No. 07-50759 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MARIA E. FERJAOUI, Plaintiff-Appellant, v. CARI M. DOMINGUEZ, Chair, Equal Employment Opportunity Commission, Defendant-Appellee. ______________________________ On Appeal from the United States District Court for the Western District of Texas District Court No. SA-05-CA-0797-WRF ______________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT OPPORTUNITY Attorney COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 STATEMENT REGARDING ORAL ARGUMENT The Commission believes oral argument would not assist the Court in assessing the merits of this appeal. This case involves no dispute of law. At issue is only whether there is any evidence to support the Title VII claims raised in this appeal. The appellant's opening brief on its face demonstrates the lack of evidence to sustain her claims, and so oral argument is unnecessary. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT .............................................i TABLE OF AUTHORITIES ........................................................ iii STATEMENT OF JURISDICTION................................................... 1 STATEMENT OF THE ISSUES........................................................ 1 STATEMENT OF THE CASE ......................................................... 1 STATEMENT OF FACTS ........................................................... 2 SUMMARY OF ARGUMENT .......................................................... 16 STANDARD OF REVIEW .......................................................... 17 ARGUMENT I. The district court correctly held there was not even "a scintilla of evidence" that Harwin harassed or otherwise discriminated against Ferjaoui because of her gender, national origin, religion, or disability..18 II. The district court correctly held there was no evidence that Ferjaoui's reassignment, made in response to her request for a reassignment, was retaliatory ........................................... 30 CONCLUSION ................................................................... 33 CERTIFICATE OF SERVICE ...................................................... 34 CERTIFICATE OF COMPLIANCE .................................................... 35 TABLE OF AUTHORITIES CASES Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir. 2000) .............................. 22 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................... 17 Cottrill v. MFA, Inc., 443 F.3d 629 (8th Cir. 2006) .............................. 22 Craig v. Big 4, Inc., 2000 WL 1910174 (5th Cir. 2000) (unpublished) .............. 24 EEOC v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007) ..................... 24 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996) ...19, 21, 23, 25 FDIC v. Ernst & Young, 967 F.2d 166 (5th Cir. 1992) .............................. 17 Gulf Restor.Network v. U.S. Dep't of Transp., 452 F.3d 362 (5th Cir. 2006) ....... 17 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ................................ 19 Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777 (10th Cir. 1995)........ 22 Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2004) ......... 18 Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036 (7th Cir. 2000)............... 22 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)................. 26 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)............. 19, 23, 24 Pyles v. Johnson, 136 F.3d 986 (5th Cir.1998) .................................... 25 Ramsey v. Henderson, 286 F.3d 264 (5th Cir. 2002) ................................ 18 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .............................. 27 Swanson v. General Servs. Admin, 110 F.3d 1180 (5th Cir. 1997) ................... 32 Teamsters v. United States, 431 U.S. 324 (1977) .................................. 26 Thompson v. Georgia-Pac. Corp., 993 F.2d 1166 (5th Cir. 1993) .................... 17 Washburn v. Harvey, 504 F.3d 505 (5th Cir. 2007) ................................. 30 Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296 (5th Cir. 2004)................. 26 STATUTES and RULES 28 U.S.C. § 1291 .................................................................. 1 28 U.S.C. § 1331 .................................................................. 1 Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq....................... 2 Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ............................... 2 29 U.S.C. § 791(g) .......................................................... 28 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. .............. 2 42 U.S.C. § 2000e-3(a) ...................................................... 31 42 U.S.C. § 2000e-6(b) ....................................................... 1 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ........................ 2 42 U.S.C. § 12102(2) .................................................... 28, 29 42 U.S.C. § 12111(8) ........................................................ 29 42 U.S.C. § 12112(a) ........................................................ 29 42 U.S.C. § 12112(b)(5)(A) .................................................. 29 Fed. R. App. P. 4(a)(1)(B) ........................................................ 1 Fed. R. Civ. P. 8(a) ............................................................ 13 5th Cir. R. 28.2.3 ............................................................... 1 5th Cir. R. 30.1 ................................................................. 1 MISCELLANEOUS http://www.mapcrow.info/ (last visited on Dec. 6, 2007) .......................... 25 http://en.wikipedia.org/wiki/Palestinian (last visited on Nov. 20, 2007) ......... 25 STATEMENT OF JURISDICTION The district court had jurisdiction in this matter arising under federal law pursuant to 28 U.S.C. § 1331 and the jurisdictional provision of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-6(b). The district court issued final judgment in this case on May 17, 2007, resolving all parties' claims. ROA 1015.<1> Maria Ferjaoui filed a timely notice of appeal on June 15, 2007, ROA 1017, in accordance with Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court correctly held there was not even "a scintilla of evidence" that the plaintiff's supervisor harassed or otherwise discriminated against plaintiff because of her gender, national origin, religion, or disability. 