IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-50652
Summary Calendar
____________________
RUKMINIE HARILALL,
Plaintiff-Appellant,
v.
UNIVERSITY HEALTH SYSTEM DEVELOPMENT CORP, formerly known as Bexar
County Hospital District, doing business as University Hospital
System, also known as University Hospital,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-97-CV-347)
_________________________________________________________________
February 18, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Rukminie Harilall appeals the district
court’s award of summary judgment to defendant-appellee
University Health System Development Corp. in this suit alleging
violations of Title VII, 42 U.S.C. 2000e to 2000e-17. 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this opinion should not be published and is not precedent except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.
1
I. BACKGROUND
Plaintiff-appellant Rukminie Harilall was employed by
defendant-appellee University Health System Development Corp.
(UHSDC) as a nurse. Harilall’s complaint alleges that during her
tenure with UHSDC she was harassed on the basis of her race,
color, religion, and national origin, and that UHSDC ultimately
terminated her for discriminatory reasons.1 Harilall filed suit
in the district court on March 20, 1997. On June 21, 1998, the
district court granted UHSDC’s summary judgment motion,
dismissing Harilall’s claims on the grounds that the conduct
complained of did not rise to the level of actionable harassment,
that the evidence did not demonstrate that UHSDC management had
actual or constructive knowledge of the harassment, and that
Harilall’s subjective belief that her discharge was the result of
discrimination was insufficient to overcome UHSDC’s evidence that
she had been discharged for a non-discriminatory reason.
Harilall timely appealed and appears before this court pro se.2
1
Harilall’s pro se appellate brief also argues that she
was harassed and terminated on the basis of disability, and that
UHSDC defamed her after she left UHSDC’s employment by reporting
to a publishing clearing house that Harilall had been discharged
for violating hospital policy when, in fact, she resigned in lieu
of termination. Neither allegation appears in her complaint. We
therefore will not consider these allegations on appeal. We
further note that, although Harilall contends in her appellate
brief that she was not terminated, but resigned in lieu of
termination, this distinction is irrelevant for purposes of
determining whether her employment ended for discriminatory
reasons.
2
Harilall’s district court counsel no longer represents
her. She now moves for appointment of counsel for purposes of
this appeal. We deny her motion. There is no automatic right to
the appointment of counsel in a civil case, and Harilall has not
2
The summary judgment evidence before the district court
established the following incidents of alleged harassment:
On one occasion, Harilall’s supervisor, Marlene Upright, the
Clinical Nursing Director heading the unit where Harilall worked,
asked Harilall to work beyond her shift. Harilall replied that
she could not because she had to pick up her son and had a class
to attend. Harilall did not work beyond her shift and was not
disciplined for her refusal.
Approximately two days to one week later, Upright left a
message on the answering machine at Harilall’s mother’s house
stating that Harilall was needed at work and that, if she did not
report, her job would be in jeopardy. Harilall claims that other
nurses had had more time off than she but were not called into
work. Harilall went into work as requested. Upright then
informed Harilall that she wanted to see Harilall in her office.
Harilall stated that she became nervous at this request. In
Upright’s office, Upright explained that had she not made the
phone call, Harilall would not have come to work. Harilall then
told Upright that her father and mother had both experienced
chest pains upon hearing the message. Harilall contends that
Upright yelled at her during this discussion.
shown that the appointment of counsel is warranted here. See
Salmon v. Corpus Christi Indep. Sch. Dist., 911 F.2d 1165, 1166
(5th Cir. 1990) (no automatic right to the appointment of
counsel); Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990)
(factors relevant to whether district court should appoint
counsel in Title VII case include (1) merits of claim; (2)
efforts taken by plaintiff to secure counsel; and (3) plaintiff’s
financial resources); Neal v. IAM Local Lodge 2386, 722 F.2d 247,
250 (5th Cir. 1984) (same).
3
On another occasion, Harilall asked Judy Rodriguez, the
assistant head nurse, for time off. Harilall had gotten someone
to cover for her, but Rodriguez wanted to use the person
elsewhere. After being pressed, Rodriguez stated that she would
have to clear the time off with Upright. Harilall eventually
received the requested time off, but believes that her request
was granted only because she inquired about the Equal Employment
Opportunity Commission.
The next incident occurred at the nurses’ station, where
Rodriguez asked Harilall who she was married to and how many
times she had been married. Harilall stated that she felt that
the questions were inappropriate, but admitted that she walked
away without saying anything.
The next incident occurred during a break when a co-worker
asked Harilall where she and her son came from. Harilall
responded that she had fallen out of a tree because she felt it
was none of the co-worker’s business. The co-worker responded by
asking Harilall if she wanted to get married to anyone. After
responding in the negative, the co-worker informed Harilall that
her husband could introduce Harilall to a “big, fat black man.”
Another co-worker then asked Harilall where she came from and
Harilall again responded by stating that she had fallen out of a
tree. The co-worker stated that she believed Harilall was an
illegal alien and was going to prove it. Harilall contends that
during the incident her co-workers were all laughing. Although
Rodriguez was present during the incident, Harilall informed
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neither Rodriguez, nor her the co-workers, that she felt that the
questions were inappropriate. Harilall never reported the
incident to Upright or anyone else in management.
