Lewis v. 20th-82nd Jud Dist

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 29, 1999
• Docket: 99-50189
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 99-50189 Summary Calendar ____________________

ELIZABETH T LEWIS,

Plaintiff-Appellant,

v.

20TH-82ND JUDICIAL DISTRICT JUVENILE PROBATION DEPARTMENT,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (W-98-CV-301) _________________________________________________________________

July 29, 1999

Before KING, Chief Judge, and POLITZ and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Elizabeth T. Lewis appeals the district

court’s grant of defendant-appellee’s motion for summary judgment

on plaintiff-appellant’s claims that she was terminated because

of her national origin/race, sex, and age. She also appeals the

district court’s denial of two subsequent motions brought

pursuant to Federal Rules of Civil Procedure 59 and 60. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff-appellant Elizabeth T. Lewis, an Hispanic female

over forty years of age, worked as a probation officer in the

Cameron, Texas office of defendant-appellee 20th-82nd Judicial

District Juvenile Probation Department (defendant or the

Department). She was hired by Debra Dillenberger, the Chief

Juvenile Probation Officer for the Department, in September 1990.

Seven years later, in August 1997, Pete Ortega, Dillenberger’s

second-in-command, informed Lewis of her termination per

Dillenberger’s instructions.

According to Lewis, she was fired because of her national

origin/race, sex, and age. She filed a discrimination charge

with the Equal Employment Opportunity Commission in March 1998

and was issued a right to sue letter. Lewis thereafter filed a

complaint in the United States District Court for the Western

District of Texas, Austin Division, on June 25, 1998, alleging

violations of Title VII of the Civil Rights Act of 1964 (Title

VII), 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. §§ 621-634.

On December 11, 1998, defendant filed a motion for summary

judgment. Defendant’s summary judgment evidence consisted of the

affidavits of Dillenberger and Ortega and Lewis’s responses to

interrogatories. On January 7, 1999, defendant filed an

unopposed motion to extend the discovery deadline for the purpose

of awaiting the district court’s rulings on the motions currently

pending before the court. In its motion, defendant stated that

2 the expected rulings could obviate the need for depositions or

clarify the areas in which further discovery might be necessary.

The district court granted the motion on January 11, 1999, and

extended the discovery deadline until February 28, 1999.

On January 19, 1999, the district court granted defendant’s

motion for summary judgment and also entered a take-nothing

judgment in defendant’s favor. In ruling upon defendant’s

summary judgment motion, the district court reasoned that even if

Lewis had established the elements of her prima facie case, which

the court believed she had failed to do, Lewis had not carried

her burden of proving that defendant’s stated reasons for her

termination were a pretext for discrimination. According to the

court, defendant had articulated sufficient legitimate reasons

for Lewis’s termination and Lewis had not offered any evidence

beyond her own subjective beliefs that her termination was the

result of unlawful discrimination.

On February 2, 1999, Lewis filed motions pursuant to Federal

Rules of Civil Procedure 59 and 60, seeking a new trial and

relief from the judgment on the grounds that the district court

should consider evidence that was not previously available, that

the district court’s prior judgment was against the weight of the

evidence, and that discovery had yet to be completed at the time

of the district court’s ruling. The district court denied the

motions on February 12, 1999. On February 19, 1999, Lewis filed

her notice of appeal.

II. STANDARD OF REVIEW

3 We review a district court’s grant of a motion for summary

judgment de novo, applying the same standards as the district

court. See Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998);

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).

Summary judgment is appropriate “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). We review a

district court’s ruling on a Rule 59 or Rule 60 motion for abuse

of discretion. See Jones v. Central Bank, 161 F.3d 311, 312 (5th

Cir. 1998); Samaras v. America’s Favorite Chicken Co. (In re Al

Copeland Enters., Inc.), 153 F.3d 268, 271 (5th Cir. 1998), cert.

denied, 119 S. Ct. 1251 (1999).

III. DISCUSSION

On appeal, Lewis contends that the district court erred in

granting summary judgment to defendant and in denying her Rule 59

and 60 motions because, according to Lewis, there was sufficient

evidence on the record, and in the additional affidavits

presented to the court in connection with her Rule 59 and 60

motions, to create a genuine issue of material fact as to whether

defendant had a legitimate, non-discriminatory reason for

terminating Lewis and whether discrimination motivated

defendant’s decision. She further contends that the district

court should have delayed its ruling on defendant’s summary

judgment motion until the close of discovery because deposition

4 testimony would have been helpful in clarifying the issues. We

examine each of the district court’s rulings in turn.

