Eula Mack v. John L. Wortham & Son, L.P. , 541 F. App'x 348 ( 2013 )

Case: 12-20798 Document: 00512363750 Page: 1 Date Filed: 09/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 5, 2013
No. 12-20798 Lyle W. Cayce
Summary Calendar Clerk
EULA MACK,
Plaintiff–Appellant
v.
JOHN L. WORTHAM & SON, L.P., also known as J. Wortham, L.L.C., also
known as Wortham Insurance & Risk Management and Its Agents and
Assigns,
Defendant–Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-04881
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
This case arises out of two employment discrimination claims—one Title
VII and one ADEA—made by Plaintiff–Appellant Eula Mack (“Mack”) against
her former employer, Defendant–Appellee John L. Wortham & Son, L.P.
(“Wortham”). Because we determine that there is insufficient evidence from
*
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 R. 47.5, the court has determined that this opinion should not be published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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which a reasonable trier of fact could find for Mack, we AFFIRM the district
court’s grant of summary judgment for Wortham on all claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2005, Mack was hired by Wortham as an administrative
assistant to Peter Johnston in the Commercial Accounts Department. She held
this position for one month, at which point Johnston decided she was not a good
match for the job and suggested Mack apply for an open position in the Risk
Management Department. Mack was offered a position as an assistant to Jim
McCann and Bart Cannon in the Risk Management Department, which she
accepted in December of 2005. Mack remained in the Risk Management
Department until 2006, when Mack’s supervisor decided that there was no
longer a place for her there. Mack’s supervisor then offered her the opportunity
to transfer to the Marine Department, and she began work in the Marine
Department in late 2006.
The parties disagree about the events leading to Mack’s 2006 departure
from the Risk Management Department. Mack alleges that Cannon had stopped
assigning work to her, prompting her to ask to be trained for Joleen Norcini’s
position in anticipation of Norcini’s resignation. McCann denied Mack’s request
and picked another employee, Jacqueline Huerta, for the position. Norcini,
however, decided to remain in the Risk Management Department. According to
Wortham, in light of this change in circumstances, McCann decided to allow
Huerta and Norcini to remain in the department and terminate Mack. Mack
alleges that McCann “coerced” her to quit by offering her severance pay and
trying to help her find a new job. She also alleges that the partners did not want
clients to see an African-American woman sitting at the front desk. In contrast,
Wortham claims that Mack was transferred because her lack of necessary
computer skills had become apparent and because she was offered a more
appropriate position in the Marine Department instead.
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Mack alleges racial, sex, and age discrimination on the parts of Johnston,
McCann, and Cannon. She admitted in her deposition that she never heard any
of these individuals make discriminatory remarks based on race, sex, or age.
She testified that she believed Johnston discriminated against her by refusing
to give her work, but simultaneously claimed that he used a “nasty tone” when
giving assignments to her. She alleged that McCann’s denial of her request for
training and Cannon’s failure to assign work to her were discriminatory acts.
She further testified that she felt these supervisors treated her differently than
the other assistants but admits that all of the other assistants were female and
concedes that she was replaced by another African-American woman in the Risk
Management Department.
In 2006, Mack was transferred to an administrative assistant position in
the Marine Department, where she worked primarily for Phil Dunn and Jerry
Shelton until 2009. During this time, Mack was frequently late to work, even
after being reprimanded and counseled by Charles Flournoy, the Vice-Chairman
of the company, on multiple occasions.1 On March 4, 2008, Mack was placed on
probation by Al Hahn, the human resources manager. His memorandum to
Mack explained that, because of her habitual tardiness and refusal to comply
with the company’s rules despite several counseling sessions, she would be
placed on probation through April 30, 2008, and that during this period she was
required to report to work by 8:15 a.m. on at least 80% of scheduled work days.
The memorandum also made clear that if she did not comply with these
requirements she would be terminated at the end of the probationary period.
During the probationary period Mack complied with the attendance
1
According to several e-mails sent in October 2006 between Flournoy and Al Hahn, the human
resources manager, Mack regularly arrived to work twenty to thirty minutes late, and continued to arrive
late following conversations with both Dunn and Flournoy. Wortham provided several of Mack’s time
sheets which indicate tardiness on thirteen work days in August 2007, six work days in November 2007,
and over twenty work days in January and February of 2009.
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requirements, but in January 2009 her supervisor documented that she had
reverted to habitual tardiness. From January 5, 2009, through February 9,
2009, she was late to work every day.
