Daniels v. Caldera ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 00-40201
    Summary Calendar
    _____________________
    ORRIS T. DANIELS,
    Plaintiff-Appellant
    v.
    LOUIS CALDERA, In his official title and capacity as
    Secretary of the Army, Department of the Army,
    Defendant-Appellee
    _________________________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Texas, Texarkana Division
    USDC No. 5:97-CV-102
    _________________________________________________________________
    October 26, 2000
    Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Orris T. Daniels (“Daniels”) appeals
    from the district court’s entry of a final judgment of dismissal
    with prejudice.     For the following reasons, we affirm.
    I.    FACTUAL AND PROCEDURAL BACKGROUND
    *
    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    this opinion should not be published and is not precedent except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.
    Daniels, a black male, began working for the Red River Army
    Depot (RRAD) in August 1969.   He became a GS-07 Computer
    Assistant in June 1984 and was assigned to the Directorate of
    Information Management (DOIM).   On September 1984, Mary Ann
    Clarke (“Clarke”), a white female who joined RRAD in 1976, also
    became a GS-07 Computer Assistant in DOIM.   After receiving her
    two noncompetitive promotions in 1989 and 1991, Clarke is now
    employed at a GS-11 level.
    On May 28, 1993, Daniels filed his first formal complaint
    with an Equal Employment Opportunity Counselor at RRAD (“First
    EEO Complaint”).   He alleged racial discrimination based
    primarily on preferential treatment of a white male, Michael A.
    “Toni” Sheridan (“Sheridan”), denial of training, denial of
    overtime, denial of a temporary promotion, and Clarke’s two non-
    competitive promotions.   EEO Officer Charlean Carroll (“Carroll”)
    processed this complaint and listed the claims accepted for
    investigation, which did not include claims regarding Clarke’s
    promotions.   Daniels did not contest the issues as framed.1
    Ultimately, Daniels prevailed on the investigated issues.
    Next, on June 30, 1994, Daniels filed another formal
    complaint with the EEO office at RRAD (“Second EEO Complaint”).
    In this complaint, he alleged discrimination stemming from
    1
    Carroll informed Daniels that he had fifteen days to
    object in writing as to the issues accepted for investigation.
    Daniels did not object within the fifteen days or thereafter
    raise the argument until February 2, 1994.
    2
    Clarke’s 1989 and 1991 promotions, Carroll’s handling of his
    First EEO Complaint with regard to those promotions, and
    Carroll’s non-processing of an informal complaint filed in
    November 1993.    On October 1, 1996, the Army issued a final
    decision in which it ruled that Daniels had failed to demonstrate
    by a preponderance of the evidence that he was a victim of
    discrimination.
    Shortly thereafter, Daniels filed this action in district
    court.2     On February 5, 1999, Daniels filed a motion for a jury
    trial pursuant to the Civil Rights Act of 1991.    The district
    court denied the motion on the grounds that Clarke’s promotions
    occurred before the effective date of the Act and that improper
    processing of a complaint did not state a claim under Title VII
    of the Civil Rights Act of 1964 (“Title VII”).    Subsequently, the
    Army moved to dismiss or, in the alternative, for summary
    judgment.    The district court granted summary judgment in favor
    of the Army on Daniels’s improper processing claim, but denied
    summary judgment as to the remainder of Daniels’s claims.    Next,
    the Army moved for a separate trial on whether Daniels timely
    filed his Second EEO Complaint.    Following a bench trial, the
    district court entered Findings of Fact and Conclusions of Law
    2
    Daniels filed suit in the United States District Court for
    the Western District of Arkansas, Texarkana Division. The case
    was eventually transferred to the Eastern District of Texas,
    Texarkana Division, and subsequently, both parties voluntarily
    consented to have a United States magistrate judge conduct any
    and all future proceedings.
    3
    that Daniels knew or should have known of Clarke’s promotions as
    they occurred.    Thus, equitable tolling did not apply, and
    Daniels’s failure to initiate EEO procedures within the
    prescribed time limits resulted in a dismissal of Daniels’s suit
    with prejudice.
    Daniels timely appeals from the final judgment of dismissal
    and the underlying final orders of the district court.
    II.   DISCUSSION
    Daniels alleges three points of error on appeal: (1) that
    the denial of a jury trial was improper, (2) that a cause of
    action for “improper processing of a complaint” does exist under
    Title VII, and (3) that the Army is barred from asserting its
    timeliness defense.    We consider Daniels’s second point of error
    at the outset.    Then, we proceed to examine his first and third
    points of error.
    A. “Improper Processing of Complaint” Claim
    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).   If the moving party is able to demonstrate that the
    non-moving party lacks evidence sufficient to create a genuine
    issue of fact in support of a necessary element of his claim,
