* 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

September 26, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40190

Summary Calendar

GEORGE ALCALA

Plaintiff - Appellant

v.

FRANCIS HARVEY, Secretary of the US Army (US Army Corps of

Engineers)

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas, Galveston

No. 3:05-CV-686

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant George Alcala appeals the district court’s order

granting summary judgment for defendant-appellee Francis Harvey, Secretary

of the Army, on his claims of discrimination and retaliation in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e–2000e-17,

and theFederal Employee Anti-Discrimination and Retaliation Act of 2002, Pub.
No. 07-40190

1 Alcala failed to distinguish between race and national origin, identifying himself as

Hispanic for both.

2

L. No. 107-174, 116 Stat. 566. For the following reasons, we AFFIRM, on

alternative grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

When the events that gave rise to this case began, George Alcala worked

as a Wage Grade 13 General Engineer in the Program and Project Management

Division of the Galveston Office of the United States Army Corps of Engineers

(“USACE”). Alcala initially contacted an Equal Employment Opportunity

(“EEO”) counselor on March 22, 2004, and filed a formal complaint claiming

discrimination on the bases of race, national origin,1 and physical and mental

disability on June 24, 2004. Subsequently, he withdrew the disability claim and

added a claim for retaliation. 

Alcala alleged the following conduct in support of his discrimination and

retaliation claims: (1) in February 2002, Alcala was forced to manage an

increasingly heavy workload due to the failure of his first-line supervisor, Arthur

Janecka, and his second-line supervisor, Herbie Maurer, to implement his plan

to create a USACE support branch, where he would serve as chief, to assist with

Immigration and Customs Enforcement (“ICE”) projects, a plan created upon

USACE commander Colonel Leonard Waterworth’s request and encouraged by

Janecka; (2) in March 2002, Janecka and Maurer did not respond to Alcala’s

many emails asking that they address Col. Waterworth’s request for a strategic

plan or provide written guidance as to how he should move forward; (3) on July

8, 2002, Janecka and Maurer rejected suggestions that Alcala made during a

briefing with Col. Waterworth, and Alcala learned that he had been criticized by

senior managers as a “kingdom builder”; (4) on August 2, 2002, Janecka

promoted Bruce Briggs, a white male, noncompetitively to a 120-day term, which

later became permanent, as project manager and assigned Briggs border patrol
No. 07-40190

2 The EEOC dismissed this claim as time-barred because it was a discrete act that

occurred outside the 45-day statute of limitations, but, nonetheless, it was considered as

background evidence in support of Alcala’s discrimination claim. 29 C.F.R. § 1614.105(a)(1).

3 Alcala testified at the fact-finding conference that this allegation was the one

supporting his retaliation claim, but in his briefs he seems also to rely on the June 24, 2004,

reassignment of his repair and alteration projects to Clinton and his later transfer to a project

in Mexico.

3

projects previously developed and managed by Alcala;2(5) between June and

December 2003, Oliver Benton “Benny” Anderson, a design project engineer

hired under Alcala to help on ICE projects, continuously undermined Alcala’s

authority by communicating directly with Kevin Jackson, an ICE contractor, and

attacking Alcala’s character, and Janecka failed to intervene; (6) between July

2003 and February 2004, USACE placed more reporting requirements on Alcala

than he was able to handle, and Janecka and Maurer ignored Alcala’s requests

for assistance; (7) on February 17, 2004, Janecka assigned Anderson projects

that Alcala formerly managed, and thereby diminished Alcala’s credibility and

reputation as senior project manager;3 and (8) on June 24, 2004, Tom Clinton,

a white male, was contracted by USACE to oversee repair and alteration (“R &

A”) projects that Alcala previously managed. 

In response to Alcala’s allegations, at the hearing and in its motion for

summary judgment, USACE proffered the following as nondiscriminatory, nonretaliatory reasons for its actions. We set them out in some detail because, as

it happens, they form the basis for our decision in this case.

First,to Alcala’s allegation that his plan for a support branch was rejected,

causing him to endure an unusually heavy workload, USACE explained that his

plan was discussed in meetings, but ultimately was rejected by Col. Waterworth

because USACE did not have the necessary funds available. Further, Alcala’s

proposed branch, unlike other support-for-others (“SFO”) branches, required the

creation of a new USACE branch and changes to the entire infrastructure of
No. 07-40190

4

USACE. In an attempt to rebut, Alcala argued that this reason was pretextual

because Maurer testified thatthere was no such thing as an SFO. This misreads

Maurer’s testimony, which reflects simply that he was not aware of SFOs of the

sort proposed by Alcala. Alcala made no other attempt to rebut the structural

or fiscal impediments to his plan.

Second,to Alcala’s allegation that Janecka and Maurer ignored his emails

asking for assistance in implementing his plan, both Janecka and Maurer

testified that while they might not have responded by email,they personally met

with Alcala and Col. Waterworth to discuss the initiative. Janecka also stated

that he asked Alcala to look into getting funding approved by the ArchitectEngineering Responsibility Coordinator (“AERC”) which, to his knowledge,

Alcala never did. Alcala did not dispute this, nor claim to have contacted AERC.

