IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-60656
Summary Calendar
____________________
ELIZABETH MOORMAN,
Plaintiff-Appellant,
v.
INTERNATIONAL PAPER,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:97-CV-93-B-A)
_________________________________________________________________
June 24, 1999
Before KING, Chief Judge, and EMILIO M. GARZA and DeMOSS, Circuit
Judges.
PER CURIAM:*
Elizabeth Moorman appeals the district court’s grant of
summary judgment to defendant-appellee on her sex discrimination
claims brought pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
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this opinion should not be published and is not precedent except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.
International Paper Company (IP) hired Elizabeth Moorman on
September 14, 1992, to be a light equipment operator at IP’s
Winona, Mississippi wood yard. Moorman claims that during her
interview with IP, the person who interviewed her told her that
IP “had to hire a woman for the job.” IP subsequently promoted
Moorman to the position of heavy equipment operator.
In July 1994, IP closed its Winona wood yard, and honored
Moorman’s preference to be transferred to its wood yard in
Grenada, Mississippi. At Grenada, she continued to work as a
heavy equipment operator. Moorman claims that while she worked
at the Grenada wood yard, she was given distasteful assignments
that were not given to male employees, that she was inadequately
trained, that her equipment was insufficiently maintained, and
that male co-workers called her derogatory names.
During her time at the Grenada yard, two episodes warrant
further discussion. Shortly after she began working at Grenada,
she “had a breakdown on the job one day” as she and a male co-
worker, Daniel Whitt, the two employees at the yard with the
least seniority, were assigned to sweep debris from concrete
slabs and to clear out a conveyor. According to Moorman, she
became frustrated after having to climb up and down a chute on an
extremely hot day, and she “just started crying, and [she]
couldn’t stop.” She went home, and later called Mr. Cantelli, an
IP manager, and complained that she had been inadequately
trained. After being promised that she would receive additional
training, Moorman returned to work at the Grenada plant.
2
However, after she returned, she claimed that her supervisor gave
her “the cold shoulder” and refused to slow down production to
give her additional training. It is uncontested, however, that
Moorman received all necessary training by October 1994.
The second relevant episode at Grenada occurred in July
1995. On that occasion, another extremely hot day, Moorman
claims that Daniel Whitt told her to come from the other end of
the yard to operate a knucklebroom machine to help unload logs.
According to Moorman, the knucklebroom’s exhaust system and fans
were inoperable, and exhaust began to enter the cab of Moorman’s
machine. Moorman stated that “the fumes were coming out and my
eyes started burning real bad.” Despite the heat and exhaust,
Moorman unloaded the truck and parked the machine. However,
after dismounting the machine, Moorman suffered heat exhaustion,
and she missed work the following day.
In early January 1996, IP re-opened the Winona yard as a
storage facility. According to Moorman (who lives in Winona),
her supervisor at the Grenada yard asked her if she wanted to be
transferred to the Winona yard, and she told him that she did.
She generally worked alone at the Winona yard. Shortly after she
began work at the Winona yard, her supervisor came to the Winona
yard and told her that she was not eligible to receive a safety
certificate because her July 1995 heat exhaustion episode was a
recordable incident for safety purposes. According to Moorman,
IP’s refusal to award her a safety certificate “broke the straw
of the camel’s back,” and caused her to resign her job at IP
3
effective February 2, 1996. Moorman filed a charge of sex
discrimination with the United States Equal Employment
Opportunity Commission (EEOC) on April 11, 1996.
Moorman filed the instant action on May 14, 1997, in the
United States District Court for the Northern District of
Mississippi. She alleged that she was discriminated against
because of her sex and constructively discharged by IP in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17. The district court granted IP’s motion for
summary judgment and dismissed both claims, concluding that her
sex discrimination claim was time-barred and that Moorman failed
to raise a factual issue as to whether she had been
constructively discharged. This timely appeal followed.
II. DISCUSSION
We review the district court’s grant of summary judgment de
novo. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
We must view all evidence in the light most favorable to the
party opposing the motion and draw all reasonable inferences in
that party’s favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
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Moorman argues that the district court erred in granting
summary judgment to IP on her sex discrimination and constructive
discharge claims. She claims that the district court’s
conclusion that her sex discrimination claim was time-barred was
inappropriate because she sufficiently alleged a continuing
violation occurring both before and during the statutory period.
Second, she claims that she raised a factual issue as to whether
IP’s actions toward her amount to a constructive discharge. We
address these issues in turn.
A. Continuing Violation
“A Title VII plaintiff must file a charge of discrimination
with the EEOC within 180 days ‘after the alleged unlawful
employment practice occurred.’” Webb v. Cardiothoracic Surgery
Assocs., 139 F.3d 532, 537 (5th Cir. 1998) (quoting 42 U.S.C.
§ 2000e-5(e)(1)). Moorman filed her discrimination charge with
the EEOC on April 11, 1996; she may therefore recover under Title
VII only for conduct that occurred after October 14, 1995, 180
days before the filing of her charge. See id.
Moorman argues that her deposition testimony establishes
that IP had an “ongoing and pervasive pattern and de facto policy
of discriminatory treatment of females,” and that because that
pattern and policy constitutes a continuing violation of Title
VII, “[t]he 180 day limit does not apply.”
Moorman points to several instances of conduct by IP and IP
employees that she claims support her assertion that IP’s actions
toward her constitute a continuing violation of Title VII.
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Specifically, Moorman claims that she was given distasteful
assignments “that males refused to accept but which she was not
allowed to refuse,” that IP employees called her derogatory
names, including “he-she” and “fat bitch,” that her equipment was
not repaired as quickly as her male co-workers’ equipment, that
she was subjected to a more rigorous training requirement than
male IP employees, and (somewhat contradictorily) that she was
inadequately trained.
