Case: 12-51050 Document: 00512389465 Page: 1 Date Filed: 09/27/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 27, 2013
No. 12-51050 Lyle W. Cayce
Clerk
TENISHA GIDDENS,
Plaintiff-Appellant
v.
COMMUNITY EDUCATION CENTERS, INC., doing business as
ECTOR COUNTY CORRECTIONAL CENTER
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CV-10
Before WIENER, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Tenisha Giddens (“Giddens”) appeals the district
court’s grant of summary judgment in favor of her former employer, defendant-
appellee Community Education Centers, Inc. (“CEC”), against whom Giddens
had brought a Title VII lawsuit of sexual discrimination and retaliation. We
affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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I. Facts and Procedural History
Giddens was hired as a Correctional Officer at the Ector Correctional
Center (“ECC”) in Odessa, Texas in 2005. She was hired by Warden Jack Brewer
(“Brewer”) while the ECC was managed by CiviGenics, Inc. In 2007, CEC took
over management of the facility. Brewer and Giddens stayed on as CEC
employees. At the time that CEC took over management of the facility, it
distributed the employee handbook to its staff, including Giddens. The handbook
included a section on sexual harassment. It prohibited sex-based discrimination
by any employee, and explained that allegations of discrimination, including
sexual harassment, would be subject to investigation. The policy further
provided that an employee who believes she has been subject to sexual
harassment
should report the incident(s) immediately to his or her immediate
supervisor, who will report the incident to the Director of Employee
Relations or corporate representative. If the employee is not
comfortable reporting the matter through the proper chain of
command, then the employee should feel free to report the matter
directly to the Director of Employee Relations. The employee shall
make a written record of the date, time and nature of the incident(s)
and the names of any witnesses. The director of Employee Relations
will proceed to conduct a prompt and confidential investigation of
the alleged incident(s) that shall include interviews of the
complainant, the alleged harasser and any potential witness(es).
When the handbook was distributed, Giddens signed an acknowledgment
that she received, reviewed, and understood the policies.
Giddens received several raises while she was employed by CEC. She was
promoted to corporal in 2009. Soon thereafter, she was given the opportunity to
sit for the exam she needed to take in order to qualify as a full-time sergeant.
She did not take the exam. Richard Aguilar (“Aguilar”), an outside candidate,
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was given the position of sergeant and began working as Gidden’s supervisor in
2009.
Giddens testified in her deposition and stated in her Declaration that soon
thereafter, in May 2009, Aguilar began making unwelcome sexual advances
toward her. Aguilar asked her to go out for drinks on three occasions. On one
occasion, he pulled her by the waist onto his lap and told her he wanted to “uh”
her in a suggestive voice that suggested he was referring to sex. Aguilar yelled
at her and at male co-workers who spoke with Giddens while they were on shift,
and referred to these co-workers as Giddens’ boyfriends. He also told her
numerous times that if she would take care of him, he would take care of her,
which Giddens took to refer to sexual favors. Aguilar was flirtatious and “touchy”
with her. On a nearly daily basis, Aguilar followed Giddens around and often
touched her back and hips, even while prisoners were present. This behavior
prompted several prisoners to ask Giddens if she was in a relationship with
Aguilar. Giddens also asserted that Aguilar told the prisoners personal details
about her life. Then, in August 2009, after her consistent rejection of his
advances, Aguilar’s harassment of Giddens changed. He began to make frequent
derogatory and profane remarks about Giddens and women in general. He
consistently addressed her as “woman” rather than as “Corporal” or by her
name. He repeatedly grabbed her, once hard enough that it left bruises on her
arm, and cursed her. Aguilar removed Giddens from supervisory duties and
reassigned her to cleaning tasks and other duties that were usually assigned to
employees subordinate to Giddens. He regularly informed her that women had
no place working in corrections. The harassment continued until Giddens was
placed on leave and ultimately terminated on October 29, 2009.
