Moorman v. Intl Paper Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 1999
• Docket: 98-60656
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-60656 Summary Calendar ____________________

ELIZABETH MOORMAN,

Plaintiff-Appellant,

v.

INTERNATIONAL PAPER,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (3:97-CV-93-B-A) _________________________________________________________________

June 24, 1999

Before KING, Chief Judge, and EMILIO M. GARZA and DeMOSS, Circuit Judges.

PER CURIAM:*

Elizabeth Moorman appeals the district court’s grant of

summary judgment to defendant-appellee on her sex discrimination

claims brought pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. International Paper Company (IP) hired Elizabeth Moorman on

September 14, 1992, to be a light equipment operator at IP’s

Winona, Mississippi wood yard. Moorman claims that during her

interview with IP, the person who interviewed her told her that

IP “had to hire a woman for the job.” IP subsequently promoted

Moorman to the position of heavy equipment operator.

In July 1994, IP closed its Winona wood yard, and honored

Moorman’s preference to be transferred to its wood yard in

Grenada, Mississippi. At Grenada, she continued to work as a

heavy equipment operator. Moorman claims that while she worked

at the Grenada wood yard, she was given distasteful assignments

that were not given to male employees, that she was inadequately

trained, that her equipment was insufficiently maintained, and

that male co-workers called her derogatory names.

During her time at the Grenada yard, two episodes warrant

further discussion. Shortly after she began working at Grenada,

she “had a breakdown on the job one day” as she and a male co-

worker, Daniel Whitt, the two employees at the yard with the

least seniority, were assigned to sweep debris from concrete

slabs and to clear out a conveyor. According to Moorman, she

became frustrated after having to climb up and down a chute on an

extremely hot day, and she “just started crying, and [she]

couldn’t stop.” She went home, and later called Mr. Cantelli, an

IP manager, and complained that she had been inadequately

trained. After being promised that she would receive additional

training, Moorman returned to work at the Grenada plant.

2 However, after she returned, she claimed that her supervisor gave

her “the cold shoulder” and refused to slow down production to

give her additional training. It is uncontested, however, that

Moorman received all necessary training by October 1994.

The second relevant episode at Grenada occurred in July

1995. On that occasion, another extremely hot day, Moorman

claims that Daniel Whitt told her to come from the other end of

the yard to operate a knucklebroom machine to help unload logs.

According to Moorman, the knucklebroom’s exhaust system and fans

were inoperable, and exhaust began to enter the cab of Moorman’s

machine. Moorman stated that “the fumes were coming out and my

eyes started burning real bad.” Despite the heat and exhaust,

Moorman unloaded the truck and parked the machine. However,

after dismounting the machine, Moorman suffered heat exhaustion,

and she missed work the following day.

In early January 1996, IP re-opened the Winona yard as a

storage facility. According to Moorman (who lives in Winona),

her supervisor at the Grenada yard asked her if she wanted to be

transferred to the Winona yard, and she told him that she did.

She generally worked alone at the Winona yard. Shortly after she

began work at the Winona yard, her supervisor came to the Winona

yard and told her that she was not eligible to receive a safety

certificate because her July 1995 heat exhaustion episode was a

recordable incident for safety purposes. According to Moorman,

IP’s refusal to award her a safety certificate “broke the straw

of the camel’s back,” and caused her to resign her job at IP

3 effective February 2, 1996. Moorman filed a charge of sex

discrimination with the United States Equal Employment

Opportunity Commission (EEOC) on April 11, 1996.

Moorman filed the instant action on May 14, 1997, in the

United States District Court for the Northern District of

Mississippi. She alleged that she was discriminated against

because of her sex and constructively discharged by IP in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e to 2000e-17. The district court granted IP’s motion for

summary judgment and dismissed both claims, concluding that her

sex discrimination claim was time-barred and that Moorman failed

to raise a factual issue as to whether she had been

constructively discharged. This timely appeal followed.

