### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50338

JAIME HERNANDEZ Plaintiff-Appellant
v. MARTHA JOHNSON, Administrator, General Services Administration Defendant-Appellee

Appeal from the United States District Court for the Western District of Texas USDC No. 5:10-CV-476

Before STEWART, Chief Judge, and DAVIS and CLEMENT, Circuit Judges. PER CURIAM: * Plaintiff Jaime Hernandez appeals the d i s m i s s al o f his claims of reta l i a t o ry employment discrimination and violations of the Privacy Act on summary judgment. Based on our conclusion that the plaintiff either failed to state a prima facie case or failed to est ab l i s h t h at his employer’s articulated nondiscriminatory reasons are pretext, his claims o f retaliation fail. In a ddition, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February22, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50338 Document: 00512152245 Page: 1 Date Filed: 02/22/2013No. 12-50338

we agree with the district court that Hernandez did not suffer any damages from the alleged violation of the Privacy Act. Accordingly, we affirm. I. Jaime Hernandez began his employment with G eneral S e rvices Administration (GSA) in 1990 and has b een employed as a GS-13 Area Property Officer ( APO) i n S an Antonio, Texas, since November 1994. In April 2008, H. Jan Faulkner beca m e Chief of the Property Management Division and Hernandez’s first-level supervisor. Faulkner’s office was in Denver, Col o r ado, and s he supervised Hernandez, who was stationed in San Antoni o a s well as three other APOs. Hernandez’s territory was Texas and Louisiana. Faulkner remained Hernandez’s supervisor until April 2009. Hernandez initiated this action by filing suit against GSA in the Western District o f Texas. He complains of several actions by Faulk n e r that he claims

were made in retaliation for his activity filing Equal Employment Opportunity claims a nd in violation o f the Privacy Act. Hernandez had filed a p rior EEO claim in 2 0 0 7 t h a t was unsuccessful. Faulkner became aware of this in May 2008 when she a sked Hernandez why he needed administrative leave and Hernandez told her that he was testifying in relation to his EEO claim. Hernandez complains that a week after F aulkner learned of his 2007 EEO claim, Faulkner sent out “customer s u rv e y s” that solicited only negative feedback regarding his work e thics and performance. Faulkner states that she

s e nt the surveys to customers of all of her APOs. On July 7, 2008, Hernande z states that Faulkner made a harassing phone call to him at home. This call t ook place on a work day and F a u l k n e r w anted to ask a work-related question. During that conversation, she told Hernandez that she felt threate n e d by Hernandez t elling her about his prior EEO activity (this refers t o the M ay 2008 call in which Hernandez stated that his reason f or administrative leave was for his EEO claim). On J uly 11, 2008, Hernandez filed his first i nformal c o mplaint

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against F aulkner f

or discrimination, hostile w ork environment and retaliation. In August 2008, Faulkner decided to stop the practice of assigning a p e rsonally dedicated government v e hicle (GOV) for all o f the APOs under her supervision, including Hernandez. Faulkner stated th at this decision was made because the

v e h i c l e s were being used f ar less than GSA Fleet Management standards. Hernandez states that this move, i n conjunction with increase d visit and presentation requirements, made it more difficult to do his j ob. D uring the period without a G O V , H ernandez h ad other transportation options available including GSA’s short-term fleet rental program, private c ar rental and using a personal vehicle and obtaining mileage reimbursement f rom GSA. When GOVs

were returned to the employees months later, Hernandez h ad to wait six months longer (until October 2 009) than others to get his GOV. F aulkner was no longer his supervisor after April 20 0 9 , a nd Hernandez still had other transportation options available. Hernandez also compl ains that his travel vouchers received extra scrutiny from Faulkner and were held longer than t h e five day period allowed for approval. The record i ndicates that some of Hernandez’s travel vouchers were held for seven days instead o f being processed in the c u s t o m a ry t wo or three days. In October 2 008, Hernandez filed a formal E E O c o m p l aint against Faulkner. In J anuary 2009, Faul kner emailed a L etter o f Counseling and Instruction to Hernandez identifying instances o f h i s m isconduct. This letter

was n ot p laced in Hernandez’s official personnel file. However, it n oted that it could b e cited if disciplinary action were to be required later to indicate that he

was c o unseled o n the nature of the misconduct. At the same, Faulkner initiated a Record of Infraction based on a complaint about Hernandez from a non-GSA employee. Faulkner was required to initiate an i nvestigation into the c o mplaint and ultimately d etermined that it was unsubstantiated a nd no action was taken.

