Stingley v. Den-Mar Inc. , 347 F. App'x 14 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2009
No. 08-11060 Charles R. Fulbruge III
Summary Calendar Clerk
DALE MICHELE STINGLEY
Plaintiff-Appellant
v.
DEN-MAR INC; RAIL UNLIMITED INC
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-cv-673
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Dale Michele Stingley, pro se, appeals the district
court’s order granting summary judgment to Defendants-Appellees Den-Mar,
Inc. and Rail Unlimited, Inc. (collectively “Den-Mar”) on her sexual harassment
and retaliation claims under Title VII. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 2006, Stingley began working as a clerk at Den-Mar under
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-11060
the supervision of John Muldrow. One month later, Stingley reported to Den-
Mar’s human resources director, Kenneth Doake, that Muldrow had been
sexually harassing her. That afternoon (a Friday), Doake contacted Muldrow to
advise him of the complaint. The following Tuesday, Muldrow stopped reporting
to work. As of the second no-show day, he effectively resigned per company
policy. Doake promptly notified Stingley of Muldrow’s resignation, and she
agreed with Doake that further action was unnecessary. Ron French became
Stingley’s new supervisor.
On December 30, 2006, Stingley sent Doake another letter to report
disagreeable conduct by a coworker, Nina Tillmon. In the letter, Stingley stated
that she felt uncomfortable when Tillmon engaged in extensive phone calls with
Muldrow at the office, allegedly discussing what had happened to him. She
further alleged that Tillmon—as a result of these calls—maliciously disparaged
her to other co-workers, causing at least one other person to treat her less
cordially and implied that Tillmon’s actions were leading to an untenable work
environment. Due to severe weather problems delaying mail delivery, Doake
received the letter on January 18, 2007, and quickly asked French to investigate
the matter. On January 25, 2007, French met with Tillmon to discuss his
investigation. The next day, Tillmon abandoned her position and effectively
resigned. Thereafter, Stingley reported no further acts of harassment or
retaliation to Doake.
On March 7, 2007, French contacted Doake to suggest eliminating the
clerk position, along with a permanent layoff of Stingley, purportedly as part of
a company-wide plan to cut costs after the loss of a lucrative contract. Doake
agreed and scheduled Stingley’s employment termination for March 17, 2007.
On March 12, 2007, Stingley left French a note on his desk, in which she
objected to his “rude and moody” treatment of her. This led French to contact
Doake the next day and suggest accelerating her termination. Doake responded
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No. 08-11060
that, despite the note, they would “stay with the plan.” Den-Mar terminated
Stingley’s employment on March 17, 2007, as scheduled.
After submitting a complaint to the EEOC and receiving a Dismissal and
Notice of Rights, Stingley timely filed suit against Den-Mar asserting three Title
VII claims, which she characterized as sexual harassment, hostile work
environment, and wrongful termination. Den-Mar later moved for summary
judgment on Stingley’s claims. The district court denied summary judgment on
Singley’s sexual harassment claim but granted Den-Mar’s motion for summary
judgment on her remaining claims.
The district court later ordered Stingley to present evidence on a necessary
(but unchallenged) element of the sexual harassment claim—that the alleged
harassment affected a term or condition of her employment—to avoid a sua
sponte grant of summary judgment for Den-Mar on that claim as well. Stingley
filed a motion for reconsideration of the first summary judgment order and a
response to the court’s sua sponte order regarding her sexual harassment claim.
The district court denied Stingley’s motion for reconsideration, granted summary
judgment in favor of Den-Mar on Stingley’s sexual harassment claim, and
entered a final judgment dismissing all of her claims. Stingley timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the final judgment of the district court
pursuant to 28 U.S.C. § 1291.
We review the grant of summary judgment de novo, applying the same
standard as the district court. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d
802, 805 (5th Cir. 2007). A district court’s grant of summary judgment is proper
when “there is no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may affirm
summary judgment, regardless of the district court’s rulings, if the record
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No. 08-11060
contains an adequate and independent basis for that result. Degan v. Ford
Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).
