UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 95-10167
ROMMIE STULTS and STEPHEN WALLACE,
Plaintiffs-Appellants,
versus
CONOCO, INC. and BRAD BURMASTER,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas
February 29, 1996
Before DAVIS and PARKER, Circuit Judges, and BUNTON, District Judge.*
ROBERT M. PARKER, Circuit Judge:
Plaintiffs appeal the district court's granting of defendants'
motions for summary judgment. Finding no error, we affirm.
I. FACTS
Plaintiffs Stults and Wallace were employees of Defendant
Conoco, Inc. While employed by Conoco, plaintiffs each held the
position of store manager. Plaintiff Stults was terminated on or
around May 25, 1991 by his immediate supervisor, district manager
Connie Lutton. Plaintiff Wallace resigned from his position with
* District Judge of the Western District of Texas, sitting by designation. Conoco on or around July 14, 1992, after a meeting with his
immediate supervisor, district manager Danise Chatham. At all
relevant times, Lutton and Chatham were supervised by defendant
Brad Burmaster, former regional retail operations manager for
Conoco. Burmaster approved the decisions to terminate Stults and
Wallace.
In November 1993, the plaintiffs filed this action for age
discrimination and intentional infliction of emotional distress in
the District Court of Tarrant County, Texas.1 Defendant Conoco
removed the action to U.S. District Court on the basis of federal
question jurisdiction. Defendant Burmaster was served and made an
appearance in the action subsequently.
On November 14, 1994, Burmaster filed a motion for summary
judgment, asserting that he could not be held individually liable
under the Age Discrimination in Employment Act ("ADEA"), and that
there was no evidence of extreme and outrageous conduct or severe
distress. On January 18, 1995, the district court entered an order
granting Burmaster's motion for summary judgment in its entirety.
On December 8, 1994, Conoco filed a motion for summary
judgment, asserting that plaintiffs were terminated for non-
discriminatory reasons and that there was no evidence of pretext,
and that there was no evidence of extreme and outrageous conduct or
severe distress. On January 19, 1995, the district court entered
1. In addition to their claims under the ADEA, the plaintiffs stated claims under the Fair Labor Standards Act and the Texas Human Rights Act. Plaintiffs do not address the dismissal of these claims separately on appeal.
2 an order granting Conoco's motion for summary judgment, noting that
plaintiffs failed to file a response to Conoco's motion.
Plaintiffs timely filed this appeal.
II. DISCUSSION
We review a district court's grant of summary judgment de
novo, applying the same standard as did the district court. Neff
v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995)
,cert. denied, 64 U.S.L.W. 3450, 1995 WL 625562 (1996). Summary
judgment is appropriate if "the pleadings, depositions, answers to
interrogatories, and admissions of file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." FED. R. CIV. P. 56(c). 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."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986). For purposes of the summary
judgment determination, all fact questions are viewed in the light
most favorable to the nonmovant. Hassan v. Lubbuck Indep. Sch.
Dist., 55 F.3d 1075, 1078 (5th Cir.), cert. denied, 116 S. Ct. 532
(1995). But only materials which were included in the pretrial
record and that would have been admissible evidence may be
considered. See Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987). Questions of law are always
reviewed de novo. Gulf States Ins. Co. v. Alamo Carriage Serv., 22
3 F.3d 88, 90 (5th Cir. 1994).
A. AGE DISCRIMINATION IN EMPLOYMENT
1. INDIVIDUAL LIABILITY UNDER THE ADEA
The district court granted summary judgment in favor of
Burmaster on plaintiffs' age discrimination claims, holding that
the ADEA provides no basis for relief against supervisory personnel
in their individual capacities. The plaintiffs contend that this
holding was in error. We disagree.
The ADEA makes it unlawful for an employer to discriminate
against an individual on the basis of age. 29 U.S.C. § 623 (a).