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Hernandez’s c omplaint also inc l udes a claim for violation of the Privacy Act. In August 2 008, Faulkner emailed two friends / former coworkers and mentioned t h a t “Jaime” had filed a n i nf ormal EEO complaint a gainst her for creating a hostile work environment. The email did n ot state Jaime’s last name, and n either recipient knew who he was. Hernandez l e arned o f the disclosure two or three y e ars after it occurred. I n 2009, another GSA employee Susa n Marquez opened the f

ile o f her own EEO complaint against Faulkner a nd found that Faulkner had attached Hernandez’s affidavit f rom hi s o wn EEO c o mplaint in her final Report of Investigation of Marquez’s c o mplaint. In September 2010, Faulkner told a n o th er coworker that all EEO suits against Faulkner were resolved in her favor and gloated that the agency found her n o t at fault in both Hernandez’s case and Marquez’s case. After Hernandez filed suit, Faulkner also gave updates about Hernandez’s case in weekly staff meetings. Hernandez claims that these events caused him t o s u f f er from anxiety, depression, and digestive problems, beginning in 2008, a nd that as a result he required medical care. The district court granted the GSA’s m otion for summary judgment on all claims. It found that, ass u m i n g H e r nandez had shown a prima facie case of retaliation, the defendant provided evidence to supp o rt legitimate, nonretaliatory reasons for each alleged employment action and that Hernandez made n o attempt to e s tablish that the articulated reasons were merely pretext. O n Hernandez’s Privacy Act claims, th e district court found that whil e Hernandez complained of ailments beginning in 2008, th e d i sclosures he complains of w ere not discovered until 2010 or 2011. Accordingly, any Privacy Act violations were n ot the c ause of his alleged damages and this claim failed for lack of a genuine issue of material fact o n the existence of actual damages. Hernandez appeals.

4 Case: 12-50338 Document: 00512152245 Page: 4 Date Filed: 02/22/2013No. 12-50338 II. We review the district court’s decision on a motion for summary judgment de novo, applying the same criteria as the d i s t rict court. Haley v. Alliance Compressor LLC, 3 91 F.3d 644, 649 ( 5th Cir. 2004). This court m ay affirm the grant of summary judgment on any ground presented to the district court. Conkling v. Turner , 18 F.3d 1285, 1296 n.9 (5th Cir. 1994). III. Hernandez’s c laim is that Faulkner r e taliated a gainst him f o r h is prior EEO activi ty and for filing an EEO complaint against her. A plaintiff establishes a prima facie case of retaliation by showing: (1) that he engaged in activity p rotected by Title VII (in this case, prior EEO activity); (2) that an adverse employment action occurred; and (3) th at there w a s a causal connection betwe e n t h e p rotected activity and the a dverse employment action. T aylor v. United Parcel Serv., Inc. , 554 F.3d 510, 523 (5th Cir. 2008) (citing Long v. Eastfield Coll. , 88 F.3d 300, 304 (5th Cir. 1996)). To establish that an employment d ecision is a materially a dv e r s e employment action, “ a plaintiff must show that a r easonable 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.” Burlington N. & Santa Fe Ry. v. White , 548 U

. S

. 5 3 , 6 8 (2006) (internal quotation marks omitted). O nce a plaintiff establishes a p ri m a facie case, the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for the challenged employment action. If the defendant does so, then the burden shifts back to the plaintiff to show that the defendant’s stated reason is a pretext for retaliation. McCoy v. City of Shreveport , 492 F.3d 551, 557 (5th Cir. 2007). In this case it is undisputed that H ernandez f iled EEO claims and that Faulkner became aware of this protected activity i n May 2008. Faulkner would also have been aware of Hernandez’s later EEO compla i n t s against her. The