In addition to being tardy, Mack was insubordinate and failed to comply
with the company’s overtime policy. In October 2006, Flournoy informed her
that she needed to seek permission before working overtime. In March and
November 2007, as well as in April 2008, Mack worked overtime without
permission and in April 2008 was issued a warning by Flournoy to end this
practice, which she disregarded. In November 2008 Mack again submitted
overtime hours that she had worked without a supervisor’s prior approval.
On January 6, 2009, another assistant, Leticia Martinez, informed
Flournoy that Mack was inaccurately filling out checklists, indicating that she
had completed tasks that had not been completed. In response, Flournoy sent
an e-mail to the entire department reminding them of the proper procedure.
Mack alleges that she was also discriminated against by Rebecca Cox,
Tobin Carlson, and Gavin Hurd. According to Mack, on June 10, 2008, Cox
“harassed” her by singling her out over email. She does not allege specific facts
or provide the email to which she refers. Mack claims that Carlson accused her
of losing documents and defamed her via e-mail. However, again, she does not
allege specific facts or provide the e-mail to which she refers. She also alleges
that on December 22, 2008, Hurd demanded that she complete a certificate
request for which she lacked the necessary information and yelled at her in the
presence of the other assistants. Mack claims that she was then wrongfully
reprimanded for insubordination.
According to Flournoy’s memo of the same date regarding this exchange,
on Friday, December 19, 2008, Hurd received a call from Wortham’s Dallas office
requesting a certificate of insurance for a client. Hurd pulled the file and placed
the certificate request in the “Urgent Stack.” On Friday afternoon, Mack picked
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up the request, saw that Hurd had not yet filled out the processing form with the
information needed to complete the certificate, put a note on the file to complete
the form, and placed the file on Carlson’s desk, even though, according to
Flournoy, it would have been clear to her that Hurd was the one working on the
file. On Monday, December 22, 2008, Hurd received a follow-up call for the
certificate and went to search for the file, but could not locate it in the certificate
stack behind Mack’s desk. He asked if anyone had seen the file, but the other
assistants in the area said they had not, and Mack did not respond. Hurd
returned to his office to look for the certificate, but could not find it, so he
returned to the secretarial pool and asked again if anyone had seen the file.
Again, the other secretaries told him that they had not seen it and Mack did not
respond.
Hurd continued to search for the file in the file room and at the desks of
several secretaries, including Mack’s. As he was walking back to his office to
search it again, he spotted the file on Carlson’s desk. He read the note from
Mack requesting that the processing form be filled out. Hurd filled out the form,
returned the file to Mack, and told her to complete the certificate. Mack
complained that Hurd should not speak to her with such disrespect, and Hurd
repeated his instruction to complete the certificate. Mack then responded that
she was not going to work on the certificate and that Hurd should do it himself.
Hurd explained that he did not know how to prepare the certificate and that this
was a secretarial task. Mack responded that he should perform the work himself
if he wanted it done. Hurd then ended the discussion and went to his office. He
returned to the secretarial pool after a few minutes and told Mack that if she
was still unwilling to prepare the certificate he would reassign it. Mack agreed
and Hurd asked her to return the file to him. She responded that she did not
have the file. He asked her where it was, and she told him that it was on the
counter behind her desk and that he should “fetch” it himself if he wanted it.
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Hurd retrieved the file and gave it to Flo Tuten, another assistant, to complete.
Later that day, Flournoy reprimanded Mack for her insubordination
towards Hurd. Mack contends that she was reprimanded and treated differently
on the basis of her age, race, and sex. She further claims that no other
individuals were reprimanded for their alleged misconduct towards her, and that
she would have been treated differently had she been of a different race, age, or
sex. In February 2009, Mack was terminated from Wortham.
The parties disagree as to the circumstances surrounding Mack’s
termination from the company. Mack claims that she was terminated because
of her race, age, sex, and culture, and alleges that she was replaced by a younger
Hispanic female who was the friend of two other Hispanic employees who
worked in the Marine Department. She alleges that this individual, Dreana
Lemon, had been employed by Wortham for less than one year, and that Lemon
spent part of this time period on maternity leave, but was allowed to remain at
Wortham when Mack was terminated. Wortham’s version of the events differs.
Wortham alleges that in early 2009, one of the company’s largest clients sold the
majority of its properties, depriving the Marine Department of a significant
portion of its business. The department’s increased use of an automation system
further reduced the workload. Two female employees in the department had
been on maternity leave, and when one of them returned, the department was
operating efficiently with one employee still out on leave, such that if the other
employee returned from leave, the department would be overstaffed. Flournoy
decided one support staff member would be let go from the department and
asked the non-support staff to rank all of the employees in the department.
