UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11225 Summary Calendar
BLANDINA A M FRITZ,
Plaintiff-Appellant,
VERSUS
MINERAL WELLS INDEPENDENT SCHOOL DISTRICT; RAY M CRASS, Superintendant,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas (99-CV-888) October 5, 2001 Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
I. PROCEEDINGS BELOW
Pursuant to a complaint filed with the Equal Employment
Opportunity Commission ("EEOC"), Blandina Fritz, acting pro se,
filed a complaint against her former employer, the Mineral Wells,
Texas, Independent School District ("MWISD") and its
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 Superintendent. The trial court found it impossible to determine
the nature of the complaint from its face, but presumed from the
volume of papers submitted with the complaint that it probably
asserted an employment discrimination claim under Title VII, 42
U.S.C. § 2000e, et. seq., on the basis of sex and national origin
and under the Age Discrimination in Employment Act, 29 U.S.C. §
631, et. seq. ("ADEA"). The court granted Ms. Fritz time to amend
her complaint, which she did. The amended complaint still did not
specify the nature of her claim. The district judge proceeded on
the basis that the claims were those stated in Ms. Fritz' EEOC
complaint, namely, for violations of Title VII and the ADEA. The
trial court granted Ms. Fritz' motion to proceed in forma pauperis
and denied her motion for assigned counsel. On August 31, 2000,
MWISD moved for summary judgment. Ms. Fritz did not file a
response to MWISD's motion, which was granted on October 10, 2000.
Ms. Fritz now appeals on the issues of whether the district
court erred (1) in not finding discrimination and retaliation by
the defendant; (2) in granting summary judgment; and (3) "by
disregarding Appellant's shock and physical deterioration as an
incontrovertible proof of innocence." The broadest possible
reading of Ms. Fritz' complaint and arguments does not reveal any
issue of retaliation in the Title VII and ADEA context before the
trial court and we will not consider it here. Further, Ms. Fritz'
third issue is incomprehensible and will not be considered. Our
2 review will focus on whether summary judgment for MWISD on Ms.
Fritz' claims of discrimination under Title VII and the ADEA is
appropriate. Because our analysis leads us to the same conclusion
as the trial court, we AFFIRM.
II. BACKGROUND
Ms. Fritz, a native of Mexico, was hired as a teacher's aide
by the Mineral Wells Independent School District on August 11,
1995, as an at-will employee. She worked at the Travis Elementary
School until January 20, 1998, when she transferred to the Life
Skills Class at Mineral Wells High School. Although the record
reflects that MWISD was concerned with Ms. Fritz' ability to follow
directions while employed at Travis Elementary, the thrust of this
case centers on her employment at Mineral Wells High School.
The Life Skills Class teaches special education students
certain skills for coping with day to day life and includes
students with both learning and physical disabilities. Ms. Fritz
worked subject to Ms. Barbara Cranfill's direction.
Ms. Cranfill found that Ms. Fritz frequently disobeyed her
direct instructions. These included to refrain from contradicting
Ms. Cranfill to the students, how and when to talk to various
students, whether to assist them in cleaning their stations, and
how to assist them physically. Ms. Cranfill provided in-service
training to Ms. Fritz on the use of hydraulic lift equipment
required by some students, to find her instructions ignored at the
peril of a student. Ms. Cranfill attempted to correct Ms. Fritz
3 verbally and in writing, and kept a detailed written notebook of
events. MWISD terminated Ms. Fritz on October 5, 1998, for failing
to follow instructions and for putting students' safety at risk.
She was replaced by Ms. Deloris Suffka.
Ms. Fritz originally brought her complaint against MWISD and
its Superintendent, Ray Crass. Her amended complaint did not name
Mr. Crass as a defendant.
III. ANALYSIS
This court conducts a de novo review of a grant of summary
judgment, ensuring that no genuine issue of material fact exists
and that judgment in favor of the appellee was warranted as a
matter of law. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th
Cir. 2000). Under FED. R. CIV. P. 56(c), summary judgment is
appropriate when the evidence, viewed in the light most favorable
to the non-movant, reflects no genuine issues of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 2552-53, 91 L. Ed. 2d 265 (1986); Hall v. Gillman, Inc., 81
F.3d 35, 36-37 (5th Cir. 1996).
A plaintiff's failure to respond to a motion for summary
judgment does not, by itself, support granting summary judgment.
The moving defendant must establish the absence of a genuine issue
of material fact. See John v. Louisiana, 757 F.2d 698, 709 (5th
Cir. 1985); Ceasar v. Lamar Univ., 147 F. Supp. 2d 547, 550 (E.D.
Tex. 2001). However, the court will assume that the movant's facts
4 as claimed and supported by admissible evidence are admitted to
exist without controversy, unless controverted in an opposing
statement of genuine issues which is supported by proper summary
judgment evidence. Ceasar, 147 F. Supp. 2d at 550.
A. TITLE VII CLAIMS.
Under Title VII analysis, (1) a plaintiff must establish a
prima facie case of discrimination; (2) the defendant may then
offer a valid, non-discriminatory reason for the alleged
discriminatory action; and, (3) the plaintiff then must show that
the defendant’s offered reason is merely pretext. See McDonnell
Douglas v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L.
