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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40282

JOSEPHINE V. PUENTE

Plaintiff - Appellant

v.

TOM RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:04-CV-267

Before GARWOOD, OWEN, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:*

Two ships passed in the night, and this case resulted. At oral argument

of this case, Plaintiff-Appellant Josephine V. Puente argued that she lost the

ordinary breaks given to all similarly-situated employees (two twenty-minute

breaks and one thirty-minute lunch break) because she used some of that break

time to express breast milk following the birth of her child. The DefendantAppellee, the Secretary of Homeland Security (the “Secretary”), conceded at oral

argument that such conduct would be improper. But the Secretary says that is

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-40282

2

not what this case is about. Instead, it is about Puente’s request to get

additional paid breaks on top of the seventy minutes already allocated to all

employees. For her part, Puente conceded at oral argument that she was not

entitled to preferential treatment in the form of additional paid breaks. With so

much agreement, we are left to puzzle over how this case has taken nearly nine

years to reach us in a state where the parties disagree over what the

disagreement is. For the reasons set forth below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Puente was employed as a Border Patrol Agent (“BPA”) with what is now

the Department of Homeland Security (“DHS”) at the Ysleta Border Patrol

Station facility in El Paso, Texas. In January 2000, Puente gave birth to a baby

girl and elected to breast feed. She returned to full-duty status as a BPA in

March 2000. During her shift, Puente took breaks to express breast milk, which

required her to leave her regular post, travel to the El Paso Port of Entry Station

where she could express her breast milk privately, clean and store her pump in

a secure location, and return to her post. DHS’s break policy allowed BPAs at

the El Paso facility two paid, twenty-minute breaks and one paid, thirty-minute

lunch period per shift. 

On April 2, 2000, Puente wrote a memorandum to Robert J. Cranston,

Patrol Agent in Charge at the Ysleta Station, notifying management that she

needed breaks to go into the Port of Entry to express milk once every three to

four hours and that she would need a clean and secure area to store her pump.

On April 13, Puente and her union steward, Jim Stack, met with Cranston and

the Patrol Agent In Charge, Stuart Woodside. During that meeting, she

repeated that request, asking for thirty minutes per break. Cranston and

Woodside informed Puente that DHS would accommodate her request, but that

she would have to either take leave or extend her shift to account for the time

she was requesting.
No. 08-40282

3

In August 2000, Puente filed a formal complaint with the Equal

Employment Opportunity Commission (“EEOC”) alleging discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)

(2008) (the “PDA”). The administrative law judge ruled in Puente’s favor, and

the Office of Federal Operations (“OFO”) upheld the ruling. The OFO ordered

DHS to restore Puente’s leave time and to pay her $10,000 in compensatory

damages. DHS requested reconsideration, but the OFO denied the request.

DHS did not comply with the EEOC’s order.

Dissatisfied with the amount awarded to her by the EEOC, Puente filed

a civil suit in the United States District Court for the Southern District of Texas

against the Secretary, alleging gender discrimination, retaliation, disparate

treatment, and hostile work environment under Title VII, as amended by the

PDA. Puente requested a jury trial and the following remedies: (1)

reimbursement of her expenses incurred after a transfer from El Paso to

McAllen, Texas, (2) restoration of leave time, (3) front and back pay, (4)

attorney’s fees, (5) $300,000 in statutory compensatory damages, and (6)

monetary damages for emotional and physical harm, or (7) “in the alternative a

lump sum of three million dollars.” 

The Secretary moved to dismiss Puente’s claims under Federal Rule of

Civil Procedure 12(b)(6). The Secretary made two contentions – (1) Puente’s

vague pleadings did not state a claim under any theory, and (2) Title VII and the

PDA do not offer protection to a breast-feeding woman based on her status as

such. The district court held that Puente’s “decision to breast feed . . . [did] not

afford her protection under the PDA (and as a result neither under Title VII),”

and granted the Secretary’s motion as to the gender discrimination, disparate

treatment, and hostile work environment claims. However, the district court
No. 08-40282

4

allowed Puente to proceed with her retaliation claim because that claim “[did]

not necessarily hinge on [Puente’s] status as a ‘women [sic] who breast feeds.’”

