Bradford v. Giessel Barker Lyman

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 24, 2003
• Docket: 02-20477
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 02-20477

Summary Calendar ____________________

LYNETTE BRADFORD

Plaintiff - Appellant

v.

GEISSEL BARKER & LYMAN INC; STEVE ARNOLD

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court for Southern District of Texas H-00-CV-4055 _________________________________________________________________ January 22, 2003

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

PER CURIAM:*

This appeal requires us to review whether the district court

erred in granting summary judgment in favor of the defendants on

the plaintiff’s Title VII retaliation claim and in declining to

exercise supplemental jurisdiction over the plaintiff’s state law

claim for assault and battery. Upon review, we affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

-Page 1- I. FACTS and PROCEDURAL HISTORY

Plaintiff Lynette Bradford worked as a legal secretary for the

law firm of Giessel, Barker & Lyman, Inc. (“GB&L”) from January

1995 until early April 1999. In February 1999, Bradford applied

for a part-time position as a legal secretary with the law firm of

Ireson & Weizel. Ireson & Weizel offered her the position on March

23, 1999. On this same date, Bradford presented a resignation

letter to GB&L’s office manager, Cindy Bucek, in which she stated

that:

Due to continuing health problems and by the advice of my physician, it has been recommended that I cut down on my hours. Therefore, it is with great regret that I must resign my full-time position at Giessel, Barker & Lyman. My last day will be April 6, 1999.

I have enjoyed working here and hope the firm will keep me in mind for any contract positions or temporary assignments that may arise. Thank you for your attention to this matter.

During a meeting between Bradford and Bucek regarding

Bradford’s resignation, Bradford told Bucek that Steve Arnold, the

attorney Bradford had been assigned to work with since October

1998, had been sexually harassing her for the past seven weeks.1

In response, Bucek told Bradford that GB&L would take immediate

action by moving her desk, investigating the matter by talking to

1 Bradford admits that prior to this meeting, she had never formally complained about Arnold’s alleged harassment toward her, nor had she talked to any official or shareholder at GB&L informally regarding the alleged harassment.

-Page 2- Arnold, and having one of the firm’s shareholders talk to Bradford

about the allegations.

After the meeting ended (late in the afternoon), Bucek

discussed Bradford’s allegations with Gregg Weinberg, one of the

firm’s shareholders. Weinberg was unable to reach Arnold on this

date (March 23, 1999) because Arnold had left for the day and was

also unable to reach Arnold the next day because Arnold was out of

the office for a deposition.2 Weinberg was, however, able to

discuss the matter with Arnold on March 25, 1999. Although Arnold

denied the allegations, Weinberg instructed him not to have any

further contact with Bradford. Weinberg then left a message for

Bradford, requesting that she meet with him. Bradford apparently

attempted unsuccessfully to contact Weinberg by telephone.

Frustrated that her workstation had not yet been moved and

emotional following her discussions with Bucek, Bradford moved her

own workstation to the opposite side of GB&L’s floor. Bradford

then went to visit Bucek. She admits that she was crying and very

emotional during at this time. Bucek informed Bradford that

Weinberg had discussed the matter with Arnold and that Bucek would

find Weinberg and have him again contact Bradford. However, an

emotional Bradford returned to Bucek’s office less than one hour

later. Allegedly in response to Bradford’s emotional state, Bucek

told Bradford to “leave now and the firm w[ould] pay [her] through

2 Bradford testified that she may have formally accepted the job offer from Ireson & Weizel on this date, March 24, 1999.

-Page 3- the end of [her] two-week notice.” Bradford left and was paid by

GB&L through her resignation date, April 6, 1999 without complaint.

On November 20, 2000, Bradford filed this lawsuit, claiming

sexual harassment, retaliation and intentional infliction of

emotional distress against GB&L, and claiming intentional

infliction of emotional distress and assault and battery against

Arnold, individually. The district court referred the case to a

magistrate judge, and on March 19, 2002, the district court adopted

the memorandum and recommendation of the magistrate judge granting

summary judgment in favor of GB&L and Arnold on all claims except

Bradford’s assault and battery claim against Arnold. As to this

claim, the court declined to exercise supplemental jurisdiction and

thus dismissed the claim without prejudice. On March 19, 2002, the

district court entered a final judgment stating the same.

Bradford appeals the district court’s judgment only to the

extent it dismissed her Title VII retaliation claim against GB&L

and insofar as the district court declined to exercise supplemental

jurisdiction over her state law claim for assault and battery.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo,

applying the same standards as the district court. Daniels v. City

of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 122 S.