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district court assumed that Hernan d ez had made a prima facie case of retaliation. On appeal Hernandez argues that h e did state a prima facie case, and that the district court erred in holding that he failed to rebut the legitimate

reasons of the d efendant f or the actions taken with eviden c e of pretext. GSA seeks to uphold the district court’s finding on p r e text and also argues that Hernandez did not state a prima facie c ase o f retaliation because he failed to establish that an adverse employment action occurred. Hernandez complains o f f ive allegedly retaliatory employment decisions that he claims w ere mate rially adverse employment actions: ( 1) that his GOV

was removed and, when that decision was rescinded, h e had to wait six months longer than other APOs t o receive hi s GOV; (2) that Faulkner nit picked his travel vouchers and delayed approving them for payment; (3) that Faulkner sent out c ustomer surveys th at were designed to solicit only negative i nformation; (4) that Faulkner made a harassing phone call t o him at home and told him that she felt threatened by hi s EEO activity and the possibility that he might file a claim against her (Hernandez understood this as a threat that he could be fired); and (5) that Faulkner issued a Letter of Counseling and Instruction to him based on his job performance and a Record of Infraction based on a complaint from a nonGSA employee. E ach of these claims fails either bec a u s e t h ey are not a materially adverse employment action a nd/or because GSA stated a legitimate

reason for the action a nd Hernandez failed to present c o rresponding evidence of pretext. On the issue of pretext, Hernandez’s p osition in general is that the district court should discredit the testimony o f Faulkner t h a t articulated the nonretaliatory reasons for the challenged employment actions because she is not

a disinterested witness. This argument misapprehends the M cDonnell Douglas burden shifting framework. If we assume that Hernandez s tated a prima facie
case, then the burde n i s on the employer to articulate some legitimate,

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nonretaliatory reason for the challenged employment action. This testimony, as

a practical matter, o f t e n comes exclusively from the accused discriminatory official who is the one with knowledge regarding the reasons for the decision. Testimony from “interested” management witn e s s es is routinely used by defendant employers to articulate a nonretaliatory o r n ondiscriminatory reason for the employment actions. See Nasti v. CIBA Specialty Chems. C o rp. , 492 F.3d 589, 594 (5th Cir. 2007); Grimes v. Tex. Dep’t of Mental Health & Mental Retardation , 102 F.3d 137, 141 (5th C ir. 1996). “The employer's burden is only

one of p roduction, n ot p ersu a s i o n , and involves no credibility assessment.” McCoy , 4 9 2 F

. 3 d at 557. The plaintiff then b ears “the ultimate b urden of proving that the employer's proffered reason is not true but instead is a pretext f o r the real discriminatory or retaliatory purpose. To carry this burden , th e plaintiff must rebut each nondiscriminatory or nonretali ato ry re a s o n artic ul at e d by the employer.” Id . (citations omitted). (1) Removal of GOV Turning to th e s pecific employment actions Hernandez complains of, Hernandez argues first that Faulkner retaliated against him b y taking away his GOV and then making him wait six months longer than other APOs when the decision was made to return th e m . Faulkner testified in deposition that she removed the GOVs from all APOs under her supervision because of budgetary constraints. She stated that s he did not believe it was e conomical to dedicate a vehicle to Hernandez personally, when Hernandez’s historical usage was f a r lower than GSA Fleet Centers requirements. Hernandez questions this reason because F aulkner did not conduct a cost benefit analysis. Also, he asserts that his opinion, which others agreed with, that this was a bad management decision was confirmed when the decision was rescinded. Faulkner’s stated reason is not p r etext simply because it may not h av e been the right decision. “Whether the employer’s d e cision was the correct one,

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or the f air one, or the best one is not a ques t ion within the j ury’s p rovince to decide. The single issue

. . . is whether the employer’s [ decision] was motivated by discrimination.” Deines v. Tex. Dep’t of Protective & Reg. Servs. , 164 F.3d 277, 281 (5th Cir

. 1 9 9 9 )

