IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-21046
Summary Calendar
____________________
EMMI ROSS,
Plaintiff-Appellant,
v.
WALD MOVING AND STORAGE SERVICES INC, doing business as Wald
Mayflower; MAYFLOWER TRANSIT INC; RICHARD RYAN,
Defendants-Appellees.
________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-4209)
_________________________________________________________________
August 16, 1999
Before KING, Chief Judge, and DAVIS and JONES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Emmi Ross appeals the judgment of the
district court, which granted summary judgment to defendants-
appellees and dismissed Ross’s discrimination and sexual
harassment claims. She also challenges the district court’s
denial of her motion to compel. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On April 27, 1992, plaintiff-appellant Emmi Ross, an
*
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this opinion should not be published and is not precedent except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
African-American female, was hired by defendant-appellee Wald
Moving and Storage Services, Inc. (Wald) to work as secretary to
the Vice President/General Manager, who was then Suzanne
Dobranski. At that time, Wald was a company-owned agency of
defendant-appellee Mayflower Transit, Inc. (Mayflower). Ross
worked for Dobranski until October 11, 1994 when Dobranski was
replaced by defendant-appellee Richard Ryan.1
There is some dispute as to what happened next. According
to Ross, one month after Ryan began work, Ryan promoted her to be
his executive secretary. She contends that he also sexually
harassed her. One month after her promotion, on December 15,
1994, Ross was terminated. According to Ross, her dismissal was
due to her age, which was forty-four at the time, and to the fact
that she refused Ryan’s unwanted sexual advances. She contends
that Ryan informed her that the reason for her termination was
that he did not need a secretary, but that Ryan later hired Patty
Mewis, a white female under forty years of age, to replace Ross.
According to defendants, Ryan was hired to improve the
profitability of the business and, shortly after he began
working, decided to reduce the number of employees to decrease
costs. He therefore eliminated five positions over the course of
a few weeks. Ross’s position was one of those eliminated.
Defendants contend that Ryan informed Ross that her position was
being eliminated as a result of the company’s reorganization,
1
Wald, Mayflower, and Ryan will be referred to
collectively as defendants.
2
that Ross was offered another job as the company’s receptionist,
which she refused, and that Ross also was offered a severance
package, which she ultimately rejected. Defendants contend that
nobody was hired to replace Ross, but that Ross’s duties were
distributed amongst several employees who already worked for the
company.
On February 1, 1995, Ross filed a charge with the Equal
Employment Opportunity Commission (EEOC) and with the Texas
Commission of Human Rights. In June 1995, she received her right
to sue letter and on August 23, 1995 filed her original complaint
in the United States District Court for the Southern District of
Texas, alleging discrimination in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, 42
U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. §§ 2000e to 2000e-17, and the Texas Commission on
Human Rights Act (TCHRA), TEX. LAB. CODE ANN. §§ 21.001-21.306.
Defendants filed a motion for summary judgment on January
24, 1997. The district court granted the motion on February 25,
1997. Ross appealed, but this court dismissed the appeal for
lack of jurisdiction on June 6, 1997. Ross thereafter filed a
motion for relief from the judgment with the district court on
November 20, 1997. On December 18, 1997, the district court
reinstated Ross’s case and denied defendants’ motion for summary
judgment as premature. Ross filed an amended complaint on April
6, 1998, adding common law causes of action and alleging that she
had been denied the opportunity to apply for vacant positions
3
because of her race, that she had been subject to unwelcome
sexual advances and a hostile work environment because of her
sex, and that she had been terminated because of her age, race,
and sex.
Defendants moved for summary judgment on all claims on July
30, 1998. The district court granted the motion and entered a
final judgment in favor of defendants on October 20, 1998. In
its opinion, the district court found that Ryan is not an
employer as defined by Title VII, ADEA, or TCHRA and therefore
cannot be individually liable to Ross. As to Ross’s claim for
discriminatory non-promotion, the district court found that Ross
had failed to demonstrate an element of her prima facie case—that
she was qualified for the position to which she allegedly was not
allowed to apply—and further found that, even if she had made out
a prima facie case, she had not demonstrated that defendants’
reasons for not giving her the position were pretextual. As to
Ross’s discriminatory discharge claim, the district court found
that she had not demonstrated that defendants’ reasons for her
termination were pretextual. As to Ross’s sexual harassment
claims, the district court found that she had failed to
demonstrate that the incidents of sexual harassment she
complained of were sufficiently severe or pervasive to rise to
the level of a hostile work environment and that she had not made
out a case of quid pro quo sexual harassment. Finally, the
district court found that Ross’s common law causes of action were
barred by the applicable statutes of limitations. Ross timely
4
appealed.
II. DISCUSSION
On appeal, Ross challenges the district court’s grant of
defendants’ motion for summary judgment in all respects except
for the dismissal of her common law causes of action and the
district court’s grant of summary judgment to defendants on
Ross’s claim that she was not given the opportunity to apply for
vacant positions at Wald because of her race. We therefore do
not address these claims. She also challenges the district
court’s denial of her motion to compel defendants to comply with
certain discovery requests. We examine each of her arguments
below.
