IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 20-20025

Summary Calendar

JESSICA DEVALENTINO, 

 Plaintiff - Appellant

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-393

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Jessica DeValentino appeals the district court’s grant of summary 

judgment to the Houston Independent School District (“HISD”) on her 

employment discrimination claims under Title VII of the Civil Rights Act of 

1964 and the Texas Commission on Human Rights Act (“TCHRA”). We 

AFFIRM.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2020

Lyle W. Cayce

Clerk

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I. Background

DeValentino, an African American woman, worked as an assessment 

administrator in HISD’s Student Assessment Department for approximately 

two years until she was fired in September 2016. In April 2016, DeValentino 

was moved to the online assessment team. The team consisted of 

DeValentino, two additional online assessment administrators who were

Hispanic, and their supervisor, Diana Bidulescu, who is Caucasian.

DeValentino and Bidulescu did not get along.

Just three days after joining the new team, DeValentino filed a formal 

complaint against Bidulescu. DeValentino, Bidulescu, and Leng Fritsche, the 

assistant superintendent of the Student Assessment Department, met to 

discuss DeValentino’s complaint. In May, Bidulescu issued three memoranda 

to DeValentino regarding her inability to follow instructions or comply with 

the department’s professional conduct standards. Around that same time, 

DeValentino filed two additional complaints against Bidulescu, one of which

alleged racial discrimination. 

In August, following a poor performance evaluation by Bidulescu, 

DeValentino was placed on a Prescriptive Plan for Assistance (“PPA”) until 

September 2. The PPA identified three specific areas for improvement: 

quality of materials, timeliness and teamwork, and organization. It also 

entailed biweekly check-in meetings. In these check-in meetings, Bidulescu 

identified PPA goals that DeValentino had failed to meet. Citing continued 

poor job performance and inability to improve while on the PPA, HISD 

terminated DeValentino on September 27. 

DeValentino sued HISD, claiming that HISD violated Title VII and the 

TCHRA by terminating her because of her race and retaliating against her 

based on her discrimination complaints. The district court referred the 

matter to a magistrate judge. HISD moved for summary judgment on both 

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claims, and the magistrate judge recommended granting the motion with 

respect to the racial discrimination claim only. The magistrate judge’s report 

and recommendation (“R&R”) warned that a failure to file written objections 

within fourteen days from service of the R&R would foreclose de novo review

by the district judge or the appellate court. 

HISD timely objected to the R&R on the retaliation claim, but 

DeValentino did not timely object on the discrimination claim. The district 

court granted HISD’s motion in full. It found no plain error in the magistrate 

judge’s recommendation on the discrimination claim and adopted the R&R on 

that point, and it concluded that DeValentino failed to present a material fact 

dispute regarding pretext for her retaliation claim. DeValentino timely

appealed.

II. Discussion

HISD’s argues that DeValentino’s arguments are inadequately briefed 

in violation of Federal Rule of Appellate Procedure 28 and our corresponding 

Fifth Circuit Rule 28 such that we should summarily affirm. DeValentino’s 

pro se brief is less than fulsome. We need not reach this question as to the 

discrimination claim, however, because even construing her arguments 

liberally, they still fail. See Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir. 1995)

(per curiam) (holding that we may consider a noncompliant brief when the 

noncompliance does not prejudice the opposing party).

On the other hand, she provides nothing on the retaliation claim, so we 

conclude that it should not be considered on appeal. She broadly describes 

the issue as involving “the decision for summary judgment,” but she provides 

no evidentiary support regarding pretext for her retaliation claim. See Price 

v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988) (per curiam) 

(observing that prejudice would likely exist if there were “disputed facts

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cloud[ing] the resolution of [the] legal issue”). We thus summarily affirm on 

the retaliation claim and turn to the discrimination claim.

We review the district court’s holding on that issue for plain error 

because DeValentino failed to timely object to the R&R. See Ortiz v. City of 

San Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015) (holding that plain 

error review applies when a party fails to timely object to a magistrate 

judge’s R&R despite being served with notice of the consequences of failing to 

do so). To prevail under this standard, DeValentino must show that (1) the 

district court committed an error; (2) “the error was plain, which means clear 

or obvious;” (3) the error affected her substantial rights; and (4) “not 

correcting the error would seriously impact the fairness, integrity, or public 

reputation of judicial proceedings.”1 Id. at 825–26 (internal quotation marks 

and citation omitted). We hold that the district court did not plainly err in 

granting summary judgment on DeValentino’s discrimination claim.

The magistrate judge identified the correct legal standard: the 

McDonnell Douglass burden-shifting framework. See Shackelford v. Deloitte 

& Touche, LLP, 190 F.3d 398, 403–04 & n.2 (5th Cir. 1999) (analyzing Title 

VII and TCHRA discrimination claims under McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 801–03 (1973)). The magistrate judge also correctly 

applied the McDonnell Douglas framework. At step one, HISD conceded that 

DeValentino had presented a prima facie case. See Shackelford, 190 F.3d at 

404. Thus, the magistrate judge proceeded to step two and concluded that 

HISD had asserted, and supported with sufficient evidence, a legitimate, 

nondiscriminatory reason to terminate DeValentino: poor work performance. 

See id. On the third and last step, the magistrate judge concluded that 

DeValentino had failed to raise a genuine material fact issue regarding 

1 DeValentino misunderstands this standard. We review whether the court plainly 

erred, not whether she erred.

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pretext. See id. The R&R noted that DeValentino had failed to point to any 

evidence in the record supporting her claims that Bidulescu reported 

inaccurate information or that two similarly situated employees were treated 

more favorably than she was. Indeed, DeValentino confirms that she did not 

“address[] pretext when the case was at the District Court.” We identify no 

error in the magistrate judge’s R&R and thus hold that the district court did 

not plainly err in granting summary judgment on DeValentino’s 

discrimination claim.

AFFIRMED.

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