### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30267 Summary Calendar

MICHAEL R. MURRAY, Plaintiff – Appellant
v. STATE OF LOUISIANA-DIVISION OF ADMINISTRATION-OFFICE OF PLANNING AND BUDGET; RAY STOCKSTILL, Defendants – Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:08-CV-254

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Plaintiff–Appellant Michael Murray appeals the district court’s grant of
summary judgment in favor of Defendants–Appellees on his Title VII retaliation claim. We conclude that Murray f a i l ed to establish a prima facie case of retaliation, and therefore AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 26, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-30267 Document: 00511584772 Page: 1 Date Filed: 08/26/2011No. 11-30267 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Michael R. Murray began working for the State of Louisiana in its Office of Planning and Budget (“OPB”) in 1979. In 2000, a co-worker named Ann Bland complained that OPB had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. Bland’s complaint resulted in an investigation by the Louisiana Division of Administration’s Office of H u man Resources, which interviewed Murray in connection with Bland’s complaint in July 2000. Murray also testified at a related hearing in July 2001. In both instances, he spoke in support of Bland’s complaint. On Augu s t 3 0 , 2006, Murray filed a charge of discrimination with the E q ual Employment Opportunity Commission (“EEOC”). Murray stated i n h i s charge that beginning in 2000, after he supported Bland’s complaint, he was subject to retaliation in the form of consistently poor ratings on his annual Performance Planning and Reviews (“PPRs”). As a result, Murray alleged that he h ad been denied merit-based pay raises, consideration for promotions, bonuses, and opportunities to obtain other employment. After receiving his Notice of Right to Sue from the EEOC, Murray filed this suit against OPB and Ray Stockstill, OPB’s State Budget Director (together, “Defendants”). In his complaint, Murray alleged num e rous claims of discrimination, retaliation, and other violations of rights. Defendants moved for
summary judgment on a l l o f Murray’s claims. The district court adopted the report and recommendation of the magistrate judge, and grant e d t h e motion

over Murray’s objection. Murray appeal s o n l y as to his claim for retaliation under Title VII, 42 U.S.C. § 2000e–3(a). DISCUSSION We review the grant of summary judgment de novo , viewing the evidence in the light most favorable to the nonmoving party. Cerda v. 2004-EQR1 L.L.C. , 612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper “if the movant

2 Case: 11-30267 Document: 00511584772 Page: 2 Date Filed: 08/26/2011No. 11-30267

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A plaintiff establishes a prima facie case for unlawful retaliation under 42 U.S.C. § 2000e–3(a) by showing: “(i) he engaged in a protected activ i t y , ( i i ) an adverse employment action occurred, and (iii) there was a causal link between the protected activity and the adverse employment action.” Hernandez v. Yellow Transp., Inc. , 641 F.3d 118, 129 (5th Cir. 2011). Summary judgment in favor of the defendant is appropriate if the plaintiff cannot support all three elements. Stewart v. Miss. Transp. Comm’n , 586 F.3d 321, 331 (5th Cir. 200 9). Murray satisf

i ed the first element by participating in the Title VII investigation in 2000, an activity p r o t e c t e d under Title VII. See 42 U.S.C. § 2000e–3(a) (defining “protected activity” to include maki n g a c h a r g e , t e s t i f ying,

ass i s t i n g , o r p a rticipating in any manner in a Title VII investigation, proceeding,

or hearing). Murray argues, and D e f e n d a nts do not contest, that he also satisfied the second element by showing that an adverse employment action occurred within three hundred days of the filing of his EEOC complaint. 1 Murray complains of the following action s t h a t occurred during this statutory period: denial of a $1500 bonus given to OPB sta f f f o r “extraordinary work” related to Hurricanes Katrina and Rita in August 2006; denial of a promotion to State Budget Manager in January 2006; and t wo negative PPRs resulting in denial of merit pay r a i s e s . Assuming arguendo that all of these actions

We cons ide r only thos e adver se em plo ymen t act ions that occ urr ed o n or aft er 1 Novem ber 4, 2005, the dat e thr ee h u n d r e d days bef ore Mur ray fil ed his char ge of dis cri mi natio n on August 30, 2006. Se e 4 2 U. S. C. § 2000e– 5(e )( 1); Janm eja v. Bd. of Supe rv is ors of La. State Uni v. & Agri c. & Me ch. Coll

