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

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 Admini s t r ation (TSA) employee, appeals the dismissal of her hostile work environment and disparate treatment claims. Finding that her hostile work environm e nt claim is time- 1 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 Sep tem ber 1 5, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this 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. In the dis tri ct cour t, Wer ner als o fil ed a ret aliat ion clai m agains t the TSA, but she has 1 not rais ed this clai m on app eal. There for e, the iss ue is aband oned , and we do not cons ide r it. See Hu cka bayv . Mo ore , 142 F.3d233 , 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 t o w ork as a supervisory transportation security offi c e r i n October 2002. After over four years of employment, Werner was demoted to a non-supervisory position. The TSA’s official rea s o n 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 tak e t eam photos to create posters for the New Orleans airport in honor of the one-year anniversary of Hurric a n e Katrina. The scene during the photo shoots was described by one witness as “a total loss of contr o l , ” w i th 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 w i t h Assistant Federal Security Director (AFSD) C h e ryl 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 contai n ed prior counseling and discipline for making racially insensitive comments. Notably, in one of these in c i d e n t s, 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. I n d eed, 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 unab l e t o 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 a n E qu a l 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 Af ri canAmerican emp l oyee 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 o utside 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 di s m i s s ” a s “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 m o t i o n to dismiss, including depositions,

none of which were explicitly referenced b y 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 di s m iss was, in the alternative, a motion for summary judgment, Werner ha d notice that the court might consider summary judgment, and she responded accordingly in her o p position 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 o f 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 reasonabl e j u ry 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

Coll insv . Mo rgan Stanley De an Witter , 224 F.3d496 , 498–99 (5t h Cir

. 2000)

. 2
See Scan la n v. Texas A&M Uni v. , 343 F.3d 533 , 5 3 6 (5t h Cir. 2003) (d es cribing the 3 lim itat ions of Coll ins and reit erat ing that the dis tri ct cour t may not “go outs ide the com plai nt” ). See Bossar d v. Exxon Corp. , 559 F.2d 1040, 1041 (5t h Cir. 1977) (no ting that wh en a 4 tri al cour t cons ide rs evide nce beyond the p l eading in a mo tio n to dis mi ss , the grant of that mo tio n i s to be tre atedass umm ary judgm ent unde r Fed. R. Civ. Pr o. 56).
Do rse tt v. Bd. of

T rs. f or State Colls. & Uni vs . , 940 F.2d121 , 123 (5t h Cir

. 1991)

. 5
Fed

. R. Civ. P. 56(a); seeCe lotex Co rp . v. Ca trett , 477 U. S. 317 , 322–23 (198 6). 6
Ande rso n v . Libe rty Lobby, Inc. , 477 U. S. 242 , 248 (198 6). 7
Tre vi no v. Ce la nes e Corp ., 701 F. 2d 397, 407( 5th Cir. 198 3). 8
4 Case: 10-31258 Document: 00511603592 Page: 4 Date Filed: 09/15/2011No. 10-31258 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 o f h a r a s s ment

o ccurring between December 6, 2006 and January 19, 2007, meaning a n y 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 remedi e s . “ 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 n o s u c h 1 0 finding, and summary judgment in favor of the Department is proper. IV. Absent direct evidence of discriminatory intent, W e rner must prove her discrimination case using c ircumstantial evidence. The first step is for the 1 1 complainant to establish a prima facie case of discrimination. To do so, Werner must show that: ( 1 ) s h e i s a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4)

Ram seyv. H

ende rso n , 286 F.3d264, 269 (5t h Cir. 2002) ; 29 C. F.R. § 1614. 105( a)( 1). 9
Row e v. Sul li va n , 967 F.2d186 , 191 (5t h Cir

. 1992)

. 1 0
See McDo nnel l Do uglas Corp

. v. Green Ric har d Ell is, Inc ., 411 U. S. 792, 802 (197 3). 1 1 5 Case: 10-31258 Document: 00511603592 Page: 5 Date Filed: 09/15/2011No. 10-31258

similarly situate d p e r s o ns were treated more favorably than she was. Here, 1 2 Werner failed to satisfy the fourth prong. We have previously found that “employees who have di fferent work responsibilities or who are subjected to adver s e e m p loym e nt action for dissimilar violations are not similarly situated.” Instead, we require that empl o yment 1 3 actions being compared between two employees must have been taken “under nearly identical circumstances,” including “essentially comparable violation histories.” 1 4 Werner compares herself to several othe r e m ployees 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 k nife on a plane but was not disciplined. The record does not p r o vi d e t h i s supervisor’s work history, but even if the circumstances were as Werner alleges, his violations are not “nearly identical” to Werner’s, as this violat i o n i s vastly different from Werner’s racial insensitivity. In her int errogatory responses, Werner asserted that African

- A m e ri can employees signed a petition against a white male screening supervisor, Trevor Kiley, stating Kiley was a racist, but Ki l e y was not disciplined. If Kiley had reports of racism in his personnel fil e , 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,

Pri ce v. Fe d. ExpressCor p. , 283 F.3d715 , 720 (5t h Cir

. 2002)

. 1 2
Lee v. Kans as City Souther n Ry. Co. , 574 F.3d 253, 259–60 (5t h Cir. 200 9 ) (cit ing 1 3 Smi th v

. Wal -M

ar t Store s (N

o. 471) , 891 F.2d117 7, 1180 (5t h Cir

. 1990) ). Id. at260

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but rather that (a) subordinates did not complain about other supervisors to the degree they complained about W e r n e r and (b) complaints launched against Werner were i nv e stigated 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 pol i c y a nd were taken into account when demoting Werner. Werner contends that those who launched complaints were motivated by raci a l a n i m u s a gainst her. While this may be true, there is no evidence to suggest that Werner’s s u p ervisors had improper motivations in handling the complaints and issuing the reprimands that later were part of the reason for her demotion. Under the rec e nt Supreme Court decision, Staub v. Proctor H o s p i tal , an employer may be liable for employment discrimination “i f a

1 5 supervisor perform s 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 1 6 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 co m p laints against her were treated differently than the same complaints asserted against other supervisors—may have traction i f s he offered evidence. However, she provides no evidence showing other supervisors, of any race, were repo r t e d t o have made racially

131 S

. Ct. 118 6 ( 2011)

. 1 5
Id. at119 4 (foo tnot e o mi tte d)

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insensitive comments and were not disciplined. Without this evidence, Werner has failed to prov e that similarly situated employees were treated differently, and she is unable to make out her prima facie case. V. Because Werner did n o t e xh a ust her administrative remedies in the hostile work environment claim and cannot e stablish her prima facie case of disparate treatment, we AFFIRM judgment in favor of the Department.

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