Because every staff member ranked Mack as the lowest-performing employee
and because she was one of the highest-paid assistants, Flournoy decided to
terminate her. Her position has not been filled by anyone else.
Mack filed a charge of discrimination based on race and age with the
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EEOC on March 24, 2009. The charge states that the discrimination began
January 1, 2008 and ended February 13, 2009, and that she was laid off while
another female assistant with less seniority was allowed to remain in her
position. The EEOC mailed the dismissal and notice of rights to her on August
30, 2010.
She filed her complaint on December 2, 2010, alleging ongoing
discrimination based on race, sex, age, and culture in each department in which
she worked, and requesting $400,000 in compensatory damages and $1,000,000
in punitive damages. She alleges that she was terminated because of her race,
sex, age, and culture and replaced by a younger Hispanic female with less
seniority. She also includes a breach of contract claim, arguing that on
December 2, 2005, she entered into a written contract with the company for
annual performance reviews to determine pay increases, but that during her
three years of employment she received only one review.
The district court granted Wortham’s motion for summary judgment on all
claims and issued a final judgment, dismissing the action with prejudice, on
November 7, 2012. The court found that Mack’s sex and culture discrimination
claims were barred by her failure to meet the Title VII exhaustion requirement
before filing suit. Mack’s race and age discrimination claims arising out of
events that occurred prior to May 28, 2008 were found to be time-barred by the
EEOC 300-day filing limitation. With respect to her Title VII and ADEA claims
that were not time-barred, the court determined that she had failed to raise a
factual dispute and that Wortham had proffered a legitimate, nondiscriminatory
justification for her termination. As to the breach of contract claim, the court
decided that, because the alleged contract lacked essential terms and violated
the statute of frauds, no valid contract was created as a matter of law.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, applying
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the same standards as the district court. Lee v. Kansas City S. Ry. Co., 574 F.3d
253, 257 (5th Cir. 2009). Summary judgment is appropriate where the movant
shows that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(a)). In
reviewing the record, all facts and inferences are construed in the light most
favorable to the non-movant. Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343,
347 (5th Cir. 2011). However, “[i]f the record, taken as a whole, could not lead
a rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial and summary judgment is proper.” Weber v. Roadway Express,
Inc., 199 F.3d 270, 272 (5th Cir. 2000).
III. DISCUSSION
Mack argues that summary judgment was improper on several grounds.
First, Mack alleges that the district court failed to consider evidence presented
in her response to Wortham’s motion for summary judgment. She argues that
the court’s failure to address issues she presented demonstrates a lack of
consideration. Second, Mack contends that the district court granted summary
judgment based on hearsay, referring to a statement made by another Wortham
employee, Leticia Martinez. Third, she argues that her claims of discrimination
arising out of acts that occurred in 2005, 2006, and 2007 are not barred by the
EEOC 300-day limitation by virtue of the continuing violations doctrine, which
allows the court to consider violations that occurred outside of the period of
limitations if the plaintiff can show that these prior acts were part of a
continuing system of discriminatory practices. She also alleges that her claims
are not barred because she was subjected to a hostile work environment, another
exception to the 300-day limitation. Mack also appeals the district court’s
finding that there was no breach of contract, arguing that the 2005 e-mail
constituted a contract.
A. Consideration of Evidence
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With respect to the district court’s consideration of evidence, Mack argues
that ignored evidence she submitted in her response to Wortham’s motion for
summary judgment and instead relied on Wortham’s submissions regarding
Mack’s 2002 termination from a prior position at a law firm for tardiness and
failure to complete work assignments. Mack submitted the declaration of John
Banks, Jr., a partner at the previous firm, dated September 4, 2012, which
states that Mack voluntarily left her position at the firm and was not
terminated, in addition to her own declaration in which she states that she left
voluntarily. Wortham, however, contends that Mack was terminated for
tardiness and refusing to complete assignments. Wortham presented several
related pieces of evidence: a memorandum dated August 30, 2002, regarding
Mack’s first sixty days of probationary employment at the prior firm, written by
John Banks, Jr.; a performance review dated July 2, 2004, detailing Mack’s
unapproved absences and frequent tardiness, and stating that Mack had been
told that two more absences would result in her immediate termination; and
several pages of the firm’s records documenting Mack’s tardiness and absences.