Ed. 2d 668 (1973). The Title VII plaintiff bears at all times the
“ultimate burden of persuasion.” See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407
(1993).
A prima facie claim is established when a plaintiff shows that
she is a member of a protected class under Title VII; that she was
qualified for the position; that she suffered an adverse employment
decision; and that the adverse employment decision was
differentially applied to her. See McDonnell Douglas, 411 U.S. at
802; Rubenstein v. Adm'rs of the Tulane Educ.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11225 Summary Calendar
BLANDINA A M FRITZ,
Plaintiff-Appellant,
VERSUS
MINERAL WELLS INDEPENDENT SCHOOL DISTRICT; RAY M CRASS, Superintendant,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas (99-CV-888) October 5, 2001 Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
I. PROCEEDINGS BELOW
Pursuant to a complaint filed with the Equal Employment
Opportunity Commission ("EEOC"), Blandina Fritz, acting pro se,
filed a complaint against her former employer, the Mineral Wells,
Texas, Independent School District ("MWISD") and its
* 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 Superintendent. The trial court found it impossible to determine
the nature of the complaint from its face, but presumed from the
volume of papers submitted with the complaint that it probably
asserted an employment discrimination claim under Title VII, 42
U.S.C. § 2000e, et. seq., on the basis of sex and national origin
and under the Age Discrimination in Employment Act, 29 U.S.C. §
631, et. seq. ("ADEA"). The court granted Ms. Fritz time to amend
her complaint, which she did. The amended complaint still did not
specify the nature of her claim. The district judge proceeded on
the basis that the claims were those stated in Ms. Fritz' EEOC
complaint, namely, for violations of Title VII and the ADEA. The
trial court granted Ms. Fritz' motion to proceed in forma pauperis
and denied her motion for assigned counsel. On August 31, 2000,
MWISD moved for summary judgment. Ms. Fritz did not file a
response to MWISD's motion, which was granted on October 10, 2000.
Ms. Fritz now appeals on the issues of whether the district
court erred (1) in not finding discrimination and retaliation by
the defendant; (2) in granting summary judgment; and (3) "by
disregarding Appellant's shock and physical deterioration as an
incontrovertible proof of innocence." The broadest possible
reading of Ms. Fritz' complaint and arguments does not reveal any
issue of retaliation in the Title VII and ADEA context before the
trial court and we will not consider it here. Further, Ms. Fritz'
third issue is incomprehensible and will not be considered. Our
2 review will focus on whether summary judgment for MWISD on Ms.
Fritz' claims of discrimination under Title VII and the ADEA is
appropriate. Because our analysis leads us to the same conclusion
as the trial court, we AFFIRM.
II. BACKGROUND
Ms. Fritz, a native of Mexico, was hired as a teacher's aide
by the Mineral Wells Independent School District on August 11,
1995, as an at-will employee. She worked at the Travis Elementary
School until January 20, 1998, when she transferred to the Life
Skills Class at Mineral Wells High School. Although the record
reflects that MWISD was concerned with Ms. Fritz' ability to follow
directions while employed at Travis Elementary, the thrust of this
case centers on her employment at Mineral Wells High School.
The Life Skills Class teaches special education students
certain skills for coping with day to day life and includes
students with both learning and physical disabilities. Ms. Fritz
worked subject to Ms. Barbara Cranfill's direction.
Ms. Cranfill found that Ms. Fritz frequently disobeyed her
direct instructions. These included to refrain from contradicting
Ms. Cranfill to the students, how and when to talk to various
students, whether to assist them in cleaning their stations, and
how to assist them physically. Ms. Cranfill provided in-service
training to Ms. Fritz on the use of hydraulic lift equipment
required by some students, to find her instructions ignored at the
peril of a student. Ms. Cranfill attempted to correct Ms. Fritz
3 verbally and in writing, and kept a detailed written notebook of
events. MWISD terminated Ms. Fritz on October 5, 1998, for failing
to follow instructions and for putting students' safety at risk.
She was replaced by Ms. Deloris Suffka.
Ms. Fritz originally brought her complaint against MWISD and
its Superintendent, Ray Crass. Her amended complaint did not name
Mr. Crass as a defendant.
III. ANALYSIS
This court conducts a de novo review of a grant of summary
judgment, ensuring that no genuine issue of material fact exists
and that judgment in favor of the appellee was warranted as a
matter of law. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th
Cir. 2000). Under FED. R. CIV. P. 56(c), summary judgment is
appropriate when the evidence, viewed in the light most favorable
to the non-movant, reflects no genuine issues of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 2552-53, 91 L. Ed. 2d 265 (1986); Hall v. Gillman, Inc., 81
F.3d 35, 36-37 (5th Cir. 1996).
A plaintiff's failure to respond to a motion for summary
judgment does not, by itself, support granting summary judgment.
