IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-40619
_______________
WILLIAM REED HUCKABAY,
Plaintiff-Appellant,
VERSUS
EDWARD MOORE,
Individually and in His Official Capacity
as County Commissioner,
and
JEFFERSON COUNTY, TEXAS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
May 22, 1998
ON PETITION FOR REHEARING
Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The petition for rehearing is DENIED. This court's opinion,
137 F.3d 871 (5th Cir. 1998), is hereby withdrawn, and the
following opinion is substituted:
I.
William Huckabay, who is white, has worked as an employee of
Jefferson County Precinct Four since 1976. Edward Moore, who is
black, was elected Commissioner of Precinct Four in 1987. Huckabay
alleges that upon his election, Moore immediately set out on a
deliberate and overt program to make his precinct a “black
precinct.” According to Huckabay, Moore stated that “blacks had
suffered for two hundred years, and now it was the whites' turn,”
and Moore acted upon that theory.
Again according to Huckabay, Moore instituted generally racist
employment practices in an attempt to force out his white
employees. Moore demoted white supervisors of many years'
experience, replacing them withSSand forcing them to work
underSSblacks of lesser experience and training. He assigned
whites to the most burdensome and disliked tasks, while excusing
blacks. He refused to allow whites who had been injured on the job
to perform “light duty”SSas he did for blacksSSbut insisted that
they perform heavy duty or stay home. He allowed black employees
to take frequent breaks on the job, but chastised whites who did
the same. During his tenure as commissioner, Moore hired twenty-
two black employees and only one white. And on the job, Moore
tolerated and helped to foster an atmosphere in which whites were
called “honkeys” and were made the subject of ridicule and
harassment on account of race.
Huckabay claims that, in addition to suffering this
generalized discrimination, he has incurred specific instances of
particularized discrimination. He was demoted, and his pay was
cut, from mechanic to laborer when he broke his arm and had to take
2
time off from work. He is no longer allowed to run any equipment.
When a supervisory job opened up, he was not even considered for
it, despite his fairly long experience with the county.1 And in a
multitude of ways, he is forced to tolerate verbal and nonverbal
racial harassment as a condition of his employment.
On May 26, 1995, Huckabay filed a charge of discrimination
with the EEOC, alleging a hostile work environment. He received a
right-to-sue letter and filed this suit, alleging violations of
42 U.S.C. §§ 1981, 1983, and 2000e, as well as Texas tort and state
constitutional claims. The district court granted summary judgment
in favor of Moore and the county. On appeal, Huckabay challenges
the summary judgment as to his title VII claim and his state tort
and constitutional claims, but he abandons his claims under §§ 1981
and 1983.2
II.
We review a summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
1
Both the demotion and failure to promote occurred more than 300 days before
Huckabay filed his charge with the EEOC.
2
Huckabay challenges the judgment with regard to title VII on both the
limitations and evidentiary issues. Nowhere, though, does he mention the court's
disposition of his §§ 1981 and 1983 claims. Although we may liberally construe
briefs to determine what issues are presented, issues not raised at all are
considered abandoned. See, e.g., SEC v. Recile, 10 F.3d 1093, 1096 (5th Cir.
1993).
3
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). After a proper motion for summary judgment is made, the
non-movant must set forth specific facts showing that there is a
genuine issue for trial. See Hanks, 953 F.2d at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material.
See King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then
review the evidence relating to those issues, viewing the facts and
inferences in the light most favorable to the non-movant. See id.
If the non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is presented.
See Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994).
III.
A.
In a state that, like Texas, provides a state or local
administrative mechanism to address complaints of employment
discrimination, a title VII plaintiff must file a charge of
discrimination with the EEOC within 300 days after learning of the
conduct alleged. 42 U.S.C. § 2000e-5(e)(1); see also Messer v.
Meno, 130 F.3d 130, 134 & n.2 (5th Cir. 1997). Huckabay did not
file with the EEOC within 300 days of much of the discriminatory
4
conduct he alleges, but he claims that under the “continuing
violation doctrine,” recognized by this court in Berry v. Board of
Supervisors, 715 F.2d 971 (5th Cir. 1983), his claims are timely,
nonetheless.
As we explained in Messer,
The continuing violation theory 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. . . . The core idea
of the continuing violations theory, however, is that
equitable considerations may very well require that the
filing periods not begin to run until facts supportive of
a Title VII charge or civil rights action are or should
be apparent to a reasonably prudent person similarly
situated. The focus is on what event, in fairness and
logic, should have alerted the average lay person to act
to protect his rights. At the same time, the mere
perpetuation of the effects of time-barred discrimination
does not constitute a violation of Title VII in the
absence of independent actionable conduct occurring
within the statutory period. Thus, a plaintiff can avoid
a limitations bar for an event that fails to fall within
the statutory period where there is a persisting and
continuing system of discriminatory practices in
promotion or transfer that produces effects that may not
manifest themselves as individually discriminatory except
in cumulation over a period of time.