The district court was not required to address each piece of evidence Mack
presented. The court is required to state “the reasons for granting or denying
the motion” for summary judgment, but does not need to address every
statement made by the non-movant. Fed. R. Civ. P. 56(a).
Furthermore, “[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson, 477 U.S. at 248 (citing Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2725 (3d ed. 1983)). Because the question
of whether Mack was terminated from her previous position is unrelated to
Mack’s termination from Wortham, it does not preclude summary judgment.
Regardless of the amount of consideration the district court gave to John Banks,
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Jr.’s affidavit, the district court’s basis for granting summary judgment was not
Mack’s termination from a previous job. Furthermore, her performance in prior
positions, however satisfactory, does not create a factual dispute as to her
performance at Wortham. The fact that an employee left a previous position
voluntarily is not evidence that she should not be terminated from future
positions.
B. Mack’s Hearsay Claim
Mack contends that the district court improperly awarded summary
judgment based on hearsay, referring to a statement made by another Wortham
employee, Leticia Martinez, to Flournoy that Mack had failed to follow
established procedures and had incorrectly filled out a checklist. We reject this
argument because the district court did not consider Martinez’s statement but
rather relied on documentation submitted by Wortham, including the checklist
Mack improperly completed, to determine that Mack had disregarded the
company’s procedures. Martinez did alert Flournoy that Mack was marking
uncompleted tasks as completed, but the record demonstrates that Mack was
disciplined based not on Martinez’s statement, but on the actual document at
issue. Wortham also provided a memorandum from Flournoy to Hahn dated
January 6, 2009, indicating that Martinez had discovered that Mack had failed
to follow the established procedures for these checklists. Any consideration
made by the district court of this violation was made based on the
documentation submitted by Wortham. Consequently, we agree with the district
court that it was appropriate to consider evidence of Mack’s failure to follow
established procedures and reject Mack’s supposed hearsay claim.
C. Claims Barred by 300-Day Limitation for Filing a Charge of
Discrimination
Because all of the alleged unlawful acts that occurred in the Risk
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Management and Commercial Accounts Departments, as well as some that
occurred in the Marine Department, took place outside of Title VII’s 300-day
limitation period, all of Mack’s claims arising out of those events are barred.
Under Title VII and the ADEA, a discrimination claim not brought within
300 days of the alleged discriminatory act is time-barred. 42 U.S.C. § 2000e-
5(e)(1); 29 U.S.C. § 626(d); Washington v. Patlis, 868 F.2d 172, 175 (5th Cir.
1989). To argue that discriminatory acts that occurred outside of the 300-day
period should be considered, Mack raises two exceptions to this rule: the
continuing violations doctrine and the hostile work environment theory.
Although these exceptions, if applicable, allow a plaintiff to bring claims that
would otherwise be time-barred, we agree with the district court that neither
applies to Mack’s case.
The continuing violations doctrine “relieves a plaintiff of establishing that
all of the complained-of conduct occurred within the actionable period if the
plaintiff can show a series of related acts, one or more of which falls within the
limitations period.” Messer v. Meno, 130 F.3d 130, 134–35 (5th Cir. 1997). If the
plaintiff can demonstrate that the discrimination manifested itself over time
rather than in a series of discrete acts, actions that would otherwise be time-
barred may be considered by the court. Frank v. Xerox Corp., 347 F.3d 130, 136
(5th Cir. 2003) (citing Huckabay v. Moore, 142 F.3d 233, 238–39 (5th Cir. 1998)
(holding that whereas demotion and failure to promote are discrete events that
should put an employee on notice that a cause of action has accrued, racial
harassment manifested through unequal treatment of employees and fostering
an atmosphere of racism weas sufficient to invoke the continuing violations
doctrine)). However, where the employee complains of “separate and varied acts
and decisions that occurred at different times,” and the record does not confirm
“an organized or continuing effort to discriminate,” this Court has declined to
apply the continuing violations doctrine. Frank, 347 F.3d at 136.
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Even if specific actions were discriminatory, this Court has stated that a
plaintiff may not rely on the continuing violations doctrine “to resurrect claims
about discrimination concluded in the past, even though its effects persist.”
Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983) (quoting
Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980)). Thus, though the effects of
an allegedly discriminatory act may persist, a claim based on that act is not
actionable under Title VII if the act occurred more than 300 days before the
charge was filed. See Del. State Coll., 449 U.S. at 257–59 (holding that the
denial of tenure was the alleged discriminatory act from which the 300-day
limitation began, although the ultimate harm that resulted from the denial
occurred later).
