Huckabay v. Moore

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 97-40619
_______________

WILLIAM REED HUCKABAY,

Plaintiff-Appellant,

VERSUS

EDWARD MOORE,
Individually and in His Official Capacity
as County Commissioner,
and
JEFFERSON COUNTY, TEXAS,

Defendants-Appellees.

_________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________

May 22, 1998

ON PETITION FOR REHEARING

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The petition for rehearing is DENIED. This court's opinion,

137 F.3d 871 (5th Cir. 1998), is hereby withdrawn, and the

following opinion is substituted:

William Huckabay, who is white, has worked as an employee of
Jefferson County Precinct Four since 1976. Edward Moore, who is

black, was elected Commissioner of Precinct Four in 1987. Huckabay

alleges that upon his election, Moore immediately set out on a

deliberate and overt program to make his precinct a “black

precinct.” According to Huckabay, Moore stated that “blacks had

suffered for two hundred years, and now it was the whites' turn,”

and Moore acted upon that theory.

Again according to Huckabay, Moore instituted generally racist

employment practices in an attempt to force out his white

employees. Moore demoted white supervisors of many years'

experience, replacing them withSSand forcing them to work

underSSblacks of lesser experience and training. He assigned

whites to the most burdensome and disliked tasks, while excusing

blacks. He refused to allow whites who had been injured on the job

to perform “light duty”SSas he did for blacksSSbut insisted that

they perform heavy duty or stay home. He allowed black employees

to take frequent breaks on the job, but chastised whites who did

the same. During his tenure as commissioner, Moore hired twenty-

two black employees and only one white. And on the job, Moore

tolerated and helped to foster an atmosphere in which whites were

called “honkeys” and were made the subject of ridicule and

harassment on account of race.

Huckabay claims that, in addition to suffering this

generalized discrimination, he has incurred specific instances of

particularized discrimination. He was demoted, and his pay was

cut, from mechanic to laborer when he broke his arm and had to take

2
time off from work. He is no longer allowed to run any equipment.

When a supervisory job opened up, he was not even considered for

it, despite his fairly long experience with the county.1 And in a

multitude of ways, he is forced to tolerate verbal and nonverbal

racial harassment as a condition of his employment.

On May 26, 1995, Huckabay filed a charge of discrimination

with the EEOC, alleging a hostile work environment. He received a

right-to-sue letter and filed this suit, alleging violations of

42 U.S.C. §§ 1981, 1983, and 2000e, as well as Texas tort and state

constitutional claims. The district court granted summary judgment

in favor of Moore and the county. On appeal, Huckabay challenges

the summary judgment as to his title VII claim and his state tort

and constitutional claims, but he abandons his claims under §§ 1981

and 1983.2

II.

We review a summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

1
Both the demotion and failure to promote occurred more than 300 days before
Huckabay filed his charge with the EEOC.
2
Huckabay challenges the judgment with regard to title VII on both the
limitations and evidentiary issues. Nowhere, though, does he mention the court's
disposition of his §§ 1981 and 1983 claims. Although we may liberally construe
briefs to determine what issues are presented, issues not raised at all are
considered abandoned. See, e.g., SEC v. Recile, 10 F.3d 1093, 1096 (5th Cir.
1993).

3
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). The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). After a proper motion for summary judgment is made, the

non-movant must set forth specific facts showing that there is a

genuine issue for trial. See Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable

substantive law to determine what facts and issues are material.

See King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then

review the evidence relating to those issues, viewing the facts and

inferences in the light most favorable to the non-movant. See id.

If the non-movant sets forth specific facts in support of

allegations essential to his claim, a genuine issue is presented.

See Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994).

III.

In a state that, like Texas, provides a state or local

administrative mechanism to address complaints of employment

discrimination, a title VII plaintiff must file a charge of

discrimination with the EEOC within 300 days after learning of the

conduct alleged. 42 U.S.C. § 2000e-5(e)(1); see also Messer v.

Meno, 130 F.3d 130, 134 & n.2 (5th Cir. 1997). Huckabay did not

file with the EEOC within 300 days of much of the discriminatory

4
conduct he alleges, but he claims that under the “continuing

violation doctrine,” recognized by this court in Berry v. Board of

Supervisors, 715 F.2d 971 (5th Cir. 1983), his claims are timely,

nonetheless.