Under the ADEA, the term "employer" means a person "engaged in an
industry affecting commerce who has twenty or more employees for
each working day in each of twenty or more calendar weeks in the
current or preceding calendar year . . . ." 29 U.S.C. § 630 (b).
"Employer" also includes "any agent of such a person . . . ." Id.
The plaintiffs argue that the inclusion of the employer's agents in
the definition of "employer" indicates that Congress intended to
allow claims against supervisory personnel, like Burmaster, in
their individual capacities.
The Fourth Circuit and the Ninth Circuit have already
considered and rejected this argument. Birkbeck v. Marvel Lighting
Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, 115 S. Ct. 666
(1994); Miller v. Maxwell's International Inc., 991 F.2d 583, 587-
88 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049 (1994). The
Fourth Circuit noted that "[s]uch personal liability would place a
4 heavy burden on those who routinely make personnel decisions for
enterprises employing twenty or more persons, and we do not read
the statute as imposing it. Instead, we read § 630 (b) as an
unremarkable expression of respondeat superior--that discriminatory
personnel actions taken by an employer's agent may create liability
for the employer." Birkbeck, 30 F.3d at 510. The Ninth Circuit
observed that
[t]he statutory scheme itself indicates that congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, and the ADEA limits liability to employers with twenty or more employees, in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.
Miller, 991 F.2d at 587.
Rejecting a similar argument, this court recently held that an
individual supervisor who does not otherwise qualify as an employer
cannot be held liable for a violation of Title VII. Grant v. Lone
Star Co., 21 F.3d 649, 651-53 (5th Cir.), cert. denied, 115 S. Ct.
574 (1994). In doing so, we cited for support the Ninth Circuit's
reasoning in Miller. 21 F.3d at 652. The statutory scheme of
Title VII at issue in Grant is virtually identical to the statutory
scheme of the ADEA at issue here. Both acts limit liability to
employers with more than a minimum number of employees, and both
define "employer" to include agents of the employer. The
plaintiffs have directed us to no salient distinction between the
ADEA and its closest statutory kin, and we have found none.
5 Therefore, we find that this Court's reasoning in Grant applies
with equal force in the present context and hold that the ADEA
provides no basis for individual liability for supervisory
employees.
2. ADEA CLAIMS AGAINST CONOCO, INC.
The district court granted summary judgment in favor of Conoco
on all of plaintiffs' claims, noting that plaintiffs had not filed
a response to Conoco's Motion for Summary Judgment at the time the
motion was granted. The party moving for summary judgment bears
"the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of `the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact."
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 2553, 91 L. Ed. 2d 265 (1986)), cert. denied, 113 S. Ct. 98
(1992). However, the movant does not need to negate the elements
of claims on which the nonmoving parties would bear the burden of
proof at trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc); Skotak, 953 F.2d at 913.
The movant's burden is "only [to] point out the absence of
evidence supporting the nonmoving party's case." Skotak, 953 F.2d
at 913 (quoting Latimer v. Smithkline & French Laboratories, 919
F.2d 301, 303 (5th Cir. 1990)). "If the moving party fails to meet
6 this initial burden, the motion must be denied, regardless of the
nonmovant's response. If the movant does, however, meet this
burden, the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial."
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995);
Little, 37 F.3d at 1075. To meet this burden, the nonmovant must
"identify specific evidence in the record, and articulate the
`precise manner' in which that evidence support[s] [its] claim[s]."
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 115
S. Ct. 195 (1994). As to material facts on which the nonmovant
"will bear the burden of proof at trial, the nonmovant must come
forward with evidence which would be sufficient to enable it to
survive a motion for directed verdict at trial." Skotak, 953 F.2d
at 913. "If the nonmoving party fails to meet this burden, the
motion for summary judgment must be granted." Tubacex, 45 F.3d at
954; Little, 37 F.3d at 1076.
