IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31258

Summary Calendar

KATHLEEN WERNER,

Plaintiff – Appellant

v.

DEPARTMENT OF HOMELAND SECURITY, Janet Napolitano, Secretary,

Defendant – Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

No. 2:10-CV-114

Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.

PER CURIAM:*

Kathleen Werner, a Transportation Security Administration (TSA)

employee, appeals the dismissal of her hostile work environment and disparate

treatment claims. Finding that her hostile work environment claim is time- 1

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2011

Lyle W. Cayce

Clerk

 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 district court, Werner also filed a retaliation claim against the TSA, but she has 1

not raised this claim on appeal. Therefore, the issue is abandoned, and we do not consider it.

See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).

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barred and that she has not proven her prima facie case for disparate treatment,

we affirm.

I.

Werner, a white female, was hired by the TSA to work as a supervisory

transportation security officer in October 2002. After over four years of

employment, Werner was demoted to a non-supervisory position. The TSA’s

official reason for the demotion was Werner’s “continued failure to provide

positive leadership and serve as a role model.” The impetus behind the demotion

was an incident occurring in August 2006, when Werner tried to take team

photos to create posters for the New Orleans airport in honor of the one-year

anniversary of Hurricane Katrina. The scene during the photo shoots was

described by one witness as “a total loss of control,” with some employees

displaying “outlandish” behavior. As a supervisor, Werner was trying to line up

team members to create orderly photos. During the disarray, she shouted to a

group of predominantly African-American employees something to the effect of:

“come on, y’all know you know how to line up.” Various witnesses reported

different phrasing, but at least some witnesses reported Werner as saying “y’all

know y’all have been in a line up before.” After receiving numerous complaints,

TSA initiated an investigation.

During the investigation, Werner met with Assistant Federal Security

Director (AFSD) Cheryl Johnson, where she told Johnson that “those people”

were out to get her. Johnson later wrote a letter to Werner detailing the reasons

for the demotion, specifically finding that Werner had violated TSA supervisor

policies, including “[t]reat[ing] employees with dignity, respect and in a fair and

equitable manner.” 

TSA’s investigation included a review of Werner’s personnel record, which

contained prior counseling and discipline for making racially insensitive

comments. Notably, in one of these incidents, AFSD Richard Rydinsky found

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that Werner’s comments “were not meant to harm or demean any minority” but

rather “were local vernacular way of speaking.” Nevertheless, because several

screeners found the comments to be racially motivated, Rydinsky recommended

counseling and made it clear to Werner that these types of comments were not

appropriate. Indeed, in September 2004, Rydinsky warned Werner that “an

immediate change in [her] conduct” was required.

In short, Werner’s personnel record reflected her difficulty in diligently

displaying the high level of racial sensitivity that was required of supervisors. 

Werner had received counseling and training but still was unable to act as

needed. Thus, the line-up comment combined with Werner’s record led the TSA

to demote her.

Shortly afer the demotion, Werner met with an Equal Employment

Opportunity counselor and asserted that she was subject to disparate treatment

based on her race and gender when she was demoted. In her EEO meeting,

Werner stated that she was harassed and repeatedly discriminated against by

African-American employees. Werner also stated that whenever an AfricanAmerican employee complained about her, an investigation was launched,

despite the fact that her own complaints against other employees were never

seriously considered. The EEO counselor could not resolve the problem, and in

January 2010, Werner filed this lawsuit.

II.

In dismissing Werner’s claims, the district court relied on evidence outside

of the pleadings. To support its reliance on outside documents, the district court

cited one of our cases, which noted “approvingly” that other circuits have allowed

a district court to consider “[d]ocuments that a defendant attaches to a motion

to dismiss” as “part of the pleadings if they are referred to in the plaintiff’s

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complaint and are central to her claim.” In this case, the Department attached 2

nearly 100 pages of documents to its motion to dismiss, including depositions,

none of which were explicitly referenced by the plaintiff in her complaint. The

district court’s reliance upon these documents far exceeds what was intended in

allowing evidence beyond the pleadings. Because the Department’s motion to 3

dismiss was, in the alternative, a motion for summary judgment, Werner had

notice that the court might consider summary judgment, and she responded

accordingly in her opposition memorandum, including submitting her own

exhibits. Thus, we may treat the district court’s ruling as a grant of summary

judgment in favor of the Department.4

We review a grant of summary judgment using the same standard of

review as the district court. A court “shall grant summary judgment if the 5

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” An issue as to a material 6

fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” In our review, we consider all evidence “in the 7

light most favorable to the party resisting the motion.”8

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).

2

See Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (describing the 3

limitations of Collins and reiterating that the district court may not “go outside the

complaint”).

See Bossard v. Exxon Corp., 559 F.2d 1040, 1041 (5th Cir. 1977) (noting that when a

4

trial court considers evidence beyond the pleading in a motion to dismiss, the grant of that

motion is to be treated as summary judgment under Fed. R. Civ. Pro. 56).

Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 F.2d 121, 123 (5th Cir. 1991).

5

 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 6

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7

Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir. 1983). 8

4

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III.

In order to exhaust the administrative remedies available under Title VII,

a federal employee who believes he or she has been discriminated against must

contact an EEO counselor within 45 days of the allegedly discriminatory act.9

Werner contacted the counselor on January 19, 2007. Thus, for Werner’s hostile

work environment claim to survive, she must point to an incident of harassment

that occurred after December 6, 2006.

In her motion opposing dismissal, Werner included her own affidavit that

listed several incidents of harassment taking place between March 2003 and

August 2004. However, Werner has not pointed to any act of harassment

occurring between December 6, 2006 and January 19, 2007, meaning any

complaints are time-barred. That the TSA investigated Werner’s hostile work

environment claim did not suspend the time limit nor indicate the government

waived the defense of failure to timely exhaust administrative remedies. “In

order to waive a timeliness objection, the agency must make a specific finding

that the claimant’s submission was timely.” Here, the TSA made no such

10

finding, and summary judgment in favor of the Department is proper.

IV.

Absent direct evidence of discriminatory intent, Werner must prove her

discrimination case using circumstantial evidence. The first step is for the 11

complainant to establish a prima facie case of discrimination. To do so, Werner

must show that: (1) she is a member of a protected class; (2) she was qualified

for her position; (3) she was subjected to an adverse employment action; and (4)

Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002); 29 C.F.R. § 1614.105(a)(1). 9

Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992).

10

See McDonnell Douglas Corp. v. Green Richard Ellis, Inc., 411 U.S. 792, 802 (1973). 11

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similarly situated persons were treated more favorably than she was. Here, 12

Werner failed to satisfy the fourth prong.

We have previously found that “employees who have different work

responsibilities or who are subjected to adverse employment action for dissimilar

violations are not similarly situated.” Instead, we require that employment 13

actions being compared between two employees must have been taken “under

nearly identical circumstances,” including “essentially comparable violation

histories.”14

Werner compares herself to several other employees but does not

demonstrate that any supervisor had a similar violation history to her. Werner

points to one fellow supervisor who intentionally allowed a passenger to carry

a knife on a plane but was not disciplined. The record does not provide this

supervisor’s work history, but even if the circumstances were as Werner alleges,

his violations are not “nearly identical” to Werner’s, as this violation is vastly

different from Werner’s racial insensitivity. In her interrogatory responses,

Werner asserted that African-American employees signed a petition against a

white male screening supervisor, Trevor Kiley, stating Kiley was a racist, but

Kiley was not disciplined. If Kiley had reports of racism in his personnel file,

these violations may make him similarly situated to Werner, but Werner did not

include his file in her opposition motion challenging summary judgment, nor do

affidavits discuss Kiley’s situation.

As Werner describes it, her complaint is not that she was demoted based

on her disciplinary record when others with similar records were not demoted,

Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).

12

Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009) (citing 13

Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990)).

Id. at 260.

14

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but rather that (a) subordinates did not complain about other supervisors to the

degree they complained about Werner and (b) complaints launched against

Werner were investigated with greater vigor than the same complaints would

have been investigated if made against other supervisors. As to the first point,

the evidence suggests that Werner’s subordinates were very short with her and

that they were a difficult group to supervise. Affidavits indicate that racial

tensions ran high during Werner’s early days at the TSA, and Werner may have

encountered greater difficulty than other supervisors. However, the items the

subordinates complained about were still violations of TSA policy and were

taken into account when demoting Werner. 

Werner contends that those who launched complaints were motivated by

racial animus against her. While this may be true, there is no evidence to

suggest that Werner’s supervisors had improper motivations in handling the

complaints and issuing the reprimands that later were part of the reason for her

demotion. Under the recent Supreme Court decision, Staub v. Proctor

Hospital, an employer may be liable for employment discrimination “if a

15

supervisor performs an act motivated by . . . animus that is intended by the

supervisor to cause an adverse employment action, and if that act is a proximate

cause of the ultimate employment action.” Here, even if Werner could prove 16

that the complaining screeners had improper motives, there is no evidence that

the supervisors writing the violation reports acted with any racial animus.

Werner’s second allegation—that complaints against her were treated

differently than the same complaints asserted against other supervisors—may

have traction if she offered evidence. However, she provides no evidence

showing other supervisors, of any race, were reported to have made racially

 131 S. Ct. 1186 (2011).

15

Id. at 1194 (footnote omitted).

16

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insensitive comments and were not disciplined. Without this evidence, Werner

has failed to prove that similarly situated employees were treated differently,

and she is unable to make out her prima facie case.

V.

Because Werner did not exhaust her administrative remedies in the

hostile work environment claim and cannot establish her prima facie case of

disparate treatment, we AFFIRM judgment in favor of the Department.

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