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Giddens did not report the incidents of harassment or keep a written
record of them. Giddens asserted that on one occasion, she complained to
Assistant Warden Linvel Mosby (“Mosby”) that Aguilar was swearing at her,
that he told lies about her, and that he was trying to get her fired because she
“wouldn’t be with him.” She made her complaint under CEC’s Open
Communications/Problem Resolution procedure, which directs an employee to
“immediately seek the help of their supervisor” when a problem arises. Although
Giddens stated in her sworn Declaration that she told Mosby that she thought
Aguilar was mistreating her because she would not date him, she acknowledged
that she did not tell Mosby that Aguilar was harassing her or that he had made
sexual advances toward her.
On October 1, 2009, Giddens requested three days of leave to attend a U.S.
Marshal’s Seminar in Dallas, Texas. Brewer denied Giddens’s request because
Aguilar and Mosby informed him that Giddens had not accrued sufficient leave
time for all three days. Giddens then requested permission to take one day off
to attend the conference on the day that she could interview for a Marshal
position. She had accrued sufficient leave time (14.24 hours) to take off one day
of work. However, Aguilar informed Brewer that Giddens had not accrued
sufficient leave time to take one day off and on that basis, Brewer denied
Giddens’s request. The parties dispute whether Aguilar informed Giddens that
Brewer denied her request for one day’s leave time. Giddens asserted that she
believed that her request had been approved, and therefore took the day off of
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work to attend the interview. She then was one hour late for her next shift on
October 22, 2009.1
When she arrived for her shift, Aguilar told her that she was relieved of
duty and to report to Brewer at 8:30 a.m. the following day. At the meeting,
Brewer informed Giddens that her leave request had been denied and that she
therefore failed to report to work without permission. Brewer also told Giddens
that she was being placed on administrative leave pending an investigation.
Brewer delegated two employees to conduct the investigation, Sergeant Michael
Ashabranner (“Ashabranner”) and Compliance Officer Brandon Mangus
(“Mangus”). Ashabranner and Mangus interviewed ten of Giddens’s co-workers
who worked on Giddens’s shift. The investigators produced a written report of
each interview, signed by the employee. All but one of the co-workers told the
investigators that Giddens was insubordinate toward Aguilar, resentful of
Aguilar, negative about CEC, disrespectful toward the prisoners, that she
sometimes left her post, and that the shift ran more smoothly when she was
absent. At the bottom of each report, Ashabranner and Mangus indicated that
Giddens’s behavior violated CEC’s Code of Ethics Policy. In an interoffice
memorandum written on October 28, 2009, Brewer reviewed the results of the
investigation. He noted that he gave Giddens permission to submit a list of
employees and ex-employees to be interviewed about her character and integrity,
but that Giddens failed to produce the list. He explained that Ashabranner and
1
Around this time, the defendants asserted that another junior correctional officer,
Cindy Faulk, submitted a written statement complaining that Giddens attempted to
intimidate her and had bad-mouthed Sergeant Aguilar. However, Giddens asserted that she
did not intimidate Faulk and only warned her to be on guard against Aguilar’s advances and
harassment. The parties dispute whether this statement was taken before or after Giddens’s
suspension.
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Mangus interviewed all the employees on Giddens’s shift and that they reported
that Giddens violated the CEC Code of Ethics Policy on numerous occasions. The
violations included: insubordination toward Aguilar, her supervisor; failure to
perform work as directed; unwillingness to work in harmony with other
employees; being dogmatic and escalating hostility toward the prisoners;
negligence of duty and work assignments; inexcusable absenteeism; making
derogatory statements about other employees; leaving the work station without
direction of her supervisor; and advising staff not to perform duties assigned by
the supervisor. Brewer’s letter also identified four days on which Giddens had
been absent without excuse, not including October 21, 2009.
On October 29, 2009, Brewer wrote another interoffice memorandum that
indicated that he met with Giddens at 9:00 a.m. on October 29, 2009 to review
the results of the investigation. According to the memorandum, Giddens
informed him that she would not submit a list of ex- and current employees to
be interviewed on her behalf. At the meeting, Brewer terminated Giddens’s
employment “because of the habitual abuse of policy” and “being absent without
a justifiable excuse.”
