Clinton BOWERS, Plaintiff-Appellant v. Dr. James B. PEAKE; Department of Veterans Affairs, Defendants-Appellees, 366 F. App'x 562

PER CURIAM: Plaintiff-Appellant Clinton Bowers appeals from the district court’s grant of

summary judgment in favor of Defendants Appellee Dr. James B. Peake and the Department of Veterans Affairs (the “VA”). The district court granted

summary judgment for Defendants, finding that Bowers failed to administratively exhaust most of his claims and that the claims that were properly before the court failed to present any issues of material facts. We review a grant of

summary judgment de novo, applying the same standards as the district court. Ackermann v. Wyeth Pharm., 526 F.3d 203, 207 (5th Cir.2008).

Summary judgment is properly granted when there are no issues of material fact and one party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Bowers asserted a retaliation claim, alleging that he was not hired by the VA for a cemetery representative position on account of previous complaints he filed with the Equal Employment Opportunity Counsel. Uncontroverted

summary judgment evidence shows that the position he applied for was never filled. As the district court noted, non-selection for a position that remains unfilled cannot support a retaliation claim because “the cancellation of an opening is a legitimate, non-discriminatory and non-retaliatory reason for not selecting a person for those positions.” Phillips v. TXU Corp., No. 3:05-CV-1588, 2006 WL 3900112 at *5 (N.D.Tex. Dec.29, 2006) (citing Black v. Tomlinson, 425 F.Supp.2d 101, 108 (D.D.C.2006)); see also Adams v. Groesbeck Indep. Sch. Disk, 475 F.3d 688, 692 (5th Cir.2007) (“An employer does not discriminate or retaliate illegally if it has no job opening.”). Accordingly, the grant of

summary judgment on Bowers’s retaliation claim was proper. Bowers also alleged that he was entitled to be hired for the cemetery representative position on account of his status as a retired Master Sergeant in the U.S. Army. However, an agency is allowed to cancel vacancy announcements in any manner not inconsistent with law, and by doing so does not violate the preference rights of any veterans who applied for the position. Abell v. Dep’t of Navy, 343 F.3d 1378, 1384 (Fed.Cir.2003). The testimony and sworn exhibits show that the duties of the cemetery representative were consolidated into the St.

Louis office and that the vacancy for the cemetery representative position in the Houston VA Cemetery was cancelled. Accordingly, Bowers’s veteran’s rights claim must also fail. AFFIRMED. Pursuant to 5tii Cm. 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 Cm. R. 47.5.4.