. T o the extent Hernandez’s claim rests o n the fact that he

was the l ast to have his GOV returned, we note th a t t h e r e turn of his GOV in October 2009 oc c u r r e d l o ng after Faulkner was n o longer his supervisor after April 2009. In the alternative, the loss of a personally assigned vehicle is not a materially adverse e m p l oyment action. See Wheeler v. BNSF Ry. Co. , 418 F. App’x 738, 750 ( 10th C ir. 2011); Roney v . Ill. Dept. of T ransp. , 474 F.3d 455, 461 (7th Cir. 2007). GSA p rovided other transportation means to Hernandez including rental cars and reimbursement for use of his private vehicle. (2) Delay of Travel Vouchers Hernandez established through the deposition testimony of Susan M a r q u ez that his travel vouchers received extra scrutiny from Faulkner an d that “a couple” of his vouchers were not p rocessed for seven days, instead of the

c u s t o m a ry two or three days. Although Hernandez asserted that this could require him to pay his government credit card balance out of his o wn pocket if reimbursement were delayed, he presented no evidence that this ever o ccurred. We de c l i ne to find that this kind of petty a nnoyance is a material adverse employment action. Burlington Northern , 548 U.S. at 69. (3) Customer Surveys Faulkner sent su rv e y s to Hernandez’s c ustomers that appear to request only negative information about APOs. Fau l k n er responded to this claim by stating that she sent the challenged surveys to all customers of each of the four APOs u nder her supervision, which indicates that the surveys were not t argeted toward Hernandez. Hernandez presents no evidence th at this was pretextual. The f act that cert a in customers questioned the surveys does not rebut Faulkner’s explanation. Hernandez points to the affidavit of Ramon Benavides,

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Jr. who received the survey regarding Hernandez and “found it strange that it did not include other GSA representatives that I had interactions with throughout the United States concerning excess property.” Hernandez argues that this statement undermines Faulkner’s claim that she sent out surveys about all of the APOs under her supervision. We disagree. There is no evidence in the record that the “other G SA r e p r esentatives” that Mr. Benavides had interactions with were under Faulkner’s supervision. (4) Harassing Phone Call Hernandez states that Faulkner called him at home and stated that she felt Hernandez was threatening her by t e lling her about his prior EEO activity. Hernandez argues that this phone call w a s a threat not to file an EEO claim against F aulkner and a th r e a t that he could be fired because Faulkner had stated on another occasion that she wasn’t afraid to fire people. We find that this call was n ot a m a t e r i a lly adverse e mployment action. We have f ound an adverse employment action when a supervisor made multiple statements to the plaintiff urging him to drop his EEO complaint, stating that no one in the office would testify in his favor, and threatening that if he proceeded with the complaint he would show him what he was up against. Fallon v. Potter , 277 F. App’x 422, 428-29 (5th Cir. 2008). However,

a supervisor's m ention, or e v e n criticism, of an e mployee's EEO complaints does not itself constitute such "material adversity" that would "dissuade a reasonable worker from making or supporting a charge o f discrimination." See Burlington Northern , 5 48 U.S. at 68. For example, in Jones v. Johanns , 264 F. App'x 463 (6th Cir. 2007), the Sixth Ci r cuit held that a supervisor's l etter t o the plaintiff warning him to stop discussing his EEO complaints during business hours and threatening " o f f i c ial disciplinary action" if he failed to sto p di d not, "as a matter of law, constitute materially adverse actions," id

. at 469. Indeed, c o u r ts have even held that a supervisor's state m e nt s to a p l aintiff's co-workers that he would " get rid of" the plaintiff b ecause he w a s " c r e ating p roblems," Thomas , 438 F. Supp. 2d at 366, and "[b]admou t hing or b eing mean to an

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employee within the workplace," Roldan v. Chertoff , No. 04CV2515, 2006 U

. S. Dist. LEXIS 78574, 2006 WL 4632503, at * 12 ( S .D. Cal. Oct. 19, 2006), are not materially adverse actions capab l e of sustaining a retaliation claim. Holloway v. Dep’t of Veterans Affairs , 3 09 F. Ap p ’ x 8 1 6, 819 ( 5th C ir. 2009). Based on this framework, Faulkner’s single statement that was not even a direct threat was not a materially adverse employment action. (5) Letter of Counseling /Record of Infraction Similarly, the Letter of Counseling was not a n a dve r s e e m p loy m e nt action. See Baloch v. Kempthorn e , 550 F.3d 1191, 1199 (D.C. Cir. 2008) (letter of counseling, l etter of r eprimand, and unsatisfactory perf o r m anc e review w ere not adverse actions); DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F. App’x 437, 442 (5th Cir. 2 00 7 ) (single written warning insufficient to dissuade reasonable employee from reporting discrimin a t i o n). In addition, Hernandez offered no evidence of pretext with r egard to either the Record of Infrac t i o n o r the Letter of Counseling. F aulkner was required to i nvestigate the third party complaint. There is no a l l e gation that Faulkner instigated the third party complaint or that the reported infractions were inaccurate. W e a lso reject Hernandez’s suggestion that these events considered cumulatively are an adverse employment action. The district court c orrectly granted summary judgment in favor of the GSA o n Hernandez’s retaliation claims. IV. In order t o e s t ab l ish a violation of the Privacy Act, Hernandez must present evidence of the f ollowing: (1) the information disclosed was a record in

