Bradley v. Boysville, Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2000
• Docket: 00-50235
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50235 Summary Calendar

KIMBERLY BRADLEY,

Plaintiff-Appellant, versus

BOYSVILLE, INC, a not for profit corporate body; BOYSVILLE, INC.’S NAMED AND UNNAMED BOARD OF DIRECTORS, OFFICERS AND SUBSTITUTIONS; ROBERT C. COLE, President of Boysville, Inc.; CHARLES W. LUTTER, JR. Vice-President of Boysville, Inc.; RUDY s. TREVINO, Secretary of Boysville, Inc.; HAROLD PUTNAM, JR., Treasurer of Boysville, Inc.; JOHN W. ROBB, Assistant Secretary/Treasurer of Boysville, Inc.; LENNA J. BAXTER, Executive Director of Boysville, Inc.; BOYSVILLE, A SAN ANTONIO HOME FOR CHILDREN

Defendants-Appellees,

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CA-0168 -------------------- November 21, 2000

Before SMITH, BENAVIDES, and DENNIS Circuit Judges.

* PER CURIAM: Kimberley Bradley appeals two orders from the Western

District of Texas: (1) the summary judgment dismissal of her

discrimination claims against Boysville, Inc. (Boysville) and its

officers and directors (Boysville Officials)(collectively, the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 Defendants), and (2) a discovery order compelling her to respond

to certain interrogatories from the Defendants. We AFFIRM the

judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Bradley began working as a child care worker at

Boysville, a non-profit shelter for abused and neglected

children. She worked a shift from 3:00 pm to 11:00 pm on

weekdays. At the time that Boysville hired Bradley, and

throughout her employment, she was not married.

Boysville considers it essential to its mission to provide

the children in its care with positive role models. As a

consequence, Boysville maintains a written policy that all staff

members must “conduct their personal and professional lives with

unquestionable conduct and high moral standards.”

On May 18, 1998, Bradley informed her supervisor that she

was pregnant. The next day, Boysville’s Executive Director,

Lenna Baxter, told Bradley that her shift would be changed to

11:00 pm to 7:00 am to minimize her contact with children.

Baxter explained that if Bradley was unwilling to accept the

shift change, she would be terminated. Bradley initially refused

to work the new shift. Approximately two weeks later, Bradley

changed her mind and offered to work the 11:00 pm to 7:00 am

shift. At that point, however, the position had already been

filled.

2 On May 21, 1998, Bradley filed a sex discrimination

complaint with the Equal Employment Opportunity Commission

(EEOC). She subsequently brought suit against Boysville and the

Boysville Officials alleging sex and racial discrimination, as

well as retaliation, under 42 U.S.C. § 2000e et seq. and 42

U.S.C. § 1981.

On June 4, 1999, Boysville served on Bradley its First Set

of Interrogatories which contained 21 numbered questions. On

July 5, 1999, Bradley delivered a letter to Boysville stating

that the responses would be delivered by July 25, 1999. Counsel

for Boysville notified Bradley’s counsel that July 7 was the

deadline for responding to the interrogatories under the Federal

Rules of Civil Procedure. After a second inquiry from Boysville,

Bradley responsed to the first 8 of the 21 interrogatories

submitted by Boysville on August 5. Bradley claimed that the

first 8 numbered interrogatories were actually 20 separate

interrogatories and that under Local Court Rule CV-33, Bradley

was not required to respond to more than 20 interrogatories.

After a third request for response to the interrogatories

originally submitted, Boysville filed a motion to compel with the

district court.

On September 3, 1999, the district court granted Boysville’s

motion to compel and ordered Bradley’s counsel to pay Boysville’s

costs of $700.00 related to the motion pursuant to Federal Rule

of Civil Procedure 37(a)(4)(A). The district court denied

3 Boysville’s requests for discretionary sanctions. On September

24, 1999, the district court denied a motion for reconsideration

of this order. On February 23, 2000, the district court granted

summary judgment to the Defendants on all Bradley’s claims.

DISCUSSION

We review Bradley’s discovery related issues before turning

to the district court’s summary ruling on her substantive

discrimination claims.

I. Discovery Issues

District courts have wide discretion in determining the

scope and effect of discovery. Quintero v. Klaveness Ship

Lines, 914 F.2d 717, 724 (5th Cir. 1990), cert. denied, 499 U.S.

925 (1991); Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir.