A. Summary Judgment Motion

To establish a case of discriminatory discharge under either

Title VII or ADEA, the plaintiff is first required to satisfy the

elements of a prima facie case under the applicable statute. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,

2746-47 (1993); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992

(5th Cir. 1996) (en banc). Under Title VII, a prima facie case

consists of a showing that the plaintiff is a member of the

protected class, that she was qualified for the position from

which she was discharged, that she was discharged, and that the

employer filled the position after her discharge with someone

outside the protected class. See Hicks, 113 S. Ct. at 2747. To

establish a prima facie case under ADEA, the plaintiff must show

that she was discharged, that she was qualified for the position,

that she was within the protected class at the time of her

discharge, and that she was either replaced by someone younger or

otherwise discharged because of age. See Rhodes, 75 F.3d at 992;

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).

Once the plaintiff has established a prima facie case, the burden

then shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the termination. See Hicks, 113 S. Ct.

at 2747; Rhodes, 75 F.3d at 992-93; Bodenheimer, 5 F.3d at 957.

If the defendant satisfies this burden, the plaintiff must prove

by a preponderance of the evidence that the defendant’s reasons

5 are pretextual and that discrimination actually motivated the

termination. See Hicks, 113 S. Ct. at 2747-48; Rhodes, 75 F.3d

at 993-94; Bodenheimer, 5 F.3d at 957.

In its summary judgment motion, defendant presented

competent summary judgment evidence that Lewis’s poor performance

was the reason for her termination. Specifically, defendant

offered evidence describing a number of incidents in which, inter

alia, Lewis had failed to follow instructions, had failed to keep

appointments with probationers, was warned that her cases were

pending for too long, had failed to hold required meetings, had

attempted to deceive her supervisors about the fact that she had

failed to hold one particular meeting, and had misled her

supervisors about the status of an aggravated assault case.

Although Lewis challenges the validity of defendant’s

proffered reasons for her termination, as the district court

found, she has failed to present sufficient evidence from which

to conclude that defendant’s reasons for her termination are a

pretext and that discrimination actually motivated the

termination. Simply put, even if the reasons given are not the

real reasons defendant terminated Lewis, there is no evidence,

apart from Lewis’s assertions, that her national origin/race,

sex, or age lay behind her termination.

As evidence of national origin/race discrimination, Lewis’s

sole contention is that she is Hispanic and Dillenberger is

white. This is insufficient to establish pretext. See Hicks,

113 S. Ct. at 2747-48; see also Faruki v. Parsons S.I.P., Inc.,

6 123 F.3d 315, 320 n.3 (5th Cir. 1997) (“Where . . . the same

actor hires and fires an employee, an inference that

discrimination was not the employer's motive in terminating the

employee is created.”) (citing Brown v. CSC Logic, Inc., 82 F.3d

651, 658 (5th Cir.1996)).

Similarly, Lewis has failed to put forth sufficient evidence

to establish that defendant terminated her because of her sex.

Her only contentions regarding this claim are that she received

word of her termination from a male, Ortega, that Ortega was

“resentful of [Lewis’s] professional reputation and professional

competence,” that “Ortega as a male felt a need to impose his

dominance as a male over [Lewis] in the workplace,” and that

Dillenberger and Ortega’s dislike of her husband, the county

attorney, caused them to target Lewis for discrimination. Even

were these conclusory assertions sufficient, the uncontradicted

summary judgment evidence establishes that it was Dillenberger,

not Ortega, who was responsible for the decision to discharge

Lewis.1 Therefore, Ortega’s alleged dislike of Lewis because of

her sex could not have influenced the decision to fire Lewis, and

there is no evidence that Lewis’s sex motivated Dillenberger, who

is herself a woman. See Faruki, 123 F.3d at 320 n.3; Brown, 82

1 Lewis argues that the summary judgment evidence does not establish that Dillenberger made the decision to terminate Lewis because Dillenberger’s own affidavit states “On August 12, 1997, Mr. Ortega fired Mrs. Lewis.” However, Dillenberger’s affidavit also states “On August 12, 1997, I instructed Pete Ortega . . . to inform Mrs. Lewis that her employment with the Department was terminated. This decision was made by me, and I had Mr. Ortega communicate this to Mrs. Lewis because I was out of town.”

7 F.3d at 658.

Moreover, Dillenberger and Ortega’s alleged dislike of

Lewis’s husband does not establish that the Department’s decision

to terminate Lewis was based on Lewis’s sex. Although

discrimination against married women is unlawful under Title VII,

Lewis has presented no evidence that she was treated differently

than married men in her office were treated. See Coleman v. B-G

Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1203

(10th Cir. 1997) (“Title VII not only forbids discrimination

against women in general, but also discrimination against

subclasses of women . . . . [However,] the plaintiff must still

prove that the subclass of women was unfavorably treated as

compared to the corresponding subclass of men.”). At best,

Lewis’s allegations might establish that she was terminated

because her supervisors did not like her husband. However, Lewis

has presented no evidence from which to conclude that she was

terminated specifically because she is a married woman. See id.