A. Motion to Compel
Ross argues that the district court erred by denying her
motion to compel because the district court’s failure to grant
the motion hindered her ability to establish her case. We review
a trial court’s decision regarding discovery for abuse of
discretion. See McKethan v. Texas Farm Bureau, 996 F.2d 734, 738
(5th Cir. 1993).
Ross challenges the district court’s failure to compel
compliance with two discovery requests. In request number
twenty-one, Ross requested the production of documentation of
Ryan’s job description as vice president and general manager of
Wald. Defendants objected to the request and asserted that there
is no written job description for Ryan’s position. The district
court denied the request on that ground. We perceive no error in
5
this decision.
In request number twenty-two, Ross requested the production
of documentary evidence “showing Patty Mawis [sic] was employed
through Mayflower Transit” and further requested that if Mewis
was not so employed, defendants produce evidence of how she was
employed. Defendants objected to this request as vague and
irrelevant, admitted that Mewis was employed at Wald at the same
time as Ross, but argued that whether she was employed “through
Mayflower Transit” was irrelevant. The district court denied
Ross’s request, finding it overly broad and vague. We do not
find this to be an abuse of discretion. We therefore conclude
that the district court did not abuse its discretion in denying
Ross’s motion to compel.
B. Ryan’s Liability as “Employer”
Ross next contends that the district court erred by granting
summary judgment to defendants on Ross’s claims against Ryan on
the ground that Ryan is not an employer as defined by the
applicable statutes. We review the district court’s grant of
summary judgment de novo and apply the same standards as the
district court. See Ellison v. Connor, 153 F.3d 247, 251 (5th
Cir. 1998).
Ross argues that the definition of employer under Title VII
includes “any agent of [an employer],” 42 U.S.C. § 2000e(b), that
Ryan is an agent of Wald, and that therefore she may sue Ryan
individually. This argument is foreclosed by our circuit’s
precedent. In Grant v. Lone Star Company, B.L., 21 F.3d 649, 653
6
(5th Cir. 1994), we held that an individual may not be held
liable under Title VII unless that individual otherwise meets the
definition of employer. See also Stults v. Conoco, Inc., 76 F.3d
651, 655 (5th Cir. 1996) (reaching same result in ADEA context).
We noted that the purpose of the “agent” provision in § 2000e(b)
was merely to incorporate respondeat superior liability into
Title VII. See Grant, 21 F.3d at 652 (citing Miller v. Maxwell’s
Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993)). Although Ross
argues that Grant is inapplicable to her case, she cites no
authority for this proposition. Thus, the district court
committed no error in granting summary judgment to Ryan.2
C. Sexual Harassment Claim
Ross alleges that during the course of her employment Ryan
sexually harassed her. According to Ross, the incidents began on
Ryan’s first day of employment when Ryan called Ross into a
conference room and told her that he wanted her to think of their
relationship “as if the two of us are dating each other.” When
Ross asked Ryan what he meant by that statement, he responded
that she should “figure it out.” Although Ross contends that the
sexual harassment continued on a daily basis and included
numerous sexual requests which she turned down, Ross describes
only two other incidents. In the first incident, Ross contends
2
Because the definition of “employer” found in TCHRA
borrows its language from Title VII, we reach the same result
with respect to Ross’s TCHRA claim. See TEX. LAB. CODE ANN.
§ 21.002(8); Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 87-88
(Tex. App. – Austin 1995, no writ) (stating that Title VII
decisions are relevant when construing TCHRA).
7
that Ryan intimidated her into going to a Houston Oilers football
game with him, that he insisted that she drive to his hotel
before the game to park her car there, that he took her to dinner
before the game and tried to convey to others the impression that
they were dating, and that he fondled her leg as he drove to the
game. In the second incident, which occurred on December 2,
1994, shortly before Ross’s termination, Ross contends that Ryan
came into her office with his pants unzipped, stood in front of
her as she was seated at her desk so that her eyes were at the
level of his unzipped pants, and asked her to join him in his
office for a drink. Ross refused and asked Ryan to zip his
pants. This angered Ryan, who marched off without zipping his
pants and left the office.
The district court held that as a matter of law the
incidents complained of did not rise to the level of a hostile
work environment because they were not sufficiently severe or
pervasive. The district court also held that Ross had not
established a case of quid pro quo harassment.
With respect to Ross’s hostile work environment claim, for
sexual harassment to be actionable, the conduct complained of
must be of sufficient severity or pervasiveness to alter the
conditions of the plaintiff’s employment and create an abusive
work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986). “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
8
employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 118
S. Ct. 2275, 2283 (1998) (internal quotation marks and citation
omitted).
Although the few incidents about which Ross complains are
certainly in poor taste, we agree with the district court that
they do not rise to the level of an actionable hostile work
environment. The incidents described are not severe and Ross has
set forth no evidence other than a conclusory assertion to
demonstrate that they occurred regularly. See Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 872-73, 874 (5th Cir.