2. Whether the district court correctly held there was no evidence that plaintiff's reassignment, made in response to her own request for a reassignment, was retaliatory. STATEMENT OF THE CASE Plaintiff Maria Ferjaoui filed a complaint alleging that she was subject to a hostile work environment because of her gender and, more specifically, because she is a Hispanic woman; subject to discrimination because of her religion and disability; and subject to retaliation. ROA 12-14. The complaint names Cari M. Dominguez, then Chair of the Equal Employment Opportunity Commission ("EEOC" or "Commission"), as defendant. The complaint cites to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. It does not cite to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., or the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The complaint also makes reference to the fact that Ferjaoui is over 40 years old, but does not explicitly assert discrimination because of her age or mention the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq. The district court granted the Commission's motion for summary judgment on May 17, 2007. ROA 981. Ferjaoui has appealed. STATEMENT OF FACTS On April 7, 2001, Plaintiff Maria Ferjaoui began work in the Legal Unit of the EEOC's San Antonio District Office as a Secretary to the Regional Attorney. ROA 97. Robert Harwin was the Regional Attorney, and it was he who hired Ferjaoui. ROA 97. Ferjaoui was hired at grade level GS-06, with the possibility of promotion to grade level GS-07. ROA 97-98. Ferjaoui, as Secretary to the Regional Attorney, was the highest-paid clerical in the Legal Unit. ROA97. She reported directly to Harwin, who explained the job requirements to Ferjaoui in detail when she began work. ROA 97. The Regional Attorney's Secretary position entailed general clerical responsibilities such as typing, copying, and filing. ROA 125. Harwin also explained that a critical part of her position was the preparation of the quarterly "396 report," a document containing details of the San Antonio office's case load activity. ROA 98, 126. The data in the report is collected cumulatively, and the report is sent at the end of every quarter to the Commission's headquarters in Washington, D.C. ROA 98. In addition, the San Antonio office must create a year-end 396 report with data from the entire fiscal year, which ends on September 30th. Ferjaoui acknowledged in her deposition that Harwin had impressed upon her that the 396 report "‘is a report . . . that is very important.'" ROA 126. Ferjaoui added that "common sense tells you anything you send up to Washington . . . is important." ROA 127. Prior to Ferjaoui's arrival, the regional attorney's secretary position had been vacant for some time. As a consequence, responsibility for preparation of the 396 report had been assigned to Lydia Obaya, a paralegal specialist. ROA 98. Obaya created a training manual explaining how to generate a 396 report, and a worksheet to aid in the preparation of the 396 report. ROA 98, 170. Obaya personally went over the manual and worksheet with Ferjaoui, and gave her training in how to prepare the report. ROA 115, 181. Obaya explained that it would be critical for Ferjaoui to add information to the worksheet on a daily basis or, at a minimum, on a weekly basis in order for her to generate a 396 report at the end of the quarter. ROA 99, 170. Problems with the quality of Ferjaoui's work did not appear immediately. Harwin gave Ferjaoui an initial performance review in June 2001, but noted that she had worked at the office for only a "short period." ROA 108. Harwin's review stated that he was confident Ferjaoui would be able to perform "all of the duties assigned to you" in the future, but he took care "to remind you that the training manual that was recently created by Lydia Obaya should be consulted regularly, as the duties associated with your position are numerous, and often require great attention to detail." ROA 108. Harwin also recommended in the summer of 2001 that Ferjaoui be given a promotion to a GS-07 level largely because he thought she had held positions in the Federal Government previously that qualified her for the promotion. ROA 98, 317. Ferjaoui's prior positions were not "permanent," however, and so the personnel office at EEOC headquarters in Washington denied the promotion request. ROA 317. Problems with Ferjaoui's work generally, and on the 396 report specifically, began to emerge. Ferjaoui was not entering information needed to prepare the quarterly 396 report. As Linda Gutierrez, a Supervisory Trial Attorney in the San Antonio office, explained, "if you let it go even a week, it start[s] to pile up. So, it [is] better to maintain that information on a day-to-day basis." ROA 200. But Ferjaoui did "let it go," according to Harwin and Judy Taylor, the office's other Supervisory Trial Attorney. See ROA 99 (Harwin) ("Ms. Ferjaoui did not consistently keep the required records"); ROA 115 (Taylor) ("the worksheets for the 396 report were not being kept up-to-date by Ms. Ferjaoui"). Gutierrez stated that "she didn't keep . . . the daily records about litigation, cases, resolutions . . . that [was] one reason it was difficult for her to put the report together." ROA 189. Gutierrez also believed Ferjaoui found it difficult to prepare the report because she did not take notes when Obaya was explaining the process to her. ROA 190 ("it would be easier for her if she would take notes about what she was being instructed on"); see also ROA 115 (Taylor) ("I . . . noticed that Ms. Ferjaoui was not taking any notes"). Ferjaoui's difficulties began with her first 396 report, prepared in July for the quarter ending June 30, 2001. Four different EEOC employees – including Carol Herrera, a Paralegal Specialist – assisted Ferjaoui in preparing the report, but it was returned by headquarters staff with errors. ROA 123, 183-84. Herrera stated that she believed the errors "were because of errors in the worksheets that were to be maintained by Ms. Ferjaoui." ROA 123. Ferjaoui herself acknowledged that the report "was kicked back for all those errors." ROA 129. To avoid the problems with the prior report, Obaya spent three to four days with Ferjaoui preparing the next report, for the quarter ending September 30, 2001. ROA 176. Obaya then spent another three to four hours in October giving Ferjaoui additional training in how to prepare the 396 report. ROA 176. When it came time to prepare the next report, for the quarter ending December 31, 2001, Ferjaoui was out on sick leave. ROA 130. Ferjaoui had not been entering in the requisite information, and so Obaya was called in from her holiday leave "to gather this information and complete this report." ROA 105. Obaya completed the report, but "under . . . stressful conditions." ROA 105. Taylor explained that "Ms. Ferjaoui's worksheet records during that quarter were not complete which made it more difficult for Ms. Obaya to prepare the report than it would have been otherwise." ROA 115. Finally, in February 2002, Obaya devoted an entire week to training Ferjaoui in the 396 report. ROA 99, 176. Harwin observed, in a memorandum to Ferjaoui, that "you have been provided more training on the 396 Report . . . than has been offered to any other member of my staff." ROA 106. Still, at the end of this week- long training, Ferjaoui continued to make errors, as she herself acknowledged. ROA 177. Gutierrez observed that Ferjaoui was not ever "fully responsible for independently maintaining the information and independently creating, preparing