130 F.3d at 134-35 (citations, quotation marks, and brackets
omitted). Although there is no definitive standard for what
constitutes a continuing violation, the plaintiff must demonstrate
more than a series of discriminatory acts. He must show an
organized scheme leading to and including a present violation, see
Berry, 715 F.2d at 981, such that it is the cumulative effect of
the discriminatory practice, rather than any discrete occurrence,
that gives rise to the cause of action, see Messer, 130 F.3d at
135; Glass, 757 F.2d 1561.
5
This inquiry may involve several factors, including the
following three:
The first is subject matter. Do the alleged acts involve
the same type of discrimination, tending to connect them
in a continuing violation? The second is frequency. Are
the alleged acts recurring . . .[3] or more in the nature
of an isolated work assignment or employment decision?
The third factor, perhaps of most importance, is degree
of permanence. Does the act have the degree of
permanence which should trigger an employee's awareness
of and duty to assert his or her rights, or which should
indicate to the employee that the continued existence of
the adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?
Berry, 715 F.2d at 981. Importantly, however, the particular
context of individual employment situations requires a
fact-specific inquiry that cannot easily be reduced to a formula.
Id.
B.
Huckabay's specific allegations are that he was unlawfully
demoted because of his race, that he was kept from promotion
because of his race, and that he was forced to endure a racially
hostile work environment as a condition of his employment. Moore
argues that the continuing violation doctrine may apply only, if at
all, to the hostile environment claim, rather than to the specific
instances of demotion and failure to promote.4 We agree.
3
Berry gives the example of a bi-weekly paycheck as “recurring” acts, but
we specifically have held that the mere receipt of a paycheck does not constitute
a “continuing act” of discrimination. See Hendrix, 911 F.2d at 1104.
4
Moore also argues that Huckabay failed to raise the doctrine in the trial
(continued...)
6
There is little question that Huckabay's hostile environment
claim is subject to the continuing violation doctrine. The ongoing
racial harassment suffered by Huckabay was all of the same sort, it
was continual, and it was a permanent condition of his workplace.
Cf. Berry, 715 F.2d at 981. And the pattern of harassment was not
the kind of violation thatSSlike a discrete instance of
discriminatory conductSSwould put a worker on notice that his
rights had been violated. Id. While we need not decide whether
every hostile environment would necessarily be a continuing
violation, cf., e.g., Gipson v. KAS Snacktime Co., 83 F.3d 225, 229
(8th Cir. 1996), we conclude that the hostile environment faced by
Huckabay was.
That Huckabay was subjected to this continuing violation does
not, however, necessarily make timely all his allegations of
discriminatory conduct. Where it is applicable, the continuing
violation doctrine applies to excuse the 300-day exhaustion
requirement only as to the course of conduct that constitutes that
violation. We therefore must consider whether all the conduct
alleged by HuckabaySSthe hostile environment, the demotion, and the
failure to promoteSSmay be considered part of the same continuing
course of conduct. This, in turn, will depend on the basic test
for what conduct will constitute a continuing violation, as
(...continued)
court with respect to the promotion and demotion claims, and that he thus waived
it. This argument rises or falls on the basic applicability of the theory to any
given conduct, for if a course of conduct is a single cause of action, there is
no need to raise arguments with respect to every instance of conduct within the
continuing violation that gives rise to that cause.
7
articulated in Berry and other cases.
Huckabay's demotion is a different sort of discrimination from
the day-to-day harassment that makes his workplace a hostile
environment. Moreover, he was demoted only once, and unlike the
cumulative effect of the petty annoyances of daily harassment,
demotion is the sort of discrete and salient event that should put
an employee on notice that a cause of action has accrued. It does
not constitute a part of the same pattern of behavior that amounts
to a continuous violation by rendering Huckabay's workplace a
hostile environment.
Similarly, Moore's failure to promote Huckabay is an isolated
occurrence apart from the continuously violative hostile
environment. These discrete adverse actions, though racially
motivated, cannot be lumped together with the day-to-day pattern of
racial harassment, for they were isolated occurrences that should
have put Huckabay on notice that a claim had accrued. Therefore,
because these otherwise untimely claims are not continuing
violations, Huckabay cannot recover for his demotion or failure to
be promoted.
The remaining question with regard to the continuing violation
doctrine is whether Huckabay can point to any violation within the
300-day period. The doctrine will render a complaint timely as to
a course of conduct only if the complaint is timely as to the most
recent occurrence. See Coon v. Georgia Pac. Corp., 829 F.2d 1563,
1570 (5th Cir. 1987).
