Smith v. Univ TX Hlth Houston

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 2004
• Docket: 03-20792
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D June 16, 2004 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit _______________

m 03-20792 Summary Calendar _______________

RUTH A. SMITH,

Plaintiff-Appellant,

VERSUS

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas m H-01-CV-1475 _________________________

Before SMITH, DEMOSS, and STEWART, Plaintiff Ruth Smith appeals the denial of Circuit Judges. her motion to reopen following entry of sum- mary judgment for defendant University of JERRY E. SMITH, Circuit Judge:* Texas Health Science Center at Houston (“UTHSCH”). Finding no error, we affirm.

I. * Pursuant to 5TH CIR. R. 47.5, the court has de- Since March 1999, Smith, who is black, has termined that this opinion should not be published and been employed by UTHSCH as a medicare is not precedent except under the limited officer. In May 2000, she was assigned to the circumstances set forth in 5TH CIR. R. 47.5.4. newly created Multi-Specialty Invoice Follow- “Niggers don’t have no rights.” Smith asked Up Group as a Coordinator or team leader. McCullen to call Berezowsky, but McCullen The group was supervised by Mary McCullen, refused. Smith asked that Dena Thurman, the a white woman, who reported to Ryan Bien, a Human Resources Manager, be called, but white man. Bien reported to Ira Berezowsky, McCullen stated that Thurman was not there. the Director of Physicians’ Business Services. Several other employees were summoned into Smith’s performance ratings were consistently McClellan’s office to witness the events. “Distinguished” or “Satisfactory.” Smith then contacted Human Resources On July 19, 2000, McCullen sent a memo- about the problems she had had with McCul- randum to her coordinators stating that arriv- len. On October 2, 2000, Bien asked Smith to ing late or leaving early would be a “written give him the opportunity to resolve the situa- up” process. On September 29, 2000, Smith tion without going to Berezowsky. On Octo- observed Rhonda Alfara, a black female em- ber 9, Smith advised Bien that she would re- ployee, talking about personal matters on the solve the case for an apology, a transfer, and telephone. Smith attempted to notify Alfara’s a third party present for all dealings with Mc- coordinator, but that coordinator was not in Cullen. Bien said that he could not ask Mc- the office. Instead, Smith notified McCullen, Cullen to apologize, and he began an investi- who talked to Alfaro. Alfaro then left for gation on October 11. Berezowski states that lunch but resumed talking on the phone when Bien conducted a thorough investigation and whe returned. Smith later saw McCullen and could find no support or corroboration for said, “The quiet was good while it lasted.” Smith’s allegation against McCullen. McCullen told Smith, “You know you have the right to go over and ask any employee to Smith contends that on October 3, she re- get to work.” quested that Bien promote her to one of the two positions available for Analysts. Smith Later, McCullen announced to Smith and cites her deposition as evidence of her request. other employees that everyone could leave fif- Her deposition, however, was taken on teen minutes early, because the department March 12, 2002, and thus could not evidence had collected over $5 million for the month. a request for a promotion that is alleged to Smith stated, “Why are they talking about have occurred almost six months thereafter. leaving early? They need to be made to spend Instead, the district court concluded that the the night to earn their check that they get on evidence indicated that had Smith requested a Friday.” McCullen stated, “This is why I’m promotion during the time that UTHSCH was supervisor and Ruth is not.” investigating her complaint.

McCullen called Smith into her office. The Analyst position requested at that time Smith alleges that McCullen immediately start- was one for which Smith was not qualified, in ed threatening and chastising Smith, shouting, that it required computer skills that she did not “You better not do this no more. You better possess. Furthermore, although Smith made not do that.” Smith said that she was only oral requests for a promotion, she never made expressing an opinion and that she had the a formal application for that promotion or for right to do so. McCullen replied by saying, other positions through Human Resources.

