Circuit
F I L E D
November 8, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21150
ANNA L. KOLPAKCHI, Medical Doctor,
Plaintiff-Appellant,
versus
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
H-02-CV-2683
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Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge: *
In this direct civil appeal, Anna L. Kolpakchi, Appellant,
challenges the district court’s ruling granting summary judgment
to Anthony J. Principi, Secretary of Veterans Affairs, Appellee.
For the reasons that follow, we affirm.
I. Background
Physician Anna L. Kolpakchi began working for the Department

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of Veterans Affairs Medical Center (“VAMC”) in Houston on July 1,
1987. In July 1995, she was promoted to Employee Health
Physician for the Medical Center, which, although not technically
categorized as supervisory, included the duty of overseeing
subordinates. As of 1998, the Chief of Staff at the VAMC was Dr.
Thomas B. Horvath.
On July 19, 2000, Dr. Horvath declared the Employee Health
Physician position “vacant” and asked for applications,
indicating that now the position would include new supervisory
duties. One requirement added to the job description was that
any applicant must have at least fifteen years of clinical
experience. According to Dr. Kolpakchi, she was confused by the
new job description, believing she already performed supervisory
duties, and was deterred from applying because she only had
thirteen years of clinical experience. Because of this and the
fact that she had performed her duties to date well, Dr.
Kolpakchi deduced she was the target of discrimination due to her
status as a female, a Jew, and a Russian immigrant. She held
this belief in spite of the fact that, when Dr. Horvath informed
her of the pending employment action, he encouraged her to apply
for the new job. Dr. Kolpakchi filed a discrimination grievance
with the office of Joint Management Resolutions (“EEO”).
After Dr. Kolpakchi filed her complaint, Dr. Horvath sent
her a letter, once again, encouraging her to apply for the new
position. This encouragement was echoed by her EEO counselor,

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Ms. Charlyn F. Stewart. Dr. Kolpakchi voiced her concern about
the fifteen-year requirement and the vacancy announcement was
amended, with that requirement removed. However, Dr. Kolpakchi
did not apply for the position. She claims she was unaware of
the requirement change.
On October 18, 2000, Dr. Horvath sent a letter to Dr.
Kolpakchi informing her that a different doctor, Dr. Jamie Oritz-
Toro, would be filling the Employee Health Physician position and
that, effective October 29, 2000, she was reassigned to the Prime
Care Section of Medical Services to serve as a primary physician.
Upon learning her replacement was male (and in her opinion less
qualified), Dr. Kolpakchi filed a second grievance with the EEO
office, alleging sex discrimination. After a final,
unsatisfactory agency decision on Dr. Kolpakchi’s claims was
issued on April 17, 2002, she filed a sex discrimination suit
against Anthony J. Principi, Secretary of Veterans Affairs, under
Title VII.
The complaint, filed on July 17, 2002, alleged
discrimination based on sex, religion, and national original, in
addition to threatened retaliation. Defendant Principi filed a
motion to dismiss, under Federal Rule of Civil Procedure 56. The
district court granted the motion to dismiss. This appeal of
that order followed.
II. Discussion

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This Court reviews grants of summary judgments under Rule 56
de novo, applying the same standards the district court used.
Am. Home Assurance Co. v. United Space Alliance, 378 F.3d 482,
486 (5th Cir. 2004). “A summary judgment motion is properly
granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there
is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law.” Id. Facts
are material only if they could affect the lawsuit’s outcome.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Any
factual controversy will be resolved in the nonmovant’s favor,
but only “when both parties have submitted evidence of
contradictory facts.” Olabisiomotosho v. City of Houston, 185
F.3d 521, 525 (5th Cir. 1999).
A. Prohibited Discrimination Under Title VIII
Dr. Kolpakchi argues that VAMC’s treatment of her violated
Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C.
§§ 2000(e) et seq. When considering employment discrimination
claims lacking direct evidence, the Supreme Court has set forth a
methodology for determining “the order and allocation of proof.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). In
the McDonnell Douglas case, the Court dictated that the
plaintiff, in this case Dr. Kolpakchi, carries the initial burden
to set forth a prima facie case of discrimination. Id. at 802.

