In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30488
Summary Calendar
_______________
COURTNEY ANN HARRIS,
Plaintiff-Appellant,
VERSUS
BILLY R. TRAVIS; RENEE HEGWOOD;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
AND JERRY GOODWIN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 99-CV-1946
_________________________
December 20, 2002
Before HIGGINBOTHAM, SMITH, and Courtney Harris appeals a partial summary
CLEMENT, Circuit Judges. judgment and subsequent jury verdict on her
employment discrimination claims. Finding
JERRY E. SMITH, Circuit Judge:*
(...continued)
*
Pursuant to 5TH CIR. R. 47.5, the court has published and is not precedent except under the
determined that this opinion should not be limited circumstances set forth in 5TH CIR. R.
(continued...) 47.5.4.
error in neither the summary judgment nor the After the EEOC dismissed Harris’s
verdict, we affirm. complaint and issued a right-to-sue letter, she
sued the DPSC, Travis, Hegwood, and Jerry
I. Goodwin, who succeeded Travis as warden in
Harris, a black woman over the age of for- August 1999, alleging violations of title VII of
ty, has worked at the Louisiana Department of the Civil Rights Act of 1964, 42 U.S.C. §
Public Safety and Corrections (“DPSC”) at the 2000e et seq., and the Age Discrimination in
A.L. Swanson Correctional Center for Youth Employment Act (“ADEA”), 29 U.S.C. § 621
(“Swanson”) in secretarial positions since et seq.2 She also alleged violations of 42
1974. She applied for a promotion from the U.S.C. §§ 1981, 1983, 1985, and 1986 against
position of Secretary II to Administrative Sec- Travis, Hegwood, and Goodwin only. The
retary in the warden’s office in September court entered summary judgment on all claims
1997, at roughly the same time that Billy Tra- except the title VII claims against DPSC and
vis became the warden at Swanson. A the §§ 1981 and 1983 claims against Travis
younger white woman received the position based on the failure to promote in November
instead. 1998, the re-allocation of Harris’s secretarial
duties, and the relocation of her office. After
In early 1998, Travis “detailed” Harris to an a two-day trial, the jury returned a verdict for
Administrative Secretary position to support DPSC and Travis.
Rene Hegwood, Swanson’s human resources
manager.1 When this detail ended in July 1998 II.
and Harris returned to her Secretary II A.
position, Tressie Tyler and Kristi Beard, We review a summary judgment de novo
younger white women, had assumed the bulk and apply the same standards as did the district
of her duties. Harris also had to move to a court. TIG Ins. Co. v. Sedgwick James, 276
smaller, less comfortable office in another F.3d 754, 759 (5t h Cir. 2002). Summary
building. judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and
In November 1998, Harris applied for the admissions on file, together with the affidavits,
position of Administrative Secretary in the if any,” when viewed in the light most
mental health unit at Swanson. Rachel Child- favorable to the non-moving party, “show that
ress, a younger white woman, was appointed there is no genuine issue as to any material
instead. Harris then filed an EEOC complaint fact.” Anderson v. Liberty Lobby, Inc., 477
based on all these events. While the complaint U.S. 242, 249-50 (1986). A dispute about a
was pending, she applied for a lateral transfer material fact is “genuine” if the evidence
into the administrative director’s office; she would permit a reasonable jury to return a
was denied the transfer and alleges that the verdict for the non-moving party. Id. at 248.
position was given to a younger white woman. The court must draw all reasonable inferences
2
In her first amended complaint, Harris also
1
A “detail” is a temporary assignment to a new alleged a state law promissory estoppel claim
position on a trial basis to evaluate the employee’s against all defendants, but she later abandoned that
performance in that position. claim.
2
in favor of the non-moving party. Id. at 255. Summary judgment was appropriate on the
title VII and ADEA claims against Travis and
At the same time, not all disputes or all in- Hegwood, because individuals cannot be liable
ferences are reasonable, and the court is not personally under either statute. Indest v.
obliged to accept mere assertions. Thus, once Freeman Decorating, Inc., 164 F.3d 258, 262
the moving party has initially shown “that (5th Cir. 1999) (title VII); Stults v. Conoco,
there is an absence of evidence to support the Inc., 76 F.3d 651, 655 (5th Cir. 1996)
non-moving party’s cause,” Celotex Corp. v. (ADEA). Harris also sued Travis in his official
Catrett, 477 U.S. 317, 325 (1986), the non- capacity for violations of title VII. Yet, a
moving party must produce “specific facts” plaintiff may not sue both the employer and its
showing a genuine factual issue for trial. FED. agent in an official capacity. Indest, 164 F.3d
R. CIV. P. 56(e); Matsushita Elec. Indus. at 262.
Corp. v. Zenith Radio, 475 U.S. 574, 587
(1986). The non-moving party cannot rest on DPSC was entitled to summary judgment
mere conclusional allegations and denials, on the ADEA claim, because it has sovereign
speculation, improbabl e inferences, immunity from the ADEA. Kimel v. Fla. Bd.