Third, to Alcala’s repeated allegation that his suggestion to restructure

USACE was rejected, and that he was criticized by his supervisors as a

“kingdom builder,” Janecka and Maurer repeated the impracticability of Alcala’s

plan and denied criticizing Alcala. Both Janecka and Maurer testified that

Alcala was a dedicated government employee who did his job well. In fact,

Anderson testified that he only heard the phrase “kingdom builder”from Alcala.

Rafael Rubalcaba, another Grade 13 engineer who helped Alcala with his ICE

projects, told Alcala that someone had criticized him, but could say neither who

nor when. Alcala presented no evidence to rebut this testimony.

Fourth, Alcala’s allegation that Briggs was contracted to assume Alcala’s

border patrol work was time-barred and could not sustain a judgment in his

favor. Nonetheless, USACE pointed to Alcala’s first allegation as evidence that

Alcala felt overwhelmed by his workload and cited that as the reason for

contracting Briggs. Alcala did not deny that he felt overwhelmed with work.

Fifth, to the claim that Anderson continuously undermined Alcala’s

authority by communicating directly with Jackson on an ICE project, Anderson
No. 07-40190

5

testified that Alcala refused to talk with Jackson. In order to facilitate the work,

Anderson communicated with Jackson. Janecka permitted it to ensure the

success of the project. Janecka added that, on two separate occasions, Jackson

and another employee complained that they could not reach Alcala and had to

communicate through Anderson. Alcala never disputed that he refused to

communicate with Jackson. 

Sixth, with respect to the increased burden on Alcala to make monthly

financial reports and his supervisors’ refusal to provide him with assistance,

Janecka testified that it was ICE requiring more frequent reports, not USACE,

and that he offered Alcala an assistant, but Alcala rejected the idea. Alcala did

not dispute this testimony or present any evidence to suggestthatit was untrue.

Seventh, with respect to Anderson receiving Alcala’s ICE projects on

February 17, 2004, Janecka testified that the second time Alcala complained

about Anderson, on February 12, 2004, he gave Janecka an ultimatum to either

fire Anderson or remove himself from the ICE projects. Janecka removed Alcala

and assigned the projects to Anderson. Although Alcala looked uncomfortable

with this decision, he did not openly object. Further, while Alcala’s assignments

were diminished following his removal, USACE attributed this to his requests

for a lighter workload. Alcala did not deny that he had made such requests.

Eighth, and finally, in response to Alcala’s complaint that Clinton was

contracted on June 24, 2004, to assume his R & A projects after he was

reassigned on February 17, 2004, Janecka testified, and Anderson corroborated,

that in early February, Alcala, Briggs, and Anderson collectively asked him to

hire another project manager responsible for the R & A projects. Janecka could

not find anyone in USACE to take over the projects, so USACE contracted

Clinton after months of searching. Alcala did not dispute this incident.

USACE dismissed Alcala’s formal complaint on August 12, 2004 as timebarred and for failure to state a claim. On September 10, 2004, Alcala appealed
No. 07-40190

4

In the district court, to support his retaliation claim, Alcala also alleged that after

Clinton was contracted, he was forced to apply for a temporary position in Mexico, in or about

March 2005, because the projects that he was assigned were “a joke.” Although this allegation

was not raised in his EEO complaint, as the district court explained, it could be considered as

evidence of retaliation because “it [grew] out of an earlier administrative charge properly

before the court.” Gupta v. E. Tex. State. Univ., 654 F.2d 411, 414 (5th Cir. 1981). However,

Alcala testified under oath at the fact-finding conference that he very discreetly applied for the

job, and that the position, Grade 14 Civil/Hydraulic Engineer, was actually a promotion from

his Grade 13 position.

6

to the Equal Employment Opportunity Commission (the “EEOC”), Office of

Federal Operations. On January 5, 2005, the EEOC reinstated Alcala’s claims,

but held that the fourth allegation was time-barred. On February 17, 2005, the

Department of Defense accepted the remanded claims for investigation by the

Office of Complaint Investigations. A fact-finding conference was held on June

3, 2005. Alcala withdrew his disability claim and added a retaliation claim,

supported by his allegations that projects were removed from him and assigned

to Anderson.4

On July 20, 2005, the EEO Complaints Investigator found that there was

insufficient evidence in the record of severe or pervasive activities to prove a

hostile work environment or show that Alcala was targeted for harassment.

Moreover, with respect to the employment claims, USACE had articulated

legitimate, nondiscriminatory reasons for all of its actions. Finally, Alcala failed

to present sufficient evidence to show that USACE’s reasons were pretextual. 

Upon these findings, Alcala filed suit in district court on December 27,

2005. On December 15, 2006, USACE moved for summary judgment on the

grounds that Alcala failed to make a prima facie case of either discrimination or

retaliation, and that even if Alcala had made a prima facie case, USACE had

legitimate, nondiscriminatory reasons for all of its actions. On January 18,

2007, Alcala responded, and again failed to provide any specific evidence that

USACE’s nondiscriminatory explanations were false or pretextual. Instead, his

response stated generally that given “the substantive pattern and practice
No. 07-40190

7

exhibited by USACE, [USACE’s] explanations are not worthy of credence and

thus—ironically—themselves establish pretext.” (R. 388-89.) 

