UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 95-50045 Summary Calendar _____________________
OTHA LEE FIELDS,
Plaintiff-Appellant,
versus
PHILLIPS SCHOOL OF BUSINESS AND TECHNOLOGY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A-93-CA-553) _________________________________________________________________ June 21, 1995
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Otha Lee Fields, pro se and in forma pauperis, contests the
adverse summary judgment on his employment discrimination claims
against Phillips School of Business and Technology. We AFFIRM.
I.
Fields was employed by Phillips as an admissions counselor
from September 1991 until his termination in May 1992. In June
1992, he filed an EEOC charge, claiming that Phillips discriminated
1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published. against him on the basis of his race, by failing to promote him and
by terminating him; he later withdrew that charge. In January
1993, Fields filed a second EEOC charge, claiming that Phillips
gave a negative reference to a prospective employer in retaliation
for his filing the first charge. The EEOC issued a right to sue
letter that June, and Fields filed a Title VII action against
Phillips in September. The district court granted summary judgment
to Phillips.
II.
Fields' pro se brief, liberally construed, asserts that
summary judgment was inappropriate because Phillips (1) failed to
promote him and terminated him based on his race and national
origin; (2) gave false references to a prospective employer in
retaliation for his filing an EEOC charge; and (3) owes him back
pay.2
2 Fields' brief does not comply with the Federal Rules of Appellate Procedure or our local rules. For example, it contains no citations to the record, no table of cases, and no statement of issues. Moreover, it includes copies of documents which are not in the record. Phillips, however, responded fully to Fields' contentions and did not object to the unconventional format of his brief. Because Fields' nonconformance with the rules apparently is not in bad faith, we have not penalized him by striking his brief or dismissing his appeal as frivolous. Fields is cautioned, however, against any future failure to comply with the rules.
For the first time on appeal, Fields contends that summary judgment was inappropriate because Phillips did not respond to discovery. Fields did not move to compel discovery in the district court, and he did not assert a need for additional discovery in his opposition to summary judgment. Therefore, we decline to exercise our discretion to consider this contention. See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994) (applying, in civil case, plain error analysis of United States v. Olano, ___ U.S. ___, 113 S. Ct. 1770 (1993)), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995).
- 2 - Our review of summary judgment is de novo. E.g., FDIC v.
Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992). Such judgment
"shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The movant has the
initial burden of demonstrating the absence of a genuine issue of
material fact. St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937
F.2d 274, 279-80 & n.6 (5th Cir. 1991). If the movant satisfies
that burden, the non-movant must identify specific evidence in the
summary judgment record demonstrating that there is a genuine issue
of material fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986).
A.
Field admitted that he withdrew his June 1992 EEOC charge
asserting that he was not promoted and was terminated because of
his race. Because the record contains no right to sue letter for
those claims, the district court correctly granted summary judgment
against them. See, e.g., Reeves v. MCI Telecommunications Corp.,
909 F.2d 144, 145 (5th Cir. 1990) (right to sue letter is a
prerequisite to maintaining a Title VII suit).3
3 Summary judgment was also appropriate on Fields' national origin discrimination claim. The record contains no right to sue letter for that claim, because Fields never made such a charge to the EEOC.
- 3 - B.
To establish a prima facie case of retaliation under Title
VII, Fields was required to demonstrate "(1) that he engaged in
activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link between participation
in the protected activity and the adverse employment decision
exists". Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277,
1300 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1099
(1995). It is undisputed that Fields engaged in protected activity
when he filed his first EEOC charge, and that Phillips' negative
reference to a prospective employer was an adverse employment
action. The district court held that Fields failed to establish a
material fact issue as to the third element -- a causal link
between Fields' filing the charge and Phillips' negative reference.
In response to a request by the Internal Revenue Service,
where Fields had applied for employment, Phillips (through its
representative, Chunn) completed a form on which it checked boxes
indicating that Fields was "below average" in the categories of
"quality of work", "judgment", "dependability", and "flexibility".
It noted also on the form that Fields "was terminated from his job
here due to tardiness, insubordination". The form contains no
reference to Fields' EEOC charge. In Chunn's affidavit, submitted
in support of Phillips' summary judgment motion, she stated that
her evaluation of Fields was based upon Phillips' business records
and her personal observations of Fields during his employment with
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 95-50045 Summary Calendar _____________________
OTHA LEE FIELDS,
Plaintiff-Appellant,
versus
PHILLIPS SCHOOL OF BUSINESS AND TECHNOLOGY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (A-93-CA-553) _________________________________________________________________ June 21, 1995
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Otha Lee Fields, pro se and in forma pauperis, contests the
adverse summary judgment on his employment discrimination claims
against Phillips School of Business and Technology. We AFFIRM.
I.