To determine whether alleged discriminatory acts are related closely
enough to constitute a continuing violation, this Court has used the following
three non-exhaustive factors: (1) subject matter, (2) frequency, and (3) degree of
permanence. Berry, 715 F.2d at 981. If the alleged acts involve the same type
of discrimination, occur frequently, and indicate to the employee that the
continued existence of adverse consequences is likely, it is probable that they
rise to the level of continuing violations. Id. Mack’s transfers were infrequent,
isolated incidents that did not indicate the possibility of permanent
consequences. She remained employed by Wortham for almost three years
following her third transfer, which was longer than she had worked in either of
her prior departments. She has failed to demonstrate a connection between the
incidents involving Hurd and Cox and her termination. Mack has alleged no
facts showing that her transfers and denial of transfer were related acts, or that
any of these acts was related to her termination, which is a prerequisite for the
application of the continuing violations doctrine. The decisions to transfer her
first from the Commercial Accounts Department and then from the Risk
Management Department were made by different individuals in separate
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departments. Furthermore, assuming arguendo these claims were not time-
barred, legitimate, nondiscriminatory reasons were given for both transfers:
Johnston determined Mack was not a good match for the position and McCann
cited Mack’s lack of necessary computer skills as the primary reason for her
termination. Both Johnston and McCann assisted Mack in obtaining positions
in other departments within the company. Mack has thus failed to demonstrate
a factual dispute as to whether Wortham’s actions rose to the level of continuing
violations.2
Because Mack’s continuing violations theory fails, we now consider
whether she has established a hostile work environment claim. In order for a
hostile work environment claim to survive, the unlawful employment practice
must have occurred “over a series of days or perhaps years and, in direct
contrast to discrete acts, a single act of harassment may not be actionable on its
own.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (holding
that managers’ racial jokes, racially derogatory acts, and racial epithets created
a hostile work environment and were part of the same actionable hostile
environment claim). We have held that, unlike demotion, “the cumulative effect
of the petty annoyances of daily harassment . . . constitute[s] a part of the same
pattern of behavior that amounts to a continuous violation by rendering [the
employee’s] workplace a hostile environment.” Huckabay, 142 F.3d at 240. To
determine whether an actionable hostile environment claim exists, we examine
all of the circumstances, including the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
2
We also note that, had Mack brought a Title VII claim within 300 days of being transferred or
being denied transfer she would not have been successful for lack of an adverse employment action,
which requires, at a minimum, a demotion, a transfer to a lower or less desirable position, or a denial of a
promotion. Both transfers were lateral and neither involved a decrease in responsibility or salary and she
was never denied a promotion. See, e.g. Alvarado v. Tex. Rangers, 492 F.3d 605, 613-14 (5th Cir. 2007).
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work performance. Nat’l R.R. Passenger Corp., 536 U.S. at 116.
The actions of which Mack complains were infrequent, isolated incidents
for which reasonable explanations were given. She was not threatened or
humiliated, and neither the transfers nor the disagreements she had with her
superiors can be construed as interfering with her performance, which was
already less than satisfactory from the beginning of her time in the Marine
Department. Wortham’s decisions to transfer Mack do not amount to the same
kind of acts described in Huckabay, where the continuous racial harassment only
manifested itself over time through relatively minor but frequent incidents and
thus warranted the label of hostile work environment. Mack was not exposed
to a hostile work environment, and, as discussed above, the alleged
discriminatory acts were neither adverse nor related.
Because Mack fails to establish an exception to the 300-day limitation, we
only consider alleged discriminatory acts that occurred after May 28, 2008. We
therefore affirm the district court’s decision that her claim for relief based on her
transfers from the Commercial Accounts and Risk Management departments,
as well as Wortham’s refusal to transfer her from the Marine Department in
2007, is barred by her failure to file the EEOC charge within 300 days of these
incidents.
D. Claims Barred by EEOC Ninety-Day Limitation for Filing Suit
The right to sue is lost if a claim is not filed within ninety days of the
plaintiff’s receipt of the right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). The EEOC
mailed the dismissal and notice of rights to Mack on August 30, 2010. Mack
filed her complaint on December 2, 2010, ninety-four days after the mailing date.
She asserts that she received the EEOC letter on September 3, 2010, and that
her suit was timely filed. However, Wortham contends that, since Mack testified
in deposition that she had “no reason to believe” she did not receive the letter
within three days of its mailing, it is presumed that she received it by September
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2, 2010, and she filed her claim ninety-one days after its receipt.