After she was fired, Giddens filed charges of discrimination with the Equal
Employment Opportunity Commission (EEOC). After receiving notice of her
right to sue, Giddens brought suit against CEC under Title VII, asserting a sex
discrimination claim and a retaliation claim. On September 12, 2012, the district
court issued an order ruling on both parties’ objections to submitted summary
judgment evidence, including inter alia CEC’s motion to exclude Paragraph 8 of
Giddens’s Declaration from the summary judgment record on the grounds that
it contradicted a judicial admission made in Giddens’s Amended Complaint. The
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district court granted CEC’s motion and then granted CEC’s motion for
summary judgment and dismissed the case. Giddens now appeals the district
court’s exclusion of Paragraph 8 and its summary judgment order.
II. Discussion
A. Summary Judgment
1. Standard of Review
Giddens contends on appeal that the district court erred in granting
summary judgment in favor of CEC. We review a district court’s grant of
summary judgment de novo, applying the same standard as the district court.
Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir. 2010).
We may affirm “on any ground supported by the record, even if it is different
from that relied upon by the district court.” Janvey v. Democratic Senatorial
Campaign Committee, Inc., 712 F.3d 185, 193 (5th Cir. 2013). Summary
judgment is appropriate if the record shows that “there is no genuine dispute as
to any material fact.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In reviewing a grant of summary judgment, the
Fifth Circuit examines the evidence in the light most favorable to the nonmoving
party. Addicks Servs., Inc., 596 F.3d at 293. The moving party bears the burden
of demonstrating that summary judgment is appropriate. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
2. Harassment Claims
Pursuant to Title VII of the Civil Rights Act, it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to h[er] compensation, terms,
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conditions, or privileges of employment, because of such individual’s . . . sex.” 42
U.S.C. § 2000e-2(a)(1). A plaintiff seeking to hold an employer company liable
for sexual harassment carried out by the plaintiff’s supervisor may prevail in one
of two ways: (a) by establishing that the sexual harassment resulted in a
tangible employment action,2 or (b) by establishing that the supervisor created
a hostile work environment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Casiano v. AT&T
Corp., 213 F.3d 278, 283-84 (5th Cir. 2000). If a plaintiff has suffered a tangible
employment action, the suit is classified as a “quid pro quo” case. Casiano, 213
F.3d at 283. If the plaintiff has not suffered a tangible employment action, the
suit is classified as a hostile work environment case. Id. Giddens asserts that
CEC is vicariously liable for Aguilar’s sexual harassment under both theories.
a. Quid Pro Quo
In a quid pro quo case, when the court has established that the plaintiff
suffered a tangible employment action, “the court must determine whether the
tangible employment action suffered by the employee resulted from [her]
acceptance or rejection of [her] supervisor’s alleged sexual harassment.” Id.
“When a plaintiff proves that a tangible employment action resulted from a
refusal to submit to a supervisor’s sexual demands, he or she establishes that
the employment decision itself constitutes a change in the terms and conditions
of employment that is actionable under Title VII.” Ellerth, 524 U.S. at 753-54.
2
A tangible employment action “requires an official act of the enterprise,” and may be
defined as “a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 762
(1998).
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“If the employee cannot show such a nexus, then his employer is not vicariously
liable under Title VII for sexual harassment by a supervisor; but if the employee
can demonstrate such a nexus, the employer is vicariously liable per se.”
Casiano, 213 F.3d at 283. “No affirmative defense is available [to the employer]
when the supervisor’s harassment culminates in a tangle employment action.”
Ellerth, 524 U.S. at 745; see also Faragher, 524 U.S. at 804-05.
Giddens’s termination constituted a tangible employment action. She
conceded, however, that she did not complain to Brewer about Aguilar’s conduct
and that Brewer did not know about the harassment before he made the decision
to terminate her employment. Therefore, she can only establish the necessary
nexus between the harassment and her termination under the “cat’s paw”
doctrine. In Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), the Supreme Court
held “that if a supervisor performs an act motivated by [discriminatory] animus
that is intended by the supervisor to cause an adverse employment action, and
if that act is a proximate cause of the ultimate employment action, then the
employer is liable.” Id. at 1194 (emphasis added).