Moorman’s argument that if she is able to show a continuing
violation, then the 180-day statute of limitations “does not
apply” mischaracterizes the equitable theory of a continuing
violation. The theory of a continuing violation does allow a
court to consider conduct occurring before the statutory period
in a Title VII suit “where the unlawful employment practice
manifests itself over time, rather than as a series of discrete
acts.” Id. (internal quotation marks omitted). However, even
where a plaintiff can establish a continuing violation, we may
not disregard the 180-day period. Instead, the plaintiff must
still be able to demonstrate that one or more of the defendant’s
acts that constitute the continuing violation fall within the
limitations period. See id.; Messer v. Meno, 130 F.3d 130, 134-
35 (5th Cir. 1997), cert. denied, 119 S. Ct. 794 (1999).
Even were we to conclude, after consideration of the factors
discussed in Berry v. Board of Supervisors of Louisiana State
6
University, 715 F.2d 971, 981 (5th Cir. 1983),1 that all or part
of the above alleged conduct could constitute a continuing
violation of Title VII, we are bound to affirm the district
court’s grant of summary judgment on Moorman’s sex discrimination
claim. The record before us simply does not support a conclusion
that any of the allegedly discriminatory conduct took place
within the statutory period.
The only concrete allegations of discrimination in the
record each occurred before October 1995, 180 days before Moorman
filed her complaint with the EEOC. Although she does claim
generally that “throughout her employment with IP . . . she was
given the distasteful assignments that males refused to accept
but which she was not allowed to refuse,” the only such incident
that she identifies was her July 1995 heat exhaustion incident,
which she claims occurred as a result of being forced to
undertake an assignment all of her male co-workers refused to
perform. Similarly, although in her brief she alleges that
“[d]uring the entire time of her employment, her equipment was
given [inadequate] attention,” her deposition testimony does not
support such a broad statement. Instead, Moorman identified only
one occasion on which she claims that her equipment was in
1
Among the factors that we must consider in order to
determine whether conduct by a defendant constitutes a continuing
violation of Title VII, as opposed to “discrete, isolated, and
completed acts which must be regarded as individual violations”
are: (1) the subject matter of the conduct; (2) the frequency of
the allegedly discriminatory conduct, and (3) the degree of
permanence of the conduct. Id.; see Waltman v. International
Paper Co., 875 F.2d 468, 475-76 (5th Cir. 1989).
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disrepair. She claimed in her deposition that between her July
1995 heat exhaustion incident and her January 1996 transfer to
the Winona yard, the emergency brake on her front end loader was
faulty. However, this claim does not raise a factual question of
sex discrimination; Moorman admitted that IP ordered a
replacement brake cable, and that, although she had to install
the brake cable herself, “[e]veryone had to service their own
machines.”
Likewise, Moorman’s claim that she has raised a genuine
issue of material fact as to whether IP has committed a
continuing violation of Title VII is not supported by her
assertions in her deposition that male co-workers, on two
occasions, called her derogatory names or that she was
inadequately trained (or, in the alternative, that she was forced
to undergo more extensive training than her male counterparts).
Moorman admitted in her deposition that both of the episodes in
which she claimed to have overheard co-workers talking about her
in derogatory terms took place before the July 1995 heat
exhaustion episode, and therefore outside the statutory period.
She also admitted in her deposition that she completed testing on
each relevant piece of IP machinery by October 1994, well before
180 days prior to her EEOC filing.
The continuing violation “doctrine will render a complaint
timely as to a course of conduct only if the complaint is timely
as to the most recent occurrence.” Huckabay v. Moore, 142 F.3d
233, 240 (5th Cir. 1998). Thus, because Moorman has failed to
8
raise a factual issue as to at least one incident of sex
discrimination within the 180-day statutory period, her sex
discrimination claim is time-barred. See Waltman v.
International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); see
also Messer, 130 F.3d at 134-35 (“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.”) (emphasis added). We therefore
conclude that the district court properly dismissed Moorman’s sex
discrimination claim on statute of limitations grounds.
B. Constructive Discharge
Moorman next argues that the district court erred in
determining that her resignation from IP, which occurred within
the statutory period, did not meet the test for constructive
discharge. We agree with the district court that Moorman failed
to make a factual showing that her “working conditions would have
been so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.” Landgraf
v. USI Film Prods, 968 F.2d 427, 429 (5th Cir. 1992) (internal
quotation marks omitted), aff’d 511 U.S. 244 (1994); see Ugalde
v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993).
Moorman resigned from her job at IP after she failed to
receive a safety certificate because of the characterization of
the July 1995 heat exhaustion episode as a recordable incident
for safety purposes. She does not disagree with the district
9
court’s conclusion that “her failure to receive a safety
certificate was [not] anything other than a non-discriminatory
application of a company safety rule.” On appeal, Moorman argues
that her failure to receive a safety certificate was only the
last straw in a long line of “unfair” treatment, and that a
reasonable person in her shoes would have felt compelled to
resign.
However, we agree with the district court that a reasonable
person in Moorman’s shoes would not have felt compelled to
resign. Moorman bases much of her argument that she was
constructively discharged on the fact that she worked alone after
her transfer to the Winona yard. However, as the district court
noted and the record clearly demonstrates, Moorman chose to
transfer from the Grenada yard to the Winona yard with full
knowledge that she was the only employee to be transferred to
Winona. In short, “[n]either the discrimination that [Moorman]
alleges nor the working conditions [she] decries constitute the
intolerable working conditions required to prove constructive
discharge.” Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990). We therefore affirm the district court’s dismissal of
this claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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