* 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.

1 Pursuant to Federal Rule of Civil Procedure 25(d), we have substituted current

Secretary of Veterans Affairs Eric K. Shinsekifor former secretary Anthony Principi as a party

to this suit.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20212

WARREN HOLLOWAY

Plaintiff-Appellant

v.

DEPARTMENT OF VETERANS AFFAIRS; ERIC K SHINSEKI Secretary,

Department of Veterans Affairs; LARRY GARDNER; JOHN DOE

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-cv-01395

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Warren Holloway (“Holloway”) appeals the district

court’s order awarding summary judgment to Defendants-Appellants

Department of Veterans Affairs (“VA”), Eric K. Shinseki,1 Larry Gardner, and

John Doe (collectively “Defendants”) in his Title VII case. Holloway argues that

United States Court of Appeals

Fifth Circuit

F I L E D

February 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-20212

2

the district court erred in concluding that he failed to establish a prima facie

case of retaliation under 42 U.S.C. § 2000e-3(a). For the reasons explained

below, we AFFIRM the district court’s grant of summary judgment to

Defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND

Holloway, an African-American male, is a former employee of the Michael

E. DeBakery Veterans Medical Center in Houston, Texas. Beginning in 1997,

while employed as a computer specialist, Holloway filed various EEO complaints

alleging racial discrimination and retaliation. On August 21, 2000, the VA

terminated Holloway following his failure to complete paperwork necessary to

obtain a required security clearance.

Holloway filed the instant Title VII suit in April 2004, alleging racial

discrimination and retaliation relating to his termination, as well as twenty-two

other acts of retaliation against him by the VA, including, inter alia, “denying

his leave of absence request; requiring him to work on light duty while other

employees were not required to work; and subjecting him to harassment and

assault by his supervisors.” Holloway v. Dep’t of Veterans Affairs, 244 F. App’x

566, 2007 WL 2116475, at *1 (5th Cir. July 23, 2007) (per curiam) (unpublished).

Of particular relevance to this appeal, Holloway alleged that in 1998, his

supervisor, Charles Warner (“Warner”), stated to two of Holloway’s co-workers

that Holloway was “creating problems by filing EEO complaints.” Defendants

moved for summary judgment, and the district court granted their motion and

dismissed all of Holloway’s claims. Holloway appealed only the dismissal of his

“non-removal, non-termination retaliation claim.” Id.

While Holloway’s appeal was pending, the Supreme Court decided

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), in

which it “rejected the approach taken by several circuits, including this one, for

determining adverse employment actions in retaliation cases.” Holloway, 2007
No. 08-20212

3

WL 2116475, at *1. Accordingly, we vacated the district court’s grant of

summary judgment and remanded Holloway’s case for consideration in light of

Burlington Northern. Id. at *2.

Following our remand, Defendants again moved for summary judgment.

In response, Holloway abandoned all remaining allegations of retaliation except

for that relating to Warner’s 1998 statement that Holloway was “creating

problems by filing EEO complaints.” See Holloway v. Dep’t of Veterans Affairs,

Civil Action No. H-04-1395, 2008 WL 624708, at *1 (S.D. Tex. Mar. 5, 2008).

Defendants asserted that Holloway failed to establish a prima facie case of

retaliation with regard to this remaining allegation. Specifically, they argued

that Holloway failed to establish the second element of his prima facie case: that

Warner’s statement constituted an “adverse employment action.” The district

court granted Defendants’ motion on this ground and dismissed the case with

prejudice. Holloway timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the district court’s award of summary judgment

pursuant to 28 U.S.C. § 1291.

We review de novo a district court’s award of summary judgment. Nichols

v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Summary

judgment is proper when “the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine

issue of material fact exists when the evidence is such that a reasonable jury

could return a verdictfor the non-moving party.” Gates v. Tex. Dep’t of Protective

& Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the non-moving party

fails to establish ‘the existence of an element essential to that party’s case, and
No. 08-20212

4

on which that party will bear the burden of proof at trial,’ no genuine issue of

material fact can exist.” Nichols, 495 F.3d at 188 (quoting Celotex Corp., 477

U.S. at 322-23). In reviewing the motion, we “must view the facts in the light

most favorable to the non-moving party and draw all reasonable inferences in

its favor.” Coury v. Moss, 529 F.3d 579, 584 (5th Cir. 2008).

III. DISCUSSION

Holloway contends on appeal that Warner’s 1998 statement to two of

Holloway’s co-workers that Holloway was “creating problems by filing EEO

complaints” constitutes a retaliatory statement actionable under Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a). 42 U.S.C. § 2000e-3(a) provides

that 

[i]t shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter.

Claims under Title VII are governed by the three-step test established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See LeMaire v.

