UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60811 Summary Calendar
EMMA RUSH, Plaintiff - Appellant,
versus
MISSISSIPPI PRESS, Defendant - Appellee.
Appeal from the United States District Court for the Southern District of Mississippi, Biloxi USDC No. 1:00-CV-312-GR
April 3, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges. POLITZ, Circuit Judge:* Emma Rush appeals an adverse summary judgment dismissing her Title VII
claims against her employer, The Mississippi Press, for failure to promote and
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. retaliation. Rush also appeals the dismissal of her state law claims for intentional
infliction of emotional distress, negligence per se, and wrongful termination.
Concluding that Rush failed to establish a prima facie case of Title VII discrimination
and that her state law claims are either barred or lack merit, we affirm.
BACKGROUND
Rush, an African American, began working for The Mississippi Press in
September 1993. She initially worked part-time as an “Inserter,” which required her
to insert manually advertisements into newspapers. In November 1994 she was
promoted to Dispatch Clerk, a full-time position with higher pay and more important
job duties. Tommy Chelette, the Advertising Department Head and a Caucasian, was
the supervisor who promoted Rush. Chelette reported to Wanda Jacobs, an African
American, the publisher of The Mississippi Press.
After her elevation to Dispatch Clerk Chelette again promoted Rush to
Advertising Clerk, a position involving more pay and more responsibilities. In 1999
Rush sought another promotion to Classified Supervisor, a supervisory position
involving duties such as directing classified sales, overseeing classified advertising,
evaluating employee performance, training new employees, in-person contact with
customers, and solicitation of new business. Rush was not selected for the promotion.
Instead, Jacobs and Chelette selected Gayle Buck, a Caucasion. On June 18, 1999
2 Rush filed a charge of discrimination with the Equal Employment Opportunity
Commission, charging that she was denied the promotion to Classified Supervisor
because of her race.
On January 25, 2000, Chelette communicated two policies to all Display
Advertising employees, including Rush. The first policy concerned working hours.
The second policy concerned The Mississippi Press’ vacation policy. Chelette
perceived that Rush was unhappy about the vacation policy and arranged a meeting
between Rush, Jacobs, and himself. During the meeting, Rush conducted herself in an
abrasive and insubordinate fashion. The next morning Rush was asked to meet again
with Jacobs and Chelette, as well as Roy May, Rush’s direct supervisor. Jacobs began
the meeting by informing Rush that she had been out of line with her comments and
tone the day before. Rush responded with continued abrasive and insubordinate
behavior. Following the meeting Rush was discharged.
On February 1, 2000, Rush am ended her EEOC charge to allege that she had
been discharged in retaliation for having previously filed her EEOC failure-to- promote
charge. On March 27, 2000, the EEOC issued its determination that Rush had failed
to establish a violation to support either allegation.
ANALYSIS
3 We review the district court's grant of summary judgment de novo.1 Summary
judgment is proper when there is no genuine issue as to any material fact.2 A factual
issue is material if its resolution could affect the outcome of the action.3 In determining
whether there is a genuine issue as to any material fact, all justifiable inferences will
be made in the nonmoving party’s favor, and we will “not weigh the evidence or
evaluate the credibility of witnesses . . . .”4 A “dispute about a material fact is
'genuine'. . . if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”5 Therefore, summary judgment is appropriate if the nonmovant fails
to establish facts supporting an essential element of his prima facie claim.6
Title VII
Rush asserts that she was the victim of racial discrimination in that she was not
promoted because of her race and was terminated in retaliation for having filed the
previous EEOC charge against The Mississippi Press. To establish a prima facie case
of racial discrimination to support her failure-to-promote claim, Rush was required to
1 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). 2 FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 Id. 5 Id. 6 Celotex Corp., 477 U.S. at 322-23. 4 show that: (a) she is a member of a protected class; (b) she was qualified for the
position sought; (c) she was not promoted; and (d) the position was filled by someone
outside the protected class.7 Once a prima facie case is established, the burden shifts
to The Mississippi Press to demonstrate a legitimate nondiscriminatory reason for not
