United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-10543
Summary Calendar
ENDIA HARRIS-CHILDS,
Plaintiff-Appellant,
v.
MEDCO HEALTH SOLUTIONS INC.;
MEDCO HEALTH SOLUTIONS OF TEXAS LLC;
MERCK-MEDCO RX SERVICES OF TEXAS LLC;
MERCK AND COMPANY, INC.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Texas
4:03-CV-77
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
This appeal is from a district court's grant of summary
judgment in favor of an employer in a race and gender
discrimination case. Finding no genuine issue of material fact, we
AFFIRM the grant of summary judgment.
*
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this opinion should not be published and is not precedent except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. BACKGROUND
Endia Harris-Childs (“Appellant”) was hired as a staff
pharmacist by Medco Health Solutions, Inc., Medco Health Solutions
of Texas, LLC, and Merck & Company (“Appellees”) in 1988, at their
Fort Worth facility. Appellees operate a home delivery service
pharmacy. Appellant became a customer service research pharmacist
in 1995. In July of 2001, Appellant was the first customer service
research pharmacist to attend computer-based prescription
completion protocols (“OC” or “Qrx”) and to rotate shifts at the
OC/QRx department. In August, Appellant received an award for
outstanding customer service. However, by the next month
Appellant’s performance was at or near the bottom of all the
pharmacists in the OC/QRx department.
Subsequently, Appellant received warnings indicating her
unacceptable performance in timely processing prescriptions.
Additionally, Cindy Wood, an OC/QRx supervisor, met with Appellant
on several occasions in an attempt to assist her in reaching the
performance goal. Appellant complained to Wood that she was the
only customer research pharmacist to rotate for two-hour shifts to
the OC/QRx department.
In January, Appellant began a leave of absence. On February
7, Wood informed Appellant that she wanted to meet to discuss
Appellant’s performance. During this meeting, Appellant stated
that she had been advised by her “legal team” not to attend
meetings without their presence. After refusing to discuss her
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work performance, Appellant was sent home. Appellees’ human
resources department called Appellant and instructed her to come to
the facility on February 11. Appellant and her husband arrived and
two union representatives asked to meet with her in a conference
room. One representative informed her that if she did not agree to
meet with management she would be terminated. Appellant testified
that she returned to the front lobby and waited for management to
contact her. She did not recall how long she waited that morning.
She did not notify any Medco employee or the receptionist’s desk
that she had been waiting to speak with management and was going to
leave. She testified that because no one acknowledged her
presence, she went home with her husband. Subsequently, Appellant
received a letter informing her that she had been terminated for
her “persistent refusal to meet with management to discuss your
work performance [which] constitutes gross misconduct and [for]
leaving work today without authorization from the Company [which]
constitutes an abandonment of your position.”
Appellant thereafter filed a charge of discrimination with the
EEOC, which did not find a violation and issued a Right to Sue
letter. Appellant filed the instant lawsuit, alleging, inter alia,
claims for: (1) racial and gender discrimination in violation of
Title VII; (2) racial discrimination in violation of 42 U.S.C. §
1981; (3) racial harassment in violation of Title VII; (4)
retaliation in violation of Title VII. The district court granted
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summary judgment on all claims. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. E.g., Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396,
399 (5th Cir. 1996). Summary judgment is proper if the record
reflects “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). Fact questions must be considered with
deference to the nonmovant. Herrera v. Millsap, 862 F.2d 1157, 1159
(5th Cir. 1989). Thus, if a fact question is dispositive of a
motion for summary judgment, "we must review the facts drawing all
inferences most favorable to the party opposing the motion.” Id.
(citation and internal quotation marks omitted). Questions of law
are reviewed de novo. Id.
III. ANALYSIS
A. Discrimination
To establish discrimination, a plaintiff must show: "(1) that
he is a member of a protected group; (2) that he was qualified for
the position held; (3) that he was discharged from the position;
and (4) that he was replaced by someone outside of the protected
group.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th
Cir. 2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506
(1993).
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The district court analyzed Appellant’s discrimination claim
under the tripartite burden-shifting test established by McDonnell
Douglas v. Green, 411 U.S. 792, 802–04 (1973). Under this familiar
framework, the plaintiff bears the burden of establishing a prima
facie case of discrimination; upon such a showing, the burden
shifts to the defendant(s) to articulate some legitimate,
non-discriminatory reason for the challenged employment action;
once articulated, then the burden shifts back to the plaintiff to
demonstrate that the articulated reason was merely a pretext to
unlawful discrimination. See McDonnell Douglas, 411 U.S. at
802-04.
Appellant argues for the first time on appeal that her
employer had mixed motives for terminating her. Thus, she argues,
the district court erred in using the McDonnell Douglas framework.
Relying on Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), she
argues that the district court should have analyzed her case under
the modified McDonnell Douglas framework. By failing to present
her mixed-motives claim to the district court in the first
instance, Appellant has waived it. E.g., Ramirez Rodriguez v.
Boehringer Ingelheim, 425 F.3d 67, 78 n.12 (1st Cir. 2005); Mailly
v. Park Place Entertainment Corp., 114 Fed. Appx. 602, 603 (5th
Cir. Sept. 28, 2004) (unpublished).
Appellant next argues that the district court erred in finding
no genuine issue of fact with respect to her discrimination claim.
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The district court found that Appellant had demonstrated a prima
facie case of discrimination because she: is an African-American
female; was qualified for her position; was terminated, and
apparently replaced by a white male. The district court further
found that Appellees’ reason for terminating Appellant (refusal to
meet with management to discuss work performance and leaving work
without authorization) was a legitimate non-discriminatory reason.
