UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-11136
Summary Calendar
_______________________
MIA FITE,
Plaintiff-Appellant,
versus
AER MFG.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:92 CV 2486 P)
_________________________________________________________________
August 17, 1995
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mia Fite appeals the grant of summary judgment in favor
of AER Mfg. in this case alleging sexual and racial harassment and
discrimination, and retaliation for filing an EEOC complaint and/or
workers compensation claims. Finding no error in the district
court's judgment, we affirm.
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
BACKGROUND
Fite was hired by AER, a Texas corporation engaged in the
remanufacturing of automobile engines and parts, as an hourly
employee on or about April 30, 1990. On September 10, 1991, she
received her first written notice of violation from her supervisor,
Richard Gentry, for failing to apply herself to her work, failing
to arrive at work on time, and failing to begin work immediately
upon arrival. The notice warned that if the lack of effort
continued, Fite's employment would be terminated. On November 18,
1991, Gentry issued a second written notice complaining of
inattentiveness and failure to follow instruction after the lead-
man in Fite's department reported that she was ineffective and
requested her transfer. On November 23, 1991, Fite was fired when
she arrived more than two hours late for work without having
properly reported in.
Appellant filed a charge of racial discrimination with
the Equal Employment Opportunity Commission ("EEOC") on November
18, 1991, during time off she was granted to see a company doctor.
After the EEOC found inter alia ". . . that White and non-White
employees participated in exchanging racial/ethnic bantering all in
a friendly manner . . . not tolerated by company management," Fite
filed a pro se lawsuit on November 30, 1992 setting forth three
distinct charges of racial discrimination. Appellant first
contended that her September 10 "write-up" was racially motivated,
as a white co-worker was not written up for also arriving late.
Next, Fite asserted, that despite having granted her earlier
2
requests for transfer, AER discriminated against her on the basis
of race on or about October 13, 1991 when it failed to consider her
for a part puller position in the Sales Department but instead gave
the job to a white female co-worker. Finally, appellant's original
petition and EEOC charge also alleged that she was subjected to a
racially hostile work environment.
With respect to Fite's hostile environment claim, she
alleged, and the summary judgment evidence confirms, that her
immediate supervisor, Johnnie Williams, as well as AER employees
Clarence Geary, Eddie Hardy, and James Foster, two of whom are
black, commonly made use of racial slurs. Fite admits that no one
used such derogatory language with respect to her, but it was used
in her presence, and the EEOC found that appellant herself engaged
in the "bantering." Fite never reported the use of the racial
language to her manager, Richard Gentry, but she did ask Geary to
stop using such language in her presence. Geary complied, but
appellant now complains that she continued to overhear him through
the bathroom walls.
On October 22, 1993, Fite filed an amended petition with
the assistance of counsel and for the first time raised in court
claims of sexual harassment, Title VII discharge violations, as
well as six new state law claims.1 Specifically, Fite alleged that
co-workers J.T. Neal and Clarence Geary touched her in very
1
Appellant's state law causes of action consisted of claims of
negligent supervision, assault, invasion of privacy, intentional infliction of
emotional distress, wrongful termination under Article 8307c of the Texas Labor
Code, and vicarious liability. Vicarious liability was rejected by the district
court and, since Fite did not raise the issue on appeal, it has been waived.
3
sexually offensive ways, and Geary and Johnnie Williams told her
unwelcome stories of their sexual exploits. Fite reported Neal's
conduct to AER, which investigated the allegation and issued him a
notice of violation. Neal did not repeat his behavior after the
warning. Likewise, Geary stopped harassing appellant after she
asked him to stop his lewd behavior. Fite states that she did not
report the Geary or Williams incidents because she considered
Gentry to be hostile toward her and she believed that she could
handle the situation herself.
The district court granted summary judgment on all of
Fite's claims, both state and federal, and appellant has chosen to
appeal only her Title VII racial and sexual harassment and
discrimination claims and the Title VII and 8307c retaliation
claims. On appeal, Fite charges that the district court erred in
granting summary judgment in favor of AER and in thus finding
neither procedural errors or no genuine issues of material fact
with respect to these claims.
DISCUSSION
Fite contends that the district court's conclusion that
her sexual harassment claim was untimely filed in federal court and
does not "relate back" to her original employment discrimination
claim was in error. We disagree. Appellant was issued a Notice of
Right to Sue by the EEOC on August 28, 1992, which expressly
informed her that she had ninety days in which to file suit in
4
federal court.2 On November 30, 1992, Fite filed her original
petition with no references to or allegations of any facts which
could give rise to a sexual harassment claim. It was not until
almost a year later on October 22, 1993, with the filing of the
amended petition, that Fite first made AER aware of her sexual
harassment complaint.3 She argues, however, that under Federal
Rule of Civil Procedure 15(c), appellee should have adequately been
put on notice of sexual harassment claims as they "arose out of the
conduct, transaction, or occurrence set forth in the original
pleading." In support of this position, Fite cites this court's
decision in FDIC v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994). We
note, however, language from the same opinion which states, "an
amended pleading will not relate back if it asserts new or distinct
conduct, transactions, or occurrences as the basis for relief."
