Washington v. Entergy Operations

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 1, 2000
• Docket: 00-60253
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60253 Summary Calendar _____________________

BESSIE WASHINGTON,

Plaintiff-Appellant

v.

ENTERGY OPERATION, INC.; DON HINTZ,

Defendants-Appellees

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:99-CV-61-BN _________________________________________________________________

October 31, 2000

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Bessie Washington appeals from the

district court’s grant of summary judgment in favor of

Defendants-Appellees, Entergy Operation, Inc. and Don Hintz,

Chief Executive Officer of Entergy Operation, Inc. For the

following reasons, we AFFIRM.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. FACTUAL AND PROCEDURAL BACKGROUND

In November 1990, Bessie Washington, an African-American

female, was hired by Entergy Operations, Inc. (EOI). She was

transferred to Entergy Service, Inc. (ESI) in May 1995.

Washington received annual merit pay increases at both EOI and

ESI until a negative performance appraisal at ESI in 1997. On

March 12, 1999, she filed suit against EOI and Don Hintz, in his

individual capacity and in his capacity as CEO of EOI, claiming

unlawful discrimination on the basis of race.

Washington alleged three causes of action in her complaint:

failure to promote due to race, payment of disparate wages due to

race, and creation of a racially discriminatory working

environment. On January 7, 2000, Defendants filed a Motion for

Summary Judgment. In response, Washington requested a voluntary

dismissal of the promotion and working environment claims,

pursuant to Rule 41 of the Federal Rules of Civil Procedure. The

district court, on March 2, 2000, granted Washington’s Rule 41

motion on those two claims and also awarded Defendants summary

judgment on the remaining disparate wages claim.1

On March 21, 2000, Washington filed her Motion to Amend and

to Make Additional Findings of Fact and Conclusions of Law and to

Amend Opinion and Judgment (“Rule 52 and 59(e) Motion”). On

1 In the same opinion, the district court also denied Washington’s motion to strike the affidavit of Ronald Husbands, one of Washington’s supervisors. Washington is not appealing this portion of the district court’s decision.

2 March 29, 2000, Washington filed a timely notice of appeal of the

March 2 decision granting Defendants summary judgment. The

district court, on April 11, 2000, denied the Rule 52 and 59(e)

Motion. Washington did not amend her Notice of Appeal to include

this decision; she asks us to review only the March 2 decision.

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. See Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th

Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “If the moving party meets the initial burden of showing

there is no genuine issue of material fact, the burden shifts to

the nonmoving party to produce evidence or designate specific

facts showing the existence of a genuine issue for trial.” Allen

v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)

(internal quotations and citation omitted). Doubts are to be

resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party. See Burch,

174 F.3d at 619.

3 III. DISCUSSION

The district court granted Defendants’ summary judgment

motion on the ground that Washington had sued the wrong parties.

Before proceeding to ascertain whether summary judgment was

proper, we address a threshold issue that impacts the evidence we

may consider in making that determination.

A. The Agency Argument Has Been Waived

On appeal, Washington primarily utilizes an agency theory to

argue that Defendants are the appropriate parties to this action.

In essence, she claims that Defendants and ESI were acting as co-

agents. Because this theory was raised for the first time in the

Rule 52 and 59(e) Motion, and not during the summary judgment

proceedings, Defendants assert that the agency argument was not

properly presented to the district court. As such, Defendants

contend that consideration of this argument on appeal is

precluded. In response, Washington states that she is not

appealing from the denial of the Rule 52 and 59(e) Motion, but

only from the grant of summary judgment to Defendants.2

“It is a bedrock principle of appellate review that claims

raised for the first time on appeal will not be considered.”

Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Ctrs.,

Inc., 200 F.3d 307, 316-17 (5th Cir. 2000); see also Hormel v.

2 Washington does not put forth any arguments that she has preserved the use of the agency theory. She appears simply to continue to use the theory in support of her contention that Defendants are proper parties in this case.