and submitting the report." ROA 199. Ferjaoui acknowledged this fact as well. ROA 177. Ferjaoui's inability to prepare the 396 report was not her only work performance problem. Gutierrez noted problems with clerical tasks such as stapling and copying, and "about her not typing a memo." ROA 191, 197. Taylor described several documents with errors such that the documents needed "substantial correction." ROA 116-17. Harwin, for whom Ferjaoui worked as secretary, elaborated on her performance problems in a memorandum to her. Harwin stated that "frequently, and almost on a daily basis, I have to repeat instructions to ensure you understand the assignment." ROA 104. He stated further that he has "to carefully review, edit, and correct even the simplest written correspondence." ROA 104. One recent document Harwin identified contained "a number of substantive and grammatical errors, such as failing to identify the addressee . . . and mistakenly identifying a party to the litigation as the addressee." ROA 104. This letter, Harwin stated, "represents the poor quality of your work product and your failure to pay attention to details." ROA 104. Harwin added that "many times" Ferjaoui "misdirected correspondence, pleadings, and discovery." ROA 104. Harwin noted that he was not the only person in the office to find it difficult to work with Ferjaoui; whoever is "reviewing your work must pay careful attention to each detail to ensure that the product is correct and to avoid embarrassing mistakes." ROA 104. Producing work "of poor quality not only undermines the Legal Unit as a whole, but it requires additional review by me or a supervisor." ROA 104. "For these reasons, your performance rating for the last fiscal year was ‘proficient.'" ROA 104. Harwin, who was aware that Ferjaoui wanted a promotion to a GS-07 level, began considering whether to give her the grade-level promotion. ROA 115-16. Taylor approached Harwin in December 2001 to advise against promoting Ferjaoui. Taylor was aware that the "inventory tracking report . . . was not being maintained, and that we were going to have trouble doing another 396." ROA 165. She therefore told Harwin that until Ferjaoui "had mastered the ability to independently and successfully complete the 396 report, . . . I did not feel that she was entitled to or had earned that promotion." ROA 165. Harwin deferred considering a promotion for several months, until March 2002, when he was seriously considering giving Ferjaoui the grade increase that she sought. ROA 100. At that point, both supervisory trial attorneys met with Harwin to discuss their experiences working with Ferjaoui. Taylor told Harwin that she thought the promotion was "premature": Ferjaoui "was not successfully performing all the duties independently, and . . . she was [not] ready to perform at a higher level." ROA 166. Gutierrez concurred: "in my opinion, I didn't think she should be promoted." ROA 188; see also ROA 189 ("I certainly agreed with some of the criticisms of her work performance"). On March 8, 2002, Harwin – along with Taylor and Gutierrez – met with Ferjaoui. Harwin told her she would not be getting a promotion to the GS-07 level at that time, but that "she would be promoted as soon as she could independently complete the 396 report." ROA 161; see also ROA 150 (Ferjaoui deposition) (Harwin "told me that he wasn't going to give me the promotion because I still did not know how to do the 396"). Ferjaoui allowed that she in fact had not yet independently completed the 396 report. ROA 177. There was an imminent opportunity to do so, however: the next quarterly report covered the period ending March 31st, and would need to be prepared in late March and early April. ROA 98, 101. Two weeks later, on Thursday, March 21st, Ferjaoui sent Harwin a memorandum entitled "Denial of Promotion and Training Request." ROA 208. Ferjaoui copied Nicholas Inzeo, the Acting Deputy General Counsel based in Washington, on the memorandum. ROA 209. In the memorandum, Ferjaoui stated that "I do not agree nor do I understand your decision to deny my promotion to the GS-7 level." ROA 208. She argued that "[o]ther than the 396 Report all other aspects of my performance have been satisfactory." ROA 209. She attributed her shortcomings regarding the 396 report to insufficient training, though she noted that she recently had been given several full days training with Obaya. ROA 208-09. She also expressed dismay that, in her view, she had not previously been told her performance was unsatisfactory and that, until the March 8th meeting, "I had no idea I would not be promoted." ROA 209. She concluded by "officially requesting that you provide me, in writing, . . . your decision of the denial of promotion." ROA 209. The memorandum never mentions discrimination. It never refers in any way to Ferjaoui's national origin, sex, religion, age, or purported disability. It does not discuss Ferjaoui's work environment or allege harassment. It does not refer, explicitly or implicitly, to Title VII or any other anti-discrimination law. ROA 208- 09. Harwin responded the following Monday, March 25th, with a memorandum discussing in detail her past job performance and concluding that she had "not met the standard required to be considered for promotion." ROA 105. Harwin also explained that his office had "created and implemented its own training program," and that Ferjaoui had been provided not only with the written manual "outlining in great detail [the Legal Unit's] standard operating procedures," but also with "many hours of one-on-one training by Paralegal Lydia Obaya." ROA 105. Harwin concluded by stating that he believed "that you can perform your job duties satisfactorily if you focus on your job and pay close and careful attention to the details of each job assignment." ROA 107. Ferjaoui ceased coming to work at the end of that week, around March 28, 2002. ROA 146. She initially used her accumulated sick and annual leave, and then used leave without pay, with Harwin's approval. ROA 146-48. She never returned to the office. ROA 101, 149. On April 15, 2002, she sent a memorandum to Cari M. Dominguez, the chairperson of the EEOC, who was located in Washington, D.C. ROA 109. The memorandum requested "reassignment to another position within the EEOC in San Antonio, Texas." ROA 109. She did not indicate what particular position she desired. Ferjaoui also complained about "stress and harassment, which Robert B. Harwin has imposed on me on a daily basis." ROA 109. She concluded that "I can not tolerate the hostile work environment created by Mr. Harwin's daily harassment." ROA 109. Ferjaoui also contacted an EEO counselor on April 15th to allege discrimination on the basis of religion, disability, and age when she was denied a promotion and "subjected to harassment." ROA 339. Harwin began looking into whether there were any available positions in the "Enforcement" side of the San Antonio office, which is a small EEOC office. ROA 101. The Enforcement