Ash v. Guajardo , 72 F. App'x 143 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 8, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
_________________ Clerk
No. 02-41230
(Summary Calendar)
_________________
STEPHEN ASH,
Plaintiff - Appellant,
versus
ARTURO GUAJARDO, Individually and in his past capacity as Superintendent of the Pharr San Juan
Alamo Independent School District; DODI COX, Individually and in her Official Capacity as
personnel director for Pharr San Juan Alamo Independent School District; PHARR SAN JUAN
ALAMO INDEPENDENT SCHOOL DISTRICT,
Defendants - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
M-01-CV-161
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Stephen Ash appeals the district court’s grant of summary judgment to the defendants in this
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
employment discrimination suit. Ash filed this pro se suit against the Pharr San Juan Alamo
Independent School District (PSJA); Arturo Guajardo, the former PSJA superintendent; and Dodi
Cox, the PSJA personnel director, alleging causes of action under Title VII, the Family and Medical
Leave Act (FMLA), and § 554.008 of the Texas Government Code.
Generally, Ash alleges that the defendants retaliated against him for exercising his FMLA
rights in an earlier litigation and filing charges with the Equal Employment Opportunity Commission
(EEOC). The alleged acts of retaliation and discrimination include the defendants’ refusal to move
him to a teaching position for which he was certified and the placement of “uncertified” Hispanics in
those positions. In addition, Ash contends that Cox harassed him by repeatedly sending him letters
regarding his certification requirements, demoting him from his term contract to substitute teacher
status, refusing to release his paycheck unless he resigned, terminating his employment without a
hearing, and cancelling his health insurance.
Previously, Ash filed suit, with the assistance of counsel, against Guajardo and PSJA because
they failed to inform him of his FMLA rights before he resigned from his original teaching position
to care for his elderly parents. Upon his return, PSJA did not reinstate him to his original position
but instead placed him in a special education teaching position at the high school level. Because Ash
was not certified for this job, PSJA obtained emergency permits and hired Ash on a temporary basis
for the 1998-1999 school year. But Ash lost the 87 sick days he had accumulated during his first
thirteen years and received a lesser salary and benefits. After attempting to resolve the issue through
other channels, Ash began litigation (we designate this suit “Ash I”). While Ash I was pending, Ash
filed claims against PSJA with the EEOC, alleging that he was discriminated and retaliated against
on the basis of his national origin and the Ash I litigation. The district court granted summary
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judgment to the defendants in Ash I, after which Ash filed a motion for reconsideration. After filing
this motion, which was ultimately denied by the district court, Ash received his right-to-sue letter
from the EEOC.
Ash then filed the present suit. The defendants moved for summary judgment, arguing that
Ash had failed to state viable claims for various reasons. Ultimately, the district court concluded that
res judicata and collateral estoppel barred the Title VII and FMLA claims, respectively, and it
granted summary judgment to the defendants. The district court later granted summary judgment
with respect to the state law claim, finding it to be time-barred, and dismissed the case. Ash moved
for reconsideration, and the district court denied his motion. Ash timely appeals.
We review a grant or denial of summary judgment de novo, using the same criteria employed
by the district court. Mongrue v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001). Summary
judgment is proper if, drawing all inferences in favor of the non-moving party, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; FED. R.
CIV. P. 56(c).
As a threshold matter, Ash does not address the Texas Government Code claim in his appeal
brief. Issues not briefed on appeal are waived. United States v. Thames, 214 F.3d 608, 611 n.3 (5th
Cir. 2000). Thus, only the Title VII and FMLA claims remain.
With regard to Ash’s FMLA claim, we agree with the district court’s decision that collateral
estoppel bars this claim. Collateral estoppel is appropriate when: (1) the issue under consideration
in the present suit is identical to the issue litigated in the previous suit; (2) the issue was fully and
vigorously litigated in the previous suit; (3) the issue was necessary to support the judgment in the
previous suit; and (4) there are no special circumstances that would render estoppel unfair or
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inappropriate. Gandy Nursery, Inc. v. United States, 318 F.3d 631, 639 (5th Cir. 2003). Ash argued
the same retaliation facts in Ash I, and he was given a full and fair opportunity to respond to the
defendants’ motion for summary judgment before the Ash I court ruled. In addition, Ash has not
given any real reason in his brief why estoppel would be unfair or inappropriate.
As for Ash’s Title VII claims, we find that Ash has not raised a genuine issue of material fact
with regard to whether he was discriminated against because of his “national origin.”1 To state a
prima facie Title VII claim, Ash must show (1) that he belongs to a protected group; (2) he was
qualified for the position he sought; (3) he suffered an adverse employment action; and (4) he was
replaced by someone outside the protected class. Price v. Fed. Express Corp., 283 F.3d 715, 720
(5th Cir. 2002). Ash has not even attempted to show or plead his national origin, which is the basis
of his Title VII claims and his EEOC charges, or the national origin of the Hispanics who replaced
him. See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973) (“The term ‘national origin’ on
its face refers to the country where a person was born, or, more broadly, the country from which his
or her ancestors came.”). Thus, we affirm the district court’s grant of summary judgment with
respect to Ash’s Title VII claims.
For the foregoing reasons, the district court’s decision is AFFIRMED.
AFFIRMED; APPELLEES’ MOTION TO STRIKE RECORD EXCERPTS IS DENIED;
APPELLEES’ MOTION TO STRIKE OPTIONAL CONTENT IN APPELLANT’S BRIEF IS
1
Although the district court decided this claim on res judicata grounds, we decline to affirm
on this basis because we find such a decision would implicate at least one unclear, and arguably novel,
legal issue. Instead, we affirm on one of the other grounds presented in the defendants’ motion for
summary judgment. See Pace v. Bogalusa City Sch. Bd., 325 F.3d 609, 621 (5th Cir. 2003) (holding
that grant of summary judgment may be affirmed on “any ground raised below and supported by the
record”).
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DENIED; APPELLANT’S MOTION TO FILE RECORD EXCERPTS IN EXCESS PAGES IS
GRANTED.
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