Ct. 347 (2001). Summary judgment should be granted if there is no

genuine issue of material fact for trial and the moving party is

-Page 4- entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

However, when the non-moving party bears the burden of proof on a

claim, the moving party may obtain summary judgment without

providing evidence that negates the non-moving party’s claim. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). Rather, the

moving party need only highlight the absence of evidence in support

of the non-moving party’s claim. See id.

We review the district court’s decision to decline to exercise

supplemental jurisdiction over Bradford’s pendent state law claim

for an abuse of discretion. See Robertson v. Neuromedical Ctr.,

161 F.3d 292, 296 (5th Cir. 1998); McClelland v. Gronwaldt, 155

F.3d 507, 519 (5th Cir. 1998).

III. ANALYSIS OF THE DISTRICT COURT’S ORDER

A. Retaliation

Title VII makes it an “unlawful employment practice for an

employer to discriminate against any of his employees . . . because

[the employee] has opposed any practice made an unlawful employment

practice” by the statute. 42 U.S.C. § 2000e-3(a) (2000). To prove

a prima facie case of retaliation under Title VII, Bradford is

required to present evidence that (1) she engaged in activity that

is protected under Title VII, (2) GB&L took adverse employment

action against her, and (3) a causal connection exists between the

protected activity and the adverse employment action taken against

her. See Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001); Cain

-Page 5- v. Blackwell, 246 F.3d 758, 761 (5th Cir. 2001). Here, neither

party disputes that Bradford engaged in protected activity by

complaining to Bucek regarding Arnold’s alleged acts of sexual

harassment toward her. Instead, in the district court and on

appeal, GB&L contends that Bradford’s retaliation claim fails

because she cannot prove that GB&L took adverse employment action

against her, and, even if she can prove this element, she cannot

demonstrate the necessary causal nexus between this adverse

employment action and her protected activity.

The district court agreed with GB&L. In dismissing Bradford’s

retaliation claim, it held that “Plaintiff has not established a

prima facie case of retaliation because she has not suffered an

adverse employment action.” Specifically, it concluded that “[t]he

summary judgment evidence fails to raise a fact issue that

Plaintiff was constructively discharged because there is no

evidence that she was subjected to such intolerable working

conditions that would make a reasonable employee feel compelled to

resign.” (emphasis added).

On appeal (and in her objections to the magistrate judge’s

memorandum and recommendation to the district court), Bradford

argues that the district court erred in limiting its analysis of

her retaliation claim to evidence of constructive discharge when

“the uncontroverted evidence” demonstrates “that [she] was directly

terminated against her will and in violation of the controlling

law.” She also contends that, “to a lesser extent,” the district

-Page 6- court also erred in its finding that she did not raise a fact issue

regarding whether she was constructively discharged because there

was “some evidence of constructive discharge” as well. As Bradford

represented to the district court that her retaliation claim was

rooted in both a constructive discharge theory and a direct

wrongful discharge theory, we address each theory in turn.

(1) Constructive Discharge

“To prove a constructive discharge, [Bradford] must show that

a ‘reasonable person in [her] shoes would have felt compelled to

resign.’ . . . Moreover, to be actionable, [Bradford] must

demonstrate a ‘greater severity or pervasiveness of harassment than

the minimum required to prove a hostile work environment claim.’”

Woods v. Delta Beverage Group, 274 F.3d 295, 301 (5th Cir. 2001)

(citations omitted); see also Faruki v. Parsons S.I.P., Inc., 123

F.3d 315, 319 (5th Cir. 1997). As stated, here the district court

held that Bradford did not raise a genuine fact issue regarding

whether she was constructively discharged in retaliation for

engaging in protected activity because she did not prove that she

was subjected to intolerable working conditions.

Assuming that Bradford could demonstrate the conditions at

GB&L rose to the level of severe intolerableness necessary to be

actionable under a constructive discharge theory, we find no causal

connection between this alleged constructive discharge and her

protected conduct. Bradford indisputably resigned (or felt

-Page 7- compelled to resign) before she complained of being sexually

harassed by Arnold. Because Bradford fails to causally connect the

alleged adverse employment action to the protected activity in this

case, she cannot maintain her retaliation claim under a

constructive discharge theory. See, e.g., Zaffuto v. City of

Hammond, 308 F.3d 485, 492 (5th Cir. 2002) (holding that the

plaintiff officer failed to state a Title VII retaliation claim

where the record demonstrated that the suspension occurred before

the plaintiff engaged in protected activity); Soledad v. United

States Dep’t of Treasury, 304 F.3d 500, 507 (5th Cir. 2002)

(affirming the grant of summary judgment on plaintiff’s Title VII

retaliation claim where there was little evidence to show that the

defendant “took certain actions because of [plaintiff’s] protected

activity”); Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d

334, 338-39 (5th Cir. 1999) (affirming summary judgment in a

retaliation case because the employer was not aware of the

plaintiff’s discrimination complaint when it made the employment

decision that the plaintiff claimed was retaliatory).