Another co-worker subsequently questioned Harilall about her
marital status and about her son’s father. Yet another co-worker
asked Harilall if she had had a “butt uplift.” Harilall felt
that these questions were inappropriate, but did not tell her co-
workers, and never reported the incidents to management.
On a separate occasion, a co-worker asked Harilall if she is
a “wetback,” and if she knew what the term meant. Harilall never
reported the incident to management.
Harilall also testified that she felt harassed when she was
asked to provide orientation for a new employee. Harilall felt
that she did not have the experience to provide orientation
because she was the least senior employee in the unit. The new
employee followed Harilall around each day, and, at the end of
the day, Upright would ask the employee if she “ha[d] anything
for [Upright].” Harilall believed that “she was like spying on
me to see if I was doing my work right or something. I felt that
at that moment that they were looking for something to fire me.”
Harilall stated that she became a nervous wreck because of
the above events. On another occasion, she arrived at work and
was informed that she had failed to follow the doctor’s orders on
one of her patients and that Upright wanted to see her. Harilall
stated that she felt very nervous and was crying and shaking.
She stated that she felt like she needed to talk to someone and
5
went home. That afternoon, Harilall received a call from Upright
who told her that she could not return to work until she had a
complete psychiatric evaluation. Plaintiff complied. Upon
returning to work, she brought with her a letter from the
psychiatrist, which she delivered to Inez Kelly, the head of all
nurses. The letter stated that the psychiatrist thought that
Harilall had a personality conflict with Upright. After
delivering the letter, Harilall informed Kelly of the earlier
incident in which Upright had left a telephone message on her
mother’s answering machine stating that her job would be in
jeopardy if she did not come into work. She informed Kelly how
upset she had been by the message. Kelly responded by setting up
a meeting with Harilall, Upright, and Nancy Ray, the vice-
president of Patient Care Services.
During the meeting, Harilall explained her side of the story
and her feelings about the incident. Upright explained that the
hospital was understaffed and that she had been desperate for
help. Ray tried to convince Harilall to learn to work with
Upright. Harilall described what Ray told her as follows:
[Upright] is not going to fire you. She said, and you have
to learn to live with her and you work with her and we are
not going to fire [Upright] and she was going to have
periodic meetings and I felt like I didn’t need that
periodic meetings because everybody on the floor was
harassing me and I needed to be removed from that situation,
but I didn’t say anything because I had already told Inez
Kelly that, that I had decided with my psychiatrist, I had
come to a conclusion that if this continue[d] that I was
going to resign . . . .
After the meeting, Harilall returned to work. Harilall felt
that Upright was “hammering at [her]” because Upright asked her a
6
question. Later that day, Upright informed Harilall that a
doctor had called stating that Harilall had not called him with a
lab result. Harilall felt she was being set up and decided to
prove she was being harassed. She decided to make a copy of the
patient’s record to show she was being set up. She called the
secretary and asked her to make a copy of the chart which she
intended to take to an employee representative. After picking up
the copy, she decided it was wrong and threw it away. However,
she ended up making a second copy and taking it to the employee
representative who wadded it up and told Harilall that she was
not supposed to copy patients’ records. UHSDC contends that
Harilall was terminated for removing a copy of the patient’s
record from the hospital in violation of hospital policy.
II. STANDARD OF REVIEW
This court reviews the district court’s grant of UHSDC’s
summary judgment motion de novo, applying the same standard as
the district court. See LaPierre v. Benson Nissan, Inc., 86 F.3d
444, 447 (5th Cir. 1996); Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 177 (5th Cir. 1990). If there are no
genuine issues as to any material fact and the moving party is
entitled to judgment as a matter of law, summary judgment is
appropriate. See Fed. R. Civ. P. 56(c); LaPierre, 86 F.3d at
447. Our review is “confined to an examination of materials
before the lower court at the time the ruling was made.”3
3
Appellant’s record excerpts contained materials that were
not submitted to the district court. Appellee filed a motion to
strike the record excerpts. This court granted the motion to
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Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th
Cir. 1988).
III. DISCUSSION
In order to prove that she was subjected to actionable
harassment, Harilall must demonstrate (1) that she belongs to a
protected class; (2) that she was subject to unwelcome
harassment; (3) that the harassment was based on an illegal
basis, i.e., her national origin, race, color, or religion; (4)
that the harassment materially affected a term, condition, or
privilege of employment, i.e., that the harassment was
sufficiently pervasive to alter the conditions of employment and
create an abusive working environment; and (5) that the employer
knew or should have known of the harassment but failed to take
prompt remedial action. See Jones v. Flagship Int’l, 793 F.2d
714, 719-20 (5th Cir. 1986); Rogers v. Equal Employment
Opportunity Comm’n, 454 F.2d 234, 236-243 (5th Cir. 1971); Ochoa
v. Texas Metal Trades Council, 989 F. Supp. 828, 831 (S.D. Tex.