side of the office handles the processing and investigating of charges of discrimination, is headed by the "District Director,"and is wholly separate from the Legal Unit, headed by Harwin. There was no vacancy at Ferjaoui's grade level, however, and "[w]e knew she wouldn't want a lower graded position because her unhappiness was due to her failure to get a GS-7 position." ROA 117. On May 21, 2002, Harwin – who had contacted EEOC Headquarters about Ferjaoui's transfer request – got approval to reassign Ferjaoui to a "Legal Technician" position. ROA 110. In that position, Ferjaoui would be supervised by Taylor, not Harwin. ROA 101. According to Harwin, it was "[t]he only job I could possibly move her into." ROA 163. Ferjaoui would be paid at the same GS-06 pay level as in her prior position, but unlike the Secretary position, the Legal Technician position did not have the potential for promotion to the GS-07 level. ROA 164. Ferjaoui rejected the offer. ROA 102. On June 18, 2002, Ferjaoui filed a formal EEO complaint in which she added allegations that Harwin had discriminated on the added bases of national origin and sex. On July 23, 2002, Harwin sent Ferjaoui a letter indicating that she was going to be reassigned to the legal technician position at the same pay and grade. ROA 111. According to Harwin, he knew Ferjaoui previously had rejected that position, but he also knew that Ferjaoui "‘doesn't want to work with me.'" ROA 352; see also ROA 117 (Taylor) ("Reassigning Ms. Ferjaoui to the Legal Technician [position] was in compliance to a request from her. No action would have been proposed but for that request."). Harwin stated in an e-mail to Headquarters personnel that transferring Ferjaoui to the vacant legal technician position "is the only way that she will have any reasonable likel[i]hood of success in the trial unit." ROA 353. Ferjaoui subsequently amended her EEOC complaint to add a claim that the reassignment was retaliatory. ROA 213. An Administrative Judge conducted a two-day hearing on Ferjaoui's claims, after which the judge ruled in favor of the Commission on all claims. ROA 210-22. Ferjaoui appealed the final order, but that order was affirmed. Ferjaoui then filed a complaint in federal district court. The Commission moved for summary judgment, which the district court granted in an order dated May 17, 2007. ROA 981. The court initially noted that Ferjaoui's complaint did not specifically assert claims based on her age, race, or national origin. ROA 992-93. Because both the Commission and Ferjaoui discussed the alleged discrimination based on Ferjaoui's status as a Hispanic in their summary judgment papers, the district court stated it would "construe Mrs. Ferjaoui's pleading as making such claims, under the liberal pleading standard of Fed. R. Civ. P. 8(a)." ROA 993. The court stated it would not address age, however, because neither the complaint nor the parties' briefing discussed discrimination on the basis of age. ROA 993. Turning to the merits of Ferjaoui's claims, the district court first addressed Ferjaoui's harassment claims. The court acknowledged evidence that Harwin was "demanding, abrasive, vindictive, [and] used inappropriate language." ROA 1001. The court noted that Harwin could be "a difficult person with whom to work." ROA 1004. But the court concluded that there was no evidence that any of Ferjaoui's protected traits caused Harwin to be "difficult" towards her. As to the sex claim, the court stated there was evidence that "Harwin had a productive, if not always perfect, relationship with other women in the office." ROA 1004. According to the court, "evidence that Mr. Harwin behaved more favorably toward other women in the office negates that his behavior toward Mrs. Ferjaoui was based on her being a female." ROA 1004. The court emphasized Ferjaoui's own statement that "‘[w]ell, there are other . . . women in there, but he – he tended to just be hostile primarily to myself." ROA 1004. The district court rejected Ferjaoui's religious harassment claim, holding that there were "no statements or actions that raise an inference he was hostile to Muslims, per se." ROA 1005. The fact that the September 11th terrorists were Muslim does not mean that "Mr. Harwin equated the terrorists with the Islamic faith." ROA 1005 n.119. The fact that "Mrs. Ferjaoui noticed a difference in Mr. Harwin's behavior that coincided with the post-September 2001 time frame is not proof of discrimination because of Mrs. Ferjaoui's . . . Islamic faith." ROA 1005. Nor does that the fact that Harwin is Jewish provide "prima facie proof that he bore hostility to Mrs. Ferjaoui because of her faith." ROA 1005. The court held there was insufficient evidence that Harwin harassed Ferjaoui because she was Hispanic. The court noted evidence that Harwin generally exhibited a "gruff manner toward everyone in the office," but that there was no evidence he was hostile to her because she was Hispanic. ROA 1006. The court stressed that Ferjaoui believed that although there were many other Hispanic people in the office, he was only hostile to her. "Lack of rapport with a supervisor is not discrimination that is protected by law," the court stated. ROA 1006. In sum, the court concluded that although Harwin could be a "difficult person," he had a "productive working relationship with other support staff," and there is not "a scintilla of evidence that Mr. Harwin bore prejudice toward women, members of a particular faith, including Islam, or a particular race or national origin." ROA 1006. The district court next turned to Ferjaoui's claim that the failure to promote her was discriminatory. The court held that Ferjaoui had not even established an inference religious discrimination played a role in the decision. The court noted that Harwin actually was inclined to give Ferjaoui the pay grade promotion, and decided not to at the urging of Gutierrez and Taylor, neither of whom realized Ferjaoui was Muslim. ROA 1008-09. Moreover, the court held, Ferjaoui failed to rebut the Commission's explanation that Ferjaoui's inability to complete the 396 report was the reason she was not promoted. ROA 1009. Addressing next Ferjaoui's claim that she was discriminated against on the basis of her diabetes, the court rejected the claim, holding it was "not convinced" Ferjaoui had established she was disabled by her condition. ROA 1011. Moreover, the court held that "Ferjaoui never requested an accommodation." ROA 1012. Finally, the court addressed Ferjaoui's claim that she was subject to retaliation because of her March 21, 2002, memorandum, and because of her April 15, 2002, contact with an EEO counselor. The court held that the memorandum "does not qualify as protected activity" because in the memorandum "there is no mention of discrimination." ROA 1013. The contact with the EEO counselor was protected, but the court held that her reassignment was not "adverse" because it was made "at her request." ROA 1013. In any event, the court