IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20695
Summary Calendar
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BONITA OUTLAND,
Plaintiff-Appellant,
VERSUS
WILLIAM J. HENDERSON,
Postmaster General,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-590)
_________________________
May 4, 1999
Before SMITH, WIENER, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Plaintiff Bonita Outland, proceeding pro se, appeals a summary
judgment in favor of defendant the Postmaster General (“Postal
Service”). Outland, a postal worker, alleged that the Postal
Service had (1) discriminated against her because of her race and
sex and (2) retaliated against her because of prior grievances and
complaints she had filed with the Equal Employment Opportunity
Commission (“EEOC”). Finding no error, 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should not be published and is not precedent except under the limited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.
I.
Outland began work for the Postal Service in 1981 as a
distribution clerk. Between 1984 and 1994, she was disciplined
eleven timesSSincluding several suspensions and three notices of
removalSSfor performance problems. In 1994, she was transferred to
the Special Delivery Unit.
In April 1995, Outland refused two direct orders to take box
mail to the box section; she eventually left the workplace with the
box mail undelivered. The Postal Service initiated disciplinary
proceedings. The Postal Service discovered that Outland’s file
reflected a thirty-one-day suspension within the previous two
years. Because this constituted a “live” suspension, the Postal
Service issued a notice of termination, pursuant to provisions in
the collective bargaining agreement.
Outland, through her union, appealed, whereupon an arbitrator
found that she had been terminated for “just cause” but lessened
the severity of the punishment in view of her years of service and
directed that she be returned to her job but without back-pay.
II.
Outland sued in February 1997, alleging violations of her
constitutional rights under § 1983 and § 1988, race and sex
discrimination, and retaliation. The Postal Service moved for
partial dismissal. Because Outland had amended her complaint and
deleted many of her constitutional and discrimination claims
(except for one arising out of the April 1995, incident), the
2
district court addressed only the claims for punitive damages,
false imprisonment, assault and battery, and continuing violation
of 42 U.S.C. § 2000e-16.
The court dismissed the punitive damages claims because the
Postal Service, as a federal entity, cannot be held liable
therefor. It dismissed the tort claims under FED. R.
CIV. P. 12(b)(6) because the federal government is immune from the
types of tort liability alleged. Finally, it dismissed the
continuing violation claim for failing to meet the legal standards
explained in Berry v. Board of Supervisors, 715 F.2d 971, 979 (5th
Cir. 1983). The court then granted the Postal Service's motion
for summary judgment on the remaining claims, arising out of the
April 1995, incident.1
III.
Outland appeals2 the (1) dismissal of her continuing violation
claim; (2) denial of her motions to compel discovery; and (3) the
finding that she had raised no genuine issue of material fact to
survive summary judgment on her remaining discrimination claims.
We review a summary judgment de novo, employing the same
1
The parties refer to this incident as EEO Complaint No. 4-G-770-1550-95.
2
The Postal Service invites us to dismiss this appeal because Outland has
failed to comply with FED. R. APP. P. 28. While we agree that Outland’s brief is
confusing, often incoherent, and fails to comply with rules requiring a party to
state the issues presented, we are reluctant to dismiss a pro se appellant.
Moreover, we have the discretion to consider a non-compliant brief. See Grant
v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Because we do not think Outland’s
noncompliance prejudices the Postal Service, we will exercise this discretion to
allow her appeal to go forward. See Price v. Digital Equip. Corp, 846 F.2d 1026,
1028 (5th Cir. 1988) (permitting pro se plaintiff to proceed with a title VII
claim because no prejudice to appellee from appellant’s deficient brief).
3
standards as did the district court. See Urbano v. Continental
Airlines, Inc., 138 F.3d 204, 205 (5th Cir.), cert. denied,
119 S. Ct. 509 (1998). Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the nonmoving
party, the record reflects that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also FED. R. CIV. P. 56(c). An issue is genuine if the
evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the
plaintiff.” Id. at 258. We review a dismissal pursuant to FED. R.
CIV. P. 12(b)(6) de novo,3 but we review a denial of a motion to
compel discovery for abuse of discretion.4
A.
Outland argues that the court erred in dismissing her theory
that discrimination occurred as a continuing violation rather than
as a series of discrete acts. As discrete acts, most of her claims
are barred by the ninety-day limitations period of 42 U.S.C.
§ 2000e-16(c). We examine three factors when determining whether
3
See McDonnell v. Estelle, 666 F.2d 246 (5th Cir. 1982).
4
See Landry v. Air Line Pilots Ass’n Int’l, 892 F.2d 1238, 1270 & n.114
(5th Cir. 1990).