II. DISCUSSION

We review the district court’s grant of summary judgment de

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

1994). Summary judgment is proper “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

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. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

4 Moorman argues that the district court erred in granting

summary judgment to IP on her sex discrimination and constructive

discharge claims. She claims that the district court’s

conclusion that her sex discrimination claim was time-barred was

inappropriate because she sufficiently alleged a continuing

violation occurring both before and during the statutory period.

Second, she claims that she raised a factual issue as to whether

IP’s actions toward her amount to a constructive discharge. We

address these issues in turn.

A. Continuing Violation

“A Title VII plaintiff must file a charge of discrimination

with the EEOC within 180 days ‘after the alleged unlawful

employment practice occurred.’” Webb v. Cardiothoracic Surgery

Assocs., 139 F.3d 532, 537 (5th Cir. 1998) (quoting 42 U.S.C.

§ 2000e-5(e)(1)). Moorman filed her discrimination charge with

the EEOC on April 11, 1996; she may therefore recover under Title

VII only for conduct that occurred after October 14, 1995, 180

days before the filing of her charge. See id.

Moorman argues that her deposition testimony establishes

that IP had an “ongoing and pervasive pattern and de facto policy

of discriminatory treatment of females,” and that because that

pattern and policy constitutes a continuing violation of Title

VII, “[t]he 180 day limit does not apply.”

Moorman points to several instances of conduct by IP and IP

employees that she claims support her assertion that IP’s actions

toward her constitute a continuing violation of Title VII.

5 Specifically, Moorman claims that she was given distasteful

assignments “that males refused to accept but which she was not

allowed to refuse,” that IP employees called her derogatory

names, including “he-she” and “fat bitch,” that her equipment was

not repaired as quickly as her male co-workers’ equipment, that

she was subjected to a more rigorous training requirement than

male IP employees, and (somewhat contradictorily) that she was

inadequately trained.

Moorman’s argument that if she is able to show a continuing

violation, then the 180-day statute of limitations “does not

apply” mischaracterizes the equitable theory of a continuing

violation. The theory of a continuing violation does allow a

court to consider conduct occurring before the statutory period

in a Title VII suit “where the unlawful employment practice

manifests itself over time, rather than as a series of discrete

acts.” Id. (internal quotation marks omitted). However, even

where a plaintiff can establish a continuing violation, we may

not disregard the 180-day period. Instead, the plaintiff must

still be able to demonstrate that one or more of the defendant’s

acts that constitute the continuing violation fall within the

limitations period. See id.; Messer v. Meno, 130 F.3d 130, 134-

35 (5th Cir. 1997), cert. denied, 119 S. Ct. 794 (1999).

Even were we to conclude, after consideration of the factors

discussed in Berry v. Board of Supervisors of Louisiana State

6 University, 715 F.2d 971, 981 (5th Cir. 1983),1 that all or part

of the above alleged conduct could constitute a continuing

violation of Title VII, we are bound to affirm the district

court’s grant of summary judgment on Moorman’s sex discrimination

claim. The record before us simply does not support a conclusion

that any of the allegedly discriminatory conduct took place

within the statutory period.

The only concrete allegations of discrimination in the

record each occurred before October 1995, 180 days before Moorman

filed her complaint with the EEOC. Although she does claim

generally that “throughout her employment with IP . . . she was

given the distasteful assignments that males refused to accept

but which she was not allowed to refuse,” the only such incident

that she identifies was her July 1995 heat exhaustion incident,

which she claims occurred as a result of being forced to

undertake an assignment all of her male co-workers refused to

perform. Similarly, although in her brief she alleges that

“[d]uring the entire time of her employment, her equipment was

given [inadequate] attention,” her deposition testimony does not

support such a broad statement. Instead, Moorman identified only

one occasion on which she claims that her equipment was in

1 Among the factors that we must consider in order to determine whether conduct by a defendant constitutes a continuing violation of Title VII, as opposed to “discrete, isolated, and completed acts which must be regarded as individual violations” are: (1) the subject matter of the conduct; (2) the frequency of the allegedly discriminatory conduct, and (3) the degree of permanence of the conduct. Id.; see Waltman v. International Paper Co., 875 F.2d 468, 475-76 (5th Cir. 1989).