held, Ferjaoui had not rebutted the Commission's legitimate explanation for the reassignment – namely, "that there were no other positions available to her for which she was qualified and that did not include Mr. Harwin in her direct line of supervision." ROA 1013. Ferjaoui appealed. SUMMARY OF ARGUMENT In any discrimination case, it is critical to demonstrate that the employer took an adverse action against the plaintiff because of a trait protected by Title VII. In this case, Harwin deferred giving Ferjaoui a pay grade increase until she could independently perform one of the most critical aspects of her job – preparing the 396 report. Ferjaoui now alleges that this decision was not taken because of her admitted inability to create the report, but rather because she is a woman, Hispanic, Muslim, and has diabetes. The fact that Ferjaoui has these protected traits does not make Harwin's decision discriminatory, and Ferjaoui provides no additional evidence to support her claims. Underlying this case is her assumption that one of these traits, and not Ferjaoui's own poor work performance, must be the reason for the decision. As she stated, "I just couldn't figure it out is it because I'm a female, is it because I'm Hispanic, is it because I'm Muslim? What is it? . . . I couldn't pinpoint anything specifically." The answer to the "What is it?" question Ferjaoui posed is that Harwin, at the urging of both supervisory trial attorneys, determined that Ferjaoui should not be given a pay grade promotion until she performed an essential function of her job. Ferjaoui also claims that although she asked the Commission for a reassignment away from Harwin, actually reassigning her to a position in which she was not supervised by Harwin was retaliatory. The record evidence indicates that the position to which she was reassigned was the only available one at her pay grade for which she was even arguably qualified. The EEOC's San Antonio office is small; Ferjaoui provided no evidence that other positions were available, and no other evidence of a retaliatory motive. The district court therefore correctly granted summary judgment. STANDARD OF REVIEW Ferjaoui does not explicitly set out the applicable standard of review, but seems to suggest that this Court must be guided by the "arbitrary and capricious" standard in reviewing the district court's grant of summary judgment. See Pl. Brf. at 12. It is unclear why Ferjaoui, the appellant, is urging this Court to apply a "‘highly deferential'" standard of review to an adverse decision. See Gulf Restoration Network v. U.S. Dep't of Transp., 452 F.3d 362, 367-68 (5th Cir. 2006). In any event, "arbitrary and capricious" is not the appropriate standard for reviewing a grant of summary judgment. The standard of review "for the grant of summary judgment under Rule 56 is de novo." Thompson v. Georgia-Pac. Corp., 993 F.2d 1166, 1168 (5th Cir. 1993). Summary judgment is proper if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.'" FDIC v. Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). ARGUMENT I. The district court correctly held there was not even "a scintilla of evidence" that Harwin harassed or otherwise discriminated against Ferjaoui because of her gender, national origin, religion, or disability. A sexually hostile work environment in violation of Title VII exists only if the plaintiff can show: "(1) the plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) her employer knew or should have known of the harassment and failed to take prompt remedial action." Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004). Where a plaintiff alleges a hostile environment based on other protected characteristics, the elements of the claim are adjusted accordingly. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (third element in racial harassment case requires plaintiff to show "the harassment complained of was based on race"). The district court in this case observed that Harwin could be "a difficult person with whom to work," but that there was no evidence that any of Ferjaoui's protected traits caused Harwin to be "difficult" or hostile towards her. ROA 1004. Without any evidence that Harwin's alleged hostility was directed at Ferjaoui because of her gender, national origin, religion, or disability, her harassment claim must fail. The Supreme Court has emphasized that "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.'" See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)); see also Farpella- Crosby v. Horizon Health Care, 97 F.3d 803, 806 n.2 (5th Cir. 1996) ("Sex-neutral hostile conduct cannot be used to support a hostile work environment claim. Title VII does not protected employees from hostile conduct that is not based on their protected status."). There was evidence in the record that Harwin was frustrated with the quality of Ferjaoui's work; there is no evidence he was hostile towards her because of any protected trait. A. Ferjaoui produced no evidence of gender discrimination. The district court held that any inference Harwin's alleged hostility was based on sex was negated by the evidence that "Harwin had a productive, if not always perfect, relationship with other women in the office." ROA 1004. As Carol Herrera, a Paralegal Specialist who sat near the offices of Harwin and Ferjaoui explained, Harwin often would "come out of his office and speak in a loud tone of voice, [but] I never observed him speaking loudly or yelling at any one person in particular." ROA 123. Harwin would speak "in a loud voice . . . to everyone in the office." ROA 123. Even if Harwin expressed more frustration and hostility with Ferjaoui than with other employees, there is no evidence that Ferjaoui's gender – rather than her work performance – played a role in Harwin's behavior towards her. Ferjaoui admitted as much in her deposition testimony, confessing that "there are other Hispanic women in there, but he - - he tended to just be hostile primarily to myself." ROA 139. She seemed perplexed about the cause of her strained relationship with Harwin: "I just couldn't figure it out is it because I'm a female, is it because I'm Hispanic, is it because I'm Muslim? What is it? . . . I couldn't pinpoint anything specifically." ROA 140. Indeed, Ferjaoui's own brief on appeal states: "[t]he evidence reflects that Harwin treated other employees in his staff more favorably when they did the 396 Report as a team." Pl. Br. at 17-18. Those "other employees" were Angela Garcia, Carol Herrera, and Lydia Obaya. ROA 354. This evidence does not help Ferjaoui's case for, as the district court put it, "evidence that Mr. Harwin behaved more favorably toward other women in the office negates that his behavior toward Mrs. Ferjaoui was based on her being a female." ROA 1004. In her brief on appeal, Ferjaoui attempts to provide evidence of gender-based animus by asserting, repeatedly, that Harwin "call[ed] Ferjaoui a ‘stupid fucking bitch' on a daily bas[i]s." Pl. Br. at 16; Pl. Br. at 27; see also