The Secretary later moved for and the district court granted summary

judgment as to Puente’s retaliation claim. The district court held that even

assuming there was circumstantial evidence of a causal link between Puente’s

protected EEOC activity and DHS’s adverse employment decision (i.e., “forcing

[Puente] to take unpaid leave in order for her to have adequate time to express

breast milk”), the Secretary “asserted a legitimate, non-discriminatory reason

for its actions[,] and there [was] no evidence that the . . . given reason [was]

pretextual.” Puente appeals the dismissal of her discrimination and retaliation

claims.

II. DISCUSSION

A. The District Court’s De Novo Review of Puente’s Claims

Before arguing the merits of her discrimination and retaliation claims,

Puente first raises the issue of whether the district court should have given

greater weight to the EEOC’s decision rather than conducting a de novo review

of her claim. Puente argues that she did not have to comply with the procedural

requirements articulated by 29 C.F.R. § 1614.504 (2009) because she complied

with the directives of the OFO’s final decision. Consequently, according to

Puente, her complaint should have been treated as seeking enforcement of the

EEOC’s decision rather than seeking de novo review.

A federal employee who receives a favorable EEOC decision may sue in

federal district court either to enforce that decision or to have the complaint

reviewed de novo. See 29 C.F.R. § 1614.503(g); 42 U.S.C. § 2000e-16(c);

Chandler v. Roudebush, 425 U.S. 840, 846-56 (1976). Puente sought relief far

in excess of the remedies provided in the EEOC order, which demonstrates that

she was seeking de novo review rather than enforcement. Timmons v. White,

314 F.3d 1229, 1232 (10th Cir. 2003); see Massingill v. Nicholson, 496 F.3d 382,
No. 08-40282

 A plaintiff is not required to comply with § 1614.504’s procedural requirements to seek 1

de novo review of her Title VII claim. See 42 U.S.C. § 2000e-16(c).

 “Federal Rule of Civil Procedure 8(a)(2) requires ‘a short and plain statement of the

2

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (quoting FED. R. CIV. P. 8(a)(2)). 

 Puente has also alleged harassing behavior by other BPAs seemingly in an effort to 3

support her discrimination claim. Specifically, Puente maintained that although she informed

management she would need a clean area to store her breast pump, she was forced to leave

the breast pump in the processing area of the port of entry, and, as a result, several agents

tampered with her breast pump to “satisfy their curiosity.” These facts are contained in the

summary-judgment record, not in the complaint; therefore, we will not consider them in

determining whether the district court’s 12(b)(6) dismissal of her discrimination claim was

proper. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). 

5

384–86 (5th Cir. 2007); Hodge v. Potter, 257 F. App’x 728, 730 (5th Cir. 2007).

Regardless, enforcement of the EEOC order was not an avenue available to

Puente in the district court because she did not notify the EEOC of her

employer’s non-compliance. See 29 C.F.R. § 1614.504(a) (“If the complainant

believes that the agency has failed to comply with the terms of a . . . decision, the

complainant shall notify the EEO Director . . . of the alleged noncompliance.”);

see also Sanders v. Reno, 186 F.3d 684, 685 (5th Cir. 1999). Accordingly, the 1

district court properly conducted a de novo review of Puente’s claims. 

B. Puente’s Discrimination Claim

Puente next challenges the district court’s dismissal of her discrimination

claim under Rule 12(b)(6). The district court concluded that while Puente’s

complaint “could certainly be clearer and more detailed,” it satisfied the notice

requirements of Federal Rule of Civil Procedure 8(a). Nonetheless, the district 2

court dismissed Puente’s discrimination claim under Rule 12(b)(6), concluding

that her decision to breast feed did not afford her protection under Title VII as

amended by the PDA. Puente argues on appeal that her discrimination claim

should not have been dismissed as DHS required her to take leave or to extend

her shift to account for the time she spent expressing breast milk while on duty.

3
No. 08-40282

Even if the alleged harassing behavior were considered, it was not sufficiently severe or

pervasive to create a hostile work environment. See Frank v. Xerox Corp., 347 F.3d 130,

138 (5th Cir. 2003).

 Both parties’ appellate briefs treat Puente’s discrimination claim as being dismissed 4

via summary judgment. This is not the procedural posture of this case. Here, the district

court dismissed Puente’s discrimination claim under Rule 12(b)(6) for failure to state a claim.

