* 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.

CORRECTED October 30, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30346

Summary Calendar

CINDY BOUVIER

Plaintiff-Appellant

v.

NORTHROP GRUMMAN SHIP SYSTEMS, INC.

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-cv-9418

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

The district court granted summary judgmentto Northrop Grumman Ship

Systems, Inc.(“Northrop”) on all counts of Cindy Bouvier’s gender discrimination

case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Bouvier claims that Northrop disciplined her more harshly than her male

coworkers after an alleged safety incident and that Northrop delayed a

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2009

Charles R. Fulbruge III

Clerk
departmental transfer due to her gender. Bouvier also claims Northrop

retaliated after she complained ofthe way the company treated her. The district

court granted summary judgment on her retaliation claim for failing to exhaust

her administrative remedies and on her gender discrimination claims because

Bouvier did not establish a genuine issue of material fact as to pretext. Bouvier

appeals. We affirm the district court’s grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Bouvier worked as a gantry crane rigger for Northrop on an Avondale,

Louisiana shipyard. After expressing an interest in training as a crane operator,

Northrop placed her in operator training. After approximately a year of

training, Bouvier underwent a final evaluation of her crane operating skills on

December 4, 2006 (the “Initial Skill Level Checklist”). As part of the Initial Skill

Level Checklist, Bouvier’s supervisor, Mike Norman, and foreman, Robert

Thomas, assessed Bouvier and a fellow trainee, Jonathan Sallinger, at the

highest initial crane operator skill level, and submitted department transfer

forms placing Bouvier and Sallinger in the crane operator department. The

transfer did not involve a change in pay. Due to a delay in paperwork, Northrop

approved Bouvier’s transfer form on February 28, 2007, and Sallinger’s on

March 1, 2007. Once transferred, Northrop would issue Bouvier a crane

operator license to display on her badge.

Despite the delay in paperwork, Bouvier began work as a crane operator.

On February 6, 2007, Norman reprimanded Bouvier for swinging a crane over

an occupied guard tower. Northrop suspended both Bouvier and Darryl

Henderson, the crane rigger working with her at the time; and temporarily

reassigned Bouvier to the crane rigger department. 

Bouvier filed a grievance with her union, alleging that Norman harassed

her and unjustly suspended her. She did not allege any discrimination due to

gender in the grievance. Northrop offered to reinstate her as crane operator on
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the condition that she promise to work safely, heed work instructions, and treat

others with dignity and respect. She declined the offer and continued to work

as a crane rigger.

Bouvier filed an EEO charge alleging sex discrimination. She alleged that

there was no safety violation, that Norman screamed and talked to her in a

rough manner but laughed and joked with her male coworkers, and that

Northrop unfairly delayed her crane operator assignment until February 2007.

Bouvier checked only the sex discrimination box, leaving the retaliation box

blank.

Bouvier brought this lawsuit after receiving her right to sue letter from

the EEOC. She alleged gender discrimination, retaliation, and a hostile work

environment. At her deposition, Bouvier testified that no one at Northrop had

made derogatory remarks relating to gender and that Norman screamed and

yelled at employees regardless of gender. 

Northrop moved for summary judgment on all claims. Along with her

opposition to Northrop’s motion for summary judgment, Bouvier filed a sworn

statement that she had previously complained to Norman and others that she

was treated differently than her male coworkers. Her statement also said that

coworkers often remarked over the radio that “it was a man’s world,” and that,

as part of his supervisory duties, Norman monitored the radio and did nothing

to stop these comments. 

The district court granted summary judgment in favor of Northrop. The

court found that Bouvier had not administratively exhausted her remedies with

respectto her retaliation claim. As to her gender discrimination claim, the court

refused to consider Bouvier’s sworn statement in opposition to the motion

because itfound her assertions inconsistent with her prior deposition testimony.

Bouvier appeals the grant of summary judgment with respect to her retaliation
4

claim and her gender discrimination claim.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo.