promoting her.8 The district court found that Rush established a prima facie case, but
determined that she failed to show that the appellee’s asserted nondiscriminatory
reason for not promoting her was pretextual. The appellee maintains that Buck was
more qualified for the position than Rush. Rush has failed to show that the appellee’s
articulated reason is pretextual.9
To establish her prima facie claim of retaliation, Rush must show that she
engaged in protected behavior, The Mississippi Press took an adverse employment
action against her, and there is a causal connection between her protected activity and
the adverse employment action.10 The district court found that Rush established the
7 Oden v. Oktibbeha County, Miss., 246 F.3d 458, 468 (5th Cir. 2001), cert. denied, 122 S.Ct. 341-42 (2001). 8 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). 9 Deines v. Texas Dep’t of Protective and Regulatory Servs., 164 F.3d 277, 282 (5th Cir. 1999) (holding that “the employer’s judgment as to qualifications will not be probative of the issue of a discriminatory motive unless the qualifications are so widely disparate that no reasonable employer would have made the same decision.”). 10 Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000). 5 first two requirements, but failed to show a causal connection between her EEOC
charge and her termination. The record establishes that Jacobs and Chelette were
aware of Rush’s EEOC filing for nearly six months prior to her termination and took
no action against her, making it highly unlikely that the EEOC charge was a motivating
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60811 Summary Calendar
EMMA RUSH, Plaintiff - Appellant,
versus
MISSISSIPPI PRESS, Defendant - Appellee.
Appeal from the United States District Court for the Southern District of Mississippi, Biloxi USDC No. 1:00-CV-312-GR
April 3, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges. POLITZ, Circuit Judge:* Emma Rush appeals an adverse summary judgment dismissing her Title VII
claims against her employer, The Mississippi Press, for failure to promote and
* 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. retaliation. Rush also appeals the dismissal of her state law claims for intentional
infliction of emotional distress, negligence per se, and wrongful termination.
Concluding that Rush failed to establish a prima facie case of Title VII discrimination
and that her state law claims are either barred or lack merit, we affirm.
BACKGROUND
Rush, an African American, began working for The Mississippi Press in
September 1993. She initially worked part-time as an “Inserter,” which required her
to insert manually advertisements into newspapers. In November 1994 she was
promoted to Dispatch Clerk, a full-time position with higher pay and more important
job duties. Tommy Chelette, the Advertising Department Head and a Caucasian, was
the supervisor who promoted Rush. Chelette reported to Wanda Jacobs, an African
American, the publisher of The Mississippi Press.
After her elevation to Dispatch Clerk Chelette again promoted Rush to
Advertising Clerk, a position involving more pay and more responsibilities. In 1999
Rush sought another promotion to Classified Supervisor, a supervisory position
involving duties such as directing classified sales, overseeing classified advertising,
evaluating employee performance, training new employees, in-person contact with
customers, and solicitation of new business. Rush was not selected for the promotion.
Instead, Jacobs and Chelette selected Gayle Buck, a Caucasion. On June 18, 1999
2 Rush filed a charge of discrimination with the Equal Employment Opportunity
Commission, charging that she was denied the promotion to Classified Supervisor
because of her race.
On January 25, 2000, Chelette communicated two policies to all Display
Advertising employees, including Rush. The first policy concerned working hours.
The second policy concerned The Mississippi Press’ vacation policy. Chelette
perceived that Rush was unhappy about the vacation policy and arranged a meeting
between Rush, Jacobs, and himself. During the meeting, Rush conducted herself in an
abrasive and insubordinate fashion. The next morning Rush was asked to meet again
with Jacobs and Chelette, as well as Roy May, Rush’s direct supervisor. Jacobs began
the meeting by informing Rush that she had been out of line with her comments and
tone the day before. Rush responded with continued abrasive and insubordinate
behavior. Following the meeting Rush was discharged.
On February 1, 2000, Rush am ended her EEOC charge to allege that she had
been discharged in retaliation for having previously filed her EEOC failure-to- promote
charge. On March 27, 2000, the EEOC issued its determination that Rush had failed
to establish a violation to support either allegation.
