Clayton v. Rumsfeld

United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
m 03-51167
Summary Calendar
___________________
PERSEVERANDA CLAYTON,
Plaintiff-Appellant,
VERSUS
DONALD H. RUMSFELD,
SECRETARY, DEPARTMENT OF DEFENSE,
ARMY/AIR FORCE EXCHANGE,
Defendant-Appellee.
___________________
Appeal from the United States District Court
for the Western District of Texas
m SA-02-CV-231
___________________

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Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
The plaintiff, Perseveranda Clayton, is an
Asian female who worked as a Safety and
Security Supervisor at Randolph Air Force
Base from July 1997 to January 2000. She
sued her employer, the Army/Air Force Ex-
change Service, via the Secretary of Defense,
for employment discrimination and retaliation
under title VII. The district court entered
summary judgment for the government, and
we affirm.
Clayton seeks to show that certain events
constituted adverse employment actions nec-
essary for a claim of retaliation. In addition,
she asserts that the district court incorrectly
determined that her claims of demotion and
constructive discharge were not administra-
tively exhausted. In the alternative, she main-
tains that legal technicalities should not ob-
struct her claims of demotion and constructive
discharge.
In November 1998, Kelley Hughes, who
had previously worked at Lackland Air Force
Base, was selected over Clayton for a supervi-
sory position at the Army/Air Force Exchange
Service. Hughes became Clayton’s first line
supervisor. Clayton alleges that during this
time, she was the subject of disparaging com-
ments and continuous scrutiny over her work
performance by Hughes.
Clayton received a letter of warning in Sep-
tember 1999, an unsatisfactory special perfor-
mance appraisal in December 1999, and a de-
motion by her second-line supervisor, General
Manager Daniel Metsala, from her supervisor
position to a retail position at Lackland Air
Force Base. Clayton took sick leave and never
reported to work there. She was discharged in
May 2001 pursuant to regulations that require
termination if the employee has not returned to
work within one year.
Clayton requested and received an eviden-
tiary hearing before an administrative law
judge (“ALJ”) on September 20, 2001. The
ALJ issued a decision in favor of the govern-
ment on October 29, 2001, whereupon Clay-
ton sued.
Summary judgment is appropriate where
the pleadings, answers to interrogatories, ad-
missions on file, and affidavits show 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. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The movant bears
the initial responsibility of demonstrating the
absence of a genuine issue of material fact with
respect to those issues on which he bears the
burden of proof at trial. Transamerica Ins.
Co. v. Avenell, 66 F.3d 715, 718 (5th Cir.
1995) (per curiam). Once the burden of show-
ing an absence of a genuine issue of material
fact has been met, the nonmoving party must
establish the existence of evidence creating an
issue of fact that can be properly characterized
as outcome determinative. Hanchey v. Ener-
gas Co., 925 F.2d 96, 97 (5th Cir. 1990). A
summary judgment is reviewed de novo.
Scales v. Slater, 181 F.3d 703, 708 (5th Cir.
1999).
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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I.
Title VII provides in relevant part that “it
shall be an unlawful employment practice for
an employer to discriminate against any of his
employees . . . because he has made a charge
. . . under this subchapter.” 42 U.S.C.
§ 2000e-3(a). A retaliation claim has three el-
ements: (1) The employee engaged in activity
protected by title VII; (2) the employer took
adverse employment action against the em-
ployee; and (3) a causal connection exists be-
tween that protected activity and the adverse
employment action. Shirley v. Chrysler First,
Inc., 970 F.2d 39, 42 (5th Cir. 1992).
A title VII plaintiff may recover only if the
challenged employment decision rises to the
level of an “adverse employment action or
must materially affect the terms and conditions
of employment.” Mattern v. Eastman Kodak
Co., 104 F.3d 702 (5th Cir. 1997). This is
true for both discrimination and retaliation
claims. Barrow v. New Orleans S.S. Ass’n, 10
F.3d 292, 298 (5th Cir. 1994). An adverse
employment action could include a discharge,
demotion, refusal to hire, refusal to promote,
reprimand, or acts of sabotage by employees
against other employees, either condoned or
directed by an employer for the purpose of es-
tablishing cause for discharge. Mattern, 104
F.3d at 707. Alternatively, merely placing a
memorandum regarding an employee’s perfor-
mance in his personnel file does not in itself
constitute an adverse employment action. Id.
Also, lowered performance ratings are not
adverse employment decisions. Douglas v.
DynMcDermott Petroleum Operations Co.,
144 F.3d 364, 373 (5th Cir. 1998).
Title VII was designed to address ultimate
employment decisions, not every decision by
employers that arguably might have some tan-
gential effect on those ultimate decisions.
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.
1995). Specifically, ultimate employment de-
cisions include act s such as hiring, granting
leave, discharging, promoting, and compensat-
ing. Id. at 782. Interlocutory or intermediate
decisions that can lead to an ultimate decision
are insufficient to support a prima facie case
of retaliation. Mattern, 104 F.3d at 708. Con-
sequently, the “ultimate employment decision”
doctrine requires that actionable adverse em-
ployment actions “have more than a mere tan-
gential effect on a possible future ultimate em-
ployment decision.” Mota v. Univ. of Tex.
Houston Health Sci. Ctr., 261 F.3d 512, 519
(5th Cir. 2001) (quoting Walker v. Thompson,
214 F.3d 615, 629 (5th Cir. 2000)).
We use a balancing test to determine
whether title VII’s protections may be denied
to an employee regarding actions that adverse-
ly affect his performance. Jones v. Flagship
Int’l, 793 F.2d 714, 727 (5th Cir.1986). The
employer’s right to run its business must be
balanced against the right of the employee to
express his grievances and promote his own
welfare. Id. The employee’s conduct must be
measured as reasonable in light of the circum-
stances. Id.
“[A] retaliation claim cannot be based sole-
ly on an employer’s act of ‘limiting’ an em-
ployee ‘in any way that would deprive [that
employee] of employment opportunities . . . .’”
Burger v. Cent. Apartment Mgmt., Inc., 168 F.
3d 875, 878-79 (5th Cir. 1999) (quoting 42
U.S.C. § 2000e-2(a)(2) (brackets in original)).
Therefore, unlawful employment practices
include only ultimate employment decisions
and not vague harms.” Id. at 879.
The actions described by Clayton are too
tangential to be ultimate employment deci-
sions. Although those acts may be seen as