4
there is a continuing violation. First, we look for a similarity
in the types of discriminatory acts. Second, we view the frequency
of the alleged discriminatory acts. Third, we analyze whether the
act has the degree of permanence that “should trigger an employee’s
awareness of and duty to assert his or her rights.” Berry,
715 F.2d at 981.
The district court properly applied Berry in deciding whether
Outland presented a valid continuing violation. The court
correctly found that the alleged acts are so varied that there is
“no common thread.” Additionally, Outland admits that most of her
complaints stem directly from violations of work rules. The
district court correctly held that these allegations do not
establish a pattern of discriminatory or retaliatory conduct.
Finally, and most importantly, Outland’s numerous EEOC filings
show she was definitely aware of her rights and legal remedies.
Therefore, she had a duty to assert her claims within the ninety-
day statutory period. All of these factors weigh against Outland
and persuade us that the district court correctly dismissed her
continuing violation claim.
B.
Outland alleges that the court abused its discretion by
denying her motion to compel discovery and, specifically, her
motion to compel all “complaints, grievances, EEO actions, and
resolution of each complaint, if any, filed against” certain
supervisors. The defendants objected to providing information
5
about D.R. Beasley and James Richardson, because neither had served
in any supervisory authority over Outland. The district court
agreed.
As the Postal Service points out, the district court enjoys
broad discretion in controlling discovery, especially in
determining whether it is burdensome or oppressive.5 Outland has
not explained why information Beasley's and Richardson's records as
supervisors would be relevant to her case.6
C.
Outland further challenges the finding that she has failed to
make a prima facie case of racial or sex discrimination. She
reiterates her argument that (1) she did not disobey a direct order
from her supervisor during the April 1995 incident, and (2) she
suffered treatment harsher than treatment of her male, non-black
co-workers.
To make a prima facie claim, Outland must prove that she
(1) is a member of a protected class; (2) is qualified and
performing her job adequately; (3) was subjected to an adverse
employment action; and (4) received less favorable treatment in
similar situations than did those outside her protected class. See
Meinecke v. H&R Block, 66 F.3d 77, 83 (5th Cir. 1995). The Postal
5
See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485
(5th Cir. 1990) (affirming denial of protective discovery order under abuse-of-
discretion standard).
6
The Postal Service notes that it did provide almost 7000 pages of
documentation in response to Outland’s discovery requests.
6
Service concedes the first and third elements.
As the district court held, however, Outland did not raise a
genuine issue of material fact as to why her refusal to obey a
direct order meets the second prima facie element of adequate job
performance. Her only support comes from a self-described civil
service expert, whose unreliable affidavit was properly excluded
under FED. R. EVID. 702 and because Outland did not properly
designate her expert within the time allowed by the docket control
order. Therefore, Outland has not shown adequate job performance
and has therefore failed to make out a prima facie case on the
second element.
We also agree with the district court that Outland has failed
to raise a genuine issue of material fact about how she was treated
differently from similarly situated co-workers not in her protected
group. The summary judgment evidence on this question, consisting
entirely of the affidavit of Outland’s white, male co-worker Royce
Galbreath, fails to show that she was treated differently.
As the district court pointed out, while Galbreath describes
a disagreement between Outland’s supervisor and two male, non-black
employees, there is no indication that these employees were
similarly situated. According to Galbreath's affidavit, neither of
them had directly disobeyed their supervisor’s order, and there is
no indication that they had previous disciplinary records.
Therefore, as the court found, Outland has failed to support the
fourth element. We therefore affirm the dismissal of the race and
sex discrimination claims and do not reach the affirmative defenses
7
of a legitimate, non-discriminatory reason for Outland’s
termination.
D.
Outland challenges the finding that she did not present a
prima facie case of discriminatory retaliation. The district court
held that she failed to raise a genuine issue of material fact on
why her grievances filed with the EEOC caused the alleged
retaliatory actions. Without such a causal link, Outland cannot
make out a prima facie case. See Long v. Eastfield College,
88 F.3d 300, 304 (5th Cir. 1996).
Almost all of Outland’s EEOC complaints were filed after the
April 1995 incident and cannot be evidence of a causal connection
of her termination. The EEOC complaint closest in proximity to
that incident, and occurring before the incident, was not in close
proximity to the alleged retaliatory action. Outland filed an EEOC
complaint in February 1994, more than a year before her April
termination. The court correctly held that this EEOC grievance is
not close enough temporally to allow Outland to make a prima facie
case.7
AFFIRMED.
7
See Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.), cert.
denied, 118 S. Ct. 366 (1997) (holding that close timing between a protected
activity and an adverse action is required to make a prima facie case of
retaliation).
8