Id. at 1386. Sexual misconduct is not the same as racial
misconduct. They are two distinct behaviors which cannot be
equated in the manner Fite contends. Nor are Fite's other
citations, which hold that Title VII claims can relate back to §
1981 claims (and vice-versa), persuasive; Title VII and § 1981 are
not distinct occurrences or activities, as is the case here, but
distinct methods of making oftentimes the same claim. See Watkins
v. Lujan, 922 F.2d 261 (5th cir. 1991); Caldwell v. Martin Marietta
2
We note that appellant, even allowing the three-days mailing period
prescribed by Federal Rule of Civil Procedure 6(e), waited to file her complaint on
the ninety-first day presumably because the ninetieth day fell on a Sunday. Such
delay is not encouraged.
3
The district court's determination that Fite adequately exhausted her
administrative remedies with respect to her sexual harassment and discrimination
claims is also correct.
5
Corp., 632 F.2d 1184 (5th Cir. 1980). Accordingly, the relevant
test for relation-back in this situation is whether the original
complaint apprised AER of the sexual harassment and discrimination
claims. McGregor v. Louisiana State Univ. Bd. of Sup'rs., 3 F.3d
850, 864 (5th Cir. 1993). Here, nothing in Fite's original filing
could conceivably have put AER on notice of such allegations, and,
therefore, dismissal of Fite's untimely sexual harassment claim was
proper.
Fite next contends that the grant of summary judgment on
her claim of racial harassment was improper because AER was either
actually or constructively aware of such conduct, and the
harassment was sufficiently pervasive to be actionable under Title
VII.4 There are two theories under which a corporate employer can
be held liable for hostile work environment harassment. First,
where the harasser is the plaintiff's employer, or an agent of the
employer who controls the terms and conditions of employment, the
employer is directly liable for the harassment. Nash v.
Electrospace System, Inc., 9 F.3d 401, 404 (5th Cir. 1993).
Second, where the hostile work environment is created by a person
such as a co-worker, the employer may be held liable if it can be
established that the employer knew or should have known of the
harassment and failed to take prompt remedial action. Id. Fite
hints at both theories of liability.
4
Fite additionally contends that AER should be held liable as a result
of the company's inadequate sexual and racial harassment and discrimination policy.
This court, however, will not hear arguments presented for the first time at the
appellate level. Stanley Educ. Methods v. Becker C.P.A. Review, 539 F.2d 393, 394
(5th Cir. 1976).
6
While Fite readily admits that she never informed
management of her harassment complaints, she argues that AER is
liable as Johnnie Williams, her immediate supervisor (now dead),
participated in the use of racial and derogatory language. This
attempt at imputing liability upon AER fails, however, as no
evidence is proffered or exists which would show Williams was in a
position to control the terms and condition of Fite's employment.
To the contrary, the record indicates that Williams did not set
company policy, did not hire, fire or promote employees, and did
not have the authority to issue a written notice of violation to
Fite. Nash, 9 F.3d at 403(first-line supervis[or] did not control
the terms and conditions of employment).
Nor does appellant succeed in her attempt to show that
the harassment was so pervasive that the employer must have been
aware of it. Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307
(5th Cir. 1987). There is no doubt that unfortunate use of racial
slurs occurred in Fite's vicinity at AER, but her claim that the
district court ignored important evidence that created an issue of
material fact is overstated. In fact, the record indicates that
Fite was aware of AER's policy against the use of racially
offensive language, but she never complained of such behavior to
management. Appellant also admits that all of the slurs were
exchanged outside the earshot of any management employees, and some
incidents even occurred away from the workplace. Further, the
record indicates the alleged offenders cleaned up their language
around Fite at her request. While absolutely none of this alleged
7
behavior can be condoned, Fite has made no showing of the
"pervasiveness of the harassment which [would] give[] rise to the
inference of knowledge or constructive knowledge" by the employer.
Waltman v. Int'l. Paper Co., 875 F.2d 468 (5th Cir. 1989).5
Fite also claims that racial discrimination was the
motivating factor in AER's issuance of a written reprimand, the
alleged denial of "promotional" opportunities, and Fite's eventual
dismissal. None of these claims is substantiated by the evidence,
however. In fact, with respect to the September 10, 1991 write-up,
appellant readily admits she was late to work and that she did not
begin work upon arrival. Fite's personnel file also indicates that
her superiors had noted that she did not apply herself to her job.
To combat these facts, appellant has not refuted the evidence nor
has she offered any evidence or hypotheses of her own to support
her theory of discrimination. Fite's suspicion that Gentry fired
her for race-related reasons simply does not warrant reversal of
the grant of summary judgment upon this or any other issue in this
appeal.
