Ross v. Wald Moving & Strg

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 1999
• Docket: 98-21046
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 98-21046 Summary Calendar ____________________

EMMI ROSS,

Plaintiff-Appellant,

v.

WALD MOVING AND STORAGE SERVICES INC, doing business as Wald Mayflower; MAYFLOWER TRANSIT INC; RICHARD RYAN,

Defendants-Appellees.

________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-95-CV-4209) _________________________________________________________________

August 16, 1999

Before KING, Chief Judge, and DAVIS and JONES, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Emmi Ross appeals the judgment of the

district court, which granted summary judgment to defendants-

appellees and dismissed Ross’s discrimination and sexual

harassment claims. She also challenges the district court’s

denial of her motion to compel. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On April 27, 1992, plaintiff-appellant Emmi Ross, an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 African-American female, was hired by defendant-appellee Wald

Moving and Storage Services, Inc. (Wald) to work as secretary to

the Vice President/General Manager, who was then Suzanne

Dobranski. At that time, Wald was a company-owned agency of

defendant-appellee Mayflower Transit, Inc. (Mayflower). Ross

worked for Dobranski until October 11, 1994 when Dobranski was

replaced by defendant-appellee Richard Ryan.1

There is some dispute as to what happened next. According

to Ross, one month after Ryan began work, Ryan promoted her to be

his executive secretary. She contends that he also sexually

harassed her. One month after her promotion, on December 15,

1994, Ross was terminated. According to Ross, her dismissal was

due to her age, which was forty-four at the time, and to the fact

that she refused Ryan’s unwanted sexual advances. She contends

that Ryan informed her that the reason for her termination was

that he did not need a secretary, but that Ryan later hired Patty

Mewis, a white female under forty years of age, to replace Ross.

According to defendants, Ryan was hired to improve the

profitability of the business and, shortly after he began

working, decided to reduce the number of employees to decrease

costs. He therefore eliminated five positions over the course of

a few weeks. Ross’s position was one of those eliminated.

Defendants contend that Ryan informed Ross that her position was

being eliminated as a result of the company’s reorganization,

1 Wald, Mayflower, and Ryan will be referred to collectively as defendants.

2 that Ross was offered another job as the company’s receptionist,

which she refused, and that Ross also was offered a severance

package, which she ultimately rejected. Defendants contend that

nobody was hired to replace Ross, but that Ross’s duties were

distributed amongst several employees who already worked for the

company.

On February 1, 1995, Ross filed a charge with the Equal

Employment Opportunity Commission (EEOC) and with the Texas

Commission of Human Rights. In June 1995, she received her right

to sue letter and on August 23, 1995 filed her original complaint

in the United States District Court for the Southern District of

Texas, alleging discrimination in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, 42

U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 (Title

VII), 42 U.S.C. §§ 2000e to 2000e-17, and the Texas Commission on

Human Rights Act (TCHRA), TEX. LAB. CODE ANN. §§ 21.001-21.306.

Defendants filed a motion for summary judgment on January

24, 1997. The district court granted the motion on February 25,

1997. Ross appealed, but this court dismissed the appeal for

lack of jurisdiction on June 6, 1997. Ross thereafter filed a

motion for relief from the judgment with the district court on

November 20, 1997. On December 18, 1997, the district court

reinstated Ross’s case and denied defendants’ motion for summary

judgment as premature. Ross filed an amended complaint on April

6, 1998, adding common law causes of action and alleging that she

had been denied the opportunity to apply for vacant positions

3 because of her race, that she had been subject to unwelcome

sexual advances and a hostile work environment because of her

sex, and that she had been terminated because of her age, race,

and sex.

Defendants moved for summary judgment on all claims on July

30, 1998. The district court granted the motion and entered a

final judgment in favor of defendants on October 20, 1998. In

its opinion, the district court found that Ryan is not an

employer as defined by Title VII, ADEA, or TCHRA and therefore

cannot be individually liable to Ross. As to Ross’s claim for

discriminatory non-promotion, the district court found that Ross

had failed to demonstrate an element of her prima facie case—that

she was qualified for the position to which she allegedly was not

allowed to apply—and further found that, even if she had made out

a prima facie case, she had not demonstrated that defendants’

reasons for not giving her the position were pretextual. As to

Ross’s discriminatory discharge claim, the district court found

that she had not demonstrated that defendants’ reasons for her

termination were pretextual. As to Ross’s sexual harassment

claims, the district court found that she had failed to

demonstrate that the incidents of sexual harassment she

complained of were sufficiently severe or pervasive to rise to

the level of a hostile work environment and that she had not made

out a case of quid pro quo sexual harassment. Finally, the

district court found that Ross’s common law causes of action were

barred by the applicable statutes of limitations. Ross timely

4 appealed.