As we explained in Messer,

The continuing violation theory relieves a plaintiff
of establishing that all of the complained-of conduct
occurred within the actionable period if the plaintiff
can show a series of related acts, one or more of which
falls within the limitations period. . . . The core idea
of the continuing violations theory, however, is that
equitable considerations may very well require that the
filing periods not begin to run until facts supportive of
a Title VII charge or civil rights action are or should
be apparent to a reasonably prudent person similarly
situated. The focus is on what event, in fairness and
logic, should have alerted the average lay person to act
to protect his rights. At the same time, the mere
perpetuation of the effects of time-barred discrimination
does not constitute a violation of Title VII in the
absence of independent actionable conduct occurring
within the statutory period. Thus, a plaintiff can avoid
a limitations bar for an event that fails to fall within
the statutory period where there is a persisting and
continuing system of discriminatory practices in
promotion or transfer that produces effects that may not
manifest themselves as individually discriminatory except
in cumulation over a period of time.

130 F.3d at 134-35 (citations, quotation marks, and brackets

omitted). Although there is no definitive standard for what

constitutes a continuing violation, the plaintiff must demonstrate

more than a series of discriminatory acts. He must show an

organized scheme leading to and including a present violation, see

Berry, 715 F.2d at 981, such that it is the cumulative effect of

the discriminatory practice, rather than any discrete occurrence,

that gives rise to the cause of action, see Messer, 130 F.3d at

135; Glass, 757 F.2d 1561.

5
This inquiry may involve several factors, including the

following three:

The first is subject matter. Do the alleged acts involve
the same type of discrimination, tending to connect them
in a continuing violation? The second is frequency. Are
the alleged acts recurring . . .[3] or more in the nature
of an isolated work assignment or employment decision?
The third factor, perhaps of most importance, is degree
of permanence. Does the act have the degree of
permanence which should trigger an employee's awareness
of and duty to assert his or her rights, or which should
indicate to the employee that the continued existence of
the adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?

Berry, 715 F.2d at 981. Importantly, however, the particular

context of individual employment situations requires a

fact-specific inquiry that cannot easily be reduced to a formula.

Id.

Huckabay's specific allegations are that he was unlawfully

demoted because of his race, that he was kept from promotion

because of his race, and that he was forced to endure a racially

hostile work environment as a condition of his employment. Moore

argues that the continuing violation doctrine may apply only, if at

all, to the hostile environment claim, rather than to the specific

instances of demotion and failure to promote.4 We agree.

3
Berry gives the example of a bi-weekly paycheck as “recurring” acts, but
we specifically have held that the mere receipt of a paycheck does not constitute
a “continuing act” of discrimination. See Hendrix, 911 F.2d at 1104.
4
Moore also argues that Huckabay failed to raise the doctrine in the trial
(continued...)

6
There is little question that Huckabay's hostile environment

claim is subject to the continuing violation doctrine. The ongoing

racial harassment suffered by Huckabay was all of the same sort, it

was continual, and it was a permanent condition of his workplace.

Cf. Berry, 715 F.2d at 981. And the pattern of harassment was not

the kind of violation thatSSlike a discrete instance of

discriminatory conductSSwould put a worker on notice that his

rights had been violated. Id. While we need not decide whether

every hostile environment would necessarily be a continuing

violation, cf., e.g., Gipson v. KAS Snacktime Co., 83 F.3d 225, 229

(8th Cir. 1996), we conclude that the hostile environment faced by

Huckabay was.

That Huckabay was subjected to this continuing violation does

not, however, necessarily make timely all his allegations of

discriminatory conduct. Where it is applicable, the continuing

violation doctrine applies to excuse the 300-day exhaustion

requirement only as to the course of conduct that constitutes that

violation. We therefore must consider whether all the conduct

alleged by HuckabaySSthe hostile environment, the demotion, and the

failure to promoteSSmay be considered part of the same continuing

course of conduct. This, in turn, will depend on the basic test

for what conduct will constitute a continuing violation, as

(...continued)
court with respect to the promotion and demotion claims, and that he thus waived
it. This argument rises or falls on the basic applicability of the theory to any
given conduct, for if a course of conduct is a single cause of action, there is
no need to raise arguments with respect to every instance of conduct within the
continuing violation that gives rise to that cause.

