*

 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this opinion should not be published and is not precedent except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.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-30507

Summary Calendar

__________________________

DONALD M. DURKIN,

Plaintiff-Appellant,

versus

UNITED STATES POSTAL SERVICE, John E. Potter,

Postmaster General,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Eastern District of Louisiana

(01-CV-0914)

___________________________________________________

December 5, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Donald Durkin, a white male, worked for the United States

Postal Service (“USPS”) from March 1972 until his retirement in

December 1995. Beginning in 1991, after applying for and failing

to receive a team leader position, Durkin requested training that

would make him eligible for such a position in the future. When
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Durkin was placed on the Internal Crimes Team as the audit

inspector and not given a team leader position as he requested, he

filed a formal complaint; the Equal Employment Opportunity

Commission (“EEOC”) found no discrimination. Durkin’s second

formal complaint alleged that USPS (1) placed him on a non-team

assignment and did not provide him with proper equipment and

supplies during his five-year audit assignment; (2) denied him

training opportunities when two vacancies were available in the New

Orleans Division; (3) assigned him to positions with no opportunity

for advancement; and (4) did not select him to interview for two

team leader vacancies. The EEOC affirmed a final agency decision

denying Durkin’s claims and denied reconsideration. 

In April 2001, Durkin brought this action under Title VII, 42

U.S.C. § 2000e, et seq., alleging that USPS discriminated against

him based on his race and gender and that he was retaliated against

for filing complaints with the EEOC. The retaliation claims were

dismissed in October 2001. USPS moved to dismiss the claims

related to Durkin’s second administrative complaint under Federal

Rule of Civil Procedure 12(b)(1) because the lawsuit was not filed

within the statutory period and moved to dismiss the remainder of

Durkin’s claims for failure to state a claim under Rule 12(b)(6) or

in the alternative for failure to present genuine issues of

material fact under Rule 56. Durkin filed a response and sought

summary judgment. The district court granted USPS’s motion for
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summary judgment on Durkin’s discrimination claim, dismissed

Durkin’s hostile work environment claim, and found that Durkin was

time-barred from bringing claims stemming from his second

administrative complaint. Durkin appeals the grant of summary

judgment and the dismissal.

Discrimination Claim

We review summary judgment rulings de novo, Potomac Ins. Co.

v. Jayhawk Med. Acceptance Corp., 198 F.3d 548, 550 (5th Cir.

2000), and apply the same standard as the district court. Wyatt v.

Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir. 2002). Summary

judgment is appropriate when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(c). We view all evidence and factual

inferences in the light most favorable to the party opposing the

motion. Price v. Federal Exp. Corp., 283 F.3d 715, 719 (5th Cir.

2002). 

A Title VII plaintiff bears the initial burden of proving a

prima facie case of discrimination by a preponderance of the

evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). A plaintiff may prove a prima facie case of discrimination

by showing (1) that he is a member of a protected class, (2) that

he was qualified for the position, (3) that he suffered an adverse

employment action, and (4) that others similarly situated were more

favorably treated. LaPierre v. Benson Nissan, 86 F.3d 444, 448
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(5th Cir. 1996). The elements of a prima facie case for failure to

promote vary slightly; for such a case, plaintiff must show: (1)

membership within a protected class, (2) that he applied and was

qualified for the position sought, (3) that he was not promoted or

transferred, and (4) after his rejection, the position remained

open and the employer continued to seek applicants from persons

with plaintiff’s qualifications. See Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 254 n. 6 (1981) (quoting McDonnell

Douglas, 411 U.S. at 802); Perez v. Region 20 Educ. Serv. Ctr., 307

F.3d 318, 324 (5th Cir. 2002). Once established, the plaintiff’s

prima facie case raises an inference of intentional discrimination.

McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the

defendant to rebut the presumption by articulating a legitimate,

nondiscriminatory reason for the challenged employment action. See

Burdine, 450 U.S. at 254-55. The plaintiff then has the

“opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.” Id. at 253.

Durkin claims that USPS did not offer a legitimate,

nondiscriminatory reason for the challenged employment actions. On

appeal, Durkin emphasizes his allegation that he was placed in the

audit inspector position on the Internal Crimes Team for

discriminatory reasons and to keep him from gaining leadership

experience. He asserts that the reasons given by USPS and accepted
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by the district court do not address his assignment as audit

inspector.

Though the district court did not directly rule on whether or

not Durkin’s assignment to the Internal Crimes Team was

discriminatory, we find that USPS’s action of placing Durkin on

that team does not satisfy the adverse employment action element

needed to create a prima facie case of discrimination. Durkin

himself alleges that he was assigned to the new position because of

his complaints about his previous position and its lack of

advancement, so at the very least he was no worse off in the new

position. At the time Durkin was placed on the Internal Crimes

Team and given the audit inspector position, his supervisor, Karl

Kell, believed that other inspectors would be assigned to the team

over time and that Durkin might become team leader when that

happened. From April 10 - 15, 1992, and November 27 - December 3,

1992, Durkin was appointed as acting team leader of the Internal

Crimes Team. Not only was the assignment not adverse, there is no

evidence that his placement on the team was motivated by gender or

race discrimination.

The district court properly addressed Durkin’s allegation that

he was discriminated against in being passed over for team leader

positions, which the district court characterized as a failure to

promote claim. Assuming that Durkin made a prima facie case of

discrimination in regards to this allegation, as the district court
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assumed, USPS has put forth legitimate, nondiscriminatory reasons

for its actions and Durkin has failed to show any pretext. Kell

testified that Durkin was not given a team leader position because

there was not enough work to justify creating a team in the audit

field. Durkin was not transferred to team-oriented work outside of

the audit field because after spending money and time training him

for the audit inspector’s position USPS felt it was a waste of

resources to reassign him. The two team leader openings Durkin did

not receive went to individuals with leadership experience in the

fields in which the leadership positions were available. Their

experience in those fields made it possible to fill the positions

without additional training. The district court properly found

that Durkin did not establish that USPS’s explanation for failing

to promote him was pretextual. 

Hostile Work Environment Claim

We review a Rule 12(b)(6) dismissal de novo, accepting all

well-plead facts as true. Mowbray v. Cameron County, Tex., 274

F.3d 269, 276 (5th Cir. 2001). Questions of fact are viewed in the

light most favorable to the plaintiff, and questions of law are

reviewed de novo. Id.

The district court found that Durkin did not make a hostile

work environment claim in his administrative proceedings. “The

scope of inquiry of a court hearing in a Title VII action ‘is

limited to the scope of the EEOC investigation which can reasonably
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be expected to grow out of a charge of discrimination.’” Young v.

City of Houston, 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez

v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970). The scope

of Durkin’s claim in his first complaint was limited to an

investigation of his placement on the Internal Crimes Team as an

auditor inspector rather than as a team leader. Given the scope of

hostile work environment claims, the second complaint also did not

include such a claim. 

A hostile work environment claim under Title VII requires a

court to evaluate whether the harassment is “so severe or pervasive

as to alter conditions of [the victim’s] employment and create an

abusive working environment.” Faragher v. City of Boca Raton, 524

U.S. 775, 786 (1998) (internal quotes omitted). Workplace conduct

is not measured in isolation; instead, “whether an environment is

sufficiently hostile or abusive” must be judged “by looking at all

the circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Id.

at 787-88 (internal quotes omitted). The district court properly

found that given the scope of investigation required by the filing

of a hostile work environment claim, the EEOC proceedings did not

encompass a hostile work environment claim.
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Conclusion

For the reasons given above, we AFFIRM the district court.