The district court stated that Huckabay's continuing violation
8
theory must fail, because he had offered no “specific evidence” of
conduct within the 300-day window. It is true that a plaintiff may
not survive summary judgment with conclusory statements that
5
discrimination is “ongoing.” And as always, the nonmoving party
must set forth specific facts that support his case. See, e.g.,
Hanks, 953 F.2d at 997.
Here we have specific and uncontradicted facts. Huckabay's
affidavit states, for example, “I am constantly ribbed and harassed
[by coworkers] for being white.” In his deposition, Huckabay again
uses the present tense when he states that he endures “constant
remarks” from his coworkers and that “[m]y wife says she can't talk
to me for an hour when I come home to eat supper.” The complaint
states, “[a]s recently as December 18, 1996, Plaintiff was required
by his African-American supervisor, Benjamin Okadigbo, to attend a
meeting at the courthouse, which Black employees were not required
to attend.”6 In the affidavit attached to his original EEOC charge
of discriminationSSand also made part of the district court's
recordSSHuckabay relates that he was “assigned to standing in the
rain on May 8, 1995,” while blacks were allowed to take shelter.
These specific facts, and others, support Huckabay's claim
5
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996) (en banc) (“[C]onclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”).
6
The facts put forth in a verified complaint may be treated as if in an
affidavit on summary judgment, if the asserted facts meet the requirements of
FED. R. CIV. P. 56(e) that they be within the personal knowledge of the affiant,
that they otherwise would be admissible into evidence, and that the affiant be
competent to testify. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,
831 F.2d 77, 80 (5th Cir. 1987); Fowler v. Southern Tel. & Tel. Co., 343 F.2d
150, 154 (5th Cir. 1965).
9
that he worked in a hostile environment during the 300 days prior
to his May 26, 1995, EEOC claim. Therefore, he may avail himself
of the continuing violation doctrine as to his hostile environment
claim.
C.
The district court concluded that even if Huckabay's title VII
claims are not time-barred, he would lose on the merits, for he had
failed to make reference to the specific dates and times of alleged
discrimination. This was error. Rather, the point of a hostile
environment claim is that there is a continuous and ongoing pattern
of harassment, rather than an incident, the occurrence of which can
be precisely determined. Cf., e.g., Meritor Sav. Bank v. Vinson,
477 U.S. 57, 66-67 (1986). While dates and times may lend
credibility to the plaintiff's caseSSand their lack may seriously
undermine itSSthey are not, as a matter of law, a prerequisite to
recovery.7
Again, there is no doubt that vague or conclusory allegations
of discrimination or harassment are not enough to survive summary
judgment. See Douglass, 79 F.3d 1415, 1429. But that is not what
we are presented with. Here, we have the affidavits of Huckabay
and two of his co-workers in which they allege specific instances
of discrimination, including those described above. The summary
7
Nor does anything in the federal rules require more. In particular, FED.
R. CIV. P. 9(f), which addresses the pleading of time and place, “does not
require specificity in pleading time and place.” 2 JAMES W. MOORE ET AL., MOORE'S
FEDERAL PRACTICE § 9.07[1], at 9-35 (3d ed. 1997).
10
judgment evidence that Huckabay presents is more than enough to
allow his hostile environment claim to survive.
IV.
Huckabay named Moore a party in his official and individual
capacities. In essence, he argues that the plenary authority
wielded by county commissioners in Texas causes the individual
commissioners to be “employers” for title VII purposes, and thus
subject to liability.
A supervisor is considered an “employer” under title VII if he
wields the employer’s traditional rights, such as hiring and
firing. See Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990).
And a county commissioner such as Moore, who possesses almost total
executive authority within his precinct as well as legislative
authority as a member of the commissioners court, certainly wields
sufficient authority to be considered an employer.
This power is necessarily exercised, however, by a person who
acts as an agent of the corporate or municipal body he represents.
Because the wrongful acts are performed in his official capacity,
any recovery against that person must be against him in that
capacity, not individually. See id. at 227-28; see also Grant v.
Lone Star Co., 21 F.3d 649, 651-53 (5th Cir. 1994) (private
employer). Further, if Moore acted only in his individual
capacity, he did not act as an “employer” and would not be liable
under title VII to the extent that he acted individually. See
42 U.S.C. § 2000e-2 (1994); Grant, 21 F.3d at 653. Thus, a public
11
official cannot be held liable in his individual capacity for
backpay damages under title VII. See Clanton v. Orleans Parish
Sch. Bd., 649 F.2d 1084, 1099 (5th Cir. Unit A July 1981).