(“To be actionable, . . . gender-plus discrimination must be

premised on gender.”). In other words, Lewis has not shown that

it was her sex in addition to her marital status that motivated

her termination. Her claim of discriminatory discharge based on

her sex therefore fails.

Finally, Lewis has failed to put forth sufficient evidence

to establish that her age motivated defendant’s decision to

terminate her. Her only allegation with respect to this claim is

that defendant replaced her with someone younger than forty years

8 of age. Defendant counters that both Dillenberger and Ortega are

over the age of forty and that defendant employs a significant

percentage of workers who are over forty, and did so at the time

of Lewis’s employment. Lewis has failed to meet her burden of

presenting evidence from which a rational factfinder could infer

that age motivated her termination. See Rhodes, 75 F.3d at 994

(“The employer, of course, will be entitled to summary judgment

if the evidence taken as a whole would not allow a jury to infer

that the actual reason for the discharge was discriminatory.”).

In sum, “[i]t is more than well-settled that an employee's

subjective belief that he suffered an adverse employment action

as a result of discrimination, without more, is not enough to

survive a summary judgment motion, in the face of proof showing

an adequate non-discriminatory reason.” Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996).

Defendant has set forth sufficient non-discriminatory reasons for

Lewis’s termination and Lewis has failed to present evidence that

raises an inference that discrimination was the true motivation

for defendant’s decision. The district court therefore did not

err in granting defendant’s motion for summary judgment.

B. Rule 59 and 60 Motions

In bringing her motions under Rules 59 and 60, Lewis argued

that she had new evidence, not available previously, that would

lead the court to decide defendant’s summary judgment motion

differently. This evidence consists of three affidavits—Lewis’s

own affidavit, that of her husband, and that of a co-worker. In

9 ruling on a motion for a new trial, “[w]hen a party offers

alleged newly-discovered evidence, the district court should

consider whether the omitted evidence was available to the moving

party prior to the time for filing his response to the summary

judgment motion.” Becerra v. Asher, 105 F.3d 1042, 1047 n.20

(5th Cir.), cert. denied, 118 S. Ct. 82 (1997); see Lavespere v.

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.

1990). Similarly, Federal Rule of Civil Procedure 60 allows for

relief from a judgment upon the movant’s proffer of newly

discovered evidence that could not have been discovered earlier.

See FED. R. CIV. P. 60(b) (“[T]he court may relieve a party . . .

from a final judgment, order, or proceeding for the following

reasons . . . (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for a

new trial under Rule 59(b) . . . .”). Clearly, the three

affidavits proffered by Lewis—her own, her husband’s, and a co-

worker’s—were readily available to Lewis prior to filing her

response to defendant’s summary judgment motion. Lewis has made

no showing to the contrary. In any event, the affidavits contain

nothing that would raise an inference that defendant terminated

Lewis because of her national origin/race, sex, or age. Thus,

the district court did not abuse its discretion in denying

Lewis’s motions under Rules 59 and 60.

Lewis further contends that the district court should have

postponed its ruling on defendant’s summary judgment motion until

the completion of discovery because the deposition testimony of

10 Dillenberger, Ortega, and two state judges was necessary to

verify the affidavits submitted by the Department and “to explore

whether facts other than related by them were involved in the

case.” Defendant counters that it brought its unopposed motion

to extend the discovery deadline for the express purpose of

delaying oral depositions until after the district court had

ruled on the dispositive motions then pending before it.

We review a district court's decision to preclude further

discovery prior to granting summary judgment for abuse of

discretion. See Exxon Corp. v. Crosby-Miss. Resources, Ltd., 40

F.3d 1474, 1487 (5th Cir. 1995); Wichita Falls Office Assocs. v.

Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992). The party

seeking additional discovery must: “(1) request extended

discovery prior to the district court's ruling on summary

judgment, (2) place the district court on notice that further

discovery pertaining to the summary judgment is being sought, and

(3) demonstrate to the district court how the requested discovery

pertains to the pending motion.” Exxon Corp., 40 F.3d at 1487.

Lewis did not seek a continuance of the district court’s summary

judgment ruling, and, as the district court noted, she did not

identify what information might be revealed by further discovery

or how such information would support her claims or defeat

defendant’s summary judgment motion. Thus, the district court

did not abuse its discretion in deciding defendant’s summary

judgment motion prior to the close of discovery.

IV. CONCLUSION

11 For the foregoing reasons, we AFFIRM the judgment of the

court, which granted summary judgment to defendant, and AFFIRM

the district court’s denial of plaintiff’s motions brought under

Rules 59 and 60 of the Federal Rules of Civil Procedure.