    then summary judgment is appropriate against the non-moving party
    on that claim.     See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-
    4
    23 (1986); Hypes v. First Commerce Corp., 
    134 F.3d 721
    , 725 (5th
    Cir. 1998).   Doubts are to be resolved in favor of the non-moving
    party, and any reasonable inferences are to be drawn in favor of
    that party.   See 
    Burch, 174 F.3d at 619
    .
    In order to survive a motion for summary judgment on his
    Title VII claim, Daniels is required to establish, at a minimum,
    a prima facie case by a preponderance of the evidence.    See
    Shackelford v. Deloitte & Touche, LLP, 
    190 F.3d 398
    , 404 (5th
    Cir. 1999); Reeves v. Sanderson Plumbing Products, Inc., 120 S.
    Ct. 2097, 2109 (2000) (finding that appropriateness of judgment
    as a matter of law depends on several factors, including strength
    of plaintiff’s prima facie case).    For a discrimination claim, a
    showing of the following four elements is required: (1) the
    plaintiff is a member of a protected group; (2) the plaintiff was
    qualified for the position; (3) the plaintiff was subjected to an
    adverse employment action; and (4) the plaintiff was replaced by
    someone outside the protected class.    See 
    Shackelford, 190 F.3d at 404
    .   To make out a prima facie case under a retaliation
    claim, the plaintiff must establish: (1) that he was engaged in a
    protected activity, (2) that he was subjected to an adverse
    employment action, and (3) that a causal connection existed
    between his participation in the protected activity and the
    adverse employment action.   See Dollis v. Rubin, 
    77 F.3d 777
    , 781
    (5th Cir. 1995).
    Daniels argues that Carroll improperly processed his claim
    5
    as to Clarke’s promotions in the First EEO Complaint3 and was
    motivated by racial animus4 in handling an informal complaint
    filed in November 1993.   A threshold inquiry is whether alleged
    mishandling of an EEO complaint comes under the rubric of an
    “adverse employment action.”   The law on this issue is well-
    settled in the context of retaliation claims.   We have
    consistently held that an “ultimate employment decision” is a
    necessary predicate for a Title VII retaliation cause of action.
    See Burger v. Central Apartment Mgmt., Inc., 
    168 F.3d 875
    , 878
    (5th Cir. 1999) (citing 
    Dollis, 77 F.3d at 781-82
    ); see also
    Mattern v. Eastman Kodak Co., 
    104 F.3d 702
    , 708 (5th Cir. 1997)
    (interlocutory or mediate decisions that can lead to ultimate
    decisions fall outside of Title VII) (citing Page v. Bolger, 
    645 F.2d 227
    , 233 (4th Cir. 1981)).
    After carefully examining the record, we are unclear whether
    Daniels is alleging a discrimination claim or a retaliation
    3
    We note that Carroll’s response letter to Daniels states
    that Daniels had fifteen days in which to contest the issues as
    framed. Daniels did not do so until February 2, 1994 (240 days
    later). We also note that EEO Counselor Mary T. Green’s final
    report states that Carroll should have explicitly listed the
    issues claimed by Daniels and should have accepted or dismissed
    each issue individually.
    4
    Daniels alleges racial animus in his brief, whereas in his
    Complaint, he appears to have alleged gender animus: Carroll, a
    black female, accepted untimely claims from black females and did
    not do so for Daniels, a black male.
    6
    claim.5   If it is the latter, Daniels cannot prevail as it would
    take a string of hypotheticals to connect a possible mishandling
    of a complaint to a promotion similar to the ones received by
    Clarke.   See 
    Mattern, 104 F.3d at 708
    (stating that “mere
    tangential effect on a possible future ultimate employment
    decision” falls short of the adverse employment action
    requirement).
    If, on the other hand, Daniels is alleging a discrimination
    claim, the matter is more complicated.   There is some indication
    that the “adverse employment action” requirements of
    discrimination and retaliation claims encompass different
    criteria.   In Mattern, we noted that the anti-retaliation
    provision of Title VII, 42 U.S.C. § 2000e-3 (1994), did not
    contain the vague harms mentioned in the discrimination
    provision, 42 U.S.C. § 2000e-2(a)(2) (1994).   
    See 104 F.3d at 708-09
    .   Thus, we stated that “the way in which the employee may
    be affected in . . . [the discrimination] subpart is much
    broader[,]” reaching activity that “would tend to [adversely]
    affect the employee.”   
    Id. at 709
    (internal quotation marks and
    citations omitted).   In a recent decision, we recognized, but did
    not decide, the issue left open in Mattern.    See 
    Shackelford, 10 F.3d at 406-07
    (concluding that the plaintiff loses under either
    5
    In their briefs, both the Army and Daniels discuss the
    issue citing Fifth Circuit precedent that dealt with retaliation
    claims. However, Daniels’s description of the basis of this
    claim indicates that it is a discrimination claim.
    7
    approach); see also 
    Burger, 168 F.3d at 878-79
    .
    However, we do not need to delineate today the contours of
    the “adverse employment action” requirement of Title VII
    discrimination claims.   We are able to resolve the specific issue