Pl. Br. at 15 (Harwin "refers to [Hispanic female employees] as ‘bitches' on a daily basis"). Ferjaoui's argument on this point constitutes a gross misstatement of the record. Ferjaoui cites to the deposition of Linda Gutierrez as the evidentiary basis for her assertion. See Pl. Br. at 16-17. What Gutierrez actually stated in her deposition was that on one occasion in November 1996 – five years before Ferjaoui began working at EEOC – Harwin called a secretary in the office a "‘fucking bitch.'" ROA 291, 301, 366. Three women, including Gutierrez, complained in response. ROA 291. Gutierrez added that since that day in 1996, she does not "recall him specifically referring to someone in particular and saying that term." ROA 301. Obaya, who was one of the three women who complained, stated that things in fact "got better" after their complaint in 1996. ROA 794. The only other instance in which Gutierrez stated she heard Harwin use the term "bitch" was during a meeting in which Harwin allegedly referred to Ferjaoui as a "‘stupid bitch.'" ROA 188. Ferjaoui was not present at that meeting, ROA 188, and the door was closed. ROA 201. Gutierrez stated that she never told Ferjaoui about Harwin's comment, ROA 313, and there is no evidence that Ferjaoui knew of the comment until this litigation commenced.<2> The Commission does not wish to minimize the offensive nature of the word "bitch." But "the ‘mere utterance of an . . . epithet which engenders offensive feelings in an employee' is not alone sufficient to support Title VII liability." Farpella-Crosby, 97 F.3d at 806; see also id. (harassment must be severe or pervasive). In this case, however, the epithet could not even "engender[] offensive feelings" in Ferjaoui because the 1996 utterance predated Ferjaoui by five years, and there is no evidence she knew about the contemporaneous, but behind closed doors epithet. It is well-settled that "derogatory behavior of which a plaintiff is unaware, and thus never experiences, is not ‘harassment' of the plaintiff (severe, pervasive, or other)." Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000); see also Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000) (harassment of plaintiff's co-workers irrelevant where there was not evidence plaintiff was contemporaneously aware of harassment); Cottrill v. MFA, Inc., 443 F.3d 629, 636 (8th Cir. 2006) (plaintiff may not rely on conduct of which she was unaware at the time of the alleged harassment); Hirase-Doi v. U.S. West Commc'ns, Inc., 61 F.3d 777, 782 (10th Cir. 1995) (Title VII plaintiff "may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly subject to a hostile work environment"). There is therefore no evidence that Ferjaoui experienced a gender-based hostile work environment. B. Ferjaoui produced no evidence of race/national origin discrimination. There is no evidence that Harwin harassed Ferjaoui because she is Hispanic. As with her gender claim, Ferjaoui's claim of Hispanic-based animus is belied by her own statement that "there are other Hispanic women in there, but he - - he tended to just be hostile primarily to myself." ROA 139. She also complained in her deposition that "Angela Garcia is Hispanic, but yet when anything went wrong he'd come straight to me." ROA 140. She complained further that Harwin "wouldn't do anything to them [Garcia and Obaya]." ROA 140. Ferjaoui's brief on appeal emphasized that Harwin treated three Hispanic women – Garcia, Herrera, and Obaya – "more favorably" than Ferjaoui when they worked on the 396 report. Pl. Br. at 17- 18; ROA 354. What Ferjaoui appears to be complaining about thus is not discrimination based on her race/national origin, but rather about a "[l]ack of rapport with a supervisor," as the district court put it. She has produced no "comparative evidence" that would support an inference of discrimination, see Oncale, 523 U.S. at 80-81; her comparative evidence actually negates an inference of discrimination. Cf. Farpella- Crosby, 97 F.3d at 806 n.2 ("Sex-neutral hostile conduct cannot be used to support a hostile environment claim."). Ferjaoui has produced no evidence that Harwin ever used "derogatory terms" to describe a Hispanic person. See Oncale, 523 U.S. at 80. The district court therefore correctly held that Ferjaoui had not shown any evidence of discrimination because she is Hispanic. C. Ferjaoui produced no evidence of religious discrimination. This Court applies the same general standard in religious harassment cases that it does in other harassment cases, namely that the plaintiff must show, inter alia, that " the harassment was based on a protected characteristic" and that the harassment was sufficiently severe or pervasive to affect "a term, condition, or privilege of employment." EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007); see also Craig v. Big 4, Inc., 2000 WL 1910174, *1 (5th Cir. 2000) (unpublished) (religious harassment plaintiff must show "that the harassment was based on [religion]"). Plaintiff's brief on appeal points to no evidence that Harwin harassed Ferjaoui or otherwise treated her differently because she was Muslim. Ferjaoui generally alleges that Harwin – "an-American Jew" – became more hostile towards Ferjaoui after September 11th. Pl. Br. at 6; see also Pl. Br. at 19-20 ("Harwin is Jewish and Taylor is Christian"). Harwin (and Taylor's) religious background is not evidence of discrimination; a harassment plaintiff must point to "challenged conduct" from which an inference of discrimination can be drawn. Oncale 523 U.S. at 80. Ferjaoui's brief points to no offensive utterances or other conduct tied to Ferjaoui's religion. The mere fact that the relationship between Harwin and Ferjaoui deteriorated as Ferjaoui's poor work performance became manifest is not evidence of religious hostility. In any event, the evidence indicates that Harwin was inclined to give Ferjaoui a grade increase at a point in time well after September 11th, but decided against it only when Gutierrez and Taylor strongly urged him not to – first in December 2001 and then in February 2002. There is no evidence either Gutierrez and Taylor held anti-Muslim animus and, moreover, the undisputed record evidence indicates that both Gutierrez and Taylor believed Ferjaoui was Catholic. See ROA 197 (Gutierrez) ("I assumed that she was Catholic . . . based on - - I think she wore a crucifix . . . and [she] told us about a fund-raiser that she had participated in at a Catholic church."); ROA 117 (Taylor) ("I believed Ms. Ferjaoui was Catholic. She wore a cross, is Hispanic, and talked about contact with a Catholic church.").