ANALYSIS
3 We review the district court's grant of summary judgment de novo.1 Summary
judgment is proper when there is no genuine issue as to any material fact.2 A factual
issue is material if its resolution could affect the outcome of the action.3 In determining
whether there is a genuine issue as to any material fact, all justifiable inferences will
be made in the nonmoving party’s favor, and we will “not weigh the evidence or
evaluate the credibility of witnesses . . . .”4 A “dispute about a material fact is
'genuine'. . . if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”5 Therefore, summary judgment is appropriate if the nonmovant fails
to establish facts supporting an essential element of his prima facie claim.6
Title VII
Rush asserts that she was the victim of racial discrimination in that she was not
promoted because of her race and was terminated in retaliation for having filed the
previous EEOC charge against The Mississippi Press. To establish a prima facie case
of racial discrimination to support her failure-to-promote claim, Rush was required to
1 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). 2 FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 Id. 5 Id. 6 Celotex Corp., 477 U.S. at 322-23. 4 show that: (a) she is a member of a protected class; (b) she was qualified for the
position sought; (c) she was not promoted; and (d) the position was filled by someone
outside the protected class.7 Once a prima facie case is established, the burden shifts
to The Mississippi Press to demonstrate a legitimate nondiscriminatory reason for not
promoting her.8 The district court found that Rush established a prima facie case, but
determined that she failed to show that the appellee’s asserted nondiscriminatory
reason for not promoting her was pretextual. The appellee maintains that Buck was
more qualified for the position than Rush. Rush has failed to show that the appellee’s
articulated reason is pretextual.9
To establish her prima facie claim of retaliation, Rush must show that she
engaged in protected behavior, The Mississippi Press took an adverse employment
action against her, and there is a causal connection between her protected activity and
the adverse employment action.10 The district court found that Rush established the
7 Oden v. Oktibbeha County, Miss., 246 F.3d 458, 468 (5th Cir. 2001), cert. denied, 122 S.Ct. 341-42 (2001). 8 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). 9 Deines v. Texas Dep’t of Protective and Regulatory Servs., 164 F.3d 277, 282 (5th Cir. 1999) (holding that “the employer’s judgment as to qualifications will not be probative of the issue of a discriminatory motive unless the qualifications are so widely disparate that no reasonable employer would have made the same decision.”). 10 Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000). 5 first two requirements, but failed to show a causal connection between her EEOC
charge and her termination. The record establishes that Jacobs and Chelette were
aware of Rush’s EEOC filing for nearly six months prior to her termination and took
no action against her, making it highly unlikely that the EEOC charge was a motivating
factor in their discharge decision. In addition, even if Rush was able to establish a
prima facie case of retaliation, her actions during the January meetings with her
supervisors were a sufficient non-pretextual reason for her termination.
State Law Claims
Rush asserts that The Mississippi Press is liable for intentional infliction of
emotional distress stemming from its failure to promote her and for her termination. To
establish a prima facie case of intentional infliction of emotional distress, Rush was
required to show intentional or reckless conduct by the defendant which was extreme
and outrageous, and which caused the plaintiff severe emotional distress.11 The district
court found that Rush failed to demonstrate that the appellee’s conduct was reckless,
extreme, or outrageous, and that her reaction to not being promoted and to being
terminated was not indicative of severe emotional distress. We are likewise persuaded.
The record reflects that The Mississippi Press dealt with Rush as any business would
11 Parikh v. United Artists Theatre Circuit, Inc., 934 F.Supp. 760, 765 (S.D. Miss. 1996), citing First Nat. Bank v. Langley, 314 So.2d 324 (Miss. 1975). 6 in promoting a more qualified person and in discharging her for insubordination.
Rush’s claim for wrongful termination, which essentially is a restatement of her Title
VII claims, is totally without merit.
Finally, Rush’s negligence per se action is barred by the Mississippi Workers
Compensation Law as a claim grounded in negligence. That statute provides the
exclusive remedy for employee actions against employers based in negligence.12
For the foregoing reasons, the judgment of the district court is AFFIRMED.
12 See MISS. CODE § 71-3-9; see also Campbell v. Jackson Bus. Forms Co., 841 F.Supp. 772, 774-75 (S.D. Miss. 1994). 7