Fite's claim of discriminatory denial of promotional
opportunities also fails. Fite bases her claim solely on the fact
that a white co-worker, Elizabeth Schultz, was transferred to a
position that she (Fite) admittedly never inquired about. Not only
did appellant receive the only transfers she ever requested, she
5
As AER had no knowledge of Fite's allegations of racial harassment, we
need not discuss the remedial actions taken "reasonably calculated to end the
harassment." Jones v. Flagship Int'l., 793 F.2d 714, 719-20 (5th Cir. 1986), cert.
denied, 479 U.S. 1065, 107 S.Ct. 952 (1987).
8
has also acknowledged that Schultz's new job entailed a lateral
transfer rather than a promotion. Furthermore, Fite has offered no
evidence to refute AER's proffered explanation for choosing Schultz
rather than appellant for the "puller" position, namely, that
Schultz was already familiar with the part location and numbering
system.
Fite also alleges that she was discharged for racially
discriminatory reasons. This wanton claim is completely
contradicted by the record, however, which indicates that AER acted
responsibly in its handling of Fite's termination. Not only did
AER make exceptions for Fite's study and medical needs, it also
went to pains to put her on notice of her unsatisfactory
performance. Additionally, in light of the fact that Gentry denies
any racial animus in his dismissal decision, the fact that
approximately 85% of Fite's co-workers were also minorities, and
the absence of any evidence whatsoever offered by appellant to
support her charge, the grant of summary judgment upon this claim
of racial discrimination was correct.
An employee must show three things to establish a prima
facie case of retaliation -- that she engaged in an activity
protected by Title VII, that an adverse employment action followed,
and that there was some causal connection between the activity and
the adverse action. Collins v. Baptist Memorial Geriatric Center,
937 F.2d 190, 193 (5th Cir. 1991), cert. denied, U.S.
(1992). Fite supports her claim by noting the close temporal
proximity between the filing of the EEOC charge and her discharge.
9
While this may raise an inference of a Title VII retaliation, AER
has fully met its burden of presenting a legitimate, non-
retaliatory explanation for its decision to dismiss Fite. The
record indicates that Fite was terminated because she was late and
did not call her supervisor within thirty (30) minutes of her start
time. It has also been shown that appellant had been issued two
warnings prior to her termination, and Gentry, who made the
ultimate decision to fire Fite, did not find out about her EEOC
claim until two (2) days after her dismissal on November 23, 1991.
The only evidence offered by appellant that AER's legitimate,
nondiscriminatory reason was pretextual is deposition testimony
that other co-workers had equally poor absenteeism records but were
treated differently. Even if those employees were white, Fite
failed to generate a material issue of fact that they were
similarly situated and received preferential treatment. Summary
judgment was proper for her EEOC retaliation claim.
Fite finally claims that she was terminated in violation
of article 8307(c) of the Texas labor laws in retaliation for
having filed three separate claims for workers' compensation during
the final two months of her employment.6 In order to prevail on
this claim, Fite must offer some evidence of a causal connection
beyond her own subjective belief of retaliation. Hope v. MCI
Telecommunications Corp., 937 F.2d 258, 265 (5th Cir. 1991), cert.
denied, 504 U.S. 916 (1992). Fite must show that the filing of the
6
The former Rev. Civ. Stat. Ann. art. 8307(c) has been repealed and
replaced with Texas Labor Code § 451.001.
10
claim(s) was a determining factor in her discharge. Id. Fite
has not and cannot make this showing. Instead, she continues to
assert that the proximity in time between her filing for workers'
compensation and her dismissal is direct evidence of retaliation.
Additionally, Fite expressly rejects as controlling the test for
causal connection used by the district court as first explained in
Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App.--Fort
Worth 1993, writ denied).7 Palmer indicates that to demonstrate
existence of a causal link one must show: (1) knowledge of the
claim by those making the decision to terminate; (2) a negative
attitude toward the employee's injured condition; (3) failure to
follow company policy when disciplining an employee who made a
claim; and (4) discriminatory treatment when compared to other
employees with the same disciplinary problems. Recognizing that
this standard is controlling, and assuming that AER knew of Fite's
five total compensation claims and in all likelihood possessed a
negative attitude toward them, we find that appellant still has not
offered any evidence that AER failed to follow its own company
policy or that other employees with the same poor record she had
were treated any differently. Accordingly, this claim also fails.
For all the foregoing reasons, the judgment of the
district court is AFFIRMED.
7
As Fite filed her lawsuit in Dallas, she claims the test adopted by the
Fort Worth court is not binding precedent upon her claim. We bring her attention
to Williams v. GNB Batteries Technologies, 1995 WL (March 30, 1995), where the
Dallas Division of the Texas courts of appeals expressly applies the elements to a
similar claim.
11