Because the district court did not consider materials outside the pleadings in ruling on that

motion, this court’s review usually is confined to the pleadings and attachments thereto. See

Collins, 224 F.3d at 498. However, here the same reason that defeats Puente’s retaliation

claim on summary judgment also defeats the discrimination claim. Thus, since the outcome

would have been the same had the district court considered the later summary judgment

materials, this distinction is not critical to this case.

6

We review de novo the district court’s 12(b)(6) dismissal for failure to state

a claim. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). 4

We accept “‘all well-pleaded facts as true, viewing them in the light most

favorable to the plaintiff.’” Id. (quoting Martin K. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). 

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting

Bell Atl. Corp., 550 U.S. at 570). “While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

than labels and conclusions[.]” Bell Atl. Corp., 550 U.S. at 555 (internal citations

omitted). “‘Factual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are

true (even if doubtful in fact).’” In re Katrina, 495 F.3d at 205 (quoting Bell Atl.

Corp., 550 U.S. at 555).

Title VII prohibits an employer from “discriminat[ing] against any

individual with respect to . . . compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
No. 08-40282

 A prima facie case requires the plaintiff to show that: “‘(1) [she] is a member of a

5

protected class; (2) [she] was qualified for her position; (3) [she] was subject to an adverse

employment action; and (4) . . . in the case of disparate treatment, . . . ‘that others similarly

situated were treated more favorably.’” Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245

F.3d 507, 512-13 (5th Cir. 2001) (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,

404 (5th Cir. 1999)). 

7

The PDA amended Title VII to include discrimination based on pregnancy and

related medical conditions: 

The term ‘because of sex’ or ‘on the basis of sex’ include, but are not

limited to, because of or on the basis of pregnancy, childbirth, or

related medical conditions; and women affected by pregnancy,

childbirth, or related medical conditions shall be treated the same

for all employment-related purposes . . . as other persons not so

affected but similar in their ability or inability to work. 

42 U.S.C. § 2000e(k). 

To analyze the merits of a plaintiff’s Title VII discrimination claim, we use

the familiar McDonnell Douglas framework, which first requires the plaintiff to

establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. 5

Green, 411 U.S. 792, 802 (1973). However, the McDonnell Douglas framework

is an evidentiary standard, not a rigid pleading requirement. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 506-07 (2002). Thus, for purposes of surviving a

Rule 12(b)(6) motion to dismiss, “an employment discrimination plaintiff need

not plead a prima facie case of discrimination.” Id. at 511; see also Johnson v.

Johnson, 385 F.3d 503, 531 (5th Cir. 2004). Still, this court may consider the

McDonnell Douglas framework, and no plaintiff is exempt from her obligation

to “allege facts sufficient to state all the elements of her claim.” Mitchell v.

Crescent River Port Pilots Ass’n, 265 F. App’x 363, 370 (5th Cir. 2008) (quoting

Jordan v. Alternative Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006)). 

Puente’s complaint alleged in relevant part the following: (1) all BPAs

receive two twenty-minute breaks and one thirty-minute lunch period; (2)

supervisors closely monitored her breaks after she started using them to express
No. 08-40282

8

breast milk, all the while ignoring “the breaks taken by the male BPA and the

BPA who smoked tobacco”; (3) Puente asked DHS to allow her “two thirtyminute periods” during which she could “express breast milk while on

duty. . . without having to take her leave(s)”; and (4) DHS “agree[d] to permit

[Puente] to take two thirty[-]minute breaks to express breast milk, but

requir[ed] that she either use leave, take leave without pay, or extend her work

day to make up the time.”

Equally as important as what Puente did allege in her complaint is what

Puente did not allege in her complaint. Puente did not allege that DHS took

away the two twenty-minute breaks or the one thirty-minute lunch period she

and every other BPA received; she did not allege that her request for two thirtyminute periods merely amounted to reallocating the seventy minutes of break

time already given to her; and she did not allege that DHS expressly prohibited

her from expressing breast milk during her seventy minutes. In sum, Puente

did not allege the facts that, if true, were well within her knowledge and which

she should have shouted from the courthouse rooftop. “[W]hen a complaint omits

facts that, if they existed, would clearly dominate the case, it seems fair to

assume that those facts do not exist.” O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3

(1st Cir. 1976).

At bottom, Puente asked for a benefit different from that which every

other BPA received. While she was allegedly denied that benefit, she never

alleges that she received less than the status quo as a result of her request.