III. DISCUSSION
Because Stingley proceeds pro se, we construe her arguments liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Broadly construing
Stingley’s brief, she argues that (1) the district court erred in granting summary
judgment on her sexual harassment claim sua sponte, (2) a genuine issue of
material fact existed on her sexual harassment claim, (3) the district court erred
in “merging” her retaliation and retaliatory discharge claims, and (4) the
district court erred in granting summary judgment on her retaliation and
retaliatory discharge claims on grounds different from those that Den-Mar
raised.
A. Sexual Harassment Claim
We first address the issues concerning Stingley’s sexual harassment
claim. To establish a prima facie case of sexual harassment by a supervisor
under Title VII, an employee must show: “(1) that [she] belongs to a protected
class; (2) that [she] was subject to unwelcome sexual harassment; (3) that the
harassment was based on sex; and (4) that the harassment affected a term,
condition, or privilege of employment.” Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 479 (5th Cir. 2008) (quotation marks omitted). The district court
notified Stingley of its intention to sua sponte grant summary judgment on
Stingley’s sexual harassment claim. After considering her response, the court
held that Stingley had failed to establish a genuine issue of material fact as to
whether the alleged harassment affected a term or condition of her employment.
We agree.
Stingley first argues that the district court erred in acting sua sponte to
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No. 08-11060
grant Den-Mar summary judgment on her sexual harassment claim.1 It is well
settled that a district court can grant summary judgement sua sponte so long
as the adverse party had adequate notice to come forward with all of its
evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); see also Love
v. Nat’l Med. Enters., 230 F.3d 765, 770–71 (5th Cir. 2000). A court provides a
party with adequate notice by adhering to the same time frame prescribed for
a party’s motion for summary judgment, which is at least ten days before the
day set for the hearing. See Love, 230 F.3d at 770; see also F ED. R. C IV. P. 56(c).
Here, the district court notified Stingley—in an order dated September 12,
2008—to “file whatever she wishe[d] to file” by September 26, 2008, on whether
it should make a sua sponte ruling. Because the court provided Stingley ten
business days (within which she in fact filed a response) and implicit
instructions to present sufficient evidence, we find she had adequate notice.
Therefore, the district court did not err in acting sua sponte to grant summary
judgment on Stingley’s sexual harassment claim.
Stingley also argues that she presented genuine issues of material fact
that warranted the denial of summary judgment on her sexual harassment
claim. Upon receiving the district court’s notice of potential sua sponte ruling,
which pointed out a lack of evidence that the alleged harassment affected a
term or condition of Stingley’s employment, Stingley bore the burden of going
beyond her pleadings and presenting sufficient evidence to the contrary. See
Celotex, 477 U.S. at 325. To do so, she had to present evidence establishing that
the alleged harassment was sufficiently severe or pervasive so as to alter her
1
Stingley also asserts that the district court’s sua sponte decision, after denying Den-
Mar’s motion for summary judgment on the same claim, amounts to a form of double jeopardy
and abuse of discretion. These arguments lack merit. The Double Jeopardy Clause applies
to the imposition of punishment, see Hudson v. United States, 522 U.S. 93, 99 (1997), and
neither the district court’s initial denial nor subsequent grant of summary judgment can be
considered a punishment. The district court also had inherent authority to re-examine the
merits of summary judgment and could not abuse its discretion by doing so.
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No. 08-11060
working conditions or create an abusive working environment. Aryain, 534
F.3d at 479.
This Stingley failed to do, as most of the materials she presented did not
constitute competent summary judgment evidence. Federal Rule of Civil
Procedure 56 sets out the standards for summary judgment and generally
requires that evidence be sworn, certified, or verified material for a court to
consider it. See F ED. R. C IV. P. 56(c), (e); Lodge Hall Music, Inc. v. Waco
Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987); see also King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994). Here, the competent summary judgment evidence
consists of Doake’s affidavit submitted in support of Den-Mar’s motion, Den-
Mar’s thirteen referenced and verified exhibits, and Stingley’s one opposing
affidavit. Although Stingley’s affidavit references many—but not all—of her
exhibits, as well as her response to Den-Mar’s motion for summary judgment,
she had neither her exhibits nor her response properly sworn or certified as
required. Stingley’s complaint and other pleadings were similarly unverified.