Reviewing the summary judgment determination de novo, as we
do, we must first ask whether Conoco met its burden of
demonstrating the absence of a genuine issue of material fact. In
its motion for summary judgment, Conoco assumed that the plaintiffs
had shown the elements of a prima facie case.2 Instead of
2. To establish a prima facie case in an ADEA case, a plaintiff generally must demonstrate that he or she (1) was discharged; (2) was qualified for the position; (3) was within the protected age class--over 40--at the time of discharge; and (4) was replaced by a younger person, or a person outside the protected age class, or otherwise was discharged because of his or her age." Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 114 S. Ct. 467 (1993); Elliott v. Group Medical & Surg. Serv., 714 F.2d 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215
7 attacking the elements of the prima facie case, Conoco presented
evidence of nondiscriminatory reasons for the plaintiffs'
terminations. Conoco argued that its summary judgment evidence
demonstrated legitimate reasons for its employment actions, and
that Stults and Wallace had not produced any evidence of pretext or
discriminatory animus.
In a discrimination case, the plaintiff's prima facie case
creates a rebuttable presumption of discrimination that shifts the
burden of production to the defendant to articulate a legitimate,
nondiscriminatory reason for the questioned employment action.
Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505 (5th
Cir. 1988). With its motion for summary judgment, Conoco submitted
evaluations and termination reports regarding both Stults and
Wallace that supported its claim that the plaintiffs were
terminated for performance deficiencies. In addition, Conoco
submitted portions of relevant depositions that demonstrated the
lack of evidence that its nondiscriminatory reasons were mere
pretext or that its employment actions were actually motivated by
age discrimination. Given this showing, we must agree with the
district court that Conoco adequately demonstrated the absence of
a material fact issue on the plaintiffs' age discrimination claims.
When the employer articulates a legitimate nondiscriminatory
reason, and produces competent summary judgment evidence in
support, as Conoco did in this case, the presumption created by the
prima facie case disappears and "the burden reverts to the
(1984).
8 plaintiff to prove that the employer's reason[] [is] pretextual."
Moore, 990 F.2d at 815 (quoting Normand v. Research Inst. of Am.,
Inc., 927 F.2d 857, 859 (5th Cir. 1991)). "The trier of fact may
not disregard the defendant's explanation without countervailing
evidence that it was not the real reason for the discharge."
Guthrie v. TIFCO Industries, 941 F.2d 374, 377 (5th Cir. 1991),
cert. denied, 503 U.S. 908 (1992).
The plaintiff at all times retains the burden of persuading
the trier of fact that impermissible discrimination motivated the
adverse employment decision. Bienkowski, 851 F.2d at 1505.
Therefore, to overcome a properly supported motion for summary
judgment, the plaintiff must produce sufficient evidence to create
a genuine issue of material fact on this ultimate question. Thus,
in the present case, Stults and Wallace bore the burden of
producing evidence that would allow a rational factfinder to make
a reasonable inference that age was a determinative reason for the
employment decision. Rhodes v. Guiberson Oil Tools, -- F.3d --,
1996 WL 37846 at *3 (5th Cir. 1996) (en banc).
On appeal, the plaintiffs contend that there was sufficient
evidence to create a genuine issue of material fact. However,
plaintiffs filed no timely response to Conoco's motion for summary
judgment. As we have noted before, "[r]ule 56 does not impose upon
the district court a duty to sift through the record in search of
evidence to support a party's opposition to summary judgment."
Forsyth, 19 F.3d at 1537 (quoting Skotak, 953 F.2d at 915 & n.7).
"Nor is it our duty to do so on appeal." Id. Because plaintiffs
9 filed no timely response, they did not meet their burden to
"designate `specific facts showing that there is a genuine issue
for trial'." Id. (quoting Celotex, 477 U.S. at 324, 106 S. Ct. at
2553). Therefore, the district court's order granting summary
judgment in favor of Conoco was entirely appropriate.
