Doss v. Martinez

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10887
Summary Calendar
JOYCE B. DOSS,
Plaintiff-Appellant,
VERSUS
MELQUIADES R. MARTINEZ,
SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
m 3:00-CV-267-BC(H)
July 10, 2002
Before JONES, SMITH, and EMILIO M.
GARZA, Circuit Judges.
PER CURIAM:*
Joyce Doss, who is black, sued the Sec-
retary of Housing and Urban Development
(“HUD”), alleging race discrimination and re-
taliation in violation of title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and race discrimination in
violation of 42 U.S.C. § 1981. Doss asserts
claims of disparate treatment based on her race
and retaliation based on conduct protected by
title VII. The district court granted HUD’s
* 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determined that this opinion should not be
published and is not precedent except under the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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motion to dismiss the § 1981 claims1 and
HUD’s motion for summary judgment on the
title VII claims. We affirm.
We review de novo the grant of summary
judgment.2 Summary judgment is appropriate
when the pleadings and record evidence show
that no genuine issue of material fact exists
and that, as a matter of law, the movant is
entitled to judgment.3 In a thorough and well-
reasoned memorandum opinion and order, the
district court held that Doss had failed to es-
tablish a prima facie showing of disparate
treatment based on race by admissible evi-
dence.
Evidence based on hearsay is inadmissible
and may not be considered on summary judg-
ment,4 and “[m]ere conclusory allegations are
not competent summary judgment evidence.”5
The affidavits submitted in support of Doss’s
claim that white employees were treated more
favorably than black employees are inadmiss-
ible. The statements of Teressia Smith and
Brenda Briscoe fail for lack of personal know-
ledge, constitute inadmissible hearsay, and
contain conclusional allegations. In addition,
Doss’s testimony fails for lack of personal
knowledge and even contradicts her allega-
tions of disparate treatment. Thus, we agree
with the district court’s conclusion that Doss
failed to make a prima facie showing of dis-
parate treatment based on race, so summary
judgment on this claim was proper.
Doss alleged retaliation for being placed on
AWOL status and for her non-selection for the
Dallas Community Builder position because
she had filed and prosecuted previous EEO
claims of discrimination against HUD. Al-
though Doss established a prima facie case,6
she failed her burden to present evidence rais-
ing a fact question as to whether HUD’s as-
serted legitimate, non-retaliatory justifications
were false or pretextual.7 Accordingly, sum-
mary judgment on these claims was proper.
The district court also correctly granted
summary judgment on Doss’s additional claims
of retaliation with respect to her supervisor’s
actions in placing her on leave restriction,
giving her an official reprimand for
1 Doss conceded that her § 1981 claims should
be dismissed and does not challenge the district
court’s ruling on those claims.
2 Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
1121 (5th Cir. 1998).
3 FED. R. CIV. P. 56(c); Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996).
4 See Fowler v. Smith, 68 F.3d 124, 126 (5th
Cir. 1995); Pan-Islamic Trade Corp. v. Exxon
Corp., 632 F.2d 539, 556 (5th Cir. 1980).
5 Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992).
6 To establish a prima facie case of retaliation,
a plaintiff must show that (1) he engaged in an
activity protected by Title VII; (2) he suffered from
an adverse employment action; and (3) a causal
connection exists between the protected activity
and the adverse employment action. Shackelford
v. Deloitte & Touche, L.L.P., 190 F.3d 398,
407–08 (5th Cir. 1999).
7 See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 507–08 (1993) (stating that if the defendant
rebuts the plaintiff’s prima facie showing by dem-
onstrating legitimate, nondiscriminatory reasons
the adverse employment actions, the plaintiff has
the burden to prove by a preponderance of the
evidence that the legitimate reasons proffered were
not its true reasons, but rather a pretext for
discrimination).

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insubordination, and rating her “fully suc-
cessful” on her performance appraisal. As part
of her burden to establish a prima facie case of
retaliation, Doss must show that she suffered
from an adverse employment action,8 which
means an “ultimate employment decision”
only.9 “‘Ultimate employment decisions’
include acts ‘such as hiring, granting leave,
discharging, promoting and compensating’”10
but do not include acts that leave the
employee’s pay, benefits, and levels of respon-
sibility unchanged.11 The complained-of
actions did not affect Doss’s pay, benefits, or
levels of responsibility and, therefore, do not
constitute adverse employment actions and,
accordingly, cannot support a claim of
retaliation under title VII.
Finally, the district court properly dismissed
Doss’s claims of racial harassment and hostile
work environment. The conduct in question
was not severe or pervasive enough to create
an objectively hostile or abusive work
environment or harassment under title VII, and
no disparate treatment occurred.12
AFFIRMED.
8 See Shackelford, 190 F.3d at 407–08.
9 Mattern v. Eastman Kodak Co., 104 F.3d
702, 707 (5th Cir. 1997).
10 Id. (quoting Dollis v. Rubin, 77 F.3d 777,
782 (5th Cir. 1995)).
11 Watts v. Kroger Co., 170 F.3d 505, 512 (5th
Cir. 1999).
12 See Mattern, 104 F.3d at 706.

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