Peace v. Harvey

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 26, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50402
Summary Calendar
GLENDA A. PEACE,
Plaintiff-Appellant,
versus
FRANCIS J. HARVEY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(No. 6:05-CV-120)
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Glenda A. Peace contests a summary judgment awarded the
Secretary of the Army. For the reasons that follow, such
judgment was proper.
Formerly employed in the command group at Fort Hood, Texas, as
a secretary for a foreign general, Peace maintains the other
command-group secretaries harassed her almost immediately after she
began work in 1998. During her employment, an investigation was
conducted for whether she had falsely reported hours worked and

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leave taken from 1999 to 2001; she was cleared of any wrongdoing,
and no disciplinary action was taken. In addition, Peace received
a letter of reprimand for opening and reading an email to her
administrative superior.
In August 2002, Colonel Settles, who had numerous therapy
sessions with Peace during 2002, recommended her medical
retirement, stating Peace was seeking it due to stress related to
childhood sexual assault, as well as her “situation at home and
work”. That September, Peace’s retirement application was
approved. Her last day of employment was in October 2002.
Earlier, in July 2002, Peace filed an administrative complaint
for discrimination, after receiving the above-discussed letter of
reprimand. The complaint was denied both by the EEO administrative
judge and by the EEOC on appeal.
Peace subsequently filed this action, claiming:
discrimination in violation of Title VII, the Rehabilitation Act of
1973, and the Age Discrimination in Employment Act of 1967 (ADEA);
a hostile work environment; and retaliation on account of her
gender, disability, age, and EEOC complaint. As noted, summary
judgment was awarded against Peace on all claims.
A summary judgment is reviewed de novo. Blow v. City of San
Antonio, 236 F.3d 293, 296 (5th Cir. 2001). “Summary judgment is
appropriate only if the full record discloses ‘no genuine issue as
to any material fact and ... the moving party is entitled to a

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judgment as a matter of law’.” Id. (quoting FED R. CIV. P. 56(c)).
For the de novo review, this court “view[s] all facts in the light
most favorable to the non-moving party”. Id.
Peace maintains the district court erred by ruling her claims
did not involve “ultimate employment decisions”. She appears to
contend that the district court, particularly in the light of the
Supreme Court’s recent holding in Burlington Northern & Santa Fe
Railway Co. v. White, 126 S. Ct. 2405 (2006), did not adequately
consider her retaliation claim.
When reviewing an adverse summary judgment for a retaliation
claim, we apply the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Peace must
first make a prima facie showing of retaliation by establishing:
1) she engaged in protected activity; 2) she suffered an adverse
employment action; and 3) a causal link exists between the
protected activity and the adverse employment action. E.g., Long
v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Regarding
the second element, this circuit formerly held only “ultimate
employment decisions”, such as “hiring, granting leave,
discharging, promoting, and compensation”, were actionable “adverse
employment actions”. See, e.g., Hernandez v. Crawford Bldg.
Material Co., 321 F.3d 528, 531 (5th Cir.), cert. denied, 540 U.S.
817 (2003). Burlington Northern, however, altered the “adverse
employment action” standard for retaliation claims, holding

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retaliation actionable if “a reasonable employee would have found
the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination”. 126 S. Ct. at 2415
(emphasis added) (internal quotations and citations omitted).
It is undisputed Peace’s 8 July 2002 complaint to the EEOC
satisfies the first element (protected activity) for a prima facie
retaliation claim. Nevertheless, the summary-judgment evidence
fails to create a genuine issue of material fact on the existence
of an “adverse employment action”, even under the new Burlington
Northern standard.
A number of the incidents upon which Peace relies pre-date her
EEOC complaint, and thus cannot logically support a retaliation
claim. Peace also relies, inter alia, on the following post-EEOC
complaint incidents: she received a note detailing leave approval
procedures from the Deputy Chief of Staff; she was not provided a
designated seat at a ceremony for her departing general; she was
assigned “menial and degrading work” when told to work on security
files and other “non-critical” tasks; she was told she could no
longer park in her assigned space; and, three days before her
retirement date, a superior yelled at her and told her to move out
of her office.
Importantly, in Burlington Northern the Court stressed: “We
speak of material adversity because ... it is important to separate

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significant from trivial harms”, id. (emphasis in original), and
noted an “employee’s decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor
annoyances that often take place at work”. Id. Viewed in the
light of the summary-judgment record, these incidents are either
unsupported or so “trivial” as to fail the Burlington Northern
standard.
Although Peace’s pay and performance-award delays and her
claim of constructive discharge relating to her retirement could
plausibly be construed as “adverse employment actions”, we need not
address that question because, as with all incidents upon which she
relies, Peace fails to create a genuine issue of material fact as
to the existence of the third element of a prima facie retaliation
case: a causal link between the incident and her EEOC complaint.
Her subjective belief the incidents were retaliatory, without more,
is not sufficient to survive summary judgment. See Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). (Moreover,
for the final step in the burden-shifting analysis, Peace fails to
rebut the legitimate, non-retaliatory reasons for the conduct in
question.)
It is unclear whether Peace contests the adverse summary
judgment for her other claims. In any event, although Peace
alludes to her hostile-environment claim, she offers no supporting
argument. Further, although stating she “presented prima facie

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proof of discrimination because of her disability and sex”, she
fails to support this assertion with argument, authority, or
citations to the record. Accordingly, any arguments related to
these claims are waived. See FED. R. APP. P. 28(a)(9)(A)
(appellant’s brief must contain citation to relevant legal
authorities); United States v. Edwards, 303 F.3d 606, 647 (5th Cir.
2002) (inadequately briefed arguments are waived), cert. denied,
537 U.S. 1192 (2003).
AFFIRMED

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