In their argument to this Court, the plaintiffs rely heavily
on the affidavit of Danise Chatham to support their allegations of
discriminatory animus. However, this affidavit was not made a part
of the summary judgment record. "Although on summary judgment the
record is reviewed de novo, this court for obvious reasons, will
not consider evidence or arguments that were not presented to the
district court for its consideration in ruling on the motion."
Skotak, 953 F.2d at 915 (citing Nissho-Iwai American Corp. v.
Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).
The plaintiffs argue that the district court abused its
discretion in refusing to allow them to make the Chatham affidavit
a part of the summary judgment record, but this contention is
without merit. The plaintiffs first offered the Chatham affidavit
with a supplementary response to Burmaster's motion for summary
judgment. The district court properly denied the plaintiffs'
request to file the supplementary response because it was not
pertinent to the basis for Burmaster's motion, i.e. the lack of
individual liability under the ADEA.
The plaintiffs also offered the Chatham affidavit with a
purported response to Conoco's motion for summary judgment after
the district court had already entered summary judgment in Conoco's
10 favor. This "response" did not become a part of the summary
judgment record because it was untimely. The plaintiffs attempt to
avoid this result by arguing that they should have been allowed
more time to respond under Rule 56(f) of the Federal Rules of Civil
Procedure.3 However, plaintiffs never made a motion for a
continuance under Rule 56(f). "To obtain a continuance of a motion
for summary judgment in order to obtain further discovery, a party
must indicate to the court by some statement, preferably in writing
(but not necessarily in the form of an affidavit), why he needs
additional discovery and how the additional discovery will create
a genuine issue of material fact." Krim v. BancTexas Group, Inc.,
989 F.2d 1435, 1442 (5th Cir. 1993). The plaintiffs gave the
district court no sufficient indication of the need for additional
discovery. Indeed, on appeal the plaintiffs make no attempt to
show that additional discovery would have allowed them to
demonstrate a genuine issue of material fact. Thus, this argument
is completely without merit.
B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The district court also dismissed the plaintiffs' claims for
3. Fed. R. Civ. P. 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
11 intentional infliction of emotional distress, holding that they had
not come forward with any evidence to support a finding of
outrageous conduct or that either of them had suffered severe
emotional distress. To recover for intentional infliction of
emotional distress Stults and Wallace bore the burden of
establishing that the defendants acted intentionally or recklessly,
that the defendants' conduct was extreme and outrageous, that the
defendants' actions caused them emotional distress, and that the
emotional distress was severe. Danawala v. Houston Lighting &
Power Co., 14 F.3d 251, 256 (5th Cir. 1993) (citing Twyman v.
Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993)). "Outrageous conduct
is that which `[goes] beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.'" Id. (quoting Wornick Co. v. Casas, 856 S.W.2d 732,
734 (Tex. 1993) (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt.
d)).
Viewed in the light most favorable to the plaintiffs, the
summary judgment evidence with regard to Stults shows that the
discussion with Lutton occurred in an office so that Latham and
Stults could speak more privately. Burmaster did not do anything
after Stults' termination to cause him emotional distress. Stults
did not see a doctor for treatment of emotional distress. Rather,
he took aspirin. With regard to Wallace, the summary judgment
evidence shows that after he was terminated, Wallace met with
Burmaster to explain his sixteen-year work record. Burmaster sat
with a smile or smirk on his face during the meeting. Burmaster
12 promised to call Wallace, but never did. Wallace felt distressed
whenever he had to drive by a Conoco station. Wallace never saw a
doctor for treatment of emotional distress.
The plaintiffs point to no other evidence of outrageous
conduct or severe distress. On these facts, we must agree with the
district court that no reasonable jury could find that these
elements of intentional infliction of emotional distress were
established.
III. CONCLUSION
For the reasons given above, the judgment of the district
court granting defendants' motions for summary judgment and
dismissing plaintiffs' claims with prejudice is AFFIRMED.