II. DISCUSSION

On appeal, Ross challenges the district court’s grant of

defendants’ motion for summary judgment in all respects except

for the dismissal of her common law causes of action and the

district court’s grant of summary judgment to defendants on

Ross’s claim that she was not given the opportunity to apply for

vacant positions at Wald because of her race. We therefore do

not address these claims. She also challenges the district

court’s denial of her motion to compel defendants to comply with

certain discovery requests. We examine each of her arguments

below.

A. Motion to Compel

Ross argues that the district court erred by denying her

motion to compel because the district court’s failure to grant

the motion hindered her ability to establish her case. We review

a trial court’s decision regarding discovery for abuse of

discretion. See McKethan v. Texas Farm Bureau, 996 F.2d 734, 738

(5th Cir. 1993).

Ross challenges the district court’s failure to compel

compliance with two discovery requests. In request number

twenty-one, Ross requested the production of documentation of

Ryan’s job description as vice president and general manager of

Wald. Defendants objected to the request and asserted that there

is no written job description for Ryan’s position. The district

court denied the request on that ground. We perceive no error in

5 this decision.

In request number twenty-two, Ross requested the production

of documentary evidence “showing Patty Mawis [sic] was employed

through Mayflower Transit” and further requested that if Mewis

was not so employed, defendants produce evidence of how she was

employed. Defendants objected to this request as vague and

irrelevant, admitted that Mewis was employed at Wald at the same

time as Ross, but argued that whether she was employed “through

Mayflower Transit” was irrelevant. The district court denied

Ross’s request, finding it overly broad and vague. We do not

find this to be an abuse of discretion. We therefore conclude

that the district court did not abuse its discretion in denying

Ross’s motion to compel.

B. Ryan’s Liability as “Employer”

Ross next contends that the district court erred by granting

summary judgment to defendants on Ross’s claims against Ryan on

the ground that Ryan is not an employer as defined by the

applicable statutes. We review the district court’s grant of

summary judgment de novo and apply the same standards as the

district court. See Ellison v. Connor, 153 F.3d 247, 251 (5th

Cir. 1998).

Ross argues that the definition of employer under Title VII

includes “any agent of [an employer],” 42 U.S.C. § 2000e(b), that

Ryan is an agent of Wald, and that therefore she may sue Ryan

individually. This argument is foreclosed by our circuit’s

precedent. In Grant v. Lone Star Company, B.L., 21 F.3d 649, 653

6 (5th Cir. 1994), we held that an individual may not be held

liable under Title VII unless that individual otherwise meets the

definition of employer. See also Stults v. Conoco, Inc., 76 F.3d

651, 655 (5th Cir. 1996) (reaching same result in ADEA context).

We noted that the purpose of the “agent” provision in § 2000e(b)

was merely to incorporate respondeat superior liability into

Title VII. See Grant, 21 F.3d at 652 (citing Miller v. Maxwell’s

Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993)). Although Ross

argues that Grant is inapplicable to her case, she cites no

authority for this proposition. Thus, the district court

committed no error in granting summary judgment to Ryan.2

C. Sexual Harassment Claim

Ross alleges that during the course of her employment Ryan

sexually harassed her. According to Ross, the incidents began on

Ryan’s first day of employment when Ryan called Ross into a

conference room and told her that he wanted her to think of their

relationship “as if the two of us are dating each other.” When

Ross asked Ryan what he meant by that statement, he responded

that she should “figure it out.” Although Ross contends that the

sexual harassment continued on a daily basis and included

numerous sexual requests which she turned down, Ross describes

only two other incidents. In the first incident, Ross contends

2 Because the definition of “employer” found in TCHRA borrows its language from Title VII, we reach the same result with respect to Ross’s TCHRA claim. See TEX. LAB. CODE ANN. § 21.002(8); Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 87-88 (Tex. App. – Austin 1995, no writ) (stating that Title VII decisions are relevant when construing TCHRA).

7 that Ryan intimidated her into going to a Houston Oilers football

game with him, that he insisted that she drive to his hotel

before the game to park her car there, that he took her to dinner

before the game and tried to convey to others the impression that

they were dating, and that he fondled her leg as he drove to the

game. In the second incident, which occurred on December 2,

1994, shortly before Ross’s termination, Ross contends that Ryan

came into her office with his pants unzipped, stood in front of

her as she was seated at her desk so that her eyes were at the

level of his unzipped pants, and asked her to join him in his

office for a drink. Ross refused and asked Ryan to zip his

pants. This angered Ryan, who marched off without zipping his

pants and left the office.

The district court held that as a matter of law the

incidents complained of did not rise to the level of a hostile

work environment because they were not sufficiently severe or

pervasive. The district court also held that Ross had not

established a case of quid pro quo harassment.