Huckabay asserts that a recent amendment to 42 U.S.C. § 1981
extends liability to Moore in his individual capacity. Under the
amended statute, 42 U.S.C. § 1981a(a)(1) (1994), in cases where
liability under § 1981 is unavailable under title VII, defendants
can be made liable for the same damages as would be available under
§ 1981SSnamely, compensatory and punitive damages. Thus, Huckabay
argues that under this section, Moore should be personally liable
for compensatory and punitive damages, for the cases foreclosing
personal liability under title VII speak only to the availability
of backpay awards from individual defendants. Cf., e.g., Grant,
21 F.3d at 651-53.
There is no merit to this argument. Section § 1981a does not
create a new substantive right or cause of action. Rather, the
plain language of the statute shows that it merely provides an
additional remedy for “unlawful intentional discrimination . . .
prohibited under . . . 42 U.S.C. § 2000e-2 or 2000e-3.” 42 U.S.C.
§ 1981a(1)(1). Those sections of title VII, then, provide the
underlying substantive right, a right that prohibits conduct only
by “employers,” “employment agencies,” and “labor organizations.”
See 42 U.S.C. §§ 2000e-2, 2000e-3. Huckabay does not claim
discrimination by either of the latter two, and our cases make
plain that the term “employer” does not include a hiring or
12
supervisory official in his personal or individual capacity.8
V.
We agree with the district court that Huckabay's claim for
intentional infliction of emotional distress cannot withstand
summary judgment. Texas law permits recovery under this theory
only where the plaintiff's emotional distress is “severe.” See
Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). The severity
of distress is not merely a matter of damages, it is an element of
the cause of action. Hadley v. Vam PTS, 44 F.3d 372, 375 (5th Cir.
1995). “Severe” distress is that which no reasonable person could
be expected to endure, Behringer v. Behringer, 884 S.W.2d 839, 844
(Tex. App.SSFort Worth 1994, writ denied), and must be more than
mere worry, anxiety, vexation, embarrassment, or anger, Regan v.
Lee, 879 S.W.2d 133, 136 (Tex. App.SSHouston [14th Dist.] 1994, no
writ). Huckabay has failed to adduce any summary judgment evidence
that his distress was sufficiently severe, and his own deposition
shows that it was not.
Huckabay's claim under the Texas Constitution also fails. The
Texas Supreme Court has specifically rejected the implication of a
Bivens-type action for damages under the state constitution.9
8
See Grant, 21 F.3d at 651; Harvey, 913 F.2d at 227. See also Miller v.
Maxwell’s Int’l Inc., 991 F.2d 583, 588 n.2 (9th Cir. 1993) (rejecting argument that
§ 1981a altered title VII scheme to allow individual liability for compensatory and
punitive damages).
9
See City of Beaumont v. Bouillon, 896 S.W.2d 143, 149 (Tex. 1995).
Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
13
Rather, the only remedy afforded by that constitution is equitable
relief from governmental actions taken in violation of its
dictates. Id. On appeal, Huckabay claims that he desires
equitable reliefSSnamely restoration to his previous position and
pay level of mechanic, rather than laborer. While he may indeed
desire such a result, his complaint requests only monetary
compensation.10 Huckabay’s claim for monetary relief under the
Texas Constitution is foreclosed as a matter of law.
VI.
Huckabay has presented a title VII hostile environment claim
with sufficient specificity to withstand summary judgment.
Further, because the alleged hostile environment is a continuing
violation, and because Huckabay has adduced summary judgment
evidence of certain specific violations that took place within the
300-day statutory period, the claim is not time-barred. But we
agree that summary judgment was proper as to all of Huckabay's
other claims and that Moore may not be held liable in his
10
Huckabay also claims that his complaint should be read as requesting
backpay, and that backpay can be considered equitable relief under Texas law.
He cites us to City of Austin v. Gifford, 824 S.W.2d 735 (Tex. App.SSAustin 1992,
no writ), which involved a claim for backpay under the Texas Human Rights Act,
which authorizes an “equitable award of back pay.” TEX. LABOR CODE ANN.
§ 21.001-.306 (West 1996).
This does not mean that backpay awards are equitable relief in the sense
that Huckabay suggests. The statute uses the term “equitable” to mean “fair and
just”; it does not use the term to mean “not legal.” Cf. O'Bryant v. City of
Midland, 949 S.W.2d 406, 413-14 (Tex. App.SSAustin 1997, writ granted)
(“officers' request for back pay for violations of their constitutional rights
is essentially an action at law”). See also, e.g., BLACK'S LAW DICTIONARY 537 (6th
ed. 1990) (“equitable” defined in both senses). Suits for damages are, by their
nature, suits at law, see O'Bryant, 949 S.W.2d at 413-14, and Bouillon,
896 S.W.2d at 149, made plain that the Texas Constitution does not give rise to
such suits for monetary relief.
14
individual capacity. We therefore REVERSE the summary judgment
only with respect to the hostile environment claim, AFFIRM in all
other respects, and REMAND for a trial on the merits.
15