<3> Ferjaoui seems to argue that Harwin denied her promotion because of her religion, and that the Commission's proffered explanation is merely a pretext for discrimination. Pl. Br. at 20. Ferjaoui argues that Harwin was willing to promote Ferjaoui before she ever had to complete a 396 report, and that this willingness undermines the Commission's asserted reason for the decision not to promote her. Pl. Br. at 20-21. The district court held otherwise, ruling that Ferjaoui had not even created an inference that the decision to defer giving her a pay grade promotion was discriminatory, and that, in any event, Ferjaoui failed to rebut the Commission's explanation that Ferjaoui's inability to complete the 396 report was the reason she was not promoted. ROA 1008-09. The district court's ruling is correct. In order to establish a prima facie case of discrimination, a plaintiff must point to "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion." Teamsters v. United States, 431 U.S. 324, 358 (1977). Ferjaoui has not pointed to any such evidence. Ferjaoui argues in her brief that "Herrera was the Plaintiff's comparative and . . . Harwin promoted Ms. Herrera . . . in her first year." Pl. Br. at 20. No inference of religious discrimination follows from Herrera's promotion for two reasons. First, and most significantly, there is no evidence in the record about Herrera's religion, so evidence that she was promoted logically cannot support a religious discrimination claim. See generally O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) (there must be logical connection between prima facie case and discrimination alleged). Second, as Ferjaoui herself points out, Herrera was promoted from a GS-05 Legal Technician position to an altogether different position – a GS-07 Paralegal Specialist position. Pl. Br. at 20. Ferjaoui, by contrast, was not given a pay grade increase while working in the same position. Ferjaoui and Herrera therefore are not similarly- situated. See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2004). Even if Ferjaoui had established a prima facie case of discrimination, she has not produced any evidence that the Commission's explanation for deferring her pay raise until she could produce a 396 report independently was false and a pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). The Commission produced unrebutted evidence that preparation of the 396 report was extremely important. ROA 98 (critical part of Ferjaoui's position was preparing 396 report). Ferjaoui herself stated that the 396 report "‘is a report . . . that is very important.'" ROA 126. Despite extensive training, Ferjaoui did not maintain the records needed for preparation of the report, and was never able to prepare the report without considerable help from other employees of the office. Ferjaoui acknowledged that she was not ever fully responsible for independently preparing the report. ROA 734. The fact that Harwin was willing to give her a pay grade promotion in the summer of 2001, before she had completed the 396 report, does not give rise to an inference of religious discrimination. Harwin was indeed inclined to give Ferjaoui the pay grade promotion when she had sufficient government service to qualify for it, as was his general practice. Harwin explained that he "promoted almost everyone he could promote" to a higher pay grade. ROA 668. It is undisputed that he changed his mind only after both of the office's supervisory trial attorneys approached Harwin to point out to him that it would be a "bad management practice" to give an employee a pay increase when she could not perform a critical part of her job. ROA 117. It was also undisputed that neither Taylor nor Gutierrez, the supervisory trial attorneys, was aware that Ferjaoui was Muslim. See ROA 117, 197. Ferjaoui therefore has not established that the Commission's explanation was a pretext for discrimination. Finally, Ferjaoui argues that she was "demoted" only after informing Inzeo in the EEOC Headquarters office of Harwin's treatment of her, and that this action somehow comprises religious discrimination. Pl. Br. at 20; see also Pl. Br. at 6 ¶ 8 (alleging post September 11th hostility, but citing deposition testimony that Harwin allegedly was hostile towards Ferjaoui after she copied Inzeo on her promotion-denial complaint). The fact that Harwin told Taylor to "keep a record of [Ferjaoui's] mistakes" and monitor her work performance after Ferjaoui complained to Headquarters personnel, ROA 290, is not evidence of religious-based hostility, if it is hostility at all.<4> In sum, the district court correctly held that Ferjaoui failed to point to any evidence that she was subjected to religious discrimination. D. Ferjaoui produced no evidence of disability discrimination. Before the district court, the Commission argued that there was insufficient evidence that Ferjaoui had a disability within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102(2); see also Rehabilitation Act, 29 U.S.C. § 791(g) (standards under Rehabilitation Act shall be same as under ADA). The district court agreed, holding it was "not convinced" Ferjaoui had established she was disabled by her condition. ROA 1011. In her brief on appeal, Ferjaoui spends considerable time arguing that she is a "qualified individual with a disability," see 42 U.S.C. § 12111(8), and hence is covered by the ADA. Pl. Br. at 21-24. The Commission continues to question whether Ferjaoui's diabetes substantially limited her in a major life activity, see 42 U.S.C. § 12102(2), but it does not dispute that Ferjaoui was qualified, in the sense that her diabetes did not interfere with her ability to perform the essential functions of her job during the time she worked at EEOC. Harwin repeatedly told Ferjaoui that he believed that she could "perform your job duties satisfactorily if you focus on your job and pay close and careful attention to the details of each job assignment."<5> Even if Ferjaoui is covered by the ADA, coverage does not establish an ADA violation: there must be some form of disability-based discrimination for an employer to run afoul of the ADA. See 42 U.S.C. § 12112(a) (no covered entity "shall discriminate" against a qualified individual with a disability). Discrimination under the ADA can include not making reasonable accommodations to the known physical limitations of an otherwise qualified disabled individual, 42 U.S.C. § 12112(b)(5)(A), but Ferjaoui never sought an accommodation and she does not argue this form of discrimination in her brief on appeal. Only in the very last sentence of her brief's disability section does Ferjaoui seem to suggest some form of discrimination, but Ferjaoui tries to link the alleged discrimination ("Harwin's refusal to promote Ferjaoui") to September 11th and to her complaint to Deputy General Counsel Inzeo. Pl. Br. at 24. Neither of these events has any conceivable nexus to diabetes or a disability. Because there is no allegation of disability-based discrimination, Ferjaoui's claim under the ADA and Rehabilitation Act must fail. II. The district court correctly held there was no evidence that Ferjaoui's reassignment, made in response to her request for a reassignment, was retaliatory. To establish a prima facie case of unlawful retaliation under Title VII, Ferjaoui must show (1) that she engaged in an activity protected by Title VII, (2) that an