IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40201 Summary Calendar _____________________

ORRIS T. DANIELS,

Plaintiff-Appellant

v.

LOUIS CALDERA, In his official title and capacity as Secretary of the Army, Department of the Army,

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas, Texarkana Division USDC No. 5:97-CV-102 _________________________________________________________________ October 26, 2000

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Orris T. Daniels (“Daniels”) appeals

from the district court’s entry of a final judgment of dismissal

with prejudice. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Daniels, a black male, began working for the Red River Army

Depot (RRAD) in August 1969. He became a GS-07 Computer

Assistant in June 1984 and was assigned to the Directorate of

Information Management (DOIM). On September 1984, Mary Ann

Clarke (“Clarke”), a white female who joined RRAD in 1976, also

became a GS-07 Computer Assistant in DOIM. After receiving her

two noncompetitive promotions in 1989 and 1991, Clarke is now

employed at a GS-11 level.

On May 28, 1993, Daniels filed his first formal complaint

with an Equal Employment Opportunity Counselor at RRAD (“First

EEO Complaint”). He alleged racial discrimination based

primarily on preferential treatment of a white male, Michael A.

“Toni” Sheridan (“Sheridan”), denial of training, denial of

overtime, denial of a temporary promotion, and Clarke’s two non-

competitive promotions. EEO Officer Charlean Carroll (“Carroll”)

processed this complaint and listed the claims accepted for

investigation, which did not include claims regarding Clarke’s

promotions. Daniels did not contest the issues as framed.1

Ultimately, Daniels prevailed on the investigated issues.

Next, on June 30, 1994, Daniels filed another formal

complaint with the EEO office at RRAD (“Second EEO Complaint”).

In this complaint, he alleged discrimination stemming from

1 Carroll informed Daniels that he had fifteen days to object in writing as to the issues accepted for investigation. Daniels did not object within the fifteen days or thereafter raise the argument until February 2, 1994.

2 Clarke’s 1989 and 1991 promotions, Carroll’s handling of his

First EEO Complaint with regard to those promotions, and

Carroll’s non-processing of an informal complaint filed in

November 1993. On October 1, 1996, the Army issued a final

decision in which it ruled that Daniels had failed to demonstrate

by a preponderance of the evidence that he was a victim of

discrimination.

Shortly thereafter, Daniels filed this action in district

court.2 On February 5, 1999, Daniels filed a motion for a jury

trial pursuant to the Civil Rights Act of 1991. The district

court denied the motion on the grounds that Clarke’s promotions

occurred before the effective date of the Act and that improper

processing of a complaint did not state a claim under Title VII

of the Civil Rights Act of 1964 (“Title VII”). Subsequently, the

Army moved to dismiss or, in the alternative, for summary

judgment. The district court granted summary judgment in favor

of the Army on Daniels’s improper processing claim, but denied

summary judgment as to the remainder of Daniels’s claims. Next,

the Army moved for a separate trial on whether Daniels timely

filed his Second EEO Complaint. Following a bench trial, the

district court entered Findings of Fact and Conclusions of Law

2 Daniels filed suit in the United States District Court for the Western District of Arkansas, Texarkana Division. The case was eventually transferred to the Eastern District of Texas, Texarkana Division, and subsequently, both parties voluntarily consented to have a United States magistrate judge conduct any and all future proceedings.

3 that Daniels knew or should have known of Clarke’s promotions as

they occurred. Thus, equitable tolling did not apply, and

Daniels’s failure to initiate EEO procedures within the

prescribed time limits resulted in a dismissal of Daniels’s suit

with prejudice.

Daniels timely appeals from the final judgment of dismissal

and the underlying final orders of the district court.

II. DISCUSSION

Daniels alleges three points of error on appeal: (1) that

the denial of a jury trial was improper, (2) that a cause of

action for “improper processing of a complaint” does exist under

Title VII, and (3) that the Army is barred from asserting its

timeliness defense. We consider Daniels’s second point of error

at the outset. Then, we proceed to examine his first and third

points of error.

A. “Improper Processing of Complaint” Claim

This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. See Burch v. City of Nacogdoches,

(5th

Cir. 1999). If the moving party is able to demonstrate that the

non-moving party lacks evidence sufficient to create a genuine

issue of fact in support of a necessary element of his claim,

then summary judgment is appropriate against the non-moving party

on that claim. See Celotex Corp. v. Catrett,

, 322-

4 23 (1986); Hypes v. First Commerce Corp.,

(5th

Cir. 1998). Doubts are to be resolved in favor of the non-moving

party, and any reasonable inferences are to be drawn in favor of

that party. See Burch,

.

In order to survive a motion for summary judgment on his

Title VII claim, Daniels is required to establish, at a minimum,

a prima facie case by a preponderance of the evidence. See

Shackelford v. Deloitte & Touche, LLP,

(5th

Cir. 1999); Reeves v. Sanderson Plumbing Products, Inc.,

(2000) (finding that appropriateness of judgment

as a matter of law depends on several factors, including strength

of plaintiff’s prima facie case). For a discrimination claim, a

showing of the following four elements is required: (1) the

plaintiff is a member of a protected group; (2) the plaintiff was

qualified for the position; (3) the plaintiff was subjected to an

adverse employment action; and (4) the plaintiff was replaced by

someone outside the protected class. See Shackelford,

. To make out a prima facie case under a retaliation

claim, the plaintiff must establish: (1) that he was engaged in a

protected activity, (2) that he was subjected to an adverse

employment action, and (3) that a causal connection existed

between his participation in the protected activity and the

adverse employment action. See Dollis v. Rubin,

(5th Cir. 1995).