7
articulated in Berry and other cases.

Huckabay's demotion is a different sort of discrimination from

the day-to-day harassment that makes his workplace a hostile

environment. Moreover, he was demoted only once, and unlike the

cumulative effect of the petty annoyances of daily harassment,

demotion is the sort of discrete and salient event that should put

an employee on notice that a cause of action has accrued. It does

not constitute a part of the same pattern of behavior that amounts

to a continuous violation by rendering Huckabay's workplace a

hostile environment.

Similarly, Moore's failure to promote Huckabay is an isolated

occurrence apart from the continuously violative hostile

environment. These discrete adverse actions, though racially

motivated, cannot be lumped together with the day-to-day pattern of

racial harassment, for they were isolated occurrences that should

have put Huckabay on notice that a claim had accrued. Therefore,

because these otherwise untimely claims are not continuing

violations, Huckabay cannot recover for his demotion or failure to

be promoted.

The remaining question with regard to the continuing violation

doctrine is whether Huckabay can point to any violation within the

300-day period. The doctrine will render a complaint timely as to

a course of conduct only if the complaint is timely as to the most

recent occurrence. See Coon v. Georgia Pac. Corp., 829 F.2d 1563,

1570 (5th Cir. 1987).

The district court stated that Huckabay's continuing violation

8
theory must fail, because he had offered no “specific evidence” of

conduct within the 300-day window. It is true that a plaintiff may

not survive summary judgment with conclusory statements that
5
discrimination is “ongoing.” And as always, the nonmoving party

must set forth specific facts that support his case. See, e.g.,

Hanks, 953 F.2d at 997.

Here we have specific and uncontradicted facts. Huckabay's

affidavit states, for example, “I am constantly ribbed and harassed

[by coworkers] for being white.” In his deposition, Huckabay again

uses the present tense when he states that he endures “constant

remarks” from his coworkers and that “[m]y wife says she can't talk

to me for an hour when I come home to eat supper.” The complaint

states, “[a]s recently as December 18, 1996, Plaintiff was required

by his African-American supervisor, Benjamin Okadigbo, to attend a

meeting at the courthouse, which Black employees were not required

to attend.”6 In the affidavit attached to his original EEOC charge

of discriminationSSand also made part of the district court's

recordSSHuckabay relates that he was “assigned to standing in the

rain on May 8, 1995,” while blacks were allowed to take shelter.

These specific facts, and others, support Huckabay's claim

5
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996) (en banc) (“[C]onclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”).
6
The facts put forth in a verified complaint may be treated as if in an
affidavit on summary judgment, if the asserted facts meet the requirements of
FED. R. CIV. P. 56(e) that they be within the personal knowledge of the affiant,
that they otherwise would be admissible into evidence, and that the affiant be
competent to testify. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,
831 F.2d 77, 80 (5th Cir. 1987); Fowler v. Southern Tel. & Tel. Co., 343 F.2d
150, 154 (5th Cir. 1965).

9
that he worked in a hostile environment during the 300 days prior

to his May 26, 1995, EEOC claim. Therefore, he may avail himself

of the continuing violation doctrine as to his hostile environment

claim.

The district court concluded that even if Huckabay's title VII

claims are not time-barred, he would lose on the merits, for he had

failed to make reference to the specific dates and times of alleged

discrimination. This was error. Rather, the point of a hostile

environment claim is that there is a continuous and ongoing pattern

of harassment, rather than an incident, the occurrence of which can

be precisely determined. Cf., e.g., Meritor Sav. Bank v. Vinson,

477 U.S. 57, 66-67 (1986). While dates and times may lend

credibility to the plaintiff's caseSSand their lack may seriously

undermine itSSthey are not, as a matter of law, a prerequisite to

recovery.7

Again, there is no doubt that vague or conclusory allegations

of discrimination or harassment are not enough to survive summary

judgment. See Douglass, 79 F.3d 1415, 1429. But that is not what

we are presented with. Here, we have the affidavits of Huckabay

and two of his co-workers in which they allege specific instances

of discrimination, including those described above. The summary

7
Nor does anything in the federal rules require more. In particular, FED.
R. CIV. P. 9(f), which addresses the pleading of time and place, “does not
require specificity in pleading time and place.” 2 JAMES W. MOORE ET AL., MOORE'S
FEDERAL PRACTICE § 9.07[1], at 9-35 (3d ed. 1997).