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Under the McDonnell Douglas framework, “a plaintiff satisfies
this initial burden by showing that (1) he belongs to a protected
group; (2) he was qualified for the position sought; (3) he
suffered an adverse employment action; and (4) he was replaced by
someone outside the protected class.” Manning v. Chevron Chem.
Co., 332 F.3d 874, 881 (5th Cir. 2003).
There are essentially two employment actions in this case.
First, Dr. Kolpakchi was removed from her old position, which was
eliminated through a restructuring process. She does not
challenge this portion of the employment action. Second, Dr.
Kolpakchi was not given the new position created in this
reorganization process in lieu of her old one and was instead
given a less desirable post. This is the employment action she
claims violated her Title VII rights.
The district court assumed that Dr. Kolpakchi had made out a
prima facie case. She is a female, a Jew, and a Russian
immigrant. Discrimination based on national origin, religion, or
sex is prohibited by Title VII. See Desert Palace, Inc. v.
Costa, 539 U.S. 90, 92 (2003). Dr. Kolpakchi did not receive the
promotion to the new position and instead received a less
desirable one – undoubtedly constituting an adverse employment
action. And she was replaced by a man–someone outside her
protected class. Finally, the evidence suggests Dr. Kolpakchi
was qualified for the job. She was the incumbent holder of the

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1Although the district court granted Defendant’s motion on
other grounds, we may affirm for different reasons. Kerr v.
Comm’r of Internal Revenue, 292 F.3d 490, 494 (5th Cir. 2002).
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position, and, even though its duties were augmented, she was
encouraged by her superiors to apply. However, she failed to
adequately seek the position by applying for it and thus did not
meet the second requirement to establish a prima facie case.1
The question of whether a plaintiff in the Title VII context
actually applied for a particular position goes to the question
of whether the plaintiff has proffered a prima facie case. The
second McDonnell Douglas prong (“he was qualified for the
position sought”) requires the position to actually be sought –
without that, normally a plaintiff cannot be denied employment.
Citing an opinion by the Third Circuit, Dr. Kolpakchi argues
that she did not have to actually apply for the position because
she “made every reasonable attempt to convey [her] interest in
the job.” EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.
1990). And she was effectively discouraged from filing a formal
application because the original job announcement had a
requirement of fifteen years of clinical experience, which Dr.
Kolpakchi did not have. Metal Service Co. states that “failure
to formally apply for a job opening will not bar a Title VII
plaintiff from establishing a prima facie claim” in “failure to
promote cases.” Id. In that case, the court found that the
plaintiffs “did everything reasonably possible to make known to

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[the defendant] their interest in applying for a job,” including
attempting to apply directly at the office, going through the
hiring department, “periodically check[ing] on their
applications,” and again trying to apply directly. Id. at 349.
The Third Circuit cites two other circuit court cases that
also hold the failure to apply does not necessary bar the
establishment of a prima facie case under Title VII. The Fourth
Circuit found that an African-American plaintiff did not need to
file a formal application where he was told he would be
considered for the position and was not asked to file an
application, and where the defendant “had actively discouraged
[African-Americans] from applying for sales jobs.” Holsey v.
Armour & Co., 743 F.2d 199, 208-09 (4th Cir. 1984). In Paxton v.
Union National Bank, the plaintiff had expressed an interest in
the position prior to its vacancy, but, once it did become
vacant, no notice was posted and it was filled without his
knowledge. 688 F.2d 552, 568 (8th Cir. 1982).
Metal Service Co. and other cases like it are the progeny of
the Supreme Court’s ruling in International Brotherhood of
Teamsters v. United States. 431 U.S. 324 (1977). The Court held
that, even if one does not apply for a particular position,
individuals can “suffer from discriminatory employment practices”
when “[a] consistently enforced discriminatory policy” deters
them from applying because they “are aware of it and are