unsubstantiated assertions, and legalistic of Regents, 528 U.S. 62 (2000). We already
arguments, none of which will substitute for have held, on another occasion, that DPSC has
specific facts showing a genuine issue for trial. sovereign immunity as an agency of the state
TIG, 276 F.3d at 759. of Louisiana. Champagne v. Jefferson Parish
Sheriff’s Office, 188 F.3d 312, 313-14 (5th
B. Cir. 1999). Harris gives no reason to
The district court carefully explained, in reconsider or distinguish this holding.
well reasoned opinions, why most of Harris’s
claims cannot survive summary judgment. We DPSC also was entitled to summary
agree with these opinions, which we review judgment on three aspects of Harris’s title VII
briefly, and we affirm. claims. First, DPSC is not liable for the failure
to promote Harris in November 1997, because
The court properly entered summary she did not file an EEOC complaint until
judgment on all claims against Goodwin, December 1998, outsi de the 300-day
because Harris alleged no facts for which limitations period for title VII. 42 U.S.C. §
Goodwin could be held liable. The last ground 2000e-5(e)(1). Harris contends that this
for Harris’s claims is the denial of her incident is part of a continuing violation and
application for a lateral transfer in May 1999.
Goodwin did not become warden until August
1999. Thus, he cannot be liable on any 3
(...continued)
theory.3
refute the allegations. Yet, Goodwin only needs to
point to an absence of evidence, whereas Harris
bears the burden to produce specific facts raising
3
Harris alleged continuing harassment and dis- a genuine issue of material fact regarding any con-
crimination by Goodwin, but she produced no evi- tinuing harassment and discrimination. (Harris
dence to support these allegations. She argues on also seems to confuse the standards for a motion to
appeal that Goodwin produced no evidence to dismiss with those for a motion for summary
(continued...) judgment.)
3
thus excepted from the usual 300-day discrimination claims are brought under
limitations period. Although this circuit §§ 1981 and 1983, they are analyzed under the
recognizes a continuing-violation exception, same framework as is a title VII claim.
“the plaintiff must demonstrate more than a Lawrence v. Univ. of Tex. Med. Branch, 163
series of discriminatory acts. He must show an F.3d 309, 311 (5th Cir. 1999) (citation
organized scheme leading to and including a omitted). The district court, then, properly
present violation, such that it is the cumulative entered summary judgment for Travis on the
effect of the discriminatory practice, rather §§ 1981 and 1983 claims insofar as these
than any discrete occurrence, that gives rise to claims are based on the failure to promote
the cause of action.” Huckabay v. Moore, 142 Harris in November 1997, the denial of her
F.3d 233, 239 (5th Cir. 1998) (citations request for a lateral transfer, and any
omitted). Harris has produced no such discriminatory effect.4
evidence and, indeed, pleaded her complaint in
a style of discrete incidents. The title VII Finally, the court properly granted summary
claim based on the failure to promote in judgment on the §§ 1985 and 1986 claims
November 1997 is therefore barred by the against Travis and Hegwood. To prove a §
statute of limitations. 1985 violation, Harris must show that Travis
and Hegwood discriminated against blacks as
Second, DPSC is not liable for the denial of a class, not simply against her because she is
Harris’s request for a lateral transfer in May black. Newberry v. East Tex. State Univ., 161
1999, because denial of a lateral transfer is not F.3d 276, 281 (5th Cir. 1998). She has
an adverse employment action covered by title offered no proof of class-based animus or
VII. Burger v. Cent. Apartment Mgmt., Inc., discrimination. Moreover, her § 1985 claim
168 F.3d 875, 879-80 (5th Cir. 1999). Third, relies exclusively on her title VII claims, but
DPSC is not liable for Harris’s discriminatory- § 1985 may not be used as a remedy for title
effect claim, which does not require proof of VII violations. Horaist v. Doctor’s Hosp.,
intent to discriminate, but rather proof of “fa- 255 F.3d 261, 270 (5th Cir. 2001). And,
cially neutral employment standards [that] op- without an underlying § 1985 violation, her §
erate more harshly on one group than anoth- 1986 claim necessarily fails as well. 42 U.S.C.
er.” Johnson v. Uncle Ben’s, Inc., 965 F.2d § 1986; Newberry, 161 F.3d at 281 n.3.