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limiting her, they are not ultimate employment
actions. Specifically, the actions she maintains
are adverse employment actions include possi-
ble spying, a non-promotable rating, scru-
tinization, a letter of warning, rejection of
Clayton’s request to have a third person of her
choosing present at weekly meetings with her
supervisors, an eventual demotion and transfer
to Lackland Air Force Base, and exclusion and
unfair treatment.
The district court correctly determined that,
with the exception of the demotion with trans-
fer, the actions described are not adverse
employment actions. Analogous to the events
in Mattern, 104 F.3d at 708, the events Clay-
ton complains of are similar to disciplinary
filings and supervisor reprimands. According-
ly, the district court properly found that, with
the exception of her demotion and possible
constructive discharge, the acts Clayton relies
on are impertinent, and summary judgment
was properly granted.
II.
Courts have no jurisdiction to consider title
VII claims as to which the aggrieved party has
not exhausted administrative remedies. Nat’l
Ass’n of Gov’t Employees v. City Pub. Serv.
Bd., 40 F.3d 698, 711 (5th Cir. 1994) (citing
Tolbert v. United States, 916 F.2d 245, 247-
48 (5th Cir. 1990) (per curiam)). The primary
purpose of the administrative exhaustion re-
quirement is to allow the agency, in its investi-
gatory and conciliatory role, fully to investi-
gate and attempt to resolve claims of discrimi-
nation. Nicol v. Imagematrix, Inc., 767 F.
Supp. 744, 752 (E.D. Va. 1991). A title VII
suit, however, “may extend as far as, but not
further than, the scope of the EEOC investiga-
tion which could reasonably grow out of the
administrative charge.” Fine v. GAP Chem.
Corp., 995 F.2d 576, 578 (5th Cir. 1993).
Furthermore, a title VII cause of action may be
based not only on the specific complaints made
in the initial EEOC charge, but also on any
kind of discrimination like or related to the
charge’s allegations, limited only by the scope
of the EEOC investigation that could reason-
ably be expected to grow out of the initial
charge of discrimination. Id.
The crucial element of a charge of discrim-
ination is the factual statement contained
therein. Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 462 (5th Cir. 1970). Next, the
administrative charge must be viewed in its
broadest reasonable sense in order effectively
to attempt to eliminate, by the administrative
process, possible discriminatory practices and
policies. Id. at 467. One of the central pur-
poses of the charge is to put the employer on
notice of the existence and nature of the charg-
es. Manning v. Chevron Chem. Co., 332 F.3d
874, 878-89 (5th Cir. 2003).
To notify employers adequately about the
nature of the charges against them, employees
must inform their employers from the outset
about their claims of discrimination. Id. Al-
ternatively, allowing a complaint to encompass
allegations outside the ambit of the predicate
EEOC charge would circumvent the EEOC’s
investigatory and conciliatory role, as well as
deprive the charged party of notice of the
charges. Babrocky v. Jewel Food Co., 773
F.2d 857, 863 (7th Cir. 1985).
The district court found that the administra-
tive record of Clayton’s EEOC charge indi-
cates that she did not raise the issue of her
constructive discharge in the administrative
process. Clayton suggests that she relied on
constructive discharge in her response to the
motion for summary judgment. Because,
however, she did not raise the issue in the ad-

