Shaw v. Fanning, Harper &

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 1998
• Docket: 97-11411
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11411 Summary Calendar _____________________

PATRICIA D. SHAW,

Plaintiff-Appellant,

versus

FANNING, HARPER & MARTINSON; MARC FANNING; JACK E. EWING,

Defendants-Appellees. ________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:95-CV-2862-G _________________________________________________________________ June 15, 1998 Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

After reviewing the record and studying the briefs, we

conclude that the plaintiff has failed to adduce any evidence of

discrimination on the basis of race, sex, or pregnancy. Nothing in

the record supports even the slightest inference that white, male,

or non-pregnant employees were treated any differently than the

plaintiff. Responding to the plaintiff’s bare allegations, the

defendants articulated a legitimate nondiscriminatory reason for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discharging the plaintiff, namely, that the plaintiff failed to

return to work following the expiration of her leave of absence

under the Family Medical Leave Act (“FMLA”) and that the

plaintiff’s position had to be filled with a full time employee for

the smooth running of the defendant’s operations. Indeed, the

plaintiff was replaced by a black female. The summary judgment

evidence produced by the plaintiff--consisting merely of affidavits

from her and her doctor--makes absolutely no reference to disparate

treatment of any sort. “It is more than well-settled that an

employee’s subjective belief that [s]he has 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 nondiscriminatory reason.” Douglass v.

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

banc) (citing cases). Thus, the plaintiff’s claims of

discrimination on the basis of race, sex, and pregnancy were

properly dismissed on summary judgment.

Summary dismissal of the plaintiff’s claim of hostile work

environment was likewise proper. Even assuming the plaintiff’s

allegations that an attorney at the firm made sexually harassing

remarks on two occasions would be sufficient to sustain a hostile

work environment claim, but cf. DeAngelis v. El Paso Police

Officers Ass’n, 51 F.3d 591, 593-94 (5th Cir.) (describing the high

evidentiary standard required to prove an objectively hostile work

2 environment), cert. denied, 116 S.Ct. 473 (1995), the plaintiff

failed to include this claim in her EEOC complaint, which, in any

event, was filed more than 300 days after any alleged harassment

occurred. Thus, the plaintiff failed to exhaust her administrative

remedies and, even if she had, her hostile work environment claim

is time barred. As a result, summary judgment on this claim was

proper. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)

(exhaustion required); Griffin v. City of Dallas, 26 F.3d 610, 612

(5th Cir. 1994) (discrimination charge must be made within 300 days

of alleged incident).

The plaintiff’s newly-sprung FMLA claim, even if it were

properly before the district court (which it was not), was also

appropriately dismissed. An employee is entitled to return to her

position under the FMLA only if she returns to work within the

maximum 12-week leave period. See 29 U.S.C. § 2612; 29 C.F.R.

§ 825.214. The plaintiff failed to return within this time and,

consequently, had no continuing right to employment. Thus, the

plaintiff failed to state an FMLA violation.

Finally, for the reasons stated in its July 1, 1997 memorandum

and order, the district court’s denial of the plaintiff’s motion to

amend the complaint was not an abuse of discretion. And having

properly dismissed all of the plaintiff’s federal claims, the

district court did not abuse its discretion in dismissing her state

claims. Very little, if any, discovery had been completed, and the

3 plaintiff has shown no prejudice by having the case sent to state

court.

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.