When there is a dispute as to the date the right-to-sue letter is received,
this Court has presumed it was received between three and seven days after the
letter was mailed. Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 547–48 (5th Cir.
2010) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002)).
Mack’s original complaint states that she received the right-to-sue letter on
September 3, 2010. However, when asked “[s]o you have no reason to believe
that [the right-to-sue letter] did not arrive in your mailbox within three days of
August the 30th, 2010, correct?” in her deposition, she responded that she had
no reason to believe that she did not receive the letter by September 2, 2010.
Despite this discrepancy, we take all facts in the light most favorable to the non-
movant at the summary judgment stage and presume that she received the
letter some time between September 2, 2010 and September 6, 2010. Because
she received the letter after September 2, 2010, her complaint was timely filed.
E. Claims Barred by EEOC Charge
Wortham also alleges that Mack’s claims of sex and culture discrimination
are barred by 42 U.S.C. § 2000e-5(f)(1). Under that statute, the scope of a Title
VII complaint is limited to the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination. Young v.
City of Hous., 906 F.2d 177, 179 (5th Cir. 1990). Mack’s EEOC charge alleged
age- and race-based discrimination, but her complaint alleged age, race, sex, and
culture discrimination. As explained below, her age- and race-based
discrimination claims are barred.
An employee who wishes to bring a discrimination claim against her
employer must first exhaust her administrative remedies by filing a charge of
discrimination with the EEOC. Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.
2006). “Title VII clearly contemplates that no issue will be the subject of a civil
action until the EEOC has first had the opportunity to attempt to obtain
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voluntary compliance.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467
(5th Cir. 1970). Because the scope of an EEOC complaint is to be construed
liberally, we review a Title VII claim broadly and do not limit our review to the
scope of the administrative charge itself, but consider the scope of the EEOC
investigation which “can reasonably be expected to grow out of the charge of
discrimination.” Pacheco, 448 F.3d at 789 (quoting Sanchez, 431 F.2d at 466).
Because this Court has held that a failure to allege sex discrimination in
an EEOC charge properly results in dismissal of a subsequent complaint for lack
of exhaustion, the omission of a culture discrimination claim from an EEOC
charge is similarly a failure to exhaust. The district court was correct in its
determination that investigation into Mack’s race- and age-based discrimination
charges would not reasonably lead the EEOC to investigate sex or culture
discrimination charges. See Kretchmer v. Eveden, Inc., 374 F. App’x 493, 495
(5th Cir. 2010) (unpublished) (per curiam); see also Thomas v. Tex. Dep’t of
Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). We therefore affirm its
decision that Mack’s sex and culture discrimination claims are barred because
she has failed to meet the exhaustion requirement.
F. Failure to Establish Prima Facie Case of Discrimination
Because Mack’s claims arising out of her transfers from the Commercial
Accounts Department and the Risk Management Department, as well as her
claims of discriminatory acts that occurred in the Marine Department before
May 28, 2008, are barred by the 300-day limitation, we will focus only on her
claims arising out of her termination from the Marine Department.
1. Title VII Claim
Title VII makes it unlawful to discharge, refuse to hire, or discriminate
against “any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
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or national origin.” 42 U.S.C. § 2000e-2(a)(1). In order to establish a prima facie
case of discrimination, the employee must produce evidence “that she: (1) is a
member of a protected class; (2) was qualified for her position; (3) was subject to
an adverse employment action; and (4) was replaced by someone outside the
protected class, or, in the case of disparate treatment, shows that others
similarly situated were treated more favorably.” Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001) (internal quotations
omitted). If the plaintiff establishes a prima facie showing, the burden then
shifts to the employer to articulate a legitimate, nondiscriminatory reason for
terminating employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). However, the defendant need not persuade the court that it was actually
motivated by the proffered reasons—it is sufficient that the defendant’s evidence
raises a genuine issue of material fact as to whether it discriminated against the
plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981).
If the employer meets this burden, the plaintiff must demonstrate that the given
reason was mere pretext by showing either that a discriminatory reason more
likely motivated the employer or that the employer’s proffered explanation is
unworthy of credence. Id. at 256.
Assuming arguendo Mack can show the first three prongs of the prima
facie case, she has failed to show that either she was replaced by someone
outside the protected class or that others similarly situated were treated more
favorably. She alleges in her EEOC charge that Dreana Lemon, a Hispanic
female with less seniority, was allowed to remain in her position when Mack was
terminated. However, Lemon was already employed by Wortham and merely
returned from leave to her prior position—she did not replace Mack. Mack also
stated in her deposition that she did not know who, if anyone, had replaced her.