Thus, neither the factual allegations in Stingley’s complaint or response, nor
any of the facts in the unauthenticated documents attached and referred to in
her affidavit, are competent summary judgment evidence.
Further, none of the competent summary judgment evidence sets forth
any facts substantiating Stingley’s allegations of sexual harassment. As
Stingley admits, she wrote her affidavit to dispute the factual assertions in
Doake’s affidavit. But none of the facts Stingley disputes help her meet the
burden of proving that the alleged harassment affected a term or condition of
her employment. For example, Stingley disputes that her initial call to Doake
occurred on November 10 instead of November 11, that Doake incorrectly
recounted what he told Muldrow, and that Doake actually investigated her
claim. None of these facts tend to show severe or pervasive harassment by
Muldrow; rather, they reflect disputes as to whether Den-Mar promptly and
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No. 08-11060
adequately addressed her complaint. The competent evidence, viewed in the
light most favorable to Stingley, establishes that she reported acts of sexual
harassment by Muldrow to Doake, that Doake took action in response, and that
Muldrow resigned several days later. Beyond these basic facts, we will not
presume as true any of Stingley’s allegations and assertions because she did not
present sworn statements as to Muldrow’s acts of sexual harassment. In sum,
none of the competent summary judgment evidence sets forth specific facts
demonstrating the severity or pervasiveness of the alleged sexual harassment.
We conclude that Stingley did not present a genuine issue of material fact
that would warrant a denial of summary judgment on her sexual harassment
claim. We therefore affirm the district court’s decision on this claim.
B. Retaliation and Retaliatory Discharge Claims
Stingley also appeals the district court’s decision on her retaliation and
retaliatory discharge claims.2 To establish a prima facie case of retaliation
under Title VII, an employee must show: “(1) that she engaged in a protected
activity; (2) that an adverse employment action occurred; and (3) that a causal
link existed between the protected activity and the adverse action.” Baker v.
Am. Airlines, Inc., 430 F.3d 750, 754 (5th Cir. 2005) (quotation marks omitted,
numbering added). Stingley asserts that the district court erred in “merging”
her claims and in granting summary judgment on grounds other than those
raised by Den-Mar. We need not address these issues, however, because we
find that the record contains an adequate and independent basis to grant
2
Stingley contends on appeal that Den-Mar mischaracterized her hostile work
environment claim as a retaliation claim. But neither Stingley’s complaint nor her response
to Den-Mar’s motion for summary judgment alleged that Tillmon’s hostile treatment,
individually or in concert with Muldrow, was based on her gender or any other characteristic
protected under Title VII. Rather, Stingley alleged that Tillmon mistreated her because of the
sexual harassment complaint against Muldrow. Stingley’s further allegations in her response
regarding French’s conduct similarly sound of retaliation. Therefore, liberally construing
Stingley’s pro se brief, we construe her second and third claims as claims of retaliation.
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No. 08-11060
summary judgment when assessing these claims on the grounds that Den-Mar
did raise.
As to Stingley’s retaliation claim, she contends that Tillmon and French
perpetuated a hostile work environment in retaliation for Muldrow’s
termination due to Stingley’s sexual harassment complaint. In its motion for
summary judgment, Den-Mar asserted that Stingley could not prove Tillmon’s
alleged retaliatory conduct amounted to an adverse employment action. We
agree.