. , 96 F. App ’x 212, 214 (5t h Cir. 2004) (in
a “d efe rra l st ate” lik e Louis iana, a plai ntif f mus t fil e his char ge wi thin thr ee hundr ed days of the com plai ned- of cond uct , rat her th a n w i thin the one hundr ed eighty days that wo uld othe rw ise app ly). To the exten t that Mur ray argues tha t w e s hould cons ide r dis cre te em plo ymen t act ions as farbackas 2000 unde r the “cont inuing violat ion” doc tri ne app lica ble to hos tile wo rk enviro nme nt clai ms , the Sup rem e Court has rejec ted this argum ent. See Na t’l R.R

. Pass engerCor

p. v . Mo rgan , 536 U. S. 101 , 114 (200 2). 3 Case: 11-30267 Document: 00511584772 Page: 3 Date Filed: 08/26/2011No. 11-30267

constitute actionable adverse employment actions, M u r r a y is unable to show 2 that there was a causal link between his protected activity and these actions and thus fails to establish the third element of a prima facie case of retaliation. The record establishes that Ann Bland was Murray’s direct supervisor during the three hundred days prior to the filing of his EEOC charge. In her role

as Murray’s supervisor, Bland gave Murray the p o o r r atings in his PPRs, and

was thereby directly responsible for the denial of Murray’s merit raises. Murray directs the court’s attention to multiple affidavits from former co-workers that counter some of the negati v e evaluations in his PPRs. Although this evidence certainly raises doubts as to Bland’s evaluation of Murray’s work performance, it fails to create a genuine issue of material fact as to retaliatory animus. Murray himself admitted in his deposition that Bland’s conduct could not have been retaliatory given that the “protected activi t y” underlying Murray’s retaliation claim was his support for Bland in her Title VII complaint against OPB. Murray also alleges that his poor PPRs resulted in his failure to obtain promotions, bonuses, and opportunities for other employment. To the exte n t that Murray argues that these adverse employment actions are attributable to Ray Stockstill, rather than to the poor PPR ratings he received from Bland, he does not provide any evidence that Stockstill’s actions were taken in retaliation f o r M u r ray’s protected activity back in 2000. Several of the affidavits cont a i n

An “ad vers e em plo ymen t act ion” is one that “a reas onable em plo yee wo uld have fou nd 2

. . . [t o be] mat er i a l l y a d vers e, wh ich in this cont ext me ans it we ll mi ght have dis sua ded a reas onable wor ke r fr om mak ing or sup por ting a c harge of dis cri mi natio n.” Burl ington N. & Santa Fe Ry. Co. v. Whi te , 548 U. S. 53, 68 (200 6) ( c i t a t i o n and inte rnal quot atio n mar ks
om itt ed)

. Al t h o u gh it is clea rly es tabl ish ed that the deni al of a pr om oti on is an act ionabl e adver se em plo ymen t act ion, see , e. g., Al va ra do v. Tex

. Range rs , 492 F.3d 6 0 5 , 6 1 2 (5t h Cir. 2007) , it is les s clea r wh ethe r a negati ve evaluat ion suc h as Mur ray’s PPRs or the deni al of a bonus cons tit ute act ionabl e adver se em plo ymen t act ions

. Gi ven the De fen dant s’ fai lure to brie f t his iss ue and the unnec es sar ines s of add res sin g this se cond elem ent, we dec line to ans we r thos e q ues tio ns here

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attestations that Stockstill made negative comme n t s a bout Murray during management meetings. While t h i s evidence certainly paints a picture of Stockstill’s dislike for Murray, it does not shed any light on the reason for this dislik e and therefore does not create a genuine issue of material fact as to whether Stockstill’s alle g e d a c t i o n s w e r e i n r e t al i a t i o n f o r M u r ray’s participation in the 2000 investigation. CONCLUSION Murray has failed to provide sufficient evidence to establish a prima facie

case for unlawful retaliation. The district court therefore properly granted summary judgment in Defendants’ favor. AFFIRMED.

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