In fact, she was not replaced at all. Flournoy’s affidavit explains the chain of
events that led to Mack’s termination. In 2008, one of Wortham’s largest clients
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sold the majority of its properties, reducing the amount of business in the
Marine Department. The adoption of an automation system further reduced the
workload of the Marine Department. Two employees were out on leave at the
time, and Flournoy decided that once both returned, the department would be
overstaffed. To determine which employee to lay off, he asked each member of
the technical and professional staff in the Marine Department to rank the
department employees. Each ranking listed Mack as the lowest-performing
employee. Mack’s position was eliminated and she was not replaced.
Alternatively, to establish disparate treatment a plaintiff may show that
the employer gave preferential treatment to another employee under “nearly
identical” circumstances, which requires a showing that an employee outside of
the protected class held the same job, title, and duties, was under the same
supervisor, committed the same infractions, and was not discharged. Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995); Okoye, 245 F.3d at 514(holding that because other employees’ violations differed from and did not rise
to the level of those committed by plaintiff, plaintiff failed to establish disparate
treatment).
Mack has not alleged that any other Wortham employee was similarly
situated, and therefore cannot show that a similarly-situated employee was
treated more favorably. Mack admitted in her deposition that she was tardy
more frequently than anyone else in the Marine Department. She has also failed
to present evidence that other employees were similarly insubordinate, much
less that other insubordinate employees were not discharged. She has offered
only her subjective belief that she would have been treated differently had she
not been African American. However, a generalized statement of less-favorable
treatment is insufficient to establish a factual dispute as to disparate treatment.
See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1186 (5th Cir. 1997) (holding
that plaintiff’s contention that he was “watched” more closely than white
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employees did not establish race-based discrimination in the absence of evidence
that similarly situated white employees were also regularly tardy but not
watched). Consequently, she cannot raise a genuine dispute of fact as to
whether another similarly situated employee who committed the same
infractions was treated more favorably.
Furthermore, assuming arguendo that Mack had successfully pleaded a
prima facie case of discrimination, summary judgment would still have been
proper based on Wortham’s legitimate, nondiscriminatory reasons for its actions.
Mack’s consistent tardiness is well-documented and undisputed. The incidents
of insubordination, even taken in the light most favorable to Mack, demonstrate
conflicts between Mack and her supervisors. The record also demonstrates her
failure to follow established procedures and her supervisors’ instructions.
Wortham’s Vice-Chairman decided to lay off an employee in the Marine
Department due to changed circumstances. He terminated the weakest
employee in the department.
Mack has not rebutted any of these facts and thus has failed to
demonstrate a genuine issue of fact as to whether Wortham’s proffered
explanation was pretextual. She has shown neither that her termination was
more likely motivated by a discriminatory reason nor that Wortham’s proffered
explanation is implausible. She does not dispute that she could have been
disciplined or even terminated for her tardiness alone and makes no showing
that the reasons given for her termination were invalid.
2. Retaliation Claim
Under Title VII, “[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment practice by
this title . . . or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing . . . .” 42 U.S.C.
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§ 2000e-3(a). A plaintiff bringing a retaliation claim has the burden of
establishing that (1) she participated in statutorily protected activity; (2) she
received an adverse employment action; and (3) a causal connection exists
between the protected activity and the adverse action. Mayberry, 55 F.3d at
1092.
Although Mack does not make this clear in her complaint, ostensibly the
“statutorily protected activity” in which she participated and which she contends
led to her termination consisted of her complaints against Hurd, Cox, and
Carlson. Because she had already been terminated, she cannot claim that she
was retaliated against for filing an EEOC discrimination charge against her
supervisors. Even if we assume that the adverse employment action to which
she refers was her termination from Wortham, she makes no reference in her
complaint to any causal connection between her alleged informal complaints to
other Wortham employees and the ultimate adverse employment action, and
thus fails to make a prima facie showing of retaliation. Furthermore, as stated
above, Wortham has demonstrated several legitimate, nondiscriminatory
reasons for her termination from the Marine Department, which Mack has failed
to rebut.
3. ADEA Claim
In order to establish a prima facie case under the ADEA, the plaintiff
must establish: (1) that she was discharged; (2) that she was qualified for the
position; (3) that she was within a protected class at the time of the discharge;
and (4) that she was replaced by someone outside the protected class, replaced
by someone younger, or that her discharge was otherwise because of her age.