The district court granted summary judgment on the grounds that Alcala

could not show a causal connection between his allegations—that he was denied

a promotion when his master plan was rejected and that he was “forced”to apply

for and accept a position in Mexico, both adverse employment actions in the

retaliation context under Burlington Northern & Santa Fe Railway Co. v. White,

126 S. Ct. 2405, 2414-15 (2006)—and his protected activity, the March 22, 2004

contact with the EEO counselor. Thus, he failed to make a prima facie case of

retaliation. Id.

Likewise, the district court applied the Mattern ultimate-employmentdecision standard and held that Alcala failed to make a prima facie case of

discrimination because he could not show that he was subject to an adverse

employment action. Mattern v. Eastman Kodak, Co., 104 F.3d 702, 707 (5th Cir.

1997). Alcala filed timely notice of appeal on February 20, 2007.

II. STANDARD OF REVIEW

We review a district court’s order granting summary judgment de novo,

applying the same legal standards that the district court applied to determine

whether summary judgment was appropriate. Harvill v. Westward Commc’ns,

L.L.C., 433 F.3d 428, 433-34 (5th Cir. 2005). Summary judgment is proper when

the pleadings, discovery responses, and affidavits show that there is no genuine

issue of material fact, and that the moving party is entitled to a judgment as a

matter of law. FED. R. CIV. P. 56(c). A dispute over a material fact is genuine if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

determining whether there is a genuine issue of material fact, we must view all

evidence in the light most favorable to the non-moving party. Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Nevertheless, we have made clear
No. 07-40190

8

that “unsubstantiated assertions are not competent summary judgment

evidence . . . . In response to motions for summary judgment, it is . . . incumbent

upon the non-moving party to present evidence—not just conjecture and

speculation—that the defendant retaliated and discriminated against plaintiff

on the basis of . . . race” or national origin. Grimes v. Tex. Dep’t of Mental Health

& Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996). Finally, it is well

established that we “may affirm a grant of summary judgment on grounds other

than those relied upon by the district court when the record contains an

adequate and independent basis for the result.” Montgomery v. Brookshire, 34

F.3d 291, 297 (5th Cir. 1994). 

III. DISCUSSION

Once a plaintiff exhausts all available administrative remedies and files

suit for discrimination and retaliation in federal district court, the burdenshifting approach established by the Supreme Court in McDonnell Douglas Corp.

v. Green controls our analysis. 411 U.S. 792, 802 (1973); see also McCoy v. City

of Shreveport, 492 F.3d 551, 2007 U.S. App. LEXIS 16582, at *6 (5th Cir. July

11, 2007). The plaintiff must first produce evidence sufficient to make a prima

facie case of each claim. Id. If the plaintiff establishes a prima facie case, the

burden shifts to the defendant to produce legitimate, nondiscriminatory or nonretaliatory reasons for its action. Id. If the defendant proffers such reasons, the

plaintiff then bears the ultimate burden of proving that the given reasons are

merely pretext for discrimination or retaliation. Id. at 804-05.

In order to establish a prima facie case of retaliation a plaintiff must show

that: (1) the plaintiff participated in an activity protected by Title VII; (2) the

defendant employer took an adverse employment action against the plaintiff;

and (3) a causal connection exists between the protected activity and the adverse

employment action. McCoy, 492 F.3d 551, 2007 U.S. App. LEXIS 16582, at *6-7.

A prima facie case of discrimination requires a showing that the plaintiff: (1) is
No. 07-40190

9

a member of a protected group; (2) was qualified for the position at issue; (3) was

discharged or suffered some adverse employment action by the employer; and (4)

was replaced by someone outside his protected group or was treated less

favorably than other similarly situated employees outside the protected group.

Id.

In this case, the district court granted summary judgment for USACE on

the grounds that Alcala failed to make a prima facie case of retaliation or

discrimination. Because we affirm the district court on an alternative basis, it

is unnecessary to decide whether the district court was correct in concluding that

Alcala failed to make a prima facie case of either discrimination or retaliation.

Britt v. Grocers Supply Co., 978 F.2d 1441, 1450 (5th Cir. 1992). Regardless,

USACE proffered legitimate, nondiscriminatory, non-retaliatory reasons for its

actions, as presented in detail above, and Alcala failed to respond with sufficient

evidence to show that those reasons were pretextual. He merely restated the

undisputed facts that he was assigned to projects of diminished stature with

reduced funding, he was transferred to Mexico with a lower locality pay

allowance, and no other project managers had similar experiences. These

recitations fail to provide the kind of “evidence—not just conjecture and

speculation—that the defendant retaliated and discriminated against [the]

plaintiff on the basis of . . . race” or national origin necessary to show pretext and

survive summary judgment. Grimes, 102 F.3d at 139-40.

IV. CONCLUSION

Because Alcala did not put forth sufficient evidence to satisfy his burden

of persuasion that USACE’s reasons were merely pretextual, we AFFIRM the

district court’s judgment. 

AFFIRMED.