    presented in this case (whether Daniels’s “improper complaint
    processing” claim states a valid claim under Title VII) without
    having to answer that broader question.   We have decided the
    “improper complaint processing” issue in an analogous context,
    and we see no reason to adopt a different approach here.
    Just as federal employees must first file their complaints
    with the EEO division of their employer federal agency, 29 C.F.R.
    §§ 1614.105-.106 (1999), private sector employees must initiate
    the process with the Equal Employment Opportunity Commission
    (EEOC), 42 U.S.C. § 2000e-5(b) (1988).    In Gibson v. Missouri
    Pacific Railroad Co., we held that “Title VII . . . confers no
    right of action against the [EEOC]” for improper investigation or
    processing of an employment discrimination charge.   
    579 F.2d 890
    ,
    891 (5th Cir. 1978); see also Baba v. Japan Travel Bureau Int’l.,
    Inc., 
    111 F.3d 2
    , 6 (2d Cir. 1997) (citing Gibson and cases from
    other circuits for support).
    There is no compelling justification to confer upon federal
    employee plaintiffs an “improper complaint processing” cause of
    action under Title VII, when that very claim has been repeatedly
    withheld from private employee plaintiffs.   The Seventh Circuit
    recently followed a similar approach in ruling, in the context of
    8
    a Title VII claim by an employee of the United States Customs
    Service, that a “failure-to-process claim does not state a claim
    upon which relief can be granted” under a Title VII action.
    Jordan v. Summers, 
    205 F.3d 337
    , 342 (7th Cir. 2000).       Thus,
    since Daniels does not state a claim upon which relief can be
    granted, summary judgment for the Army on this point was proper.6
    B. Denial of a Jury Trial
    Whether Daniels has a right to a jury trial presents a pure
    question of law.   Questions of law are reviewed de novo by this
    court.   See Arnold v. United States Dep’t of the Interior, 
    213 F.3d 193
    , 195 (5th Cir. 2000) (citing Randel v. United States
    Dep’t of the Navy, 
    157 F.3d 392
    , 395 (5th Cir. 1998)).
    The Civil Rights Act of 1991 (“1991 Act”) grants parties
    seeking compensatory and punitive damages in Title VII
    intentional discrimination claims the right to a trial by jury.
    See 42 U.S.C. § 1981a(c) (1994).       The effective date of the 1991
    Act is November 21, 1991. See 42 U.S.C. § 1981a.       The Supreme
    Court has held that the 1991 Act does not apply retroactively,
    and thus there is no right to a jury trial for conduct occurring
    before November 21, 1991.   See Landgraf v. USI Film Prods., 
    511 U.S. 244
    (1994).   As such, Daniels’s allegations regarding
    Clarke’s noncompetitive promotions cannot form the basis for a
    6
    Because we find that mishandling of a complaint does not
    state a claim under Title VII, we do not need to address
    Daniels’s “common nucleus of operative facts” or “continuing
    violation theory” arguments.
    9
    jury demand because there is no question that they transpired
    before the 1991 Act’s effective date.7
    Daniels’s claims regarding Carroll’s mishandling of his
    First EEO Complaint (filed May 28, 1993) and November 1993
    informal complaint also do not provide a proper foundation for a
    jury trial.    Although these alleged actions occur well after
    November 21, 1991, they do not constitute conduct that can be
    challenged under Title VII, as discussed in the above section.
    Thus, the district court’s ruling denying Daniels’s motion for a
    jury trial was proper.
    C. Timeliness
    The district court’s decision to bifurcate a trial is
    reviewed under an abuse of discretion standard.     See U.S. v.
    $9,041,598.68, 
    163 F.3d 238
    , 253 (5th Cir. 1998).
    Daniels challenges the district court’s granting of the
    Army’s Motion for a Separate Trial on the Issue of Timeliness
    (whether Daniels timely filed his complaint with the Army’s EEO
    department).    Daniels argues that the Army should have been
    barred from raising this timeliness defense because it did not
    assert the argument during the lengthy administrative process.
    Before proceeding to ascertain whether the Army should be
    prohibited from presenting timeliness as a defense, we pause to
    7
    It is undisputed that Clarke’s two noncompetitive
    promotions took place in April 1989 and April 1991. Furthermore,
    Daniels does not contest this point in his brief.
    10
    address an issue that could pretermit that determination.    We
    generally do not consider arguments that were not properly
    preserved for appellate review.    “Typically, we will not consider
    on appeal matters not presented to the trial court.   Rather, the
    litigant must raise his argument to such a degree that the
    district court may rule on it.”    Harris County, Tex. v. Carmax
    Auto Superstores, Inc., 
    177 F.3d 306
    , 326 (5th Cir. 1999)
    (internal citations omitted); see also Hormel v. Helvering, 
    312 U.S. 552
    , 556 (1941) (“Ordinarily an appellate court does not
    give consideration to issues not raised below.”).
    We will consider an issue that is not raised in the
    proceedings below only if it “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); 
    Dollis, 77 F.3d at 779
    n. 2; see also
    