Giddens has presented sufficient evidence to create a genuine issue of
material fact as to whether Aguilar performed acts motivated by discriminatory
animus and intended to cause an adverse employment action—specifically, by
intentionally misrepresenting to Brewer that Giddens did not have sufficient
leave-time accrued to take one day off of work, and by not informing her that
Brewer denied her request for one day’s leave time. However, Giddens has not
demonstrated that Aguilar’s acts proximately caused her termination. Brewer
appointed two investigators, Ashabranner and Mangus, to investigate Giddens’s
behavior. Aguilar was not involved in the investigation. Ashabranner and
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Mangus interviewed ten co-workers who were on Giddens’ss shift. Giddens co-
workers told the investigators that Giddens was insubordinate toward Aguilar,
and many of them also explained that Giddens regularly failed to perform work
as directed, was unwilling to work harmoniously with her colleagues, failed to
remain at her post, and encouraged her co-workers not to perform tasks that
Aguilar assigned. The investigators noted that this behavior violated several
CEC policies. Giddens did not provide Brewer with any information to counter
the investigation results.
CEC presented uncontroverted evidence that Giddens was terminated
because she regularly violated several CEC policies and had been inexcusably
absent on numerous occasions. These violations were uncovered by two
independent investigators. Nothing in the record indicates that Aguilar
influenced the investigators or the outcome of the investigation. Under the cat’s
paw theory of liability, “if the employer’s investigation results in an adverse
action for reasons unrelated to the supervisor’s original biased reaction . . . then
the employer will not be liable.” Staub, 131 S. Ct. at 1193. Because Giddens did
not show that there is a genuine issue of material fact as to whether Aguilar’s
acts were the proximate cause of Brewer’s decision to terminate her
employment, she failed to sufficiently establish a quid pro claim under Title VII.
b. Hostile Work Environment
Giddens also brought a hostile work environment claim against CEC. To
establish a hostile work environment claim, an employee must establish a prima
facie case, demonstrating that: (1) the employee belongs to a protected class; (2)
the employee was subject to unwelcome sexual harassment; (3) the harassment
was based on sex; and (4) the harassment affected a term, condition, or privilege
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of employment. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5th Cir.
2008). “To affect a term, condition, or privilege of employment, the harassment
‘must be sufficiently severe or pervasive to alter the conditions of [the victim’s]
employment and create an abusive working environment.’” Id. (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Once the employee has
established all four elements, then the employer is liable unless the employer
proves both prongs of the Ellerth/Faragher affirmative defense: “(a) that the
employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765; see also
Faragher, 524 U.S. at 807. “[T]his is the employer’s only affirmative defense in
a supervisor sexual harassment case post Ellerth/Faragher, and it is available
only in a hostile environment situation.” Casiano, 213 F.3d at 284 (emphasis
added).
Even assuming that Giddens has established a prima facie case for her
hostile environment claim, her appeal fails because CEC has proven that it is
entitled to the Ellerth/Faragher defense as a matter of law. Where an employer
has “provided a proven, effective mechanism for reporting and resolving
complaints of sexual harassment, available to the employee without undue risk
or expense,” and the plaintiff “unreasonably failed to avail herself of the
employer’s preventative or remedial apparatus . . . no liability should be found
against the employer who has taken reasonable care.” Faragher, 524 U.S. at 807.
CEC adduced summary judgment evidence that it has an established, well-
developed policy against sexual harassment and a system for reporting any
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harassment that occurs. The policy prohibits sex-based discrimination by any
employee and subjects any allegations of discrimination to investigation. It
provides that an employee who is being harassed should keep a written record
of each incident of harassment. It also provides than an employee should report
the harassment, and enables her to report directly to the Director of Employee
Relations if she is not comfortable reporting to her supervisor. Once informed,
the Director of Employee Relations is required to conduct a prompt, confidential
investigation. CEC’s sexual harassment policy was included in the CEC
employee handbook, which was distributed to all employees, including Giddens.
Giddens has not produced any evidence that CEC did not adhere to these policies
in practice, or otherwise failed to exercise reasonable care to prevent and correct
sexual harassing behavior.