McIntosh v. Partridge, 540 F.3d 315, 319 (5th Cir. 2008) (citing Dutcher v.

Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995)). Summary judgment is

appropriate when there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Lee v. Kansas City S. Ry. Co., 574 F.3d

253, 257 (5th Cir. 2009). Fact issues are viewed in the light most favorable to

the nonmovant. McIntosh, 540 F.3d at 319. “Unsupported allegations or

affidavit or deposition testimony setting forth ultimate or conclusory facts and

conclusions of law are insufficient to defeat a motion for summary judgment.”

Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).

A. Admission of Bouvier’s Sworn Statement

As a preliminary matter, we must decide whether to consider Bouvier’s

sworn statement in opposition to the summary judgment motion. Affidavits

submitted in opposition to a motion for summary judgment may supplement

deposition testimony, but cannot contradict prior testimony without explanation.

S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996). In other

words, the summary judgment affidavit may supplement deposition testimony

by clarifying or amplifying the facts with greater detail but may not simply

“tell[] the same story differently.” Id.

The district court correctly excluded Bouvier’s sworn statement. The

statement contradicted her deposition testimony that no one at Northrop said

anything negative or derogatory to her because she is a woman. Bouvier also

testified in her deposition that Northrop retaliated against her for complaining

aboutthe delay in receiving her operator license, but she did not mention gender
5

as a reason for that retaliation. Her sworn statement contradicts this testimony

by saying she complained on multiple occasions that the license would not be

delayed if she were a man. Therefore, the portions of Bouvier’s testimony that

are inconsistent with her prior testimony were properly excluded.

B. Administrative Exhaustion of Retaliation Claim

“Title VII requires employees to exhaust their administrative remedies

before seeking judicial relief.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273

(5th Cir. 2008) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006)).

Filing an administrative charge with the EEOC satisfies this requirement. Id.

Although Bouvier filed a sex discrimination charge with the EEOC, she never

referenced a possible claim for retaliation. While this court will read the EEO

charge “somewhat broadly” to determine “what EEOC investigations it can

reasonably be expected to trigger,” Pacheco, 448 F.3d at 792, Bouvier’s failure

to reference retaliation in the EEO charge defeats her retaliation claim.

Bouvier’s EEO charge fails to mention any prior complaints of sex

discrimination or allege any facts that would put the EEOC on notice to

investigate retaliation. A reasonable investigation by the EEOC would not have

uncovered a potential retaliation claim. We have previously recognized that

discrimination and retaliation claims are distinct, and the allegation of one in

an EEO charge does not exhaust a plaintiff’s remedies as to the other. See, e.g.,

Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (finding failure

to exhaust a racial discrimination claim when the EEOC charge only included

reprisal). We affirm the district court’s finding that Bouvier had not exhausted

her retaliation claim.

C. Prima Facie Discrimination Claim

For purposes ofthe summary judgment motion,the district court assumed

that Bouvier had established a prima facie case of gender discrimination, but we
1 Bouvier made this assertion in her sworn statement in opposition to Northrop’s

summary judgment motion, but this particular allegation did not contradict previous

testimony, and may therefore be considered. See, e.g. Taylor v. Coastal Secs., Ltd., 45 Fed.

App’x 326 (5th Cir. 2002) (striking only the portions of an affadavitthat were inconsistent with

deposition testimony).

6

ask whether Bouvier introduced sufficient evidence to survive summary

judgment on her gender discrimination claim. Bouvier put forth two theories on

gender discrimination: (1) Northrop unfairly discriminated against her by

delaying her the official crane operator license after the Initial Skill Level

Checklist, and (2) Northrop unfairly reprimanded her after a “fabricated” safety

violation. 