    Hormel, 312 U.S. at 557
    (“There may always be exceptional cases
    or particular circumstances which will prompt a reviewing or
    appellate court, where injustice might otherwise result, to
    consider questions of law which were neither pressed nor passed
    upon . . . below.”).
    After a careful review of the record, we find that Daniels
    did not raise this argument in the district court when the Army
    made its motion.   Thus, we will consider it on appeal only if
    meets the narrow two-pronged exception: legal question and
    miscarriage of justice.   Whether the Army is barred from
    11
    asserting its timeliness defense is a purely legal question
    because there is no factual dispute as to the occurrences in the
    administrative process.   However, our failure to consider this
    issue would not result in a miscarriage of justice.   “Miscarriage
    of justice” implies, inter alia, something inherently unfair:
    that appellants could not have known of this issue below, that
    they were somehow precluded from raising their objections below,
    or that they should be excused from their failure to raise it
    below.
    In this case, no such compelling arguments are available for
    Daniels.   There is no question that he knew of this issue when
    the Army first made its Motion for a Separate Trial on the Issue
    of Timeliness, that he was not precluded from raising his
    objections at that time, and that there is no justifiable reason
    to excuse his not raising the issue earlier.   Therefore, because
    Daniels did not properly preserve his objection to the Army’s
    timeliness defense below and because his case does not fall into
    the extraordinarily narrow exception, we will not consider his
    third point of error.8
    8
    Even assuming arguendo that the facts compel us to
    consider this question of law on appeal, Daniels’s argument is
    without merit. The law in this circuit is well-settled as to the
    facts that will trigger such a bar, and those facts are not
    present in this case. See Rowe v. Sullivan, 
    967 F.2d 186
    , 191
    (5th Cir. 1992) (“In order to waive a timeliness objection, the
    agency must make a specific finding that the claimant’s
    submission was timely.”); Munoz v. Aldridge, 
    894 F.2d 1489
    ,
    1494-95 (5th Cir. 1990) (specific finding of timeliness in the
    administrative process bars timeliness objection in later civil
    12
    III.   CONCLUSION
    For the above-stated reasons, we AFFIRM the judgment of the
    district court.
    suit); Henderson v. United States Veterans Admin., 
    790 F.2d 436
    ,
    440-41 (5th Cir. 1986); Oaxaca v. Roscoe, 
    641 F.2d 386
    , 390 (5th
    Cir. 1981) (finding that “merely accepting and investigating a
    tardy complaint” does not waive a timeliness objection). Thus,
    the district court would not have abused its discretion in
    granting the Army’s Motion for a Separate Trial on the Issue of
    Timeliness.
    13
    