Assuming without deciding that Puente would fall within the class of persons

protected by the PDA, “the PDA does not impose an affirmative obligation on

employers to grant preferential treatment . . . .” Urbano v. Cont’l Airlines, Inc.,

138 F.3d 204, 207 (5th Cir. 1998) (citing Cal. Fed. Sav. & Loan Ass’n v. Guerra,

479 U.S. 272, 284-86 (1987)). Accordingly, albeit for different reasons, we agree

with the district court’s decision to dismiss Puente’s Title VII discrimination
No. 08-40282

9

claim pursuant to Rule 12(b)(6). See Cuvillier v. Taylor, 503 F.3d 397, 401 (5th

Cir. 2007) (“[This court] may affirm a district court’s Rule 12(b)(6) dismissal on

any grounds raised below and supported by the record.”).

C. Puente’s Retaliation Claim

Finally, Puente challenges the district court’s grant of the Secretary’s

motion for summary judgment as to her retaliation claim. The district court

held that the Secretary asserted a legitimate, non-discriminatory reason for

DHS’s actions and that Puente failed to demonstrate that the Secretary’s reason

was merely pretextual. On appeal, Puente argues that she engaged in protected

union activity and that DHS unlawfully retaliated against her four days later by

sending her a written memorandum dated April 17, 2000, requiring that she

either take unpaid leave or extend her shift to account for any time she spent

expressing breast milk while on duty. 

This court reviews a district court’s order granting summary judgment de

novo, applying the same standard as the district court. Aryain v. Wal-Mart

Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008). Summary judgment is

appropriate when “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “A

genuine issue of material fact exists if the summary judgment evidence is such

that a reasonable jury could return a verdict for the non-movant.” Aryain, 534

F.3d at 478. “[A]ll facts and evidence must be taken in the light most favorable

to the non-movant.” LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 387

(5th Cir. 2007). In reviewing the summary judgment evidence, we must “refrain

from making credibility determinations or weighing the evidence.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

The movant bears the initial burden of demonstrating that no genuine

issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant does not meet this burden, summary judgment must be denied.
No. 08-40282

10

John v. Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). But if the movant meets

this burden, the nonmovant “must [then] identify specific evidence in the record

and articulate the manner in which that evidence supports that party’s claim[.]”

Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,

301 (5th Cir. 2004). “[S]uch evidence must be sufficient to sustain a finding in

favor of the nonmovant on all issues as to which the nonmovant would bear the

burden of proof at trial.” Id. 

Like discrimination claims, we analyze retaliation claims using the

McDonnell Douglas framework. McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007). Thus, to survive a motion for summary judgment, the plaintiff

must make a prima facie case of retaliation, which requires showing that: (1) the

plaintiff engaged in activity protected by Title VII, (2) an adverse employment

action occurred, and (3) a causal link existed between the protected activity and

the adverse action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). In the

retaliation context, an adverse employment action is one that “a reasonable

employee would have found . . . [to be] materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006).

In moving for summary judgment, the Secretary met his burden of

demonstrating that no genuine issue of material fact existed as to an element of

Puente’s retaliation claim, namely, whether Puente suffered an adverse

employment action. The Secretary attached to his motion for summary

judgment several affidavits from the various superior patrol agents who handled

Puente’s request. Each affidavit avers that Puente was never denied the

opportunity to express breast milk during the two twenty-minute breaks and the

one thirty-minute lunch period allotted to every BPA. According to the

affidavits, Puente wanted break time for expressing breast milk in addition to
No. 08-40282

 There was confusion at oral argument as to whether the administrative record, which 6

allegedly includes this memorandum, was part of the summary-judgment evidence and the

record on appeal to this court. To be clear, it is part of neither. On January 27, 2006, Puente

moved for leave to file a voluminous record, presumably the administrative record, as an

additional supplement to her response. The district court granted Puente leave to

conventionally (as opposed to electronically) file the voluminous document, but expressly noted

that its order was “not intended to be an acknowledgment that such document was timely

filed,” and that “[t]o the contrary, these documents were not timely filed.” The district court

never ruled that the administrative record was to become part of the official summary

judgment record. Consequently, it has not been made part of the record on appeal to this

court, and we will not consider it or any of its alleged contents. We also note that it was

Appellant’s burden to compile the record on appeal, United States v. Coveney, 995 F.2d 578,

587 (5th Cir. 1993), and to be able to cite to this court exactly where the administrative record

is located in the record on appeal. See FED. R. APP. P. 28(e). Appellant fulfilled neither of

these duties, and the resulting absence of the administrative record before this court is the

consequence. In sum, because the administrative record has not been made part of the record

on appeal to this court and was not considered by the district court, we will not consider it or

any of its alleged contents. 