Daniels argues that Carroll improperly processed his claim

5 as to Clarke’s promotions in the First EEO Complaint3 and was

motivated by racial animus4 in handling an informal complaint

filed in November 1993. A threshold inquiry is whether alleged

mishandling of an EEO complaint comes under the rubric of an

“adverse employment action.” The law on this issue is well-

settled in the context of retaliation claims. We have

consistently held that an “ultimate employment decision” is a

necessary predicate for a Title VII retaliation cause of action.

See Burger v. Central Apartment Mgmt., Inc.,

, 878

(5th Cir. 1999) (citing Dollis,

); see also

Mattern v. Eastman Kodak Co.,

(5th Cir. 1997)

(interlocutory or mediate decisions that can lead to ultimate

decisions fall outside of Title VII) (citing Page v. Bolger,

(4th Cir. 1981)).

After carefully examining the record, we are unclear whether

Daniels is alleging a discrimination claim or a retaliation

3 We note that Carroll’s response letter to Daniels states that Daniels had fifteen days in which to contest the issues as framed. Daniels did not do so until February 2, 1994 (240 days later). We also note that EEO Counselor Mary T. Green’s final report states that Carroll should have explicitly listed the issues claimed by Daniels and should have accepted or dismissed each issue individually. 4 Daniels alleges racial animus in his brief, whereas in his Complaint, he appears to have alleged gender animus: Carroll, a black female, accepted untimely claims from black females and did not do so for Daniels, a black male.

6 claim.5 If it is the latter, Daniels cannot prevail as it would

take a string of hypotheticals to connect a possible mishandling

of a complaint to a promotion similar to the ones received by

Clarke. See Mattern,

(stating that “mere

tangential effect on a possible future ultimate employment

decision” falls short of the adverse employment action

requirement).

If, on the other hand, Daniels is alleging a discrimination

claim, the matter is more complicated. There is some indication

that the “adverse employment action” requirements of

discrimination and retaliation claims encompass different

criteria. In Mattern, we noted that the anti-retaliation

provision of Title VII, 42 U.S.C. § 2000e-3 (1994), did not

contain the vague harms mentioned in the discrimination

provision, 42 U.S.C. § 2000e-2(a)(2) (1994). See

. Thus, we stated that “the way in which the employee may

be affected in . . . [the discrimination] subpart is much

broader[,]” reaching activity that “would tend to [adversely]

affect the employee.”

(internal quotation marks and

citations omitted). In a recent decision, we recognized, but did

not decide, the issue left open in Mattern. See Shackelford, 10

F.3d at 406-07 (concluding that the plaintiff loses under either

5 In their briefs, both the Army and Daniels discuss the issue citing Fifth Circuit precedent that dealt with retaliation claims. However, Daniels’s description of the basis of this claim indicates that it is a discrimination claim.

7 approach); see also Burger, 168 F.3d at 878-79.

However, we do not need to delineate today the contours of

the “adverse employment action” requirement of Title VII

discrimination claims. We are able to resolve the specific issue

presented in this case (whether Daniels’s “improper complaint

processing” claim states a valid claim under Title VII) without

having to answer that broader question. We have decided the

“improper complaint processing” issue in an analogous context,

and we see no reason to adopt a different approach here.

Just as federal employees must first file their complaints

with the EEO division of their employer federal agency,

-.106 (1999), private sector employees must initiate

the process with the Equal Employment Opportunity Commission

(EEOC), 42 U.S.C. § 2000e-5(b) (1988). In Gibson v. Missouri

Pacific Railroad Co., we held that “Title VII . . . confers no

right of action against the [EEOC]” for improper investigation or

processing of an employment discrimination charge.

(5th Cir. 1978); see also Baba v. Japan Travel Bureau Int’l.,

Inc.,

, 6 (2d Cir. 1997) (citing Gibson and cases from

other circuits for support).

There is no compelling justification to confer upon federal

employee plaintiffs an “improper complaint processing” cause of

action under Title VII, when that very claim has been repeatedly

withheld from private employee plaintiffs. The Seventh Circuit

recently followed a similar approach in ruling, in the context of

8 a Title VII claim by an employee of the United States Customs

Service, that a “failure-to-process claim does not state a claim

upon which relief can be granted” under a Title VII action.

Jordan v. Summers,

(7th Cir. 2000). Thus,

since Daniels does not state a claim upon which relief can be

granted, summary judgment for the Army on this point was proper.6

B. Denial of a Jury Trial

Whether Daniels has a right to a jury trial presents a pure

question of law. Questions of law are reviewed de novo by this

court. See Arnold v. United States Dep’t of the Interior,

(5th Cir. 2000) (citing Randel v. United States

Dep’t of the Navy,

(5th Cir. 1998)).