2 Smith also claims that she requested a transfer McCullen’s alleged statement to her. She also to another hospital operated by the University claimed that Bien “poked fun” at her regarding of Texas, but she never made a formal request her complaint and personal appearance and for this transfer. that Bien and Berezowsky failed properly to resolve her grievance, although the district At Smith’s request, she was transferred to court determined that UTHSCH had produced another supervisor and reported directly to Bi- uncontradicted evidence that Smith had with- en. She contends that this was a demotion, be- drawn her grievance twice and that there was cause, although she retained her title as Medi- no paperwork or evidence that she had for- caid Coordinator, she no longer supervised mally reinstated her grievance. anyone. After two months of reporting to Bien, Smith requested and received twelve Relying on claims of lack of smiles and weeks’ paid medical leave as a result of the greetings in the hallway and on Bien’s commu- stress she alleges she experienced on account nicating with her by e-mail, Smith asserts that of the September 29 incident. various co-workers ceased speaking with her while the grievance was pending. She also Smith returned to work on March 5, 2001. complains of an alleged unfair write-up that She continued to report to Bien until a reorga- resulted in her being placed on probation, but nization caused her to be assigned to a new she acknowledges that she was never placed supervisor, Jane Hughes. Smith states that she on probation. has a good working relationship with Hughes, has no complaint about her change in position, After discovery, UTHSCH moved for sum- and still is employed at UTHSCH. mary judgment pursuant to FED. R. CIV. P. 56. Smith filed no response in the time allowed. In Smith claims that McCullen encouraged a memorandum and order, the district court other employees to lodge grievances against gave a thorough analysis of the merits of her, and she provides unsworn statements and Smith’s claims, concluding that she had failed letters of other employees to the effect that she to raise a genuine issue of material fact on her was helpful and had trained them well. Smith title VII, race discrimination, hostile environ- also avers that she has not received merit rais- ment, retaliation, and constructive discharge es, promotions, or transfers since September claims and that her i.i.e.d. claim was barred by 2000. The record reflects, however, that she sovereign immunity. Accordingly, the court received a merit raise in February 2001, and entered summary judgment. her salary increased after she filed her charge of discrimination. Smith filed a “Motion to Reopen,” alleging that her lawyer had failed to respond on her II. behalf and had misled her into believing that Smith sued, making claims under title VII the response had been filed. The district court for (1) race discrimination, (2) racial harass- construed this as a motion under FED. R. CIV. ment, (3) retaliation, and (4) constructive P. 59(e) to alter or amend the judgment. The discharge, and under Texas common law for court granted the motion to the extent that it intentional infliction of emotional distress permitted Smith to file a response to the mo- (“i.i.e.d.”). The basis for her complaints were tion for summary judgment. After considering

3 Smith’s response, the court once again pro- eration for the position. vided a thorough analysis of her claims and de- nied the Motion to Reopen. Smith appeals pro The court then addressed Smith’s conten- se. tion that she had been denied a transfer. The court determined that Smith had not formally III. applied for the transfer and that there was no We review for abuse of discretion a deci- evidence that the denial of such a transfer sion to reconsider a summary judgment in light would have been a change in job duties, condi- of new materials. We review de novo a deci- tions, or benefits of employment such that its sion that summary judgment was appropriate. denial constituted an adverse employment Ford Motor Credit Co. v. Bright, 34 F.3d 322, decision. The court ruled that neither of 324 (5th Cir. 1994); Fields v. City of South Smith’s alleged employment decisions consti- Houston, Tex., 922 F.2d 1183 (5th Cir. 1991). tuted an “adverse employment decision” ac- A motion under rule 59(e) “is not the proper tionable under title VII. vehicle for rehashing evidence, legal theories, or arguments that could have been offered or Assuming arguendo that one of these deci- raised before the entry of judgment.” Templet sions had been an adverse employment action, v. HydroChem Inc., 2004 U.S. App. LEXIS the court noted that Smith had attempted to 7627, at *12 (5th Cir. Apr. 20, 2004) (citing support her claim for discrimination under title Simon v. United States, 891 F.2d 1154, 1159 VII by direct evidence in the form of her own (5th Cir. 1990)). testimony that McCullen made the alleged offensive racial comment. Assuming, for A. purposes of summary judgment, that McCullen 1. did make that statement, the district court The district court held that Smith had failed found that the comment was governed by this to meet the requirements of a claim for dis- court’s “stray remark” doctrine. crimination under title VII because she had not shown an adverse employment action. As the For a comment in the workplace to provide court noted, only “ultimate employment deci- evidence of discrimination, it must, inter alia, sions” are actionable under title VII. See be “made by an individual with authority over Bennett v. Total Minatome Corp., 138 F.3d the employment decision at issue.” Patel v. 1053, 1060 n.10 (5th Cir. 1998) (citing Mat- Midland Mem. Hosp. & Med. Ctr., 298 F.3d tern v. Eastman Kodak Co., 104 F3d 702, 707 333, 343 (5th Cir. 2002), cert. denied, 537 (5th Cir. 1997). U.S. 1108 (2003). The district court held that Smith had not presented evidence that McCul- The court first addressed Smith’s claim that len had authority over the decisions of which she had been denied a promotion, deciding that Smith complains or that McCullen’s comment she had admitted that she had never formally was related to either decision. applied for the promotion in question and that she did not possess the computer skills re- In her appellate brief, Smith does no more quired for the job she allegedly sought. There- than assert that she was denied a promotion fore, Smith had failed to show that she was and a transfer for which she was qualified, and qualified for or actually put herself into consid- does not address the issue of whether either