1982). We review decisions of district courts on discovery

matters solely for abuse of this discretion. Jerry Parks

Equipment Co. v. Southwest Equipment Co., 817 F.2d 340, 342 (5th

Cir. 1987). Such abuse is unusual, see Sanders, 678 F.2d at 618,

and will only be found where a ruling “results in substantial

prejudice to the rights of the parties....” Huff v. N.D. Cass

Co., 468 F.2d 172, 176 (5th Cir. 1972), aff'd in part, vacated

and remanded in part on other grounds, 485 F.2d 710, 712 (5th

Cir. 1973)(en banc)(approving panel opinion’s resolution of

discovery issues).

4 Bradley complains that (1) she should not have been

compelled to answer Boysville’s interrogatories based on the

express language of Local Rule CV-33, and (2) her attorney should

not have been required to pay Boysville’s attorneys’ fees of $700

pursuant to Federal Rule of Civil Procedure 37(a)(4)(A). The

district court did not abuse its discretion in compelling Bradley

to respond to Boysville’s first set of interrogatories since

Bradley’s resistance was without merit. Indeed, as the district

court noted, the leading treatise on the federal rules of civil

procedure explains that when an inquiry is broken into individual

parts that relate to a single theme, that inquiry is counted as a

single interrogatory. 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE, § 2168.1 (“[A]n interrogatory directed

at eliciting details concerning a common theme should be

considered a single question.”) Bradley offers no contrary

authority. The language of the Local Rule on which Bradley

founds its position merely clarifies that sub-parts shall not be

used to inquire about areas unrelated to the theme of the

interrogatory. More importantly, the Local Rule expressly allows

as single questions two of the multi-part interrogatories that

Bradley counted as multiple questions. In short, the district

court was well within its discretion when it compelled Bradley to

answer Boysville’s first 20 interrogatories.

With respect to the award of attorneys’ fees, the district

court merely followed the language of Federal Rule of Civil

5 Procedure 37(a)(4)(A). According to the Supreme Court, that rule

“was designed to protect courts and opposing parties from

delaying or harassing tactics during the discovery process.”

Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 209, 119 S.Ct.

1915 (1999). Amendments to the rule in 1970 announced a

presumption in favor of awarding fees against a party that caused

the filing of a motion to compel. Id. at 209, n.5. In its

present form, the rule provides in relevant part that:

the court shall . . . require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct . . . to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds . . . that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

FED. R. CIV. P. 37(a)(4)(A).

Though this circuit has not explicitly developed the meaning

of “substantially justified” in this context, the Eleventh

circuit recently held that the term “means that reasonable people

could differ as to appropriateness of the contested action.”

Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th

Cir. 1997); see also Pierce v. Underwood, 487 U.S. 552, 564, 108

S.Ct. 2541 (1988). Aside from the language of Local Rule CV-33,

which we have already noted directly contradicts Bradley’s

position, at least in part, Bradley has offered no authority to

support his resistance to the interrogatories. Thus, the

6 district court did not abuse its discretion in determining that

Bradley was not “substantially justified” in refusing to answer

Boysville’s interrogatories numbered 9 through 20.

II. Summary Judgment on Discrimination Claims

The district court granted summary judgment in favor of

Boysville on Bradley’s claims of sex and race discrimination, as

well as her claim for retaliation. This Court reviews a grant of

summary judgment de novo. Norman v. Apache Corp., 19 F.3d 1017,

1021 (5th Cir. 1994). Summary judgment is proper when the

evidence reflects no genuine issues of material fact and the non-

movant is entitled to judgment as a matter of law. FED. R. CIV.

P. 56(c). A genuine issue of material fact exists “if the

evidence is such that a reasonable jury could return a verdict

for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). In evaluating a grant of summary judgment,

we must view all evidence in the light most favorable to the

party opposing the motion and draw all reasonable inferences in

that party’s favor. Id. at 255.

Bradley raises three classes of Title VII claims against the

Defendants: sex and pregnancy discrimination, race discrimination

and retaliation. We review each separately.

A. Sex Discrimination

7 Bradley alleges that in enforcing its policy on morality,

Boysville discriminated against her on the basis of her sex and

because she was pregnant.

To survive summary judgment on her claim that Boysville

enforced its morality policy against her in a discriminatory

manner, Bradley must present direct evidence of discrimination,

statistical evidence suggesting discrimination, or establish a

prima facie case of discrimination under the McDonnell Douglas

standard. Urbano v. Continental Airlines, Inc., 138 F.3d 204,

206 (5th Cir. 1998). As the district court noted, the precise

theory of Bradley’s case is unclear. Bradley has offered no

direct evidence of discrimination. To the extent that Bradley

alleges Boysville’s facially-neutral morality policy has a

disparate impact on all women or all pregnant women, she must

present evidence of an impact on women beyond her own situation.

See Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000). She has

presented no such evidence and therefore the district court

properly dismissed her claim in this regard.

Bradley has also failed to make out the elements of a prima

facie case. A prima facie case consists of proof showing each of

four elements: (1) the plaintiff is a member of a protected

group; (2) she was qualified for her job; (3) she suffered

adverse employment discrimination; and (4) others similarly

situated were treated differently. McDonnell Douglas Corp. v.

Green, 93 S.Ct. 1817, 1824 (1973); Urbano, 138 F.3d at 206. To

8 establish the fourth element, Bradley must provide some proof

that others similarly situated, e.g. men that parented children

out of wedlock, were treated differently.

The district court correctly concluded that Bradley has

offered insufficient evidence on the fourth element. As evidence

of “discrimination,” Bradley offers an EEOC finding that

Boysville discriminated against her because of her pregnancy.

Yet the EEOC finding, even assuming arguendo that it is proper

summary judgment evidence, fails to describe or demonstrate that

Boysville applied its morality policy any differently to men

generally or to men that had fathered children out of wedlock.

The only other evidence that Bradley offers in this regard is a

response to a hypothetical question by a Boysville director in

which the director stated that men that fathered children out of

wedlock “may” have been treated identically to Bradley. Yet this

statement alone does not support a reasonable inference that

Boysville illegally discriminated against Bradley on the basis of

her sex or her pregnancy. See Byrd v. Roadway Exp., Inc., 687

F.2d 85, 86 (5th Cir. 1982). Since Bradley has not proven a

prima facie case, we need not reach Boysville’s bona fide

occupational requirement defense.

B. Race Discrimination

In discrimination cases, the court must ultimately decide,

while viewing all of the evidence in a light most favorable to

9 the plaintiff, whether a reasonable jury could infer

discrimination by the employer. See Reeves v. Sanderson Products

Inc., 120 S.Ct. 2097, 2106 (2000). In making this determination,

a court should consider “the strength of the plaintiff’s prima

facie case, the probative value of the proof that the employer’s

explanation is false, and any other evidence that supports the

employer’s case. . . .” Id. at 2108. The district court

properly concluded that Bradley has offered absolutely no

evidence that could support even a prima facie case of racial

discrimination by Boysville, much less a reasonable inference of

racial discrimination in light of Boysville’s facially neutral

morality policy.

C. Retaliation

In this circuit, a Title VII retaliation claim requires

proof of three elements: (1) the employee engaged in activity

protected by Title VII, (2) the employer took adverse employment

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

between the protected activity and the adverse employment action.

See Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.

1992). With respect to the second element, this circuit requires

that plaintiffs allege an “ultimate employment decision” such as

“hiring, granting leave, discharging, promoting, and

compensating.” Burger v. Central Apartment Management, Inc., 168

F.3d 875, 878 (5th Cir. 1999); Mattern v. Eastman Kodak Co., 104

10 F.3d 702, 707 (5th Cir. 1997)(quoting Dollis v. Rubin, 77 F.3d

777, 781-82 (5th Cir. 1995)).

Bradley argues that Boysville retaliated against her for

filing an EEOC complaint by (1) lying to the Texas Workforce

Commission by indicating that she quit rather than work her

assigned shift, and (2) denying her a grievance proceeding in

accordance with Boysville policy. The district court correctly

concluded that neither of these retaliatory acts alleged by

Bradley constitute ultimate employment actions. Indeed, both of

these decisions took place after the ultimate employment action

that led to Bradley filing a complaint with the EEOC. Standing

alone, they do not satisfy the requirement of an ultimate

employment action. See Messer v. Meno, 130 F.3d 130, 140 (5th

Cir. 1997).

CONCLUSION

While Bradley may have been terminated because she parented

a child out of wedlock, she offers no evidence that supports her

claims of discrimination on the basis of sex and race, or her

claims of retaliation. Therefore, the district court properly

granted summary judgment to Boysville on all claims. With

respect to Bradley’s discovery issues, the district court acted

within its discretion both in compelling Bradley to respond to

Boysville’s first 20 interrogatories and taxing Bradley’s

attorney with Boysville’s reasonable costs in filing the motion

to compel. Accordingly, we AFFIRM.

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