The moving defendant must establish the absence of a genuine issue
of material fact. See John v. Louisiana, 757 F.2d 698, 709 (5th
Cir. 1985); Ceasar v. Lamar Univ., 147 F. Supp. 2d 547, 550 (E.D.
Tex. 2001). However, the court will assume that the movant's facts
4 as claimed and supported by admissible evidence are admitted to
exist without controversy, unless controverted in an opposing
statement of genuine issues which is supported by proper summary
judgment evidence. Ceasar, 147 F. Supp. 2d at 550.
A. TITLE VII CLAIMS.
Under Title VII analysis, (1) a plaintiff must establish a
prima facie case of discrimination; (2) the defendant may then
offer a valid, non-discriminatory reason for the alleged
discriminatory action; and, (3) the plaintiff then must show that
the defendant’s offered reason is merely pretext. See McDonnell
Douglas v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L.
Ed. 2d 668 (1973). The Title VII plaintiff bears at all times the
“ultimate burden of persuasion.” See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407
(1993).
A prima facie claim is established when a plaintiff shows that
she is a member of a protected class under Title VII; that she was
qualified for the position; that she suffered an adverse employment
decision; and that the adverse employment decision was
differentially applied to her. See McDonnell Douglas, 411 U.S. at
802; Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392,
399 (5th Cir. 2000).
Ms. Fritz meets the first three elements of the prima facie
cases. She is both female and of Mexican origin and appears to
5 have asserted that she was fired because of one or both of those
reasons. She was employed by MWISD for over three years as a
qualified aide. Her termination was an adverse employment action.
However, she has not adduced a single piece of competent evidence
of any type to show that her treatment was different in any way
because of either her gender or her national origin. Her
voluminous filings at the district court level and on appeal are
replete with her perspective that she was humiliated and sorely put
upon by MWISD and its employees, most notably Ms. Cranfill. She
does not show how her perceived mistreatment relates to either sex
or nationality. None of her opinions and personal observations
regarding her general dissatisfaction constitute evidence.
Therefore, she has failed to establish a prima facie case under
Title VII.
Furthermore, MWISD has offered two legitimate, non-
discriminatory reasons for Ms. Fritz's termination. Those reasons
were her inability and failure to follow verbal and written
instructions, and her endangerment of students by using improper
safety techniques. MWISD has supported its reasons with competent
summary judgment evidence, including detailed notes taken by Ms.
Cranfill in the course of Ms. Fritz' employment and Ms. Fritz' own
deposition testimony. Ms. Fritz submitted nothing in opposition in
the district court and none of the material she has submitted on
appeal creates a genuine issue of material fact.
6 Because Ms. Fritz failed to establish a prima facie case and
because MWISD has demonstrated that there is no genuine issue of
material fact while Ms. Fritz has offered nothing in opposition,
her Title VII claim fails.
B. ADEA CLAIM.
ADEA analysis is similar to that of Title VII. The protected
class under the ADEA includes all those who "are at least 40 years
of age." 29 U.S.C. § 631(a). The fourth element the plaintiff
must show in making her prima facie case is different from that
under Title VII. In the ADEA context, the fourth element requires
the plaintiff to prove that she was (1) replaced by someone outside
the class, (2) replaced by someone younger, or (3) simply
discharged because of age. See Bauer v. Albemarle Corp., 169 F.3d
962, 966 (5th Cir. 1999).
Here, Ms. Fritz was replaced by Ms. Deloris Suffka which makes
the third alternative immaterial. At the time she was terminated
and replaced, Ms. Fritz was fifty-nine years old, well within the
class protected by the ADEA. Ms. Suffka was also fifty-nine years
old. Therefore, Ms. Suffka was not "outside the class" and the
first alternative is eliminated. Ms. Suffka was three months
younger than Ms. Fritz. Such a minor difference is insignificant.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312-13, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996); Ross v.
Univ. of Texas at San Antonio, 139 F.3d 521, 525 (5th Cir. 1998).
7 Therefore, the second alternative is eliminated.
Because Ms. Fritz cannot establish a prima facie case, her
ADEA claim fails. Even had she established a prima facie case,
MWISD's legitimate, non-discriminatory reasons for having
terminated her remain well supported with summary judgment evidence
and uncontroverted by Ms. Fritz.
IV. CONCLUSION
For all the reasons stated herein, IT IS ORDERED that the
judgment of the trial court is AFFIRMED.
IT IS FURTHER ORDERED that Appellant’s motion attempting a
modification of the discovery control plan is DENIED.
IT IS FURTHER ORDERED that Appellant’s motion to recover the
cost of the transcript of deposition from the Appellee is DENIED.
IT IS FURTHER ORDERED that Appellee’s motion for partial
dismissal of appeal as to Ray M. Crass only is GRANTED.
IT IS FURTHER ORDERED that Appellant’s motion to amend her
brief of June 6, 2001 adding two missing brochures treated as
motion to allow attachment to brief as a supplement is DENIED.
IT IS FURTHER ORDERED that Appellee’s motion to file out of
time its reply to Appellant’s response to the Appellee’s motion to
dismiss Ray M. Crass is DENIED as MOOT.