a system of records, (2) the agency disclosed the information, (3) the disclosure had an adverse effect on him, and (4) the disclosure was wilful. Jacobs v. Nat’l Drug Intelligence Ctr. , 423 F.3d 51 2 , 5 1 5 (5th Cir. 2005). The civil remedies

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provision p rovides that the United States will b e li able for any intentional or willful f ailure t o c o m p l y with the Act for “actual damages sustained by the individual as a result of the refusal or failure, but i n n o c a se s h all a person entitled to recovery receive less than the sum o f $1,000.” F.A.A. v. Cooper , 132 S.Ct. 1441, 1449 (2012) (quoting 5 U.S.C. § 522a(g)(4)(A)). Cooper r ecently held that “actual d amages” must be based on pecuniary har m , a n d c a nnot be premised on mental or emotional distress. Id. Hernandez’s Privacy Act claims are based on four disclosures: (1) a 2008 email from Faulkner to a friend discussing th e EEO claim, but only identifying the plaintiff as “Jaime”; (2) the p lacement by Faulkner in 2009 of Hernandez’s EEO affidavit in the EEO file of Marquez; (3) the 2010 disclosure by Faulkner to Hernandez’s co-worker Honley that all EEO suits were resolved in her favor; (4) updates by F aulkner i n staff meetings in 2 010 r e garding pending EEO suits. The district c ourt found that although Hernandez complained of damages dating back to 2008, h e also indicated in his deposition that h e w a s n o t aware of any of the disclosures until either 2010 or 2 011 when he was notified by his attorney. Accordingly, no r easonable jury could find that t h e a dverse effects Hernandez suffered were caused by these disclosures. We agree. In addition, the 2008 disclosure is not actionable b ecause it identified Hernandez o nly by his first name and neither recipient knew who “Jaime” was. Hernandez disclosed his belief that he was being unfairly subjected to a hostile work environment and his i ntention to file an EEO claim to Marquez , H onley and four other individuals wh o w orked f o r G SA

. In October 2008, Hernandez asked Marquez to be a witness in his EEO complaint. Because Hernandez’s EEO activity was f

airly well known b ased on his o wn di s c l osures, Hernandez cannot s how that a ny disclosure by Faulkner had an “ adverse effect” on him. Gowan v. United States Dep't of the Air Force , 1 4 8 F

. 3 d 1182, 1 194 (10th Cir. 1998) (Air Force’s disclosure of information to Wyoming State Bar that plaintiff

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faced court martial charges did not have adverse ef f e c t o n p laintiff within meaning of Privacy Act because p laintiff had disclosed the same information to the same entity). Hernandez also claims t h a t his non-selection for two positions he interviewed for were c a u s e d b y t he alleged violations of the Privacy Act. In August 2008, H ernandez interviewed for a position in El Paso, T e x a s . In September 2008, he interviewed for a position in Albuquerque, New Mexico. In b o th in s t ances a panel o f three GSA supervisors interviewed multiple candi d at e s and r anked them. Hernandez was not selected f or e ither position b ecause he

was not one of the top three c andidates based on a ggregate scores by the respective panels. There is no evidence that F aulkner was aware that Hernandez applied for or was interviewing for these positions or that any panel members contacted Faulkner. None of the El Paso panel members were aware of Hernandez’s E E O a c tivity, and only one of three of the Albuquerque panel members knew about Hernandez’s 2002 EEO claim and did n ot disclose it to the other panel members. This argument is without merit. V

. For the f

o r e g o ing r easons, the judgment of the district court dismissing Hernandez’s claims on summary judgment is AFFIRMED.

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