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unwilling to subject themselves to the humiliation of explicit
and certain rejection.” Id. at 365. See also Shackelford v.
Deloitte & Touche, L.L.P., 190 F.3d 398, 406 (5th Cir. 1999)
(applying Teamsters). The Court further expounded on this issue,
presenting the reasoning behind the rule:
If an employer should announce his policy of
discrimination by a sign reading “Whites Only” on the
hiring-office door, his victims would not be limited to
the few who ignored the sign and subjected themselves to
personal rebuffs. The same message can be communicated to
potential applicants more subtly but just as clearly by
an employer’s actual practices . . . .
Teamsters, 431 U.S. at 365.
The Supreme Court’s holding in Teamsters would seem to bar
Dr. Kolpakchi’s claim because she has not set forth any facts to
show a policy of discrimination that dissuaded her from applying
for the position. At best, the facts, as alleged by Dr.
Kolpakchi, may show that Dr. Horvath did not believe Dr.
Kolpakchi was the ideal employee for the position. However, the
holdings in Paxton and Metal Service Co. indicate an expansion of
this principle to encompass situations where, through the fault
of the employer, an employee’s desire to hold a position is not
recognized or properly considered. We have not explicitly
adopted our sister circuits’ rules with regards to the necessity
of a formal application; nor have we specifically rejected such a
more expansive rule. The District Court for the Southern
District of Texas has accepted it, though. See DuPont-Lauren v.

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Schneider (USA), Inc., 994 F. Supp. 802, 818 (S.D. Tex. 1998)
(stating that “a formal application will not be required where a
vacant position was not posted”); Lenihan v. Boeing Co., 994 F.
Supp. 776, 794 (S.D. Tex. 1998) (same).
Even if we were to apply this more lenient standard, Dr.
Kolpakchi’s case does not satisfy it. In her statement, she
claims she “was not notified of the last [corrected] posting or
[o]f any change in the 15 years of clinical experience
requirement, prior to the closing of the posting.” This is
directly contradicted by the statement of her EEO counselor, Ms.
Charlyn F. Stewart, who stated in a deposition that she informed
Dr. Kolpakchi of the change in the requirement. Whether or not
Dr. Kolpakchi knew of the requirement change is an issue of fact
and we must assume Dr. Kolpakchi’s version is correct. However,
the following facts, which can be taken as true either because
they are asserted by Dr. Kolpakchi or because she has not
contested them, completely undermine her argument:
(1) Dr. Horvath told Dr. Kolpakchi to apply for the position
during their initial meeting on July 13, 2000, when he told
her about the pending employment action: “Dr. Horvath told
me that they wanted me to be the first person to see the
announcement. . . . Dr. Horvath then told me that I should
apply for the job. He further advised me that he would
personally see to it that the committee would not be biased
toward me and that if I did not get the position he was
posting, he would guarantee that I would have a job within
the Medical Center.”
(2) On July 17, 2000, shortly after the meeting in which Dr.
Horvath told Dr. Kolpakchi about the change in her position,
he sent her a letter stating that he hoped she would apply

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for the new position: “As part of our overall Reorganization
we are restructuring Employee Health. We decided to create
a Supervisory Physician, who will report directly to me. . .
. It is an interesting and challenging position, and I would
encourage you to consider it. I would be happy to discuss
it with you – please call Ms. Jackson at ext. 7011, ASAP. .
. . I would hope to get a number of local applications,
including one from our current employee health physician.”
(3) Dr. Horvath knew that Dr. Kolpakchi did not have fifteen
years of clinical experience when he encouraged her to apply
for the position.
(4) The position vacancy announcement was twice amended to
correct errors in the requirements due to Dr. Kolpakchi’s
complaints. In addition, Dr. Horvath informed Ms. Stewart
that the fifteen-year requirement in the original
announcement was an error and said to her, “Please tell your
client to apply.”
(5) Dr. Kolpakchi made a conscious decision not to apply for
the position.
In light of these facts, it cannot be said that, whatever
impediment the incorrect job posting with the fifteen-year
requirement posed to Dr. Kolpakchi’s applying for the position,
it rose to the level of Paxton and Metal Service Co. Despite her
assertions, and unlike the plaintiff in Metal Service Co., Dr.
Kolpakchi did not make “every reasonable attempt to convey [her]
interest in the job.” 892 F.2d at 348. Simply put, she failed
to apply for the position despite Dr. Horvath’s and Ms. Stewart’s
entreatments. That would have been the most reasonable way for
her to convey her interest in the position. And, unlike the
plaintiff in Paxton, she knew full well about the opening and
chose not to apply. See 688 F.2d at 568. Dr. Kolpakchi cannot
reasonably claim that this rises to the level of non-notice of