An adverse employment action is one that “a reasonable employee would
have found . . . [to be] materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (quotation marks omitted). As with Stingley’s sexual harassment claim,
the record contains no competent evidence to substantiate Stingley’s allegation
that she was subject to an adverse employment action. Stingley offered two
pieces of evidence: (1) a letter she sent to Doake, reporting her belief that
Tillmon maliciously talked about her and caused others to treat her less
cordially, and (2) the note Stingley left on French’s desk, protesting his rude
and disrespectful treatment of her. But Stingley’s letter to Doake does nothing
to substantiate the alleged harassment, as it is only evidence that she sent a
letter and not that the events described in the letter actually occurred. And
Stingley’s note to French, in addition to being unverified, fails to recount any
specific facts regarding French’s behavior. In short, we find the record
insufficient to raise a genuine issue of fact as to whether Stingley suffered a
materially adverse employment action for this claim. Given that Den-Mar’s
motion for summary judgment provided Stingley proper notice to present
sufficient evidence to prove an adverse employment action, we affirm the
district court’s grant of summary judgment on Stingley’s retaliation claim.
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No. 08-11060
Finally, as to Stingley’s retaliatory discharge claim, she asserts that she
was terminated in retaliation for engaging in Title VII-protected activity. In its
motion for summary judgment, Den-Mar argued that Stingley could not prove
a causal link between the protected activity of her filing a sexual harassment
complaint and her employment termination. We agree.
When a plaintiff presents no direct evidence of retaliation, she bears the
initial burden of establishing a causal link “through circumstantial evidence of
a retaliatory motive.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 n.6
(5th Cir. 2003). “If the plaintiff succeeds in offering circumstantial evidence in
support of each element of her claim, she creates a . . . presumption of
retaliation, and the burden shifts to the employer to demonstrate a legitimate
reason for the adverse employment action.” Id. “If the employer produces
evidence of a legitimate reason for the action, the burden shifts again to the
plaintiff to rebut the employer’s non-retaliatory rationale.” Id.
Even assuming that Stingley satisfied her initial burden, she has not
shown that Den-Mar’s legitimate, non-retaliatory reason for terminating her
employment—to reduce its workforce after losing a lucrative contract—was
pretext for an actual retaliatory reason. The only fact Stingley specifically
disputes as to pretext is an inconsistency in the reason Doake provided for her
discharge. In his affidavit, Doake asserted that Den-Mar lost the lucrative
contract, but in his position statement to the EEOC, he asserted that Rail
Unlimited—the sister company named as co-defendant—lost the lucrative
contract. We find this discrepancy, without more, insufficient to cast doubt on
the legitimacy of Den-Mar’s business reason for terminating Stingley’s
employment. The same goes for the temporal proximity between any protected
activity and Stingley’s termination; although temporal proximity can establish
a prima facie case of retaliation, it cannot—standing alone—rebut an
employer’s legitimate, nondiscriminatory reason for the employment action. See
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Strong, 482 F.3d at 808.
Given that Den-Mar’s motion for summary judgment provided Stingley
with proper notice to present sufficient evidence to prove a causal link, and that
she failed to do so, we affirm the district court’s dismissal of Stingley’s
retaliatory discharge claim.
IV. CONCLUSION
Although Stingley appears to ultimately and unknowingly lose on a
procedural misstep related to the presentation of her evidence rather than on
the potential merits of her claims, a district court has no obligation to provide
a pro se litigant with particularized instructions on the requirements and
consequences of summary judgment. See Martin v. Harrison County Jail, 975
F.2d 192, 193 (5th Cir. 1992). The published rules of procedure afford pro se
litigants sufficient notice of what steps to take in a summary judgment
proceeding, see id., and the decision of whether to give parties the opportunity
to remedy material presented for summary judgment is within the discretion
of the district court, see Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980)
(per curiam).
Accordingly, we conclude that the competent summary judgment evidence
presents neither disputed material facts nor a basis upon which a reasonable
jury could return a verdict for Stingley. The absence of evidence to support
Stingley’s claims entitles Den-Mar to summary judgment. We therefore
AFFIRM the judgment of the district court.
AFFIRMED.
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