Bouvier carries the initial burden of establishing a prima facie case of

discrimination, which she can do by satisfying the four-prong test set forth by

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under McDonnell Douglas, Bouvier must show: (1) she is a member of protected

class, (2) she was qualified to be a crane operator, (3) she suffered adverse

employment action, and (4) others outside the protected class were treated more

favorably. See id. at 802. The first two prongs are not in dispute. As a woman,

Bouvier is a member of a protected class, and she demonstrated she was

qualified for the operator position during the Initial Skill Level Checklist. The

final two factors are contested on both of Bouvier’s theories.

1. Crane Operator License

Bouvier claims gender discrimination caused the delay of her official

transfer to the crane operator position. Although Bouvier’s male coworker

Sallinger did not receive his official transfer until March 1, 2007–the day after

Bouvier’s official transfer–Bouvier claims that she saw Sallinger wearing the

license on his badge in January 2007.1 Even viewing this in the light most

favorable to Bouvier, her delay in obtaining a license to wear on her badge was
2 The Supreme Court has held that Title VII’s anti-retaliation provisions prohibit more

conduct than its anti-discrimination provisions. See Burlington Northern & Santa Fe Ry. Co.

v. White, 548 U.S. 53 (2006). Expressly limiting its holding to retaliation claims, the Supreme

Court abrogated the “ultimate employment test” and held that employees much show that a

reasonable employee would have found the challenged action materially adverse. Id. at 67.

However, the “ultimate employment test” still applies to cases alleging discrimination. See

McCoy, 492 F.3d at 559–60 (“In Burlington Northern, the Court expressly limited its holding

to Title VII retaliation claims . . . .”) (emphasis in original).

7

not an adverse employment action. See Benningfield v. City of Houston, 157

F.3d 369, 378 (5th Cir. 1998) (finding that a delay in promotion was not an

adverse employment action where the plaintiff received the promotion with

retroactive pay and seniority). We have held that, for Title VII discrimination

claims, an adverse employment action “‘include[s] only ultimate employment

decisions such as hiring, granting leave, discharging, promoting, or

compensating.’” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007)

(per curiam) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657

(5th Cir. 2002)).2 Because the delay in promotion was temporary, it was not an

“ultimate employment decision” and the district court correctly granted

summary judgment. 

2. Discipline for Safety Violation

Bouvier also contends that she suffered an adverse employment action

when Northrop suspended her for two days and temporarily reassigned her to

crane rigger with a conditional opportunity for reinstatement as crane operator

after the February 6, 2007 incident. It is not readily apparent that this was an

adverse employment action because crane operator and rigger are similar jobs

and she had an opportunity for reinstatement as crane operator. Cf. Alvarado

v. Texas Rangers, 492 F.3d 605, 614 (5th Cir. 2007) (“[D]enial of a transfer may

be the objective equivalent of the denial of a promotion, and thus qualify as an

adverse employment action . . . if the position sought was objectively better . . .
8

.”) (emphasis in original); Benningfield, 157F.3d at 378 (finding temporary delay

in promotion insufficient to support a discrimination claim). However, due to

Bouvier’s testimony and declarations of her coworkers, we conclude that Bouvier

put forward sufficient evidence that the transfer to crane rigger involved a loss

of prestige and responsibility. The training required to become a crane operator

also demonstrates that employees coveted the operator position and considered

it a promotion from crane rigger. See Alvarado, 492 F.3d at 614–15 (listing

several factors for determining whether a denial of a transfer is an adverse

employment action including how the respective positions are viewed among

employees and the skills and training required to transfer).

We now ask whether Bouvier has put forward sufficient evidence that

similarly situated males were treated more favorably under the “nearly

identical” standard. Perez v. Texas Dep’t of Criminal Justice, Inst’l Div., 395

F.3d 206, 213 (5th Cir. 2004) (“We . . . have explained consistently that for

employees to be similarly situated those employees’ circumstances, including

their misconduct, must have been ‘nearly identical.’”). “[N]early identical” is not

synonymous with “identical,” and whether similarly situated males were treated

more favorably turns on whether the violations were of “‘comparable

seriousness.’” Lee, 574 F.3d at 260–61 (citing McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 283 n.11 (1976)). 