10
judgment evidence that Huckabay presents is more than enough to

allow his hostile environment claim to survive.

IV.

Huckabay named Moore a party in his official and individual

capacities. In essence, he argues that the plenary authority

wielded by county commissioners in Texas causes the individual

commissioners to be “employers” for title VII purposes, and thus

subject to liability.

A supervisor is considered an “employer” under title VII if he

wields the employer’s traditional rights, such as hiring and

firing. See Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990).

And a county commissioner such as Moore, who possesses almost total

executive authority within his precinct as well as legislative

authority as a member of the commissioners court, certainly wields

sufficient authority to be considered an employer.

This power is necessarily exercised, however, by a person who

acts as an agent of the corporate or municipal body he represents.

Because the wrongful acts are performed in his official capacity,

any recovery against that person must be against him in that

capacity, not individually. See id. at 227-28; see also Grant v.

Lone Star Co., 21 F.3d 649, 651-53 (5th Cir. 1994) (private

employer). Further, if Moore acted only in his individual

capacity, he did not act as an “employer” and would not be liable

under title VII to the extent that he acted individually. See

42 U.S.C. § 2000e-2 (1994); Grant, 21 F.3d at 653. Thus, a public

11
official cannot be held liable in his individual capacity for

backpay damages under title VII. See Clanton v. Orleans Parish

Sch. Bd., 649 F.2d 1084, 1099 (5th Cir. Unit A July 1981).

Huckabay asserts that a recent amendment to 42 U.S.C. § 1981

extends liability to Moore in his individual capacity. Under the

amended statute, 42 U.S.C. § 1981a(a)(1) (1994), in cases where

liability under § 1981 is unavailable under title VII, defendants

can be made liable for the same damages as would be available under

§ 1981SSnamely, compensatory and punitive damages. Thus, Huckabay

argues that under this section, Moore should be personally liable

for compensatory and punitive damages, for the cases foreclosing

personal liability under title VII speak only to the availability

of backpay awards from individual defendants. Cf., e.g., Grant,

21 F.3d at 651-53.

There is no merit to this argument. Section § 1981a does not

create a new substantive right or cause of action. Rather, the

plain language of the statute shows that it merely provides an

additional remedy for “unlawful intentional discrimination . . .

prohibited under . . . 42 U.S.C. § 2000e-2 or 2000e-3.” 42 U.S.C.

§ 1981a(1)(1). Those sections of title VII, then, provide the

underlying substantive right, a right that prohibits conduct only

by “employers,” “employment agencies,” and “labor organizations.”

See 42 U.S.C. §§ 2000e-2, 2000e-3. Huckabay does not claim

discrimination by either of the latter two, and our cases make

plain that the term “employer” does not include a hiring or

12
supervisory official in his personal or individual capacity.8

We agree with the district court that Huckabay's claim for

intentional infliction of emotional distress cannot withstand

summary judgment. Texas law permits recovery under this theory

only where the plaintiff's emotional distress is “severe.” See

Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). The severity

of distress is not merely a matter of damages, it is an element of

the cause of action. Hadley v. Vam PTS, 44 F.3d 372, 375 (5th Cir.

1995). “Severe” distress is that which no reasonable person could

be expected to endure, Behringer v. Behringer, 884 S.W.2d 839, 844

(Tex. App.SSFort Worth 1994, writ denied), and must be more than

mere worry, anxiety, vexation, embarrassment, or anger, Regan v.

Lee, 879 S.W.2d 133, 136 (Tex. App.SSHouston [14th Dist.] 1994, no

writ). Huckabay has failed to adduce any summary judgment evidence

that his distress was sufficiently severe, and his own deposition

shows that it was not.

Huckabay's claim under the Texas Constitution also fails. The

Texas Supreme Court has specifically rejected the implication of a

Bivens-type action for damages under the state constitution.9

8
See Grant, 21 F.3d at 651; Harvey, 913 F.2d at 227. See also Miller v.
Maxwell’s Int’l Inc., 991 F.2d 583, 588 n.2 (9th Cir. 1993) (rejecting argument that
§ 1981a altered title VII scheme to allow individual liability for compensatory and
punitive damages).
9
See City of Beaumont v. Bouillon, