Case: 22-60376 Document: 00516676594 Page: 1 Date Filed: 03/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 14, 2023
No. 22-60376 Lyle W. Cayce
Clerk
Bessie Moore,
Plaintiff—Appellant,
versus
Jackson Public School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CV-817
USDC No. 3:19-CV-883
Before Wiener, Stewart, and Engelhardt, Circuit Judges.
Per Curiam:*
Bessie Moore, a longtime employee of the Jackson Public School
District (“JPSD”), brought multiple lawsuits titled Moore I, Moore II, and
Moore III against JPSD, alleging, amongst other things, retaliation under Title
VII. The district court granted JPSD’s motions for summary judgment on
Moore’s retaliation claims in Moore I and Moore II. Those orders are the
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60376 Document: 00516676594 Page: 2 Date Filed: 03/14/2023
No. 22-60376
subject of this appeal, and for the same reasons as the district court, we
AFFIRM.
I. Background
Moore worked as a librarian for JPSD for a number of years. In June
2017, and against her wishes, Moore was transferred to Smith Elementary
School. Moore filed an EEOC complaint alleging that her transfer was
retaliation for a prior EEOC charge and that she was also being discriminated
against on the basis of her age and sex. After not appearing for the first several
days of the school year, Moore began working at Smith Elementary. The
principal of Smith Elementary, Benjamin Torrey, asked Moore to run the
school’s Accelerated Reader program. Moore refused. Moore then re-
arranged the school library. Principal Torrey informed Moore that the new
library configuration did not comply with Mississippi Department of
Education (“MDE”) requirements and that she would need to develop a
plan to bring the library into compliance. Instead, Moore stopped coming to
work and did not return for the next five months.
During her absence, Moore filed several complaints against Torrey for
being mean and asking her to run the accelerated reader program. Moore also
requested another transfer. That request was denied, which Moore appealed.
Moore also requested that her personal belongings, which she left at Smith
Elementary, be “transferred to an agreed location” so as “to avoid any
further confrontation with the principal.” Moore’s appeal was denied, and
she filed another EEOC charge for retaliation. While Moore was absent from
her place of work, the library was re-arranged to comply with MDE
standards. Moore’s personal belongings were removed from the library and
stored as part of this rearrangement. On February 8, 2018, Moore returned
to work, found her property missing from the library, and claimed that
2
Case: 22-60376 Document: 00516676594 Page: 3 Date Filed: 03/14/2023
No. 22-60376
Principal Torrey had stolen it. Moore reported the theft and sued Principal
Torrey in Hinds County Justice Court.
Moore worked at the school for a total of nine days between her return
on February 8, 2018, and April 3, 2018. On April 3, 2018, Moore met with
Principal Torrey and was placed on a performance improvement plan. Moore
did not return to work for the rest of the school year. Despite her extensive
absences, the JPSD Board of Trustees met and approved a new contract for
Moore on April 18, 2018. This contract was sent to Smith Elementary for her
signature. Principal Torrey and Human Resources Executive Director
Saundra Lyons (“Lyons”) called Moore multiple times to get her to sign her
contract, but she did not respond. On May 29, 2018, JPSD’s in-house counsel
wrote to Moore and requested that she inform the district of her intent to
continue working the following year. Moore did not respond; thus, her
contract was voided at the June 7, 2018, JPSD Board of Trustees meeting.
Eleven days after her contract was voided, JPSD received a letter from Moore
expressing her intent to return to work. Lyons responded with a letter
summarizing the timeline of events that led to the voiding of Moore’s
contract. Moore then reapplied to work at JPSD and was hired to work at
Peeples Middle School.
II. Procedural Background
Moore has filed three lawsuits, Moore I, Moore II, and Moore III, against
JPSD. The district court first issued an order in Moore I granting JPSD’s
motion for summary judgment on Moore’s claims of retaliation for allegedly
being micromanaged, being “peered” at, and receiving unfair work
assignments. The district court correctly decided that these actions did not
rise to the level of materially adverse employment actions. The district court
then issued a second order, granting summary judgment to JPSD on Moore’s
claims that Principal Torrey retaliated against her—for complaining about
3
Case: 22-60376 Document: 00516676594 Page: 4 Date Filed: 03/14/2023
No. 22-60376
his alleged harassment—by stealing her personal belongings while she was
absent from the school. In that same order, the district court granted JPSD’s
motion for summary judgment in Moore II on Moore’s claims that JPSD
retaliated against her—for filing her November 30, 2017, EEOC charge—by
voiding her contract. Moore appeals these orders.
III. Legal Standard
We review the grant of summary judgment de novo. Lewis v. Sec’y of
Pub. Safety & Corr., 870 F.3d 365, 368 (5th Cir. 2017). Summary judgment is
proper if the movant shows that there is no genuine dispute of material fact
and that the movant is entitled to judgment as a matter of law. Sanders v.
Christwood, 970 F.3d 558, 561 (5th Cir. 2020) (citing Fed. R. Civ. P. 56(a)).
A fact is “material” if resolving it one way or another would change the
outcome of the lawsuit. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325
(5th Cir. 2009). A genuine dispute over that fact exists if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party.” McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357–58 (5th Cir.
2017) (citing Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.
2005)). We view the evidence in the light most favorable to the nonmovant
and resolve factual controversies in the nonmovant’s favor. Id. at 326
(citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
IV. Discussion
Moore, who proceeded pro se, lays out several assertions in her brief
but includes no citations to the record as required by the rules. The Federal
Rules of Appellate Procedure require parties to provide references to the
page numbers of the record to support statements of fact. Fed. R. App. P.
28(a)(6) and (8)(A); 5th Cir. R. 28.2.2. Failure to comply with the rules of
this court regarding the contents of briefs can be grounds for dismissing a
party’s claims. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (per
4
Case: 22-60376 Document: 00516676594 Page: 5 Date Filed: 03/14/2023
No. 22-60376
curiam). Dismissal is warranted where the non-compliance is not merely
“technical or stylistic” but rather is so “fundamental” that it prevents the
court from engaging in meaningful review. Owens v. Sec’y of Army, 354 F.
App’x 156, 158 (5th Cir. 2009) (per curiam) (dismissing appeal for want of
prosecution on the ground that appellant’s brief “lacks any argument in sup-
port of the issues that it raises”); see also Clark v. Waters, 407 F. App’x 794,
796 (5th Cir. 2011) (per curiam) (affirming dismissal on the grounds that ap-
pellant’s brief “is grossly non-compliant with Rule 28”). Although we liber-
ally construe briefs of pro se litigants and apply less stringent standards to par-
ties proceeding pro se than to parties represented by counsel, pro se parties
must still brief the issues and reasonably comply with the standards of Rule
28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (footnote omitted) (cit-
ing United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (“[P]ro se liti-
gants, like all other parties, must abide by the Federal Rules of Appellate Pro-
cedure.”)). Accordingly, in addition to the other independent grounds for
dismissal outlined below, we dismiss Moore’s appeal for gross non-compli-
ance with the rules. See Clark, 407 F. App’x at 796.
Moore I – First Summary Judgment Order
In Title VII cases lacking direct evidence, a plaintiff must establish a
prima facie case of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). For Moore to establish a prima facie case of retaliation she must
show, that “(1) she participated in an activity protected by Title VII; (2) her
employer took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the materially adverse
action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008). If a plaintiff can establish a prima facie case of retaliation, the burden
then shifts to the employer to articulate a legitimate, non-retaliatory reason
for its conduct. McDonnell 411 U.S. at 802. However, summary judgment is
5
Case: 22-60376 Document: 00516676594 Page: 6 Date Filed: 03/14/2023
No. 22-60376
appropriate if the plaintiff cannot support all three elements. Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001).
Moore alleged that the following were materially adverse employment
actions that she suffered: being reprimanded in the presence of others, being
assigned a specific seat in a meeting, being micromanaged, being denied the
opportunity to speak in open discussions, being directed to perform other
teacher’s responsibilities, JPSD not facilitating her projects, being peered at,
someone moving a pencil sharpener, having her belongings removed from the
library, and Principal Torrey changing the locks on the library door. The dis-
trict court ruled that this alleged conduct was not materially adverse. See, e.g.,
King v. Louisiana, 294 F. App’x 77, 85 (5th Cir. 2008) (per curiam), Earle v.
Aramark Corp., 247 F. App’x 519, 524 (5th Cir. 2007) (per curiam), Stewart
v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009), Grice v. FMC
Techs. Inc., 216 F. App’x 401, 404, 407 (5th Cir. 2007) (per curiam).
On appeal, Moore states that she “feels that the district court may
have applied the wrong causation standard when evaluating whether she
made a prima facie case of retaliation; and failed to consider the entirety of
the evidence.” Moore provides no case law or citation to the record to sup-
port this feeling. “A party that asserts an argument on appeal, but fails to
adequately brief it, is deemed to have waived it.” United States v. Scroggins,
599 F.3d 433, 446 (5th Cir. 2010). Having failed to brief this argument, it is
deemed to have been waived.
Notwithstanding the waiver of this argument, Moore’s appeal fails
because the district court never ruled on causation and thus could not have
erred in applying the wrong standard. The district court never ruled on cau-
sation because Moore failed to clear the hurdle of establishing a prima facie
case of retaliation by failing to allege conduct that rises to the level of an ad-
verse employment action. The district court cited a multitude of decisions by
6
Case: 22-60376 Document: 00516676594 Page: 7 Date Filed: 03/14/2023
No. 22-60376
this Court that show the alleged conduct does not qualify as adverse employ-
ment actions. Since an adverse employment action is a prerequisite for estab-
lishing a prima facie case of retaliation, the district court did not err in its judg-
ment and is AFFIRMED as to its first summary judgment order from
Moore I.
Moore I – Second Summary Judgment Order
The second summary judgment order regarding Moore I centers on
Moore’s allegation that Principal Torrey stole her property. After reviewing
new evidence regarding the removal of Moore’s property from the library,
the district court found that “this new evidence, at most, demonstrates that
there was a misunderstanding—not, as plaintiff previously alleged, a deliber-
ate theft.” Citing binding Fifth Circuit and Supreme Court precedent, the
district court found that this conduct does not rise to the requisite materially
adverse standard and instead falls into the category of “petty slights, minor
annoyances, and simple lack of good manners that the Supreme Court has
recognized are not actionable retaliatory conduct.” See Stewart 586 F.3d at
332 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). As with her previous claims in Moore I, Moore claims that the dis-
trict court applied the wrong causation standard. Again, Moore failed to brief
this issue; thus, it is deemed waived. Scroggins, 599 F.3d at 446. Additionally,
Moore’s appeal fails since the district court never ruled on causation. More-
over, the district court correctly ruled that removing Moore’s property from
the library did not amount to an adverse employment action. Therefore, the
district court’s judgment in the second summary judgment order in Moore I
is AFFIRMED.
Moore II – Second Summary Judgment Order
Moore’s final issue on appeal is that JPSD retaliated against her by
failing “to tender Moore a contract.” In fact, a contract was approved for
7
Case: 22-60376 Document: 00516676594 Page: 8 Date Filed: 03/14/2023
No. 22-60376
Moore by the JPSD Board of Trustees on April 18, 2018; however, Moore
never responded to calls or emails regarding executing the contract or made
any inquiries until after her contract was voided along with all the other un-
signed contracts on June 7, 2018. The district court noted that the nonre-
newal of a contract can qualify as a materially adverse action but “the evi-
dence in the record shows that that was not the case here.” The district court
explained that JPSD presented evidence “that all employee contract renew-
als, including plaintiff’s, took place during the April 18 JPSD Board meet-
ing.” Accordingly, “at most,” Moore could allege that “JPSD delayed ten-
dering her renewal contract,” but, that would still not rise to the level of an
adverse employment action. On appeal, Moore argues again that the district
court applied the wrong causation standard. Moore once again failed to
properly brief this issue, and thus, it is waived. Scroggins, 599 F.3d at 446.
Notwithstanding this waiver, Moore’s appeal fails because causation was
never contemplated by the district court due to Moore’s failure to establish
a prima facie case of retaliation. Accordingly, the district court’s summary
judgment order for Moore II is AFFIRMED.
V. Conclusion
The judgment of the district court is AFFIRMED.
8
Moore v. Jackson Public Sch Dist
Combined Opinion