UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10296
Summary Calendar
SOHERLA MIRAKHORLI,
Plaintiff-Appellant,
versus
HILTON HOTEL, ET AL.,
Defendants,
DFW MANAGEMENT COMPANY;
METRO HOTELS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(3:94-CV-1464-D)
December 9, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
POLITZ, Chief Judge:*
Soheyla Mirakhorli filed a pro se complaint against her former employer,
DFW Management Company and other parties, asserting claims under Title VII,
42 U.S.C. § 2000e, et seq., and state law. She appeals the adverse judgment. We
affirm in part and vacate and remand in part.
BACKGROUND
Mirakhorli worked as a waitress from 1989 until early 1994 at a restaurant
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
which was part of the hotel managed by DFW Management. In March 1993, Pete
Gutierrez became manager of the restaurant and, as such, Mirakhorli’s direct
supervisor. In October 1993, Mirakhorli complained that Gutierrez was sexually
harassing her. The human resources director commenced an investigation but
found no evidence of sexual harassment. Nonetheless, she admonished Gutierrez
that he would be terminated if he retaliated against Mirakhorli and conducted a
training session on sexual harassment attended by Gutierrez. In early 1994,
Mirakhorli was terminated for violating the company’s no-fault late/absence policy.
Mirakhorli filed suit, alleging, inter alia, retaliation and hostile work
environment. The district court granted defendants’ uncontested motion for
summary judgment to the extent defendants requested dismissal of Mirakhorli’s
retaliation claim, but denied defendants’ motion for summary judgment as it related
to the hostile work environment claim. The district court found that Guitierrez had
sexually harassed Mirakhorli, but that defendants had taken prompt and appropriate
remedial action after being made aware of the harassment. Based thereon, the court
concluded that defendants could not be held liable for the sexual harassment and
entered judgment in their favor.
Mirakhorli, now represented by counsel, contends that the district court
abused its discretion in refusing her request for court-appointed counsel; erred in
granting summary judgment on the retaliation claim; erred in refusing to grant her
motion for a new trial on the retaliation claim; and misapplied the law on the
2
hostile work environment claim.
ANALYSIS
We review the decision not to appoint counsel for abuse of discretion, 1
factual conclusions for clear error,2 and legal conclusions de novo.3 To determine
whether a grant of summary judgment was proper, we apply “the same criteria used
by the district court in the first instance.”4 Summary judgment should issue if the
evidence submitted by the parties “show[s] that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”5
A. Denial Of Court-Appointed Counsel.
Appointment of counsel under Title VII may be made “in such circumstances
as the court may deem just.”6 To determine whether counsel should be appointed,
we consider: “(1) the merits of the plaintiff’s claims of discrimination; (2) the
efforts taken by the plaintiff to obtain counsel; and (3) the plaintiff’s financial
ability to retain counsel.”7 In denying Mirakhorli’s motion, the magistrate judge
applied the proper precedents and reached a defensible conclusion. We decline to
1
Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990).
2
Fed. R. Civ. P. 52(a); Pierce v. Texas Dep’t of Criminal Justice, 37 F.3d 1146 (5th Cir.
1994).
3
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364 (5th Cir. 1998).
4
Pfau v. Reed, 125 F.3d 927, 934 (5th Cir. 1997)
5
Fed. R. Civ. P. 56(c).
6
42 U.S.C. § 2000e-5(f)(1).
7
Gonzalez, 907 F.2d at 580.
3
second guess the decision of the court à quo. We perceive no abuse of discretion.
B. Retaliation Claim.
To state a claim for retaliation in violation of Title VII, the plaintiff must
show that: (1) she engaged in a protected activity; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected
activity and the adverse employment action. If the plaintiff makes out a prima facie
case of retaliation, the employer has an opportunity to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Once the employer
does so, the plaintiff must prove that the articulated reason is merely a pretext for
retaliation.8 Failure by the plaintiff to offer evidence that could lead a rational trier
of fact to find pretext warrants entry of judgment on the employer’s behalf. 9
The district court assumed that Mirakhorli established a prima facie case of
retaliation but found that defendants had articulated a legitimate, nondiscriminatory
reason for her suspension and subsequent termination: repeated tardiness and
absence. Mirakhorli introduced no evidence in rebuttal. In opposition thereto, on
appeal Mirakhorli’s counsel relies on her conclusionary assertion that defendants
retaliated against her. This mere submission does not establish pretext. Nor may
the summary judgment be faulted by reference to evidence that Mirakhorli did not
introduce in the summary judgment record. Thus, we affirm the district court’s
grant of partial summary judgment to defendants.
8
See 42 U.S.C. § 2000e-3(a); DynMcDermott Petroleum Operations Co., 144 F.3d at
372; Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992).
9
Fed. R. Civ. P. 56(e).
4
C. Denial Of Motion For New Trial.
Mirakhorli contends that the district court erred in refusing to grant a new
trial on her retaliation claim once she obtained counsel. Inasmuch as no trial was
ever held on the retaliation claim this assignment of error necessarily must be that
the district court erred in refusing to reconsider the dismissal of the retaliation
claim. Mirakhorli provided the district court with only one reason to justify the
request for reconsideration: to allow admission of evidence that was not earlier
introduced because of her failure to respond to defendants’ motion for summary
judgment despite warnings by the district court of her duty to do so. Apparently it
is believed that Mirakhorli’s pro se status, in and of itself, entitles her to a “second
bite at the apple.”
Courts must be vigilant to ensure that inartful pleading or technical violations
by a pro se litigant do not torpedo a legally sustainable claim. In giving due
leniency to the lawyerless litigant, however, courts cannot excuse noncompliance
with, or disregard of, the federal rules of civil procedure or court orders.10 A review
of the record persuades us that the district court nimbly straddled the boundary
between extravagant permissiveness and rigid adherence to formality. The district
court’s refusal to reconsider was neither error nor abuse of discretion.
D. Hostile Work Environment Claim.
10
See Birl v. Estelle, 660 F.2d 592 (5th Cir. 1981); see also Kersh v. Derozier, 851 F.2d
1509 (5th Cir. 1988).
5
The district court, relying on Pfau v. Reed,11 found that defendants could not
be held liable for the sexual harassment because they took prompt and appropriate
remedial action when they became aware of Mirakhorli’s allegations. After the
district court entered judgment, the Supreme Court issued two opinions --
Burlington Industries, Inc. v. Ellerth12 and Faragher v. City of Boca Raton13 --
adjusting the applicable law. Therefore, we must vacate the district court’s
judgment on Mirakhorli’s hostile work environment claim and remand to the
district court for reconsideration in light of the intervening decisions in Ellerth and
Faragher.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
11
125 F.3d at 934-35, 940-41.
12
118 S. Ct. 2257 (1998).
13
118 S. Ct. 2275 (1998).
6