Viewing the evidence in the light most favorable to Bouvier, she has

produced sufficient evidence to create a factual issue as to whether Northrop

treated similarly situated males more favorably. Although Bouvier received the

same discipline as Henderson, the male crane rigger involved in the incident,

Northrop demoted only Bouvier. Bouvier also points to sufficiently similar

safety violations involving male crane operators that Northrop may have treated

more favorably. Although none of the other incidents in the record involved a
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crane swinging a load over an occupied guard tower, the law does not require

that the incident be “identical,” but only of “comparable seriousness.” Lee, 574

F.3d at 260–61. 

Bouvier presents evidence that a crane operated by a male began rolling

toward another crane and the operator did not respond to repeated attempts to

stop the crane, which included radioing his crane, blowing a whistle, and the

other crane sounding its horn. The crane stopped only after other operators

threw the emergency switch. Northrop did not discipline the male operator in

question after the investigation revealed that his travel gear “stuck a little.”

While not overwhelmingly similar, this incident, combined with other serious

incidents for which male operators received little discipline, sufficiently

establishes the fourth McDonnell Douglas prong for purposes of summary

judgment. We find that Bouvier introduced sufficient evidence to make her

prima facie case with respect to Northrop’s discipline for the alleged safety

violation.

D. Legitimate Nondiscriminatory Reason

Once the plaintiff establishes her prima facie case, the defendant must

articulate a legitimate nondiscriminatory reason for its actions. McDonnell

Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts to the

plaintiff to rebut the defendant’s explanation either by showing that the reason

given is pretext for unlawful discrimination, or the proffered reason, while true,

is only one of the reasons for its conduct, and another motivating factor is the

plaintiff’s protected characteristic. Burrell v. Dr. Pepper/Seven Up Bottling

Group, Inc., 482 F.3d 408, 411–12 (5th Cir. 2007). In this case, Northrop

articulates a legitimate reason: the February 6, 2007 safety violation witnessed

by Norman. 

Bouvier argues she has put forth sufficient evidence of pretext by alleging
10

Norman fabricated the safety violation. However, the plaintiff has not

necessarily proven pretext by showing the facts underlying the employer’s

reason for the adverse employment action are factually incorrect. See Little v.

Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991) (“The existence of

competing evidence about the objective correctness of a fact underlying a

defendant’s proffered explanation does not in itself make reasonable an inference

thatthe defendant was nottruly motivated by its proffered justification.”) (citing

Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507 (5th Cir. 1988).

Bouvier’s testimony is consistent with an honest mistake by Norman, namely

that he misperceived the crane in relation to the guard tower and cited Bouvier

when the crane had not in fact passed over the guard tower. 

Bouvier puts forth no evidence to discredit Northrop’s assertion that

Norman’s perception of the incident motivated the reprimand. The evidence

shows Northrop reasonably believed Norman had witnessed a safety violation

and Northrop acted in good faith. See Waggoner v. City of Garland, 987 F.2d

1160, 1165 (5th Cir. 1993) (“The real issue is whether the employer reasonably

believed the employee’s allegation and acted on it in good faith . . . .”). To find

that Northrop’s proffered reason was mere pretext, a jury could only speculate

as to Norman’s and Northrop’s motives. See Grizzle v. Travelers Health

Network, Inc., 14 F.3d 261, 267–68 (“Reviewing the entire record, we find that

[plaintiff] has introduced no evidence which would support a reasonable jury

finding of retaliatory motive without engaging in impermissible speculation.”).

We find that Bouvier failed to establish a genuine issue of material fact as to

pretext. 

III. CONCLUSION

Because Bouvier failed to administratively exhaust her retaliation claim

and failed to put forward sufficient evidence of gender discrimination, the
11

district court was correct to grant summary judgment. We therefore AFFIRM.

AFFIRMED.