(2) Direct Discharge

Bradford also claims that GB&L directly discharged her forty-

eight hours after she engaged in protected activity. A direct

termination constitutes an adverse employment action under our

circuit precedent. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707

(5th Cir. 1997). However, here, the evidence does not demonstrate

-Page 8- that GB&L directly discharged Bradford. Rather, the uncontested

evidence demonstrates that Bradford unilaterally resigned and that

she never retracted this resignation.

Bradford’s resignation letter clearly states that “by the

advice of [her] physician,” she was resigning “[d]ue to continuing

health problems” and the need to “cut down” on her hours. During

her employ at GB&L, Bradford underwent several surgeries to remedy

health-related problems. As a result, Bradford was required to

miss fifty-seven work days in 1997 and thirty-seven and one-half

work days in 1998. Bradford admits that at the time she was

allegedly directly discharged by Bucek, she had already accepted a

part-time job with another law firm that allowed her to work less

hours. She also admits that she never retracted her resignation

letter, nor did she tell GB&L that her physician had not, in fact,

advised her to resign from a full-time position. Thus, GB&L would

have no reason to doubt that Bradford was, in fact, still

exercising her decision to resign from a full-time position at GB&L

(for a part-time position already offered to her by another law

firm) due to health problems even after making disclosures to Bucek

regarding Arnold.

In her letter, Bradford states that she had “enjoyed working

[at GB&L] and hope[d] the firm w[ould] keep [her] in mind for any

contract positions or temporary assignments that may arise.” That

both Bradford and Bucek understood that Bradford had somehow

retracted her resignation after making allegations of harassment to

-Page 9- Bucek and that the firm then directly discharged her forty-eight

hours later is further belied by Bradford’s own deposition

testimony. Bradford’s own testimony reflects that after resigning

and complaining to Bucek, Bucek responded by stating that:

[S]hareholders were going to meet, she [Bucek] would talk to them; that she didn’t see any problem with me working there, you know, on a contract basis or temporary assignments; that they would move me to some other part of the firm; and that Gregg Weinberg wanted to talk to me and that he would be talking with me that day.

Rec. at 213. This testimony clearly demonstrates that all

involved, including Bradford, gave full effect to Bradford’s

resignation from her full time position. The only future

relationship (following the completion of Bradford’s last two-weeks

with GB&L) envisioned was that of possible contract or temporary

employment, as dictated by the resignation letter. That Bucek

responded to Bradford’s emotional state two days later by allowing

her to simply serve out the remainder of her two-weeks with GB&L at

home on paid leave is not evidence of a direct discharge in

retaliation for protected conduct. Under her direct discharge

theory, Bradford’s retaliation claim thus fails because she cannot

demonstrate that GB&L took adverse employment action against her.

Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997)

(discussing adverse employment actions).

B. Supplemental Jurisdiction

After granting summary judgment in favor of GB&L and Arnold on

all claims except Bradford’s claim for assault and battery against

-Page 10- Arnold under state law, the district court declined to exercise

supplemental jurisdiction over this claim. The claim was thus

dismissed, without prejudice. Bradford appeals this dismissal.

However, as the district court had “dismissed all claims over which

it ha[d] original jurisdiction,” we find no abuse of discretion in

the district court’s dismissal of Bradford’s assault and battery

claim under 28 U.S.C. § 1367. See McCelland v. Gronwaldt, 155 F.3d

507, 519-20 (5th Cir. 1998) (“[W]hen all federal claims are

dismissed or otherwise eliminated from a case prior to trial, we

have stated that our ‘general rule’ is to decline to exercise

jurisdiction over the pendent state law claims.”) (citing Wong v.

Stripling, 881 F.2d 200, 204 (5th Cir. 1989)).3

IV. CONCLUSION

Upon review of the district court’s grant of summary judgment

in favor of GB&L on Bradford’s retaliation claim and its judgment

3 Title 28 U.S.C. § 1367 provides, in relevant part, that:

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if – (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. (5) 28 U.S.C. § 1367©) (2000). -Page 11- declining to exercise supplemental jurisdiction over Bradford’s

pendent state law claim for assault and battery, we AFFIRM.

-Page 12-