Giddens admitted that she received the employee handbook that detailed
this policy and that she signed an acknowledgment that she received, reviewed,
and understood the policies. She also admitted that she never made a written
record of the harassment or reported it, in part because she did not perceive
Aguilar’s behavior to be sexual harassment until after she had been terminated.
Although Giddens did complain to Mosby about Aguilar’s treatment of her
through the CEC Open Communication/Problem Resolution procedure, she
admitted that she did not tell Mosby that Aguilar was sexually harassing her.
Giddens did not notify anyone at CEC about the harassment until after she was
terminated, when she filed her EEOC charge. The uncontroverted summary
judgment evidence demonstrates that Giddens unreasonably failed to take
advantage of CEC’s policies to prevent or correct Aguilar’s sexual harassment.
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Therefore, no liability should attach to CEC for Giddens’s hostile work
environment claim.
3. Retaliation Claim
Giddens also contends that the district court erred in granting summary
judgment in favor of CEC on her retaliation claim. In her Amended Complaint,
Giddens claimed that CEC retaliated against her for (1) refusing Aguilar’s
advances, (2) reporting Aguilar’s unlawful conduct, and (3) filing a charge of
unlawful discrimination. The McDonnell Douglas burden-shifting framework
applies to Title VII claims brought under a pretext theory. Septimus v. Univ. of
Houston, 399 F.3d 601, 608 (5th Cir. 2005). Under this approach, an employee
must first produce evidence of a prima facie case of retaliation by demonstrating
“that (1) [she] engaged in an activity that Title VII protects; (2) [she] was
subjected to an adverse employment action; and (3) a causal connection exists
between the protected activity and the adverse employment action.” LeMaire v.
Louisiana Dept. of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). “The
proper standard of proof on the causation element of a Title VII retaliation claim
is that the adverse employment action taken against the plaintiff would not have
occurred ‘but for’ her protected conduct.” Septimus, 399 F.3d at 608. Once the
employee has established her prima facie case, “the burden shifts to the
employer to state a legitimate, non-retaliatory reason for its decision.” LeMaire,
480 F.3d at 388 (citing Baker v. Am. Airlines, Inc., 430 F.3d 750, 754-55 (5th Cir.
2005)). “After the employer states its reason, the burden shifts back to the
employee to demonstrate that the employer’s reason is actually a pretext for
retaliation.” Id. at 388-89 (citing Baker, 430 F.3d at 755).
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Giddens has not produced evidence sufficient to make a prima facie case
of retaliation. With regard to her first contention, Giddens’s claim fails because
she did not provide any “authority for the proposition that rejecting sexual
advances constitutes a protected activity for the purposes of a retaliation claim
under Title VII.” Id. at 389. Moreover, she could not establish a but-for causal
connection between her rejection of Aguilar and Brewer’s subsequent decision
to terminate her after an investigation, which was not conducted by Aguilar,
revealed that Giddens regularly violated several CEC Ethics Policy rules. With
regard to her second and third contentions, Giddens did not report the unlawful
conduct or file an unlawful discrimination charge until after her termination.
Therefore, neither could be a but-for cause of her termination. Because Giddens
failed to make a prima facie case for her retaliation claim, the district court did
not err in granting summary judgment in favor of CEC.
B. Evidentiary Ruling
Giddens also appeals the district court’s evidentiary ruling excluding
Paragraph 8 of her Declaration, in which she attested that
I was never told I could not have that day off by Sgt. Aguilar or
anyone else. It was approved as far as I knew. As shift Sergeant,
Aguilar was routinely the person who an officer submitted a request
for time off. The shift Sergeant would then check the hours
available, approve it and send it on to the Assistant Warden. I know
this because I was the acting Sergeant, in the spring of 2009, before
Aguilar was given the position.
The district court sustained the defendants’ objection to Paragraph 8 and
excluded the paragraph from the summary judgment record on the grounds that
Giddens was judicially estopped from making the assertions in Paragraph 8
because they contradicted the judicial admissions made in her Amended
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Complaint. We review a district court’s evidentiary rulings for abuse of
discretion, subject to harmless-error analysis. United States v. Meza, 701 F.3d
411, 425 (5th Cir. 2012) (internal quotation marks and alteration omitted).
