### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-31070 Summary Calendar

IDELLA CORLEY, Plaintiff-Appellant,

v. STATE OF LOUISIANA THROUGH DIVISION OF ADMINISTRATION, OFFICE OF RIS K MANAGEMENT; WHITMAN J. KLING, JR., individually and in his official capacity as Division of Administration Appointing Authority; BARBARA GOODSON, individually and in her official capacity as Appointing Authority; ANNE GRAHAM, individually and in her official capacity as Human Resource Director; JULIAN S. THOMPSON, JR., individually and in his official capacity as State Risk Director; PATRICIA H. REED, individually and in her official capacity as State Risk Assistant Director, Defendants-Appellees.

Appeals from the United States District Court for the Middle District of Louisiana USDC No. 3:06-CV-882

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Th e di s trict c o urt gr ant e d p arti al s u m m ary judgment against Idella Corl ey (“Corley”) dismissing her race di scrimination, hostile work environment, and U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 29, 20 12 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t has det erm ined thatt his op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-31070 Document: 00512067573 Page: 1 Date Filed: 11/29/2012No. 11-31070

state intentional infliction of emotional distress and retaliation claims, against the Defendants in connection with her employment with, and termination from, t h e Division of Administration, Office of Risk Management for the St a t e o f Louisiana (“DOA-ORM”). Only Corley’s federal retaliation claims pursuant to Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq. , and 42 U.S.C. § 1981, survived. A jury reached a verdict against her on those remaining claims. Proceeding pro se , Corley timely appealed on all claims. We AFFIRM. We review a district court’s grant of partial summary judgment de novo

. Jones v. Robi n s o n Prop. Grp., L.P. , 427 F.3d 987, 991–92 (5th Cir. 2005). Summary judgment is proper when there is no genuine dispute as to any material fact and the moving party is entitled to judgment a s a m a t t e r of law. Fed. R. Civ. P. 56(a). We analyze Corley’s race discrimination claims under the burden shifting framework set out in McDonnell Douglas Corporation v. Gre e n , 4 1 1 U .S. 792, 802–04 (1973). To establish a prima facie case of race discrimination, a plaintiff must show that: (1) she was a member of a protected group; (2) she was qualified for the position at issue; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees outside of her protected group. McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 2007). Adverse employment actio n s are limited to ultimate employment decisions, which include hiring, granting leave, discharging, promoting, or compensating. I d

. at 559–60. If a prima facie case is made, then the burden shift s t o th e defendant to “articulate a legitim a t e , nondiscriminatory reason for the
q u e s t i o ned employment action.” Frank v. Xerox Corp. , 347 F.3d 130, 137 (5th Cir. 2003). If such a reason is given, then the plaintiff is left with the burden of showing that the stated reason was pretextual. Id

. Summary judgment was proper as to Corley’s race discrimination claims because sh e failed to carry her burden under the McDonnell Douglas framework. We agree with the district court that the “ultimate employm e n t d e c i s ions” at
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issue are Corley’s: (1) reduction in pay equal to a one-day suspension in March 2006, (2) denial of the staff officer’s position in May 2006, and (3) termination in December 2006. As explaine d b y t he district court, Corley failed to show a 1 prima facie case with regard to the first two actions because, inter alia , she did not present evidence that similarly situated non-black employees were treated

more favorably. As for the third action, Corley met her prima facie burden. The Defendants then presented evidence that Corley was terminated for legitimate, nondiscriminatory reas o n s

—n amely, her insubordinate behavior and inappropriate communications. Corley f ail e d to raise a genuine issue of material fact as to whether these reasons were pretextual. Summary judgment a s to Corley’s race-based hostile work environment claim was al s o p r o p e r . T o prevail, a plaintiff must show: “(1) she belongs to a protect e d group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and f a il e d t o take prompt remedial action.” Ramsey v. Henderson , 286 F.3d 264, 268 (5th Cir. 2002). As noted by the district court, although Corley pr e s e n t e d numerous acts showing hostility between her and her coworkers, she failed to show that t h is hostility was related to her race. Corley’s state intentional-infliction-of-emotional-distress claim also fails. To prevail, a plaintiff must show: “(1) that the conduct of the defend a n t was extreme and outrageous, (2) that the emotional distress suffered by the plaintiff

was severe, and (3) that the defendant desired to inflict s eve re emotional distress

In additio n to thes e thr ee act ions , Corle y ass ert ed a long lis t of othe r allege d adver se 1
em plo ymen t act ions per taini ng to sal ary, pr om oti ons , and acc o m m o d a tio n. Man y of thos e a cti ons we re not “ult im ate em plo ymen t dec isi ons ” unde r Mc Coy

. 492 F.3d at 5 5 6

. E v e n ass umi ng ar

guendo that they were ulti mat e em plo ymen t dec isi ons , for the reaso ns stat ed in the dis tri ct cour t’s ord er, Corle y fai led to sho w a pr im a fa ci e cas e wi th res pec t to thos e act ions

.
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or knew that severe emotional distress would be certain or substantially certain to result from his conduct.” White v. Monsanto Co. , 585 So. 2d 1205, 1209 (La

. 1991). As explained by the district court, Corley failed to raise a genuine issue of material fact as to whether any of the D e f e n d a n t s’ acts were extreme or outrageous. Moreover, Corley c a n n o t prevail on her state retaliation claims. Retaliation based on race does not fall within the scope of Louisiana E m p l o y ment Discrimination Law. La. Rev. Stat. Ann. § 23:301. Corley also failed to respond to Defendants’ motion for su m m a ry judgment regarding her Longshoremen’s and Harbor Workers’ Compensation Act claim

. § 2 3:1361(B). Further, Corley failed to show that any of the alleged retaliatory acts were an actual violation of Louisiana law, which is a requirement to recover under Louisiana Whistleblower Statute. § 23:967. 2 The evidence was sufficient to support the jury verdict against Corley on her remaining federal retaliation claims. Corley’s appeal of the jury verdict is reviewed for plain error because she failed to move for judgment as a matter of law at the close of all the evidence. See McKenzie v. Lee , 259 F.3d 372, 374 (5th Cir. 2001). Accordingly, our review is limited to determining “whether there was any evid e n c e t o support the jury verdict.” Flowers v. S. Reg’l Physician Servs

. Inc. , 247 F.3d 228, 238 (5th Cir. 2001). The record shows that the Defendants presented evidence of a legitimate, non-retaliatory reasons—namely, Corley’s insubordinate behavior and inappropriate commun i c a t i ons—for each of the allegedly retaliatory acts. T h e r efore, Corley cannot show that there was no evidence to support the jury’s verdict. For the foregoing reasons, we AFFIRM the partial summary judgment of

The dis tri ct cour t als o grant ed sum mar y j u d g m e n t in favor of def enda nt Whit man 2 J. “Whit” Kl ing, Jr. (“ Kl ing”) , on all ret aliat ion clai ms . Sum mar y judgm ent in favo r of Kling wa s pr ope r beca use all viable asp ect s of C o r ley’s ret aliat ion clai ms occ urr ed aft er Kl ing’s tenu re as app oint ing au thor ity forD OA- ORMen dedinM arc h 20 05. 4 Case: 11-31070 Document: 00512067573 Page: 4 Date Filed: 11/29/2012No. 11-31070

the district court and the judgment based on the jury’s verdict.

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