* 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 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20477

Summary Calendar

LINDA O. GORDON

Plaintiff-Appellant

v.

MARY E. PETERS, SECRETARY, DEPARTMENT OF TRANSPORTATION

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-3689

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Linda Gordon, a Federal Aviation Administration (FAA) employee, appeals

the adverse summary judgment against her sex-discrimination claim against the

Secretary of Transportation, brought pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. 

On 23 October 2003, Gordon, a FAA employee since 1982, applied for an

Operations Supervisor (OS) position in the Air Route Traffic Control Center in

United States Court of Appeals

Fifth Circuit

F I L E D

January 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-20477

2

Houston, Texas. The next day, she applied for an Operations Manager (OM)

position in the same center. Both positions were considered promotions; the OM

position was the higher promotion. Having applied for two positions, Gordon

was considered for both; she was promoted to the OS position.

Although she had been promoted, Gordon filed an Equal Employment

Opportunity Complaint, claiming sex discrimination because she was not

promoted to the OM position. An Administrative Law Judge (ALJ) held a

hearing, finding Gordon established a prima facie case. The ALJ found,

however, that Gordon had not shown the Agency’s proferred legitimate

nondiscriminatory reasons for not offering her the OM position were pretextual.

Gordon filed this action in November 2005. In April 2007, the court

granted summary judgment to the FAA on the following bases: (1) Gordon had

failed to exhaust her disparate-impact claim; (2) she did not suffer an adverse

employment action when she was not promoted to the OM position; and (3)

Gordon did not meet her burden of demonstrating the FAA’s reasons for not

selecting her for that position were pretextual.

A summary judgment is reviewed de novo, applying the same standard as

did the district court. E.g., Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.

2007) (citation omitted). “In other words, we ask whether the movant has shown

the nonexistence of any genuine issues of material fact and that he is entitled to

judgment as a matter of law.” Johnson v. Crown Enters., Inc., 398 F.3d 339, 341

(5th Cir. 2005) (citing FED. R. CIV. P. 56(c)). Similarly, we review de novo a

district court's ruling on whether the exhaustion requirement is satisfied.

Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006) (citations omitted).

Essentially for the reasons stated in the district court’s comprehensive and

detailed opinion, summary judgment was proper. 

Regarding the disparate-impact claim,the district court ruled Gordon had

not exhausted her administrative remedies because her administrative
No. 07-20477

3

complaint raised only disparate treatment. Needless to say, disparate impact

and disparate treatment are two distinct claims under Title VII. Pacheco, 448

F.3d at 787 (5th Cir. 2006) (citing Int’l Bhd. of Teamsters v. United States, 432

U.S. 324 (1977)). As explained in Pacheco:

Disparate-treatment discrimination addresses employment actions

that treat an employee worse than others based on the employee's

race, color, religion, sex, or national origin. In such

disparate-treatment cases, proof and finding of discriminatory

motive is required. Disparate-impact discrimination, on the other

hand, addresses employment practices or policies that are facially

neutral in their treatment of these protected groups, but, in fact,

have a disproportionately adverse effect on such a protected group.

In disparate-impact cases, proof or finding of discriminatory motive

is not required. 

Id. (internal citations omitted). Gordon’s administrative complaint raised only

disparate treatment; that is, how she was treated vis-à-vis the other applicants

outside her protected class (i.e., men). She alleged no facially neutral policy

employed by the FAA that has a disproportionately adverse impact on women

as required to sustain a disparate-impact claim. See id. at 792. Therefore, as in

Pacheco, “we hold that a disparate-impact investigation could not reasonably

have been expected to grow out of [Gordon’s] administrative charge”. Id. at 793.

Concerning Gordon’s disparate-treatment claim, Gordon applied for two

positions and was promoted to one of them, having never expressed her

preference for either position. Accordingly, the district court concluded that

Gordon did not suffer an adverse employment action. In the alternative, it held

Gordon had not created a material fact issue on pretext or mixed motives.

A failure to promote is an adverse employment action under Title VII; the

prima facie case requires the plaintiff to demonstrate:

(1) [s]he is a member of a protected class; (2) [s]he applied for and

was qualified for a promotion, (3) [s]he was considered for and

denied the promotion; and (4) other employees of similar
No. 07-20477

4

qualifications who were not members ofthe protected class received

promotions at the time the plaintiff's request for promotion was

denied. 

Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000) (citation

omitted); see also Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th Cir. 2007)

(citation omitted). Under these elements, it is at least arguable Gordon may

have suffered an adverse employment action through the FAA’s not promoting

her to the OM position, regardless of her contemporaneous promotion to OS. 

We need not reach this issue, however, because Gordon did not show a

genuine issue of material fact on whether the FAA’s proffered legitimate

business reason for not promoting her to OM was pretextual. The FAA

proceeded under an established selection process stated in the Air Traffic Career

Progression Plan, which is discussed in detail in the district court’s opinion.

Based on this process, it was determined that Gordon was not the most qualified

applicant, despite her extensive experience. Among other things, other

candidates had more experience analogous to that required of an OM, Gordon

scored comparatively low on a questionnaire administered to all applicants, and

the promotion committee, made up of supervisors, gave Gordon only a “slightly

recommend” rating. Having proffered a non-discriminatory reason for not

promoting Gordon to OM, the burden shifted to her to show a material fact issue

on whether either: (1) this reason was pretext, or (2) regardless of the

nondiscriminatory reason, her sex was also a motivating factor. Alvarado, 492

F.3d at 611 (citation omitted). She did not do so. Gordon presented no evidence

of pretext or mixed motive; rather, she merely alleged discriminatory animus

could be inferred from the fact that no women were hired for the OM positions.

AFFIRMED.