The district court erred in excluding Paragraph 8 because it is not
inconsistent with or contrary to Giddens’s Amended Complaint or with her
EEOC charge, and therefore should not have been excluded under either the
doctrine of judicial estoppel or the doctrine of judicial admissions.3 See Hopkins
v. Cornerstone America, 545 F.3d 338, 347 (5th Cir. 2008) (noting that the
doctrine generally may be invoked only when, inter alia, “the party’s position [is]
clearly inconsistent with its previous one”) (quoting Hall v. GE Plastic Pac. PTE
Ltd., 327 F.3d 391, 396 (5th Cir. 2003)); Davis v. A.G. Edwards & Sons, Inc., 823
F.2d 105, 107-08 (5th Cir. 1987) (a party is bound by admissions made in his
pleadings, such that he cannot present evidence contradicting those pleadings
for the purpose of defeating a summary judgment motion). In her Amended
Complaint, Giddens pleaded that Aguilar sexually harassed her and then, when
3
The district court conflated two separate doctrines: the doctrine of judicial estoppel
and the doctrine of judicial admissions. See, e.g., Colonial Refrigerated Transp., Inc. v.
Mitchell, 403 F.2d 541, 550 n.24 (distinguishing the doctrine of judicial estoppel from that of
judicial admissions). “Judicial estoppel is an equitable doctrine that ‘prevents a party from
asserting a position in a legal proceeding that is contrary to a position previously taken in the
same or some earlier proceeding.’” Hopkins v. Cornerstone America, 545 F.3d 338, 347 (5th Cir.
2008) (quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003)). “A judicial
admission is a formal concession in the pleadings or stipulations by a party or counsel that is
binding on the party making them. Although a judicial admission is not itself evidence, it has
the effect of withdrawing it from contention.” Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474,
476 (5th Cir. 2001). “[F]actual assertions in pleadings . . . are considered to be judicial
admissions conclusively binding on the party who made them.” White v. ARCO/Polymers, Inc.,
720 F.2d 1391, 1396 (5th Cir. 1983). A party therefore may not rebut a judicial admission
made in its pleadings with new evidence or testimony. See Davis v. A.G. Edwards & Sons, Inc.,
823 F.2d 105, 107-08 (5th Cir. 1987).
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she rejected his advances, “engaged in a pattern of behavior including derogatory
and profane remarks about her gender and women in general, job assignments,
aggressive physical contact, refusal of personal leave, and ultimately her
discharge.” In her EEOC charge, Giddens asserted that “[o]n or about October
20, 2009 I was denied personal leave, although I requested it about three weeks
in advance.” Neither admission is inconsistent with Paragraph 8 of her
Declaration, in which she attested that “I was never told I could not have that
day off by Sgt. Aguilar or anyone else. It was approved as far as I knew.”
Giddens applied for leave twice. On the first occasion, she applied for three days’
leave and was denied because she had not accrued three days’ worth of leave
time. She then applied for one day of leave, for October 21, 2009. She had
sufficient accrued leave time (14.24 hours) for one day of leave. When Giddens
took a day off work on October 21, 2009, she believed that she had been granted
leave because she had not been informed that her leave request was denied.
Unbeknownst to her, Aguilar represented to Brewer that Giddens had
insufficient leave time accrued and Brewer denied her leave request on that
basis. Neither Aguilar nor Brewer communicated this to Giddens. Giddens only
learned that Brewer denied her second leave request after she returned from her
day of leave and was suspended from duty. Her assertions in Paragraph 8 of her
Declaration and the admissions made in her EEOC charge and Amended
Complaint therefore are consistent.
We do not reverse because the error was harmless. Paragraph 8 of
Giddens’s Declaration has no bearing on the proximate cause of her termination,
on CEC’s Ellerth/Farragher defense, or on Giddens’s ability to establish a prima
facie case of retaliation.
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CONCLUSION
For the aforementioned reasons, we affirm the district court’s evidentiary
ruling, its grant of summary judgment in favor of the defendant, and its
dismissal of Giddens’ Title VII action.
AFFIRMED.
17