Young v. City of Hous., 906 F.2d 177, 182 (5th Cir. 1990). Once the plaintiff
establishes this, the burden shifts to the defendant to rebut the presumption of
discrimination. Id. Evidence relevant to a showing of pretext may include that
employees outside of the protected class were engaged in the same type and level
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of infraction as the plaintiff. See McDonnell Douglas Corp., 411 U.S. at 804.
The parties do not dispute that Mack was discharged from her position in
the Marine Department. There is a disagreement as to whether Mack was
qualified for her position, but because Wortham does not explain the minimum
qualifications for her position, we assume without deciding that Mack was
qualified. It is also undisputed that Mack, who was fifty-five years of age at the
time of her termination, was within a protected class. See 29 U.S.C. § 631(a).
As explained above, Mack cannot satisfy the fourth prong of a prima facie
case because she has not shown that she was replaced at all, let alone by
someone under fifty-five years of age. Furthermore, she has alleged no facts
showing that her discharge was because of her age. This Court has held that “a
plaintiff’s subjective belief that his discharge was based on age is simply
insufficient to establish an ADEA claim.” Waggoner v. City of Garland, 987 F.2d
1160, 1164 (5th Cir. 1993). Mack has presented no support for her age
discrimination claim other than her subjective belief that she would have been
treated differently if she had been younger. Mack testified that she never heard
any Wortham employee or supervisor make negative remarks based on age. Her
allegation that she was replaced by Lemon, a younger Hispanic female, is
false—Lemon was already an employee of Wortham and simply returned from
maternity leave.
Because Mack cannot show that she was replaced, she has failed to raise
a factual dispute as to whether she was replaced by an individual outside of the
protected class, and she has not met her burden of establishing a prima facie
case of age discrimination. As described above, even if she had met this burden,
because Wortham articulated legitimate, nondiscriminatory reasons for her
termination which Mack has not rebutted as pretextual, summary judgment
would still have been proper.
G. Breach of Contract
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Mack argues that on December 2, 2005, she and Wortham entered into a
written contract which stipulated that Mack’s supervisor would give her annual
reviews. She complains that because she only received one review during
more than three years of employment, Wortham breached this contract. The
“contract” is in the form of an e-mail sent to Hahn by J.M. Jones (and copied to
Mack) which states:
This e-mail will confirm our telephone conversation yesterday
regarding an “annual” performance review for Eula Mack. You
indicated that you had already marked Eula’s personnel file to review
her job performance annually.
Because breach of contract is a state law claim, Texas law applies. To
bring a successful breach of contract claim in Texas, a plaintiff must show: (1)
the existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained
by the plaintiff as a result of the breach. Mullins v. TestAmerica, Inc., 564 F.3d
386, 418 (5th Cir. 2009). A valid contract requires (1) an offer, (2) an acceptance,
(3) a meeting of the minds, (4) each party’s consent to the terms, (5) execution
and delivery of the contract with the intent that it be mutual and binding, and
(6) consideration. Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.
App—Houston [14th Dist.] 2000, no pet.). The essential terms must be defined
“with sufficient precision to enable the court to determine the obligations of the
parties.” New Process Steel, L.P. v. Sharp Freight Sys., No. 01-04-00764-CV,
2006 WL 947764, at *3 (Tex. App.— Houston [1st Dist.] Apr. 13, 2006, no pet.).
Furthermore, a meeting of the minds refers to a mutual understanding and
assent to the agreement regarding the subject matter and the essential terms of
the contract. See Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 75
(Tex. App.—Houston [14th Dist.] 2010, pet. denied). This e-mail lacks at least
two requirements for a valid contract and therefore does not qualify as such.
Even if the e-mail were an offer to Mack to perform an annual performance
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review, there is no evidence that she accepted the offer. Additionally, even if we
did find a valid offer and acceptance, there is no consideration—there is no
evidence of a bargained-for exchange of promises, which is the basis of a valid
contract. See Tex. Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970).
Mack’s agreement to work for Wortham was not induced by the promise of
annual performance reviews, nor was Hahn’s statement that Mack was to
receive annual performance reviews induced by consideration from Mack. In the
absence of a mutuality of obligation, there can be no enforceable contract. Id.IV. CONCLUSION
Because Mack has failed to raise genuine issues of material fact that her
termination was the result of race- or age-based discrimination or that Wortham
breached its contract with her, we AFFIRM the district court’s grant of summary
judgment to Wortham.
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