11

the seventy minutes of break time she already received. Because she wanted

additional break time, DHS thought it only fair to require Puente to account for

the additional break time by taking leave or extending her shift. See Urbano,

138 F.3d at 207 (citing Guerra, 479 U.S. at 284-86) (“[T]he PDA does not impose

an affirmative obligation on employers to grant preferential treatment . . . .”).

Because the Secretary satisfied his summary-judgment burden, the

burden shifted to Puente to make a prima facie showing of retaliation. Puente

has offered neither an explanation nor specific evidence refuting the assertion

that the DHS only refused to give Puente preferential treatment in the form of

more paid break time than every other BPA. The only “evidence” Puente points

to in an attempt to show that she was prohibited from being able to express

breast milk during the seventy minutes of break time already allotted to her is

a written memorandum from the DHS delivered to her four days after her

meeting with management on April 13th. This memorandum was not part of the

summary judgment evidence and is nowhere to be found in the record on

appeal. Looking at Puente’s summary-judgment evidence that the district court 6
No. 08-40282

 Pursuant to Local Rules 7.3 and 7.4 of the United States District Court for the 7

Southern District of Texas, Puente’s first response should have been filed within twenty days

of the Secretary’s motion; however, Puente filed her response twenty-five days after the

Secretary’s motion was filed. See FED. R. CIV. P. 6(a) (explaining how to compute “any time

period specified in these rules, or in any local rule, court order, or statute”). Puente’s

supplemental response was also filed late. According to the district court’s docket sheet,

Puente had at most four weeks from October 20, 2005 to file a supplement to her response; she

did not file the supplement to her response until November 30, 2005. Notwithstanding

Puente’s tardiness, the district court had discretion to consider Puente’s responses in deciding

whether to grant the Secretary’s motion for summary judgment. See S.D. Tex. Local Rule 7.8

(“The [c]ourt may in its discretion, on its motion or upon application . . . shorten or extend time

periods, and request or permit additional authority or supporting material.”).

 The information in this undated, unnotarized document was never discussed by 8

Puente in the district court or on appeal. Similarly, the district court did not mention the

statement. Thus, Puente has failed to establish that the district court exercised its discretion

to consider this late-filed statement. Further, the document lacks notarization and a date.

Cf. 28 U.S.C. §1746 (allowing attestation without a notary, but requiring a date). Thus, it is

not competent summary judgment evidence. Finally, even if it were competent summary

judgment evidence timely before the court, Puente cannot complain of the district court’s

failure to consider it because she failed to discuss its contents in her response or briefing.

Puente “had the burden of presenting evidence sufficient to demonstrate the existence of a

material fact issue . . . [and was] required to identify specific evidence in the record, and to

articulate the ‘precise manner’ in which the evidence supported [her] claim.” Forsyth v. Barr,

19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992)). “‘Rule 56 does not impose upon a district court a duty to sift through the record in

search of evidence to support a party’s opposition to summary judgment.’” Id. (quoting Skotak

v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)).

 The sentence that might have given specifics – “I would like to have the annual leave 9

that I was required to take restored, consisting of ___ hours” – remains blank, with no number

filled in. 

12

may have considered, only Puente’s own undated, unnotarized statement from 7 8

the EEOC investigation attached to her untimely supplemental response to the

summary judgment motion stated that she “lost both breaks and lunch.” Even

if this statement were competent summary judgment evidence, this vague

response falls far short of directly refuting the affidavits attached to the

Secretary’s motion for summary judgment. Thus, as the record stands, Puente 9

neither lost break time nor was restricted in how she could use her break time;

this record merely reflects accommodation tempered by no preferential
No. 08-40282

13

treatment, which is insufficient to raise a genuine issue of material fact as to

Puente’s retaliation claim.

Because Puente cannot make a prima facie case of retaliation, we need not

continue past the first step of the McDonnell Douglas framework in our analysis

of this case. The district court did not err by granting summary judgment. 

III. Conclusion

We conclude that de novo review of Puente’s claims is appropriate. We

AFFIRM the judgment of the district court.