Bradley v. Boysville, Inc ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50235
Summary Calendar
KIMBERLY BRADLEY,
Plaintiff-Appellant,
versus
BOYSVILLE, INC, a not for profit corporate body; BOYSVILLE,
INC.’S NAMED AND UNNAMED BOARD OF DIRECTORS, OFFICERS AND
SUBSTITUTIONS; ROBERT C. COLE, President of Boysville, Inc.;
CHARLES W. LUTTER, JR. Vice-President of Boysville, Inc.; RUDY s.
TREVINO, Secretary of Boysville, Inc.; HAROLD PUTNAM, JR.,
Treasurer of Boysville, Inc.; JOHN W. ROBB, Assistant
Secretary/Treasurer of Boysville, Inc.; LENNA J. BAXTER,
Executive Director of Boysville, Inc.; BOYSVILLE, A SAN ANTONIO
HOME FOR CHILDREN
Defendants-Appellees,
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CA-0168
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November 21, 2000
Before SMITH, BENAVIDES, and DENNIS Circuit Judges.
*
PER CURIAM:
Kimberley Bradley appeals two orders from the Western
District of Texas: (1) the summary judgment dismissal of her
discrimination claims against Boysville, Inc. (Boysville) and its
officers and directors (Boysville Officials)(collectively, the
*
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this opinion should not be published and is not precedent except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.
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Defendants), and (2) a discovery order compelling her to respond
to certain interrogatories from the Defendants. We AFFIRM the
judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Bradley began working as a child care worker at
Boysville, a non-profit shelter for abused and neglected
children. She worked a shift from 3:00 pm to 11:00 pm on
weekdays. At the time that Boysville hired Bradley, and
throughout her employment, she was not married.
Boysville considers it essential to its mission to provide
the children in its care with positive role models. As a
consequence, Boysville maintains a written policy that all staff
members must “conduct their personal and professional lives with
unquestionable conduct and high moral standards.”
On May 18, 1998, Bradley informed her supervisor that she
was pregnant. The next day, Boysville’s Executive Director,
Lenna Baxter, told Bradley that her shift would be changed to
11:00 pm to 7:00 am to minimize her contact with children.
Baxter explained that if Bradley was unwilling to accept the
shift change, she would be terminated. Bradley initially refused
to work the new shift. Approximately two weeks later, Bradley
changed her mind and offered to work the 11:00 pm to 7:00 am
shift. At that point, however, the position had already been
filled.
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On May 21, 1998, Bradley filed a sex discrimination
complaint with the Equal Employment Opportunity Commission
(EEOC). She subsequently brought suit against Boysville and the
Boysville Officials alleging sex and racial discrimination, as
well as retaliation, under 42 U.S.C. § 2000e et seq. and 42
U.S.C. § 1981.
On June 4, 1999, Boysville served on Bradley its First Set
of Interrogatories which contained 21 numbered questions. On
July 5, 1999, Bradley delivered a letter to Boysville stating
that the responses would be delivered by July 25, 1999. Counsel
for Boysville notified Bradley’s counsel that July 7 was the
deadline for responding to the interrogatories under the Federal
Rules of Civil Procedure. After a second inquiry from Boysville,
Bradley responsed to the first 8 of the 21 interrogatories
submitted by Boysville on August 5. Bradley claimed that the
first 8 numbered interrogatories were actually 20 separate
interrogatories and that under Local Court Rule CV-33, Bradley
was not required to respond to more than 20 interrogatories.
After a third request for response to the interrogatories
originally submitted, Boysville filed a motion to compel with the
district court.
On September 3, 1999, the district court granted Boysville’s
motion to compel and ordered Bradley’s counsel to pay Boysville’s
costs of $700.00 related to the motion pursuant to Federal Rule
of Civil Procedure 37(a)(4)(A). The district court denied
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Boysville’s requests for discretionary sanctions. On September
24, 1999, the district court denied a motion for reconsideration
of this order. On February 23, 2000, the district court granted
summary judgment to the Defendants on all Bradley’s claims.
DISCUSSION
We review Bradley’s discovery related issues before turning
to the district court’s summary ruling on her substantive
discrimination claims.
I. Discovery Issues
District courts have wide discretion in determining the
scope and effect of discovery. Quintero v. Klaveness Ship
Lines, 914 F.2d 717, 724 (5th Cir. 1990), cert. denied, 499 U.S.
925 (1991); Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir.