strike the appellant’s record excerpts on October 1, 1998. On
October 12, 1998, appellant moved for reconsideration of the
October 1st order. This court denied the motion for
reconsideration on November 5, 1998. On November 10, 1998,
appellant moved for reconsideration of the court’s November 5th
order denying her motion for reconsideration. This court denied
the motion on December 17, 1998. Appellant submitted a motion
for reconsideration, received on December 23, 1998, asking for
reconsideration of the December 17th order. This motion was
returned to her without being filed. Appellant has now submitted
yet another motion for reconsideration which was received on
December 30, 1998. We refuse to consider the motion. Materials
not presented to the district court are not properly before us
and may not be introduced into the record on appeal. See Fields
v. City of South Houston, 922 F.2d 1183, 1188 (5th Cir. 1991)
(citing John v. Louisiana, 757 F.2d 698, 710 (5th Cir. 1985)).
8
1997).
The district court properly granted summary judgment because
Harilall’s evidence does not satisfy the elements of actionable
harassment. Of the incidents recounted by Harilall, the vast
majority are common workplace occurrences, and Harilall has not
established they were based on her national origin, race, color,
or religion. While “wetback” and “illegal alien” are comments
related to Harilall’s national origin, these isolated remarks do
not constitute pervasive harassment actionable under Title VII.
The “‘mere utterance of an ethnic or racial epithet which
engenders offensive feelings in an employee’ does not affect the
terms[,] conditions, or privileges of employment to a
sufficiently significant degree to violate Title VII.” Jones,
793 F.2d at 720 (quoting Rogers, 454 F.2d at 238); see Faragher
v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998) (“‘[S]imple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’”) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998,
1003 (1998)) (citation omitted).
Moreover, Harilall has not presented evidence that UHSDC
knew or should have known of the alleged harassment but failed to
take prompt remedial action. Harilall admitted to the district
court that she did not report the vast majority of incidents to
9
management.4 While, in the meeting set up by Kelly with
Harilall, Upright, and Ray, Harilall did express her distress at
the phone message asking her to come into work left by Upright on
Harilall’s mother’s answering machine, this did not provide UHSDC
with notice that Harilall felt that she was being harassed on the
basis of her national origin, race, color, or religion. UHSDC,
therefore, did not have actual notice of her claims of
harassment. See Waltman v. International Paper Co., 875 F.2d
468, 478 (5th Cir. 1989) (actual notice established by evidence
of complaints to higher management).5 Nor was the harassment
sufficiently pervasive to provide constructive notice. See id.
(constructive notice shown where pervasive harassment exists that
gives rise to inference of knowledge or constructive knowledge).
The district court correctly granted summary judgment to UHSDC as
to Harilall’s claim of harassment on the basis of her national
origin, race, color, or religion.
As to Harilall’s claim that she was terminated for
discriminatory reasons, Harilall must first establish a prima
facie case of discrimination. If she does so, UHSDC must
articulate a legitimate, non-discriminatory reason for her
termination. Once UHSDC has met its burden, Harilall must
4
In her pro se appellate brief, Harilall contends that she
did report the incidents to John Guest, CEO of the hospital.
There is no evidence in the record to support this assertion.
5
Rodriguez’s presence during one incident in which
Harilall was referred to as an “illegal alien” and questioned as
to where she came from does not demonstrate that UHSDC had actual
knowledge of pervasive harassment being directed against Harilall
on account of her national origin, race, color, or religion.
10
prove, by a preponderance of the evidence, that UHSDC’s
articulated reason is false and that the defendant intentionally
discriminated against her. See Walton v. Bisco Indus., Inc., 119
F.3d 368, 370 (5th Cir. 1997) (citing St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 510-11 (1993) and Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 252-55 (1981)); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(establishing burden-shifting framework).
To establish a prima facie case of discriminatory discharge
under Title VII, the employee must demonstrate (1) that she is a
member of a protected class; (2) that she was discharged; (3)
that she was qualified for the position from which she was
discharged; and (4) that she was replaced by a member of an
unprotected class. See Faruki v. Parsons S.I.P., Inc., 123 F.3d
315, 318 (5th Cir. 1997). Assuming arguendo that Harilall has
established a prima facie case of discriminatory discharge, the
district court nevertheless properly granted summary judgment to
UHSDC because UHSDC articulated a legitimate, non-discriminatory
reason for Harilall’s discharge--that she removed a copy of a
patient’s record in violation of hospital policy--and Harilall
failed to meet her burden of demonstrating that this reason was
pretextual and that UHSDC intentionally discriminated against
her. Harilall’s conclusory allegations are insufficient to rebut
UHSDC’s articulated non-discriminatory reason for her discharge.
As the district court noted, “[i]t is more than well-settled that
an employee’s subjective belief that [s]he suffered an adverse
11
employment action as a result of discrimination, without more, is
not enough to survive a summary judgment motion, in the face of
proof showing an adequate nondiscriminatory reason.” Douglass v.
United Servs. Auto. Assoc., 79 F.3d 1415, 1430 (5th Cir. 1996).
The district court, therefore, properly granted summary judgment
to UHSDC.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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