Document Info

Docket Number: 00-40201

Filed Date: 10/26/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021

Authorities (20)

74-fair-emplpraccas-bna-864-70-empl-prac-dec-p-44592-susan-baba , 111 F.3d 2 ( 1997 )

Carl F. PAGE, Appellant, v. William J. BOLGER, Appellee , 645 F.2d 227 ( 1981 )

79-fair-emplpraccas-bna-489-75-empl-prac-dec-p-45836-richard , 168 F.3d 875 ( 1999 )

Shackelford v. Deloitte & Touche, LLP , 190 F.3d 398 ( 1999 )

Arnold v. United States Department of the Interior , 213 F.3d 193 ( 2000 )

Volkswagen of America, Inc. v. Willard E. Robertson, Etc. , 713 F.2d 1151 ( 1983 )

Colburn P. RANDEL, Plaintiff-Appellant, v. UNITED STATES ... , 157 F.3d 392 ( 1998 )

Manuel Munoz, Jr., and Jesus G. Munoz v. Edward C. Aldridge,... , 894 F.2d 1489 ( 1990 )

Harris County, Texas v. Carmax Auto Superstores Inc , 177 F.3d 306 ( 1999 )

Jay Lee GIBSON, Plaintiff-Appellant, v. MISSOURI PACIFIC ... , 579 F.2d 890 ( 1978 )

Gene A. Burch v. City of Nacogdoches , 174 F.3d 615 ( 1999 )

Mary DOLLIS, Plaintiff-Appellant, v. Robert E. RUBIN, ... , 77 F.3d 777 ( 1995 )

Juan Roberto OAXACA, Plaintiff-Appellant, v. Egger L. ... , 641 F.2d 386 ( 1981 )

40-fair-emplpraccas-1524-40-empl-prac-dec-p-36302-beverly-c , 790 F.2d 436 ( 1986 )

Hormel v. Helvering , 61 S. Ct. 719 ( 1941 )

Pamela J. Jordan v. Lawrence H. Summers, Secretary, ... , 205 F.3d 337 ( 2000 )

Jasper C. Rowe v. Louis W. Sullivan, Secretary of Health ... , 967 F.2d 186 ( 1992 )

Jean G. Mattern v. Eastman Kodak Company and Eastman ... , 104 F.3d 702 ( 1997 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Landgraf v. USI Film Products , 114 S. Ct. 1483 ( 1994 )

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