4 was an “adverse employment action” within environment. Once again, aside from a recita- the meaning of Fifth Circuit law. Nor does she tion of her alleged facts and reiteration that she assert that McCullen had authority over the has suffered harassment, Smith’s brief does not decisions. Notwithstanding the likelihood that address the issue of whether the behavior was Smith has waived these issues on appeal, we actionable under title VII. We find no error. have reviewed the record and the opinion of the district court and find no error. 3. Smith contends that after she complained of 2. McCullen’s comments and filed a grievance, Smith claimed that she was subjected to a UTHSCH engaged in unlawful retaliation. As racially hostile work environment and was har- we noted above, only ultimate employment assed on the basis of her race. The district decisions are actionable under title VII. Smith court noted that to prevail on a hostile work alleges that she was ostracized by her co- environment claim, a plaintiff must show that workers, that Bien and McCullen criticized conduct that was so “severe or pervasive” as and poked fun at her, that Bien and to create an environment that a reasonable per- Berezowsky did not resolve her grievance, that son would find hostile or abusive. See Weller Smith was unfairly “written up” and placed on v. Citation Oil & Gas Corp., 84 F.3d 191, 194 probation, and that her past accomplishments (5th Cir. 1996). The court decided that the had been diminished through lowered perfor- only racially charged conduct for which Smith mance ratings. had submitted evidence was McCullen’s al- leged offensive statement. The district court held that none of these was an ultimate employment decision sufficient The court held that although this single to give rise to a cause of action. The court comment, if made, would have been offensive also noted that, as discussed above, the denial (and we certainly agree), it could not by itself of a transfer to an identical position and a constitute “severe” or “pervasive” conduct. promotion for which Smith did not apply and Thus, Smith could not meet her burden to was not qualified could not give rise to a cause show conduct that was actionable under a title of action under title VII. VII hostile environment theory. The district court also noted that Smith’s other alleged in- Smith also claimed that McCullen coerced stances of mistreatment, including that her co- another employee into filing a false complaint workers did not smile at her in the hallway, against her. The court ruled that this conten- that Bien and Berezowsky failed to resolve her tion was without any evidentiary support. grievance, and that Bien or others “poked fun at her” were not supported by the evidence, Finally, the court concluded that although were too vague and speculative to support a the transfer of Smith to a position in which she claim, and were innocuous if they actually did not supervise other employees could be an occurred. adverse employment action sufficient to estab- lish a prima facie case of discrimination, Smith The court concluded that the conduct Smith had provided no evidence to show that alleged did not constitute abusive behavior by UTHSCH’s proffered reasons of high employ- UTHSCH and did not create a hostile work ee turnover and poor employee relations were

5 pretextual. Once again, Smith’s briefing is in- adequate on this point. We find no error.

4. The district court held that Smith’s claim for constructive discharge was without merit because (1) Smith did not describe conditions such that a reasonable person would have felt compelled to resign, and (2) she is still em- ployed at UTHSCH and currently has no com- plaints. Smith has not addressed this issue on appeal, so it is waived. Even absent waiver, there is no error.

B. The district court dismissed Smith’s claim for i.i.e.d. for want of subject matter jurisdic- tion, holding that the claim was barred by the state’s sovereign immunity under the Eleventh Amendment. Alternately, the court held that the claim failed on the merits.

Smith does not address this issue in her opening brief on appeal. In her reply brief, she provides a discussion of intentional infliction of emotional distress but does not address sovereign immunity except to assert that UTHSCH did not raise sovereign immunity as a defense. Because we do not consider issues raised for the first time in a reply brief, United States v. Avants, 2004 U.S. App. LEXIS 7519, at *34 (5th Cir. Apr. 19, 2004), the matter is waived. “Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988) (citations omitted).

AFFIRMED.