Smith v. University of Texas Health Science Center

100 F. App'x 980
Court of Appeals for the Fifth Circuit·Decided June 16, 2004·No. No. 03-20792·Published

Opinion

JERRY E. SMITH, Circuit Judge:*

Plaintiff Ruth Smith appeals the denial of her motion to reopen following entry of summary judgment for defendant University of Texas Health Science Center at Houston (“UTHSCH”). Finding no error, we affirm.

I.

Since March 1999, Smith, who is black, has been employed by UTHSCH as a medicare officer. In May 2000, she was assigned to the newly created Multi-Specialty Invoice Follow-Up Group as a Coordinator or team leader. The group was supervised by Mary McCullen, a white woman, who reported to Ryan Bien, a white man. Bien reported to Ira Berezowsky, the Director of Physicians’ Business Services. Smith’s performance ratings were consistently “Distinguished” or “Satisfactory.”

On July 19, 2000, McCullen sent a memorandum to her coordinators stating that arriving late or leaving early would be a “written up” process. On September 29, 2000, Smith observed Rhonda Aliara, a black female employee, talking about personal matters on the telephone. Smith attempted to notify Alfara’s coordinator, but that coordinator was not in the office. Instead, Smith notified McCullen, who talked to Alfaro. Alfaro then left for lunch but resumed talking on the phone when she returned. Smith later saw McCullen and said, “The quiet was good while it lasted.” McCullen told Smith, “You know you have the right to go over and ask any employee to get to work.”

Later, McCullen announced to Smith and other employees that everyone could leave fifteen minutes early, because the department had collected over $5 million for the month. Smith stated, “Why are they talking about leaving early? They need to be made to spend the night to earn [982] their check that they get on Friday.” McCullen stated, “This is why I’m supervisor and Ruth is not.”

McCullen called Smith into her office. Smith alleges that McCullen immediately started threatening and chastising Smith, shouting, ‘You better not do this no more. You better not do that.” Smith said that she was only expressing an opinion and that she had the right to do so. McCullen replied by saying, “Niggers don’t have no rights.” Smith asked McCullen to call Berezowsky, but McCullen refused. Smith asked that Dena Thurman, the Human Resources Manager, be called, but McCullen stated that Thurman was not there. Several other employees were summoned into McClellan’s office to witness the events.

Smith then contacted Human Resources about the problems she had had with McCullen. On October 2, 2000, Bien asked Smith to give him the opportunity to resolve the situation without going to Berezowsky. On October 9, Smith advised Bien that she would resolve the case for an apology, a transfer, and a third party present for all dealings with McCullen. Bien said that he could not ask McCullen to apologize, and he began an investigation on October 11. Berezowski states that Bien conducted a thorough investigation and could find no support or corroboration for Smith’s allegation against McCullen.

Smith contends that on October 3, she requested that Bien promote her to one of the two positions available for Analysts. Smith cites her deposition as evidence of her request. Her deposition, however, was taken on March 12, 2002, and thus could not evidence a request for a promotion that is alleged to have occurred almost six months thereafter. Instead, the district court concluded that the evidence indicated that had Smith requested a promotion during the time that UTHSCH was investigating her complaint.

The Analyst position requested at that time was one for which Smith was not qualified, in that it required computer skills that she did not possess. Furthermore, although Smith made oral requests for a promotion, she never made a formal application for that promotion or for other positions through Human Resources. Smith also claims that she requested a transfer to another hospital operated by the University of Texas, but she never made a formal request for this transfer.

At Smith’s request, she was transferred to another supervisor and reported directly to Bien. She contends that this was a demotion, because, although she retained her title as Medicaid Coordinator, she no longer supervised anyone. After two months of reporting to Bien, Smith requested and received twelve weeks’ paid medical leave as a result of the stress she alleges she experienced on account of the September 29 incident.

Smith returned to work on March 5, 2001. She continued to report to Bien until a reorganization caused her to be assigned to a new supervisor, Jane Hughes. Smith states that she has a good working relationship with Hughes, has no complaint about her change in position, and still is employed at UTHSCH.

Smith claims that McCullen encouraged other employees to lodge grievances against her, and she provides unsworn statements and letters of other employees to the effect that she was helpful and had trained them well. Smith also avers that she has not received merit raises, promotions, or transfers since September 2000. The record reflects, however, that she received a merit raise in February 2001, and her salary increased after she filed her charge of discrimination.

[983] II.

Smith sued, making claims under title VII for (1) race discrimination, (2) racial harassment, (3) retaliation, and (4) constructive discharge, and under Texas common law for intentional infliction of emotional distress (“i.i.e.d.”). The basis for her complaints were McCullen’s alleged statement to her. She also claimed that Bien “poked fun” at her regarding her complaint and personal appearance and that Bien and Berezowsky failed properly to resolve her grievance, although the district court determined that UTHSCH had produced uncontradicted evidence that Smith had withdrawn her grievance twice and that there was no paperwork or evidence that she had formally reinstated her grievance.

Relying on claims of lack of smiles and greetings in the hallway and on Bien’s communicating with her by e-mail, Smith asserts that various co-workers ceased speaking with her while the grievance was pending. She also complains of an alleged unfair write-up that resulted in her being placed on probation, but she acknowledges that she was never placed on probation.

After discovery, UTHSCH moved for summary judgment pursuant to Fed. R.CivP. 56. Smith filed no response in the time allowed. In a memorandum and order, the district court gave a thorough analysis of the merits of Smith’s claims, concluding that she had failed to raise a genuine issue of material fact on her title VII, race discrimination, hostile environment, retaliation, and constructive discharge claims and that her i.i.e.d. claim was barred by sovereign immunity. Accordingly, the court entered summary judgment.

Smith filed a “Motion to Reopen,” alleging that her lawyer had failed to respond on her behalf and had misled her into believing that the response had been filed. The district court construed this as a motion under Fed.R.CivP. 59(e) to alter or amend the judgment. The court granted the motion to the extent that it permitted Smith to file a response to the motion for summary judgment. After considering Smith’s response, the court once again provided a thorough analysis of her claims and denied the Motion to Reopen. Smith appeals pro se.

III.

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Smith v. University of Texas Health Science Center, 100 F. App'x 980 (5th Cir. 2004).

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