Fields was employed by Phillips as an admissions counselor
from September 1991 until his termination in May 1992. In June
1992, he filed an EEOC charge, claiming that Phillips discriminated
1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published. against him on the basis of his race, by failing to promote him and
by terminating him; he later withdrew that charge. In January
1993, Fields filed a second EEOC charge, claiming that Phillips
gave a negative reference to a prospective employer in retaliation
for his filing the first charge. The EEOC issued a right to sue
letter that June, and Fields filed a Title VII action against
Phillips in September. The district court granted summary judgment
to Phillips.
II.
Fields' pro se brief, liberally construed, asserts that
summary judgment was inappropriate because Phillips (1) failed to
promote him and terminated him based on his race and national
origin; (2) gave false references to a prospective employer in
retaliation for his filing an EEOC charge; and (3) owes him back
pay.2
2 Fields' brief does not comply with the Federal Rules of Appellate Procedure or our local rules. For example, it contains no citations to the record, no table of cases, and no statement of issues. Moreover, it includes copies of documents which are not in the record. Phillips, however, responded fully to Fields' contentions and did not object to the unconventional format of his brief. Because Fields' nonconformance with the rules apparently is not in bad faith, we have not penalized him by striking his brief or dismissing his appeal as frivolous. Fields is cautioned, however, against any future failure to comply with the rules.
For the first time on appeal, Fields contends that summary judgment was inappropriate because Phillips did not respond to discovery. Fields did not move to compel discovery in the district court, and he did not assert a need for additional discovery in his opposition to summary judgment. Therefore, we decline to exercise our discretion to consider this contention. See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994) (applying, in civil case, plain error analysis of United States v. Olano, ___ U.S. ___, 113 S. Ct. 1770 (1993)), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995).
- 2 - Our review of summary judgment is de novo. E.g., FDIC v.
Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992). Such judgment
"shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The movant has the
initial burden of demonstrating the absence of a genuine issue of
material fact. St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937
F.2d 274, 279-80 & n.6 (5th Cir. 1991). If the movant satisfies
that burden, the non-movant must identify specific evidence in the
summary judgment record demonstrating that there is a genuine issue
of material fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986).
A.
Field admitted that he withdrew his June 1992 EEOC charge
asserting that he was not promoted and was terminated because of
his race. Because the record contains no right to sue letter for
those claims, the district court correctly granted summary judgment
against them. See, e.g., Reeves v. MCI Telecommunications Corp.,
909 F.2d 144, 145 (5th Cir. 1990) (right to sue letter is a
prerequisite to maintaining a Title VII suit).3
3 Summary judgment was also appropriate on Fields' national origin discrimination claim. The record contains no right to sue letter for that claim, because Fields never made such a charge to the EEOC.
- 3 - B.
To establish a prima facie case of retaliation under Title
VII, Fields was required to demonstrate "(1) that he engaged in
activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link between participation
in the protected activity and the adverse employment decision
exists". Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277,
1300 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1099
(1995). It is undisputed that Fields engaged in protected activity
when he filed his first EEOC charge, and that Phillips' negative
reference to a prospective employer was an adverse employment
action. The district court held that Fields failed to establish a
material fact issue as to the third element -- a causal link
between Fields' filing the charge and Phillips' negative reference.
In response to a request by the Internal Revenue Service,
where Fields had applied for employment, Phillips (through its
representative, Chunn) completed a form on which it checked boxes
indicating that Fields was "below average" in the categories of
"quality of work", "judgment", "dependability", and "flexibility".
It noted also on the form that Fields "was terminated from his job
here due to tardiness, insubordination". The form contains no
reference to Fields' EEOC charge. In Chunn's affidavit, submitted
in support of Phillips' summary judgment motion, she stated that
her evaluation of Fields was based upon Phillips' business records
and her personal observations of Fields during his employment with
- 4 - Phillips, and denied that the evaluation was motivated by malice,
ill-will, or Fields' EEOC charge.
The district court held that Fields had offered no evidence of
retaliation other than general allegations that the reference given
to the IRS was "erroneous" and that there was "no reasonable
explanation for the reference given". We agree with the district
court that Fields' self-serving, generalized assertions of his
subjective belief that Phillips gave a negative reference to the
IRS in retaliation for his filing an EEOC charge are insufficient
to preclude summary judgment. See Grizzle v. Travelers Health
Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (plaintiff's "self-
serving generalized testimony stating her subjective belief that
discrimination occurred ... is simply insufficient to support a
jury verdict in plaintiff's favor").
C.
Fields secured a determination by the Texas Employment
Commission (TEC) that Phillips owed him $3,450 for unpaid
commissions earned during his employment; and Phillips paid Fields
that amount. Fields contends that he is entitled to additional
commissions. The district court held that, because Fields did not
request a hearing to contest the TEC's wage determination order,
that order was final, and he was not entitled to judicial review of
it. See Tex. Labor Code Ann. § 61.055 (Vernon Pamphlet 1995). We
agree.
- 5 - III.
For the foregoing reasons, the judgment is
AFFIRMED.
- 6 -