4 Helvering, 312 U.S. 552, 556 (1941) (stating the general rule

that an appellate court does not consider issues not raised

below); Harris County, Tex. v. Carmax Auto Superstores, Inc., 177

F.3d 306, 326 (5th Cir. 1999) (same). Furthermore, “[t]his rule

is equally applicable in summary judgment cases.” Stewart Glass,

200 F.3d at 316; see also Hansen v. Continental Ins. Co., 940

F.2d 971, 983 n.9 (5th Cir. 1991) (“It is settled law that a

party attacking a summary judgment on appeal cannot do so on

theories not presented to the district court.”).

In this case, Washington did raise the agency theory in the

district court in her Rule 52 and 59(e) Motion. However, because

that motion was filed after the district court granted Defendants

summary judgment, Washington is not immune from the application

of the rule stated above. The operative inquiry is not merely

whether the issue was raised below, but rather whether the issue

was advanced in the proper time frame. The defect in

Washington’s case is that she failed to raise the argument in the

appropriate context — during the summary judgment proceedings.

“This court’s inquiry is limited to the summary judgment

record before the trial court: the parties cannot add exhibits,

depositions, or affidavits to support their positions on appeal,

nor may the parties advance new theories or raise new issues to

secure reversal.” Topalian v. Ehrman, 954 F.2d 1125, 1131-32

n.10 (5th Cir. 1992) (emphasis added); see also Little v. Liquid

Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994). We thus hold

5 that the agency theory was not properly before the district court

because Washington did not “raise [her] argument to such a degree

that the district court [could] rule on” whether it impacted the

propriety of granting Defendants’ summary judgment motion. See

Harris County, 177 F.3d at 326.3 Therefore, we do not consider

this argument on this appeal.4

B. The Wrong Defendants Were Sued

After her Rule 41 voluntary dismissal, Washington’s sole

claim was that she was paid disparate wages as a result of

discrimination on the basis of race. This alleged discriminatory

act stemmed from Washington being given an unacceptable ranking

during the annual work appraisal in 1997, while an allegedly less

qualified white male was given an acceptable ranking and thus a

merit raise. Although Washington was working for ESI in 1997,5

she did not name ESI as a defendant in this suit. Washington

3 In addition, one cannot even make the argument that Washington impliedly raised the agency theory because she wholly failed to address the issue of wrong defendants in her Response to Defendants’ Motion for Summary Judgment. 4 Washington also does not meet the narrow exception to the rule that issues not properly raised below are precluded from appellate review. The exception operates to permit consideration when the issue “concerns a pure question of law and a refusal to consider it would result in a miscarriage of justice.” Volkswagen of America, Inc. v. Robertson, 713 F.2d 1151, 1166 (5th Cir. 1983). In this case, Washington’s argument that Defendants are related to and/or agents of her employer ESI necessarily involves factual determinations, which are the province of the trial court. 5 EOI had ceased being her employer when she was transferred to ESI in May 1995.

6 sued only EOI and Hintz, individually and as CEO of EOI.

Because we determined in section III.A that we could not

consider Washington’s agency arguments to support her contention

that Defendants are proper parties to this action, we find only

one other argument remaining. Washington points to her

deposition and supplemental interrogatory responses in which she

testified that Hintz adopted and approved the ranking process

that denied her a merit raise.6 There is no other information in

the summary judgment record regarding the relationship between

EOI, Hintz, and ESI. We thus find that Washington’s deposition

and supplemental interrogatory responses are insufficient to

create a genuine issue that Defendants are proper parties to this

suit — that they were related or connected to ESI in some

fashion. See Hainze v. Richards, 207 F.3d 795, 798 (5th Cir.

2000) (“The standard of review is not merely whether there is a

sufficient factual dispute to permit the case to go forward, but

whether a rational trier of fact could find for the non-moving

party based upon the record evidence before the court.” (internal

quotations and citation omitted)).

Based on the summary judgment record before the district

court, we agree with the district court that Washington did not

6 While Defendants imply that such “self-serving” allegations are not appropriate evidence, Rule 56(c) of the Federal Rules of Civil Procedure clearly states that “depositions” and “answers to interrogatories” are properly considered when deciding a summary judgment motion.

7 carry her burden to demonstrate that a genuine issue existed

whether Defendants were proper parties to this suit.

IV. CONCLUSION

For the above stated reasons, we AFFIRM the judgment of the

district court.