The Civil Rights Act of 1991 (“1991 Act”) grants parties

seeking compensatory and punitive damages in Title VII

intentional discrimination claims the right to a trial by jury.

See 42 U.S.C. § 1981a(c) (1994). The effective date of the 1991

Act is November 21, 1991. See 42 U.S.C. § 1981a. The Supreme

Court has held that the 1991 Act does not apply retroactively,

and thus there is no right to a jury trial for conduct occurring

before November 21, 1991. See Landgraf v. USI Film Prods.,

(1994). As such, Daniels’s allegations regarding

Clarke’s noncompetitive promotions cannot form the basis for a

6 Because we find that mishandling of a complaint does not state a claim under Title VII, we do not need to address Daniels’s “common nucleus of operative facts” or “continuing violation theory” arguments.

9 jury demand because there is no question that they transpired

before the 1991 Act’s effective date.7

Daniels’s claims regarding Carroll’s mishandling of his

First EEO Complaint (filed May 28, 1993) and November 1993

informal complaint also do not provide a proper foundation for a

jury trial. Although these alleged actions occur well after

November 21, 1991, they do not constitute conduct that can be

challenged under Title VII, as discussed in the above section.

Thus, the district court’s ruling denying Daniels’s motion for a

jury trial was proper.

C. Timeliness

The district court’s decision to bifurcate a trial is

reviewed under an abuse of discretion standard. See U.S. v.

$9,041,598.68,

, 253 (5th Cir. 1998).

Daniels challenges the district court’s granting of the

Army’s Motion for a Separate Trial on the Issue of Timeliness

(whether Daniels timely filed his complaint with the Army’s EEO

department). Daniels argues that the Army should have been

barred from raising this timeliness defense because it did not

assert the argument during the lengthy administrative process.

Before proceeding to ascertain whether the Army should be

prohibited from presenting timeliness as a defense, we pause to

7 It is undisputed that Clarke’s two noncompetitive promotions took place in April 1989 and April 1991. Furthermore, Daniels does not contest this point in his brief.

10 address an issue that could pretermit that determination. We

generally do not consider arguments that were not properly

preserved for appellate review. “Typically, we will not consider

on appeal matters not presented to the trial court. Rather, the

litigant must raise his argument to such a degree that the

district court may rule on it.” Harris County, Tex. v. Carmax

Auto Superstores, Inc.,

(5th Cir. 1999)

(internal citations omitted); see also Hormel v. Helvering,

(1941) (“Ordinarily an appellate court does not

give consideration to issues not raised below.”).

We will consider an issue that is not raised in the

proceedings below only if it “concerns a pure question of law and

a refusal to consider it would result in a miscarriage of

justice.” Volkswagen of America, Inc. v. Robertson,

(5th Cir. 1983); Dollis,

n. 2; see also

Hormel,

(“There may always be exceptional cases

or particular circumstances which will prompt a reviewing or

appellate court, where injustice might otherwise result, to

consider questions of law which were neither pressed nor passed

upon . . . below.”).

After a careful review of the record, we find that Daniels

did not raise this argument in the district court when the Army

made its motion. Thus, we will consider it on appeal only if

meets the narrow two-pronged exception: legal question and

miscarriage of justice. Whether the Army is barred from

11 asserting its timeliness defense is a purely legal question

because there is no factual dispute as to the occurrences in the

administrative process. However, our failure to consider this

issue would not result in a miscarriage of justice. “Miscarriage

of justice” implies, inter alia, something inherently unfair:

that appellants could not have known of this issue below, that

they were somehow precluded from raising their objections below,

or that they should be excused from their failure to raise it

below.

In this case, no such compelling arguments are available for

Daniels. There is no question that he knew of this issue when

the Army first made its Motion for a Separate Trial on the Issue

of Timeliness, that he was not precluded from raising his

objections at that time, and that there is no justifiable reason

to excuse his not raising the issue earlier. Therefore, because

Daniels did not properly preserve his objection to the Army’s

timeliness defense below and because his case does not fall into

the extraordinarily narrow exception, we will not consider his

third point of error.8

8 Even assuming arguendo that the facts compel us to consider this question of law on appeal, Daniels’s argument is without merit. The law in this circuit is well-settled as to the facts that will trigger such a bar, and those facts are not present in this case. See Rowe v. Sullivan,

(5th Cir. 1992) (“In order to waive a timeliness objection, the agency must make a specific finding that the claimant’s submission was timely.”); Munoz v. Aldridge,

(5th Cir. 1990) (specific finding of timeliness in the administrative process bars timeliness objection in later civil

12 III. CONCLUSION

For the above-stated reasons, we AFFIRM the judgment of the

district court.

suit); Henderson v. United States Veterans Admin.,

, 440-41 (5th Cir. 1986); Oaxaca v. Roscoe,

(5th Cir. 1981) (finding that “merely accepting and investigating a tardy complaint” does not waive a timeliness objection). Thus, the district court would not have abused its discretion in granting the Army’s Motion for a Separate Trial on the Issue of Timeliness.

13