1363, 1367 (5th Cir. 1992) (citation omitted).
A plaintiff not only must offer proof of III.
statistical disparities, but also must identify
“specific employment practices that are 4
allegedly responsible for any observed Harris alleged the same violations of §§ 1981
statistical disparities.” Id. (citation omitted). and 1983 against Hegwood, but the district court
properly found that Hegwood was entitled to qual-
Harris has done neither; thus, her
ified immunity against Harris’s claims. Harris al-
discriminatory effect claim cannot withstand leged only that Hegwood did not interview her
summary judgment. when she applied for the Administrative Secretary
position in November 1998. Harris produced no
Likewise, Travis was entitled to summary evidence that Hegwood participated in the ultimate
judgment on these three aspects of Harris’s employment decision, and hence no evidence that
§§ 1981 and 1983 claims. When employment Hegwood violated any of Harris’s clearly
established rights.
4
The summary judgment left three main discriminatory reason for the employment
factual disputes for trial: (1) the failure to pro- decisions. Id. If they do so, Harris must offer
mote Harris in November 1998, (2) the re- specific evidence to demonstrate that the
allocation of her secretarial duties, and (3) the reasons are merely pretextual. Id. at 804.
relocation of her office. These disputes went
to trial against DPSC under title VII and The evidence more than supports the
against Travis under §§ 1981 and 1983. The verdict. DPSC and Travis adduced a
jury returned a verdict for DPSC and Travis, legitimate, non-discriminatory reason for not
and the court denied Harris’s motion for judg- promoting Harris to the position of
ment as a matter of law (“j.m.l.”). Administrative Secretary at the new mental
health unit in November 1998, namely, that
We review de novo a ruling on a motion for Childress already worked as a mental health
j.m.l. Miss. Chem. Corp. v. Dresser-Rand clerk at Swanson’s Department of Social
Co., 287 F.3d 359, 365 (5th Cir. 2002). Yet, Services and therefore was familiar with the
when an action is tried to a jury, a motion for secretarial duties associated with mental health
j.m.l. is in effect a challenge to the legal services at Swanson. Indeed, the evidence
sufficiency of the evidence supporting the suggests that there was not really any position
verdict. Brown v. Bryan County, Okla., 219 to fill in the first place. As the new unit grew
F.3d 450, 456 (5th Cir. 2000). Thus, we rapidly, Travis simply re-designated
review the evidence “drawing all reasonable Childress’s clerical position to Secretary II
inferences and resolving all credibility (not Administrative Secretary, as Harris
determinations in the light most favorable to asserts) to reflect her increased workload.
the non-moving party.” Id. We will reverse Harris’s evidence did not establish that this
“only if no reasonable jury could have arrived explanation was pretextual, and a reasonably
at the verdict.” Snyder v. Trepagnier, 142 jury easily could have credited the explanation.
F.3d 791, 795 (5th Cir. 1998). Because Harris
cannot satisfy this stringent standard, we DPSC and Travis also offered legitimate,
affirm. non-discriminatory reasons for the re-
allocation of Harris’s secretarial duties and
We review the verdict under the familiar relocation of her office after she returned from
evidentiary framework of McDonnell Douglas detail in July 1998. Harris’s difficulties
Corp. v. Green, 411 U.S. 792 (1973).5 Harris resulted not from discrimination, but from her
first must state a prima facie case of supervisors’ duties and locations. When
employment discrimination, which we will Harris returned from the detail, she continued
assume for the purposes of this appeal. Id. at to work for her former supervisor, Marcia
802-03. Next, the burden shifts to DPSC and Ensley. During the detail, however, Ensley
Travis to adduce a l egitimate, non- had been reassigned from security warden to
program manager in social work. Just as
Ensley’s duties changed, so did Harris’s.
5
Although McDonnell Douglas burden- Beard and Tyler assumed Harris’s older duties
shifting is most common in title VII cases, it also as the secretaries to Ensley’s replacement.
applies to employment discrimination claims
brought under §§ 1981 and 1983. Wallace v. Tex. Shortly after Harris’s return, Ensley
Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
5
resigned. Travis appointed Ella Gray as the
new program manager in social work, and
Harris continued to serve as the secretary to
the program manager. Yet, Gray wanted to
keep her old office in a different building
rather than move into Ensley’s old office,
thereby requiring Harris to move into a
smaller, less comfortable office in Gray’s
building. Again, Harris’s evidence did not
prove that these explanations for the re-
allocation of her duties and relocation of her
office were pretextual, and a reasonable jury
easily could have credited the explanations.
AFFIRMED.
6