United States Court of Appeals

Fifth Circuit

FILED

August 4, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 03-51167

Summary Calendar

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PERSEVERANDA CLAYTON,

Plaintiff-Appellant,

VERSUS

DONALD H. RUMSFELD,

SECRETARY, DEPARTMENT OF DEFENSE,

ARMY/AIR FORCE EXCHANGE,

Defendant-Appellee.

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Appeal from the United States District Court

for the Western District of Texas

m SA-02-CV-231

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2

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 Exchange 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 necessary 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 administratively exhausted. In the alternative, she maintains that legal technicalities should not obstruct her claims of demotion and constructive

discharge.

In November 1998, Kelley Hughes, who

had previously worked at Lackland Air Force

Base, wasselected over Clayton for a supervisory 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 comments and continuous scrutiny over her work

performance by Hughes. 

Clayton received a letter of warning in September 1999, an unsatisfactory special performance appraisal in December 1999, and a demotion by her second-line supervisor, General

Manager Daniel Metsala, from her supervisor

position to a retail position at Lackland Air

ForceBase. Clayton took sick leave and never

reported to work there. She was discharged in

May 2001 pursuant to regulationsthat require

termination ifthe employee has not returned to

work within one year.

Clayton requested and received an evidentiary hearing before an administrative law

judge (“ALJ”) on September 20, 2001. The

ALJ issued a decision in favor of the government on October 29, 2001, whereupon Clayton sued.

Summary judgment is appropriate where

the pleadings, answers to interrogatories, admissions 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 ofmaterialfact 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 showing an absence of a genuine issue of material

fact has been met, the nonmoving party must

establish the existence of evidence creating an

issue offact that can be properly characterized

as outcome determinative. Hanchey v. Energas 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 published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
3

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 elements: (1) The employee engaged in activity

protected by title VII; (2) the employer took

adverse employment action against the employee; and (3) a causal connection exists between 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. Barrowv. 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 establishing cause for discharge. Mattern, 104

F.3d at 707. Alternatively, merely placing a

memorandumregarding an employee’s performance 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

employersthat arguably might have some tangential effect on those ultimate decisions.

Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.

1995). Specifically, ultimate employment decisions include acts such as hiring, granting

leave, discharging, promoting, and compensating. Id. at 782. Interlocutory or intermediate

decisions that can lead to an ultimate decision

are insufficient to support a prima facie case

ofretaliation. Mattern, 104 F.3d at 708. Consequently, the “ultimate employment decision”

doctrine requires that actionable adverse employment actions “have more than a mere tangential effect on a possible future ultimate employment 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 actionsthat adversely 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 circumstances. Id. 

“[A] retaliation claim cannot be based solely on an employer’s act of ‘limiting’ an employee ‘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) (bracketsin 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 decisions. Although those acts may be seen as
4

limiting her, they are not ultimate employment

actions. Specifically, the actions she maintains

are adverse employment actionsinclude possible spying, a non-promotable rating, scrutinization, a letter of warning, rejection of

Clayton’srequest to have a third person of her

choosing present at weekly meetings with her

supervisors, an eventualdemotion and transfer

to Lackland Air Force Base, and exclusion and

unfair treatment. 

The district court correctlydetermined that,

with the exception of the demotion with transfer, the actions described are not adverse

employment actions. Analogous to the events

in Mattern, 104 F.3d at 708, the events Clayton complains of are similar to disciplinary

filings and supervisor reprimands. Accordingly, 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 requirement is to allow the agency, in itsinvestigatory and conciliatory role, fully to investigate and attempt to resolve claims of discrimination. 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 investigation 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 onlyon the specific complaintsmade

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 reasonably be expected to grow out of the initial

charge of discrimination. Id. 

The crucial element of a charge of discrimination 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 purposes of the charge is to put the employer on

notice ofthe existence and nature ofthe charges. 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. Alternatively, 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 administrative record of Clayton’s EEOC charge indicates 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-
5

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 framing 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 entered 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 statutory scheme, courts construing title VII have

been reluctant to allow procedural technicalities to bar claims brought under the Act. Sanchez, 431 F.2d at 461-62. Title VII is designed 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. Furthermore, to compelthe charging partyspecifically

to articulate, in his charge, the full array of

discrimination he mayhave suffered maycause

the very persons title VII was designed to

protect to lose that benefit because they are

ignorant of, or unable thoroughly to describe,

the discriminatorypracticesto which theyhave

been subjected. Fellows, 701 F.2d at 451.

Clayton points out that she is not an attorney, nor does she have any legal background,

training, or education. She was not represented 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 asserts, however, that her failure to notify her

employer of charges is a procedural technicality, for, if she is allowed to circumvent the

administrative processes, theEEOCwillnot be

able to serve in its investigatory and conciliatory role. 

Clayton’s case is distinguishable from Sanchez, 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. Sanchez, 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. 

Thisis not a case in which procedural technicalities 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 demotion and constructive discharge claims, because they were not administratively exhausted.

AFFIRMED.