1982). We review decisions of district courts on discovery
matters solely for abuse of this discretion. Jerry Parks
Equipment Co. v. Southwest Equipment Co., 817 F.2d 340, 342 (5th
Cir. 1987). Such abuse is unusual, see Sanders, 678 F.2d at 618,
and will only be found where a ruling “results in substantial
prejudice to the rights of the parties....” Huff v. N.D. Cass
Co., 468 F.2d 172, 176 (5th Cir. 1972), aff'd in part, vacated
and remanded in part on other grounds, 485 F.2d 710, 712 (5th
Cir. 1973)(en banc)(approving panel opinion’s resolution of
discovery issues).
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Bradley complains that (1) she should not have been
compelled to answer Boysville’s interrogatories based on the
express language of Local Rule CV-33, and (2) her attorney should
not have been required to pay Boysville’s attorneys’ fees of $700
pursuant to Federal Rule of Civil Procedure 37(a)(4)(A). The
district court did not abuse its discretion in compelling Bradley
to respond to Boysville’s first set of interrogatories since
Bradley’s resistance was without merit. Indeed, as the district
court noted, the leading treatise on the federal rules of civil
procedure explains that when an inquiry is broken into individual
parts that relate to a single theme, that inquiry is counted as a
single interrogatory. 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE, § 2168.1 (“[A]n interrogatory directed
at eliciting details concerning a common theme should be
considered a single question.”) Bradley offers no contrary
authority. The language of the Local Rule on which Bradley
founds its position merely clarifies that sub-parts shall not be
used to inquire about areas unrelated to the theme of the
interrogatory. More importantly, the Local Rule expressly allows
as single questions two of the multi-part interrogatories that
Bradley counted as multiple questions. In short, the district
court was well within its discretion when it compelled Bradley to
answer Boysville’s first 20 interrogatories.
With respect to the award of attorneys’ fees, the district
court merely followed the language of Federal Rule of Civil
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Procedure 37(a)(4)(A). According to the Supreme Court, that rule
“was designed to protect courts and opposing parties from
delaying or harassing tactics during the discovery process.”
Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 209, 119 S.Ct.
1915 (1999). Amendments to the rule in 1970 announced a
presumption in favor of awarding fees against a party that caused
the filing of a motion to compel. Id. at 209, n.5. In its
present form, the rule provides in relevant part that:
the court shall . . . require the party or deponent
whose conduct necessitated the motion or the party or
attorney advising such conduct . . . to pay to the
moving party the reasonable expenses incurred in making
the motion, including attorney's fees, unless the court
finds . . . that the opposing party's nondisclosure,
response, or objection was substantially justified, or
that other circumstances make an award of expenses
unjust.
FED. R. CIV. P. 37(a)(4)(A).
Though this circuit has not explicitly developed the meaning
of “substantially justified” in this context, the Eleventh
circuit recently held that the term “means that reasonable people
could differ as to appropriateness of the contested action.”
Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th
Cir. 1997); see also Pierce v. Underwood, 487 U.S. 552, 564, 108
S.Ct. 2541 (1988). Aside from the language of Local Rule CV-33,
which we have already noted directly contradicts Bradley’s
position, at least in part, Bradley has offered no authority to
support his resistance to the interrogatories. Thus, the
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district court did not abuse its discretion in determining that
Bradley was not “substantially justified” in refusing to answer
Boysville’s interrogatories numbered 9 through 20.
II. Summary Judgment on Discrimination Claims
The district court granted summary judgment in favor of
Boysville on Bradley’s claims of sex and race discrimination, as
well as her claim for retaliation. This Court reviews a grant of
summary judgment de novo. Norman v. Apache Corp., 19 F.3d 1017,
1021 (5th Cir. 1994). Summary judgment is proper when the
evidence reflects no genuine issues of material fact and the non-
movant is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In evaluating a grant of summary judgment,
we must view all evidence in the light most favorable to the
party opposing the motion and draw all reasonable inferences in
that party’s favor. Id. at 255.
Bradley raises three classes of Title VII claims against the
Defendants: sex and pregnancy discrimination, race discrimination
and retaliation. We review each separately.
A. Sex Discrimination
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Bradley alleges that in enforcing its policy on morality,
Boysville discriminated against her on the basis of her sex and
because she was pregnant.