7 disrepair. She claimed in her deposition that between her July

1995 heat exhaustion incident and her January 1996 transfer to

the Winona yard, the emergency brake on her front end loader was

faulty. However, this claim does not raise a factual question of

sex discrimination; Moorman admitted that IP ordered a

replacement brake cable, and that, although she had to install

the brake cable herself, “[e]veryone had to service their own

machines.”

Likewise, Moorman’s claim that she has raised a genuine

issue of material fact as to whether IP has committed a

continuing violation of Title VII is not supported by her

assertions in her deposition that male co-workers, on two

occasions, called her derogatory names or that she was

inadequately trained (or, in the alternative, that she was forced

to undergo more extensive training than her male counterparts).

Moorman admitted in her deposition that both of the episodes in

which she claimed to have overheard co-workers talking about her

in derogatory terms took place before the July 1995 heat

exhaustion episode, and therefore outside the statutory period.

She also admitted in her deposition that she completed testing on

each relevant piece of IP machinery by October 1994, well before

180 days prior to her EEOC filing.

The continuing violation “doctrine will render a complaint

timely as to a course of conduct only if the complaint is timely

as to the most recent occurrence.” Huckabay v. Moore, 142 F.3d

233, 240 (5th Cir. 1998). Thus, because Moorman has failed to

8 raise a factual issue as to at least one incident of sex

discrimination within the 180-day statutory period, her sex

discrimination claim is time-barred. See Waltman v.

International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); see

also Messer, 130 F.3d at 134-35 (“The continuing violation theory

relieves a plaintiff of establishing that all of the complained-

of conduct occurred within the actionable period if the plaintiff

can show a series of related acts, one or more of which falls

within the limitations period.”) (emphasis added). We therefore

conclude that the district court properly dismissed Moorman’s sex

discrimination claim on statute of limitations grounds.

B. Constructive Discharge

Moorman next argues that the district court erred in

determining that her resignation from IP, which occurred within

the statutory period, did not meet the test for constructive

discharge. We agree with the district court that Moorman failed

to make a factual showing that her “working conditions would have

been so difficult or unpleasant that a reasonable person in the

employee’s shoes would have felt compelled to resign.” Landgraf

v. USI Film Prods, 968 F.2d 427, 429 (5th Cir. 1992) (internal

quotation marks omitted), aff’d 511 U.S. 244 (1994); see Ugalde

v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993).

Moorman resigned from her job at IP after she failed to

receive a safety certificate because of the characterization of

the July 1995 heat exhaustion episode as a recordable incident

for safety purposes. She does not disagree with the district

9 court’s conclusion that “her failure to receive a safety

certificate was [not] anything other than a non-discriminatory

application of a company safety rule.” On appeal, Moorman argues

that her failure to receive a safety certificate was only the

last straw in a long line of “unfair” treatment, and that a

reasonable person in her shoes would have felt compelled to

resign.

However, we agree with the district court that a reasonable

person in Moorman’s shoes would not have felt compelled to

resign. Moorman bases much of her argument that she was

constructively discharged on the fact that she worked alone after

her transfer to the Winona yard. However, as the district court

noted and the record clearly demonstrates, Moorman chose to

transfer from the Grenada yard to the Winona yard with full

knowledge that she was the only employee to be transferred to

Winona. In short, “[n]either the discrimination that [Moorman]

alleges nor the working conditions [she] decries constitute the

intolerable working conditions required to prove constructive

discharge.” Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.

1990). We therefore affirm the district court’s dismissal of

this claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.