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ministrative process, she did not exhaust her
remedies.
Consequently, the government was not put
on notice of the constructive discharge claim.
In addition, Clayton did not object to the fram-
ing of the issue by the EEOC and the ALJ,
which issue did not include her demotion
claim. Thus, Clayton’s demotion claim was
abandoned, and the employer was not given
the opportunity effectively to try to eliminate
possible discriminatory practices and policies.
Accordingly, the district court correctly en-
tered summary judgment.
III.
Mindful of the remedial and humanitarian
underpinnings of title VII and of the crucial
role played by the private litigant in the statu-
tory scheme, court s construing title VII have
been reluctant to allow procedural technicali-
ties to bar claims brought under the Act. San-
chez, 431 F.2d at 461-62. Title VII is de-
signed to protect the many who are unlettered
and unschooled in the nuances of literary
draftsmanship. Id. at 465. Verbal precision
and finesse are not required from those whom
the statute is meant to protect. Id. Further-
more, to compel the charging party specifically
to articulate, in his charge, the full array of
discrimination he may have suffered may cause
the very persons title VII was designed to
protect to lose that benefit because they are
ignorant of, or unable thoroughly to describe,
the discriminatory practices to which they have
been subjected. Fellows, 701 F.2d at 451.
Clayton points out that she is not an attor-
ney, nor does she have any legal background,
training, or education. She was not represent-
ed by counsel at the September 20, 2001, EEO
hearing. She asserts that it is inconceivable
that her right to assert a claim of disciplinary
demotion should be cut off because she failed
to object to the ALJ’s framing of the issues
during the hearing. Clayton mistakenly as-
serts, however, that her failure to notify her
employer of charges is a procedural technical-
ity, for, if she is allowed to circumvent the
administrative processes, the EEOC will not be
able to serve in its investigatory and concilia-
tory role.
Clayton’s case is distinguishable from San-
chez, on which she relies. There, we held that
failure to check the appropriate box indicating
the reason for the claim of discrimination on
the EEOC charge form, and failure to use the
exact words in harmony with earlier charges,
were technical niceties that would not prevent
a plaintiff from bringing a civil action. San-
chez, 431 F.2d at 464. By way of contrast,
Clayton’s claims of demotion and constructive
discharge did not reflect the essence of the
other charges.
This is not a case in which procedural tech-
nicalities are preventing an employee from
properly bringing a claim. Rather, because the
government was not given notice of Clayton’s
constructive discharge and demotion claims,
the EEOC had no opportunity to investigate.
Consequently, the district court correctly
granted summary judgment on Clayton’s de-
motion and constructive discharge claims, be-
cause they were not administratively ex-
hausted.
AFFIRMED.

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