La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). Under this test,

an employee alleging a retaliation claim bears the initial burden of establishing

a prima face case of retaliation. LeMaire, 480 F.3d at 388; see McDonnell

Douglas, 411 U.S. at 802. To establish her prima facie case, an employee must

demonstrate that “(1) she participated in an activity protected by Title VII;

(2) her employer took an adverse employment action against her; and (3) a

causal connection exists between the protected activity and the materially

adverse action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.

2008); accord Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.

2007). Only the second element is at issue in this case.
No. 08-20212

2 We assume, arguendo, that the challenged statement constitutes an employment

action.

5

The Supreme Court recently clarified the requirements for the second

element of an employee’s prima facie case of retaliation. In Burlington Northern,

the Court held that “a plaintiff must show that 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.” 548 U.S. at 68 (internal quotation marks

omitted). The Court explained that “[t]he anti-retaliation provision protects an

individual not from all retaliation, but from retaliation that produces an injury

or harm,” id. at 67, and noted that it “speak[s] of material adversity because . . .

it is important to separate significant from trivial harms,” id. at 68. In other

words, it explained,“Title VII . . . does not set forth ‘a general civility code for the

American workplace.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80 (1998)). Notably, the Court cautioned that “[a]n employee’s

decision to report discriminatory behavior cannotimmunize that employee from

those petty slights or minor annoyances that often take place at work and that

all employees experience.” Id.

Holloway’s sole remaining allegation is that Warner’s statement to two of

Holloway’s co-workers that Holloway was “creating problems by filing EEO

complaints” rises to the level of an adverse employment action under the

standard enunciated in Burlington Northern.

2 Since Burlington Northern, this

court and others have considered various factors that weigh against a finding of

“material adversity.” Among these, we have explained that when a supervisor

makes a challenged comment notto the plaintiff-employee butto his co-workers,

the comment’s hearsay nature “militates against a finding of materiality.”

Smith v. Harvey, 265 F. App’x 197, 201 (5th Cir. 2008) (per curiam)

(unpublished) (citing Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 366
No. 08-20212

6

(S.D.N.Y. 2006)). The fact that the supervisor made the comment on only one

occasion and that no adverse consequences followed therefrom further weighs

against a finding of material adversity. Id. Although we recognize that this

unpublished decision does not bind us, we find it instructive and agree with its

reasoning.

Moreover, a supervisor’s mention, or even criticism, of an employee’s EEO

complaints does not itself constitute such “material adversity” that would

“dissuade a reasonable worker from making or supporting a charge of

discrimination.” See Burlington Northern, 548 U.S. at 68. For example, in Jones

v. Johanns, 264 F. App’x 463 (6th Cir. 2007), the Sixth Circuit held that a

supervisor’s letter to the plaintiff warning him to stop discussing his EEO

complaints during business hours and threatening “official disciplinary action”

if he failed to stop did not, “as a matter of law, constitute materially adverse

actions,”id. at 469. Indeed, courts have even held that a supervisor’s statements

to a plaintiff’s co-workers that he would “get rid of” the plaintiff because he was

“creating problems,” Thomas, 438 F. Supp. 2d at 366, and “[b]admouthing or

being mean to an employee within the workplace,” Roldan v. Chertoff,

No. 04CV2515, 2006 WL 4632503, at *12 (S.D. Cal. Oct. 19, 2006), are not

materially adverse actions capable of sustaining a retaliation claim.

In the instant case, Warner made only one reference to Holloway’s EEO

complaints, and he directed the comment not to Holloway, but to two of

Holloway’s co-workers. Warner did not threaten disciplinary action, did not

evince hostility toward Holloway, and did not suggest that Holloway drop his

complaints or refrain from filing further complaints. Contrary to Holloway’s

assertion, Warner’s statement is entirely distinguishable from those at issue in

Fallon v. Potter, 277 F. App’x 422 (5th Cir. 2008) (per curiam) (unpublished), in

which the plaintiff’s supervisor directly threatened disciplinary action if the

plaintiff did not withdraw his EEO complaint, id. at 428. The statements
No. 08-20212

7

challenged in Fallon—“You just keep filing those EEO complaints and I promise

you one thing—there won’t be a person in this post office to testify against me”;

“You need to call her [an EEOC officer] and talk to her so you can drop this

EEO”; “You need to tell her you don’t need redress . . . cause you’re canceling the

EEO complaint”; and “You’ll never have anyone in this post office stand up for

you. If you continue to file these charges, I’ll show you what you’re up against,”

id. (alteration and omission in original)—bear no resemblance to Warner’s

comment here. Warner’s single, non-threatening statement did not “create[] a

situation so unbearable or bleak that a reasonable employee would have been

dissuaded from complaining about discrimination.” See Higgins v. Gonzales, 481

F.3d 578, 590 (8th Cir. 2007).

Accordingly, the district court correctly found that Warner’s statement was

insufficient to constitute a “materially adverse” employment action and that,

therefore, Holloway failed to establish a prima facie case of retaliation.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s award of

summary judgment to Defendants.

AFFIRMED.