“The failure of a subordinate to follow a direct order of a
supervisor is a legitimate nondiscriminatory reason for taking
adverse employment action.” Aldrup v. Caldera, 274 F.3d 282, 286
(5th Cir. 2001).
Appellant argues that the district court had to make
credibility findings because it believed that Appellant refused to
participate in the meeting with management. Contrary to
Appellant’s argument, there was no need for the district court to
make a credibility finding. Appellant’s deposition testimony was
sufficient to show that she refused to discuss her work performance
in the meeting. Appellant’s testimony also makes clear that, after
being warned that she would be terminated if she did not meet with
management, she waited an unspecified period of time in the lobby
and left without notifying anyone or attempting to contact
management. We agree with the district court that Appellant has
failed to demonstrate a genuine issue of material fact with respect
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to Appellee’s reason for termination.2
B. Retaliation
Appellant next argues that the district court erroneously
granted summary judgment with respect to her retaliation claim.
More specifically, she contends that there is a genuine issue of
material fact as to whether she participated in a protected
activity under Title VII. To demonstrate a claim for retaliation,
Appellant must prove: (1) that she engaged in an activity that was
protected; (2) an adverse employment action occurred; and (3) a
causal connection existed between the participation in the activity
and the adverse employment action. Webb v. Cardiothoracic Surgery
Assoc., 139 F.3d 532, 540 (5th Cir. 1998). We are concerned solely
with ultimate employment decisions. Id.
Here, the district court found that “there is no evidence that
[Appellant], when she made her complaints to management, ever
mentioned that she felt she was being treated unfairly due to her
race or sex. In fact, in her deposition, [Appellant] admits that
she never mentioned her race or sex when she made her complaints.”
(emphasis in original). Accordingly, the district court held that
Appellant failed to demonstrate that she engaged in a protected
2
Appellant also argues that there is a fact issue with
respect to whether (1) she violated company policy as it is set
forth in Appellees’ handbook and (2) the union was Appellant’s sole
legal representative. Because we find that these are not material
facts, Appellant cannot show the district court erred in granting
summary judgment.
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activity under Title VII.
We agree. In her appellate brief, Appellant does not allege
that she specifically complained of racial or sexual harassment,
only harassment. Appellant believes the term “harassment” connotes
either sexual or racial harassment and, in support of this
proposition, cites Nash v. Electrospace Systems, Inc., 9 F.3d 401
(5th Cir. 1993). Nash is inapposite. Nash recognizes that while
“sexually hostile or abusive work environments are no longer to be
tolerated under Title VII, that fact does not transform Title VII
into a strict liability statute for employers. An employer is
liable only if it knew or should have known of the employee's
offensive conduct and did not take steps to repudiate that conduct
and eliminate the hostile environment.” Id. at 404.
Although we are mindful that we review the summary judgment
record in the light most favorable to Appellant, we do not believe
Appellant’s deposition testimony shoulders her burden of
demonstrating that she complained of racial or sexual
discrimination to her employer. Although her deposition
demonstrates she complained of unfair treatment—such as other
customer service research pharmacists were not required to rotate
out to the QRX department—she has not demonstrated that she put the
employer on notice that her complaint was based on racial or sexual
discrimination. Because she has failed to show that she engaged in
a protected activity under Title VII, she cannot show retaliation.
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The district court properly granted summary judgment on this claim.
C. Hostile Work Environment
Finally, Appellant argues that the district court erred in
granting summary judgment in favor of Appellees with respect to the
claim of hostile work environment in violation of Title VII. To
survive summary judgment, Appellant must create a fact issue on
each of the elements of a hostile work environment claim: (1)
racially discriminatory intimidation, ridicule and insults that
are; (2) sufficiently severe or pervasive that they; (3) alter the
conditions of employment; and (4) create an abusive working
environment. See DeAngelis v. El Paso Mun. Police Officers Ass'n,
51 F.3d 591, 594 (5th Cir.1995) (involving hostile work environment
based on sexual harassment). To determine whether a working
environment is hostile or abusive, all circumstances must be
considered, including “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Appellant must show that the discriminatory conduct was severe
or pervasive enough to create an objectively hostile or abusive
work environment. Id. at 370. This Court has opined that
“[d]iscriminatory verbal intimidation, ridicule, and insults may be
sufficiently severe or pervasive to alter the conditions of the
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victim's employment and create an abusive working environment that
violates Title VII.” Wallace v. Texas Tech University, 80 F.3d
1042, 1049 n. 9 (5th Cir.1996) (citing DeAngelis, 51 F.3d at 593).
Appellant, in an attempt to demonstrate a hostile work
environment, asserts that her employer treated her worse than non-
African-American pharmacists in terms of scheduling, work
performance expectations, and disciplinary incidents (including
threats of termination). The district court granted summary
judgment on the hostile work environment claim, ruling that
Appellant “failed to provide any evidence that any of the alleged
harassing events were based on her race or had a racial character
or purpose.” (emphasis in original). The court further noted that
Appellant did not recall ever hearing a racist remark during her
employment.
After reviewing the record, we are not persuaded that the
treatment alleged constitutes an objectively hostile work
environment. Furthermore, we agree with the district court that
Appellant has failed to show that the harassment was racially
based. Accordingly, the district court properly granted summary
judgment with respect to the hostile work environment claim.
In conclusion, the district court’s summary judgment is
AFFIRMED.
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