With respect to Ross’s hostile work environment claim, for

sexual harassment to be actionable, the conduct complained of

must be of sufficient severity or pervasiveness to alter the

conditions of the plaintiff’s employment and create an abusive

work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 67 (1986). “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of

8 employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 118

S. Ct. 2275, 2283 (1998) (internal quotation marks and citation

omitted).

Although the few incidents about which Ross complains are

certainly in poor taste, we agree with the district court that

they do not rise to the level of an actionable hostile work

environment. The incidents described are not severe and Ross has

set forth no evidence other than a conclusory assertion to

demonstrate that they occurred regularly. See Shepherd v.

Comptroller of Pub. Accounts, 168 F.3d 871, 872-73, 874 (5th Cir.

1999) (holding no hostile work environment existed where over

two-year period co-worker made numerous remarks about her

appearance, stood over plaintiff’s desk on several occasions in

an attempt to look down her clothing, touched her arm on several

occasions and rubbed his hands down her arm); Weiss v. Coca-Cola

Bottling Co., 990 F.2d 333, 334-35, 337 (7th Cir. 1993) (finding

no hostile work environment where supervisor asked employee for

dates, called her “dumb blonde,” put his hands on her shoulders

several times, tried to kiss her, placed “I love you” signs in

her work area, and attempted to take her to a bar).

As for Ross’s claim that tangible employment actions

resulted from her failure to acquiesce to Ryan’s sexual

harassment—namely, that she received a promotion but no

corresponding pay raise, that she received reduced and menial

responsibilities, and that she was eventually terminated—the

district court found that Ross had presented no competent summary

9 judgment evidence to establish that any of Ryan’s alleged threats

resulted in a tangible employment action. We agree. In the

first place, there is no evidence that Ryan made threats of a

quid pro quo nature. When asked at her deposition if Ryan had

ever suggested to her that if she did not go along with his

alleged sexual overtures that her job would be in jeopardy or

that she would lose job benefits, she responded that he had not.

Even if Ryan had made such threats, there is no evidence

connecting the tangible employment actions Ross complains of to

her failure to accede to Ryan’s demands. Simply put, there is no

evidence other than Ross’s conclusory assertions to connect

Ryan’s alleged threats to the failure to give her a pay increase

(if one was even supposed to accompany her promotion), to the

reduction in Ross’s job responsibilities, or to her eventual

termination. See Butler v. Yselta Indep. Sch. Dist., 161 F.3d

263, 268 (5th Cir. 1998) (finding no actionable quid pro quo

harassment where there was no evidence of connection between

challenged employment action and harassment); Sanders v. Casa

View Baptist Church, 134 F.3d 331, 339 (5th Cir.) (stating that to

establish quid pro quo claim plaintiff is required to develop

evidence demonstrating that acceptance or rejection of harassment

is cause of tangible job detriment), cert. denied, 119 S. Ct. 161

(1998). Thus, the district court did not err in granting summary

judgment to defendants on Ross’s hostile work environment and

quid pro quo sexual harassment claims.

D. Discriminatory Discharge

10 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 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 are

pretextual and that discrimination actually motivated the

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

11 at 993-94; Bodenheimer, 5 F.3d at 957.3

Ross contends that the district court erred by granting

summary judgment to defendants on her claim of discriminatory

discharge. She argues that she adequately rebutted defendants’

articulated reason for her discharge––that Ryan discharged her as

part of a company restructuring—with the affidavit of Lasca

Hopkins-Boltz. According to Hopkins-Boltz’s affidavit, she was

instructed to write a memorandum, after attending the meeting in

which Ross was discharged, that contained certain facts that she

did not recall from the meeting. Ross thus contends that there

is an issue of fact concerning whether defendants’ reasons for

her termination were true. This, however, is not enough for Ross

to prevail.

Assuming that Ross has established the elements of her prima

facie case, and assuming that she has demonstrated that the

reasons defendants gave her for her termination were false, Ross

still has not met her burden of establishing that defendants’

reasons were a pretext for discrimination and that it was either

sex, race, or age discrimination that actually motivated

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

994; Bodenheimer, 5 F.3d at 957. We agree with the district

court that the evidence that Ross’s termination was motivated by

her sex, race, or age is sparse to nonexistent and that a

reasonable fact finder could not infer from the evidence on the

3 The same evidentiary framework applies to claims brought under § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).

12 record that discrimination lies behind the termination. Thus,

Ross’s claim for discriminatory discharge fails and the district

court did not err in granting defendants’ motion for summary

judgment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

denial of Ross’s motion to compel and AFFIRM in its entirety the

judgment of the district court granting summary judgment to

defendants.