To survive summary judgment on her claim that Boysville
enforced its morality policy against her in a discriminatory
manner, Bradley must present direct evidence of discrimination,
statistical evidence suggesting discrimination, or establish a
prima facie case of discrimination under the McDonnell Douglas
standard. Urbano v. Continental Airlines, Inc., 138 F.3d 204,
206 (5th Cir. 1998). As the district court noted, the precise
theory of Bradley’s case is unclear. Bradley has offered no
direct evidence of discrimination. To the extent that Bradley
alleges Boysville’s facially-neutral morality policy has a
disparate impact on all women or all pregnant women, she must
present evidence of an impact on women beyond her own situation.
See Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000). She has
presented no such evidence and therefore the district court
properly dismissed her claim in this regard.
Bradley has also failed to make out the elements of a prima
facie case. A prima facie case consists of proof showing each of
four elements: (1) the plaintiff is a member of a protected
group; (2) she was qualified for her job; (3) she suffered
adverse employment discrimination; and (4) others similarly
situated were treated differently. McDonnell Douglas Corp. v.
Green, 93 S.Ct. 1817, 1824 (1973); Urbano, 138 F.3d at 206. To
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establish the fourth element, Bradley must provide some proof
that others similarly situated, e.g. men that parented children
out of wedlock, were treated differently.
The district court correctly concluded that Bradley has
offered insufficient evidence on the fourth element. As evidence
of “discrimination,” Bradley offers an EEOC finding that
Boysville discriminated against her because of her pregnancy.
Yet the EEOC finding, even assuming arguendo that it is proper
summary judgment evidence, fails to describe or demonstrate that
Boysville applied its morality policy any differently to men
generally or to men that had fathered children out of wedlock.
The only other evidence that Bradley offers in this regard is a
response to a hypothetical question by a Boysville director in
which the director stated that men that fathered children out of
wedlock “may” have been treated identically to Bradley. Yet this
statement alone does not support a reasonable inference that
Boysville illegally discriminated against Bradley on the basis of
her sex or her pregnancy. See Byrd v. Roadway Exp., Inc., 687
F.2d 85, 86 (5th Cir. 1982). Since Bradley has not proven a
prima facie case, we need not reach Boysville’s bona fide
occupational requirement defense.
B. Race Discrimination
In discrimination cases, the court must ultimately decide,
while viewing all of the evidence in a light most favorable to
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the plaintiff, whether a reasonable jury could infer
discrimination by the employer. See Reeves v. Sanderson Products
Inc., 120 S.Ct. 2097, 2106 (2000). In making this determination,
a court should consider “the strength of the plaintiff’s prima
facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the
employer’s case. . . .” Id. at 2108. The district court
properly concluded that Bradley has offered absolutely no
evidence that could support even a prima facie case of racial
discrimination by Boysville, much less a reasonable inference of
racial discrimination in light of Boysville’s facially neutral
morality policy.
C. Retaliation
In this circuit, a Title VII retaliation claim requires
proof of three elements: (1) the employee engaged in activity
protected by Title VII, (2) the employer took adverse employment
action against the employee, and (3) a causal connection exists
between the protected activity and the adverse employment action.
See Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.
1992). With respect to the second element, this circuit requires
that plaintiffs allege an “ultimate employment decision” such as
“hiring, granting leave, discharging, promoting, and
compensating.” Burger v. Central Apartment Management, Inc., 168
F.3d 875, 878 (5th Cir. 1999); Mattern v. Eastman Kodak Co., 104
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F.3d 702, 707 (5th Cir. 1997)(quoting Dollis v. Rubin, 77 F.3d
777, 781-82 (5th Cir. 1995)).
Bradley argues that Boysville retaliated against her for
filing an EEOC complaint by (1) lying to the Texas Workforce
Commission by indicating that she quit rather than work her
assigned shift, and (2) denying her a grievance proceeding in
accordance with Boysville policy. The district court correctly
concluded that neither of these retaliatory acts alleged by
Bradley constitute ultimate employment actions. Indeed, both of
these decisions took place after the ultimate employment action
that led to Bradley filing a complaint with the EEOC. Standing
alone, they do not satisfy the requirement of an ultimate
employment action. See Messer v. Meno, 130 F.3d 130, 140 (5th
Cir. 1997).
CONCLUSION
While Bradley may have been terminated because she parented
a child out of wedlock, she offers no evidence that supports her
claims of discrimination on the basis of sex and race, or her
claims of retaliation. Therefore, the district court properly
granted summary judgment to Boysville on all claims. With
respect to Bradley’s discovery issues, the district court acted
within its discretion both in compelling Bradley to respond to
Boysville’s first 20 interrogatories and taxing Bradley’s
attorney with Boysville’s reasonable costs in filing the motion
to compel. Accordingly, we AFFIRM.
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