adverse action occurred, and (3) that a casual link existed between the protected activity and the adverse action. See Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007). Ferjaoui initially argued that Harwin's instruction to Taylor to "keep track of Ferjaoui's work performance" after her March 21, 2002, memorandum was retaliatory; that Taylor's irritation with Ferjaoui following the March 21 memorandum was retaliatory; and that the Commission "retaliated against Ferjaoui for her having informed Harwin's supervisor [Deputy General Counsel Inzeo] of his mistreatment of Ferjaoui." Pl. Br. at 28. The district court correctly rejected this argument, holding that Ferjaoui's March 21, 2002, memorandum does not comprise protected activity. ROA 1012-13. Title VII makes it unlawful for an employer to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). Ferjaoui was not opposing Title VII discrimination in her March 21 memorandum. The memorandum never mentions discrimination; never refers in any way to Ferjaoui's national origin, sex, religion, age, or purported disability; does not discuss Ferjaoui's work environment or allege harassment; and does not refer, explicitly or implicitly, to Title VII or any other anti-discrimination law. Thus the hostility Ferjaoui alleges followed that memorandum cannot comprise retaliation unlawful under Title VII. Ferjaoui also claims that the Commission "demoted" her by reassigning her from her GS-06 Secretary position to a GS-06 Legal Technician position in retaliation for her protected activity. The district court rejected her claim, holding that there was no evidence of retaliatory motive in the decision to reassign her. ROA 1013. The district court decision was correct. The Commission acknowledges that Ferjaoui's April 15, 2002, contact with an EEO counselor is protected activity, and that her memorandum sent to the Chairwoman of the EEOC on that same day could be understood as opposing unlawful conduct. The Commission also will concede for purposes of this appeal that the transfer to the Legal Technician position could be viewed as an adverse action because, although Ferjaoui would be paid the same amount, the new position lacked the promotion potential of her prior position. There is no evidence that the reassignment was retaliatory, however. The undisputed evidence in the record indicates that Harwin reassigned Ferjaoui not because of her protected activity, but because she asked to be reassigned to a position where she would not have to work with Harwin. Harwin explained that he first began looking into whether there were available positions in the "Enforcement" side of the office, but that there was no vacancy at Ferjaoui's grade level, and he knew she would not want a lower graded position. Harwin sought and received approval from Headquarters to reassign Ferjaoui to the Legal Technician position, which was "[t]he only job I could possibly move her into." ROA 163. When he decided to reassign her to that position, which he knew was not her preferred position, he did so because he knew that Ferjaoui "‘doesn't want to work with me,'" and that she had requested to be reassigned. ROA 117, 352. Ferjaoui has put forward no evidence "from which a jury may infer that retaliation was the real motive." Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). The evidence indicates that Harwin was trying his best to respond to Ferjaoui's own request to be reassigned to a position away from him. See id. at 1189 n.4 (it is "difficult to understand how [the supervisor] would have viewed the transfer as retaliatory, given that [the plaintiff] had twice requested that he be relocated"). Ferjaoui produced no evidence that there were other vacant jobs in the San Antonio office for which she was qualified. The district court therefore correctly held that Ferjaoui had not rebutted the Commission's legitimate explanation for the reassignment. CONCLUSION This Court should affirm the judgment of the district court. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF SERVICE I hereby certify that two copies of this brief, and one copy of the brief in electronic form, were mailed, first class, postage prepaid, on this day to the following: Joe A. Gamez Law Office of Joe Gamez 1139 W. Hildebrand San Antonio, TX 78201 Lorenzo W. Tijerina 1911 Guadalupe Street San Antonio, TX 78207 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 December 13, 2007 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: - this brief contains 8,218 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: - this brief has been prepared in a proportionally spaced typeface using WordPerfect Office 2000 in 14- point Times New Roman font. (s)_______________________________ Attorney for Equal Employment Opportunity Commission Dated: December 13, 2007 *********************************************************************** <> <1> “ROA # ” refers to the page number of the original record on appeal. See 5th Cir. R. 28.2.3; <2> In her deposition, Ferjaoui did not refer to a single instance in which she heard Harwin call her a “bitch.” ROA 438-637. At her administrative hearing, however, she stated that in late March 2002, Harwin called her a bitch. ROA 725. Harwin denied using that term with Ferjaoui, ROA 675, but assuming the veracity of Ferjaoui’s account, a single use of the word “bitch” with an employee does not equate to using the term “on a daily basis.” <3> In her brief to the district court, but not in her brief on appeal, Ferjaoui pointed to a derogatory comment about Palestinians that Harwin allegedly made while listening to a talk radio show about the Israeli-Palestinian conflict. Assuming this Court considers this evidence if Ferjaoui were to raise it in her reply brief, cf. Pyles v. Johnson, 136 F.3d 986, 996 n.9 (5th Cir.1998) (an appellant abandons all issues not raised and argued in his initial brief on appeal), it nonetheless cannot create an inference of religious discrimination. Ferjaoui is not Palestinian and her husband is Tunisian, not Palestinian. Tunisia is roughly 1,500 miles from the Palestinian Territories. See http://www.mapcrow.info/ (last visited on Dec. 6, 2007). While Palestinians are predominantly Sunni Muslim, “there is a significant Christian minority.” http://en.wikipedia.org/wiki/Palestinian (last visited on Nov. 20, 2007). Given this weak link between Harwin’s alleged comment and Ferjaoui’s religion, and given that the comment was not directed at Ferjaoui, it cannot support an inference of religious bias. In any event, “the ‘mere utterance of an . . . epithet which engenders offensive feelings in an employee’ is not alone sufficient to support Title VII liability.” Farpella-Crosby, 97 F.3d at 806. <4> This evidence is the evidence Ferjaoui relies on to argue unlawful retaliation, and so the Commission will address it in that section. <5> The problem, of course, was that Ferjaoui did not pay adequate attention to the details of her job and so was not performing her job adequately.