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2Dr. Kolpakchi responds that she did not need to apply for
the job because there is direct evidence of discrimination. The
Supreme Court has held that, in situations where the promotion
policy is discriminatory on its face, questions about whether or
not there were actual openings applied for is irrelevant. Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). This
is because, with such direct evidence, the case no longer fits
into the McDonnell Douglas burden shifting analytic framework.
Only as part of that framework in a lawsuit based on
circumstantial evidence must a prima facie case be established.
In Trans World, the policy at issue explicitly penalized pilots
because of their age, advantaging younger pilots. See id. Dr.
Kolpakchi has not alleged such a discriminatory policy in this
case. At best, she can hyperbolically argue that the “hiring
process . . . could not have been [more] evasive and confusing.”
This does not make it discriminatory on its face.
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the opening. She did not apply for the position and thus cannot
make out a prima facie case of employment discrimination.2
Because she failed to apply for the desired position, Dr.
Kolpakchi cannot present a prima facie case.
B. Prohibited Retaliation Under Title VII
Dr. Kolpakchi alleges retaliation on the part of VAMC
because of her employment complaints. Title VII of the Civil
Rights Act of 1964 outlaws any discrimination against an
employee, because that employee “has opposed any practice made an
unlawful employment practice” by the Act. 42 U.S.C. § 2000e-
3(a). To establish a prima facie case of retaliation under Title
VII, Dr. Kolpakchi must show (1) that her activity was protected
by Title VII; (2) that she has suffered an adverse employment
action; and (3) that there existed a “causal link” between the
action and the protected activity. See Roberson v. Alltel Info.

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Servs., 373 F.3d 647, 655 (5th Cir. 2004).
Dr. Kolpakchi claims that she engaged in protected activity
by filing claims of discrimination. This element is uncontested.
She states that she has also suffered a number of adverse
employment actions: “(1) [D]eclaring her position to be vacant
while she was the incumbent; (2) Posting of an incumbent’s
position; (3) Removing her from her incumbent position; (4)
Transferring her to a position that has fewer responsibilities
and; (5) [R]eplacing her with a male physician . . . .” All of
these actions are really derived from or are the result of two
actions: (1) eliminating her position and creating a new one in
its place; and (2) not hiring her for the new position.
The Supreme Court has instructed that “[a] tangible
employment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.” Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Undoubtedly, both
actions meet this standard. However, the first of these, the
recharacterization and vacating of Dr. Kolpakchi’s position,
occurred prior to her protected behavior, as she filed her
complaint in response to that action. Therefore, the only
adverse action at issue was Dr. Horvath’s decision not to hire
Dr. Kolpakchi.

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Finally, Dr. Kolpakchi must show a “causal link” between not
being hired for the Employee Health position and her filing of
the EEO complaint. Assuming arguendo that Dr. Kolpakchi did
apply for the position, she has alleged no facts showing a causal
link between the decision not to hire her and her protected
activity. Her only argument is “that soon after [she]
participated in a protected activity an adverse employment action
occurred.” She is right that we have found that “[c]lose timing
between an employee’s protected activity and an adverse action
against him may provide the ‘causal connection’ required to make
out a prima facie case of retaliation.” Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). “However, once the
employer offers a legitimate, nondiscriminatory reason that
explains both the adverse action and the timing, the plaintiff
must offer some evidence from which the jury may infer that
retaliation was the real motive.” Id.
Because Dr. Kolpakchi’s old position was eliminated and a
new one just created, Dr. Horvath needed to hire someone to fill
that position. Since Dr. Kolpakchi filed her complaint shortly
after that first adverse employment action, the hiring decision
for the new position necessarily had to be in close temporal
proximity to her complaint. Timing alone, in this instance,
holds no probative value.
Thus, the District Court correctly concluded that Dr.

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Kolpakchi failed to make a prima facie showing of retaliation in
violation of Title VII.
Accordingly, we AFFIRM the district court’s ruling.
AFFIRMED

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