1999) (holding no hostile work environment existed where over
two-year period co-worker made numerous remarks about her
appearance, stood over plaintiff’s desk on several occasions in
an attempt to look down her clothing, touched her arm on several
occasions and rubbed his hands down her arm); Weiss v. Coca-Cola
Bottling Co., 990 F.2d 333, 334-35, 337 (7th Cir. 1993) (finding
no hostile work environment where supervisor asked employee for
dates, called her “dumb blonde,” put his hands on her shoulders
several times, tried to kiss her, placed “I love you” signs in
her work area, and attempted to take her to a bar).
As for Ross’s claim that tangible employment actions
resulted from her failure to acquiesce to Ryan’s sexual
harassment—namely, that she received a promotion but no
corresponding pay raise, that she received reduced and menial
responsibilities, and that she was eventually terminated—the
district court found that Ross had presented no competent summary
9
judgment evidence to establish that any of Ryan’s alleged threats
resulted in a tangible employment action. We agree. In the
first place, there is no evidence that Ryan made threats of a
quid pro quo nature. When asked at her deposition if Ryan had
ever suggested to her that if she did not go along with his
alleged sexual overtures that her job would be in jeopardy or
that she would lose job benefits, she responded that he had not.
Even if Ryan had made such threats, there is no evidence
connecting the tangible employment actions Ross complains of to
her failure to accede to Ryan’s demands. Simply put, there is no
evidence other than Ross’s conclusory assertions to connect
Ryan’s alleged threats to the failure to give her a pay increase
(if one was even supposed to accompany her promotion), to the
reduction in Ross’s job responsibilities, or to her eventual
termination. See Butler v. Yselta Indep. Sch. Dist., 161 F.3d
263, 268 (5th Cir. 1998) (finding no actionable quid pro quo
harassment where there was no evidence of connection between
challenged employment action and harassment); Sanders v. Casa
View Baptist Church, 134 F.3d 331, 339 (5th Cir.) (stating that to
establish quid pro quo claim plaintiff is required to develop
evidence demonstrating that acceptance or rejection of harassment
is cause of tangible job detriment), cert. denied, 119 S. Ct. 161
(1998). Thus, the district court did not err in granting summary
judgment to defendants on Ross’s hostile work environment and
quid pro quo sexual harassment claims.
D. Discriminatory Discharge
10
To establish a case of discriminatory discharge under either
Title VII or ADEA, the plaintiff is first required to satisfy the
elements of a prima facie case under the applicable statute. See
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
2746-47 (1993); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992
(5th Cir. 1996) (en banc). Under Title VII, a prima facie case
consists of a showing that the plaintiff is a member of the
protected class, that she was qualified for the position from
which she was discharged, that she was discharged, and that the
employer filled the position after her discharge with someone
outside the protected class. See Hicks, 113 S. Ct. at 2747. To
establish a prima facie case under ADEA, the plaintiff must show
that she was discharged, that she was qualified for the position,
that she was within the protected class at the time of her
discharge, and that she was either replaced by someone younger or
otherwise discharged because of age. See Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Once the plaintiff
has established a prima facie case, the burden then shifts to the
defendant to articulate a legitimate, non-discriminatory reason
for the termination. See Hicks, 113 S. Ct. at 2747; Rhodes, 75
F.3d at 992-93; Bodenheimer, 5 F.3d at 957. If the defendant
satisfies this burden, the plaintiff must prove by a
preponderance of the evidence that the defendant’s reasons are
pretextual and that discrimination actually motivated the
termination. See Hicks, 113 S. Ct. at 2747-48; Rhodes, 75 F.3d
11
at 993-94; Bodenheimer, 5 F.3d at 957.3
Ross contends that the district court erred by granting
summary judgment to defendants on her claim of discriminatory
discharge. She argues that she adequately rebutted defendants’
articulated reason for her discharge––that Ryan discharged her as
part of a company restructuring—with the affidavit of Lasca
Hopkins-Boltz. According to Hopkins-Boltz’s affidavit, she was
instructed to write a memorandum, after attending the meeting in
which Ross was discharged, that contained certain facts that she
did not recall from the meeting. Ross thus contends that there
is an issue of fact concerning whether defendants’ reasons for
her termination were true. This, however, is not enough for Ross
to prevail.
Assuming that Ross has established the elements of her prima
facie case, and assuming that she has demonstrated that the
reasons defendants gave her for her termination were false, Ross
still has not met her burden of establishing that defendants’
reasons were a pretext for discrimination and that it was either
sex, race, or age discrimination that actually motivated
defendants. See Hicks, 113 S. Ct. 2747-48; Rhodes, 75 F.3d at
994; Bodenheimer, 5 F.3d at 957. We agree with the district
court that the evidence that Ross’s termination was motivated by
her sex, race, or age is sparse to nonexistent and that a
reasonable fact finder could not infer from the evidence on the
3
The same evidentiary framework applies to claims brought
under § 1981. See Patterson v. McLean Credit Union, 491 U.S.
164, 186 (1989).
12
record that discrimination lies behind the termination. Thus,
Ross’s claim for discriminatory discharge fails and the district
court did not err in granting defendants’ motion for summary
judgment.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Ross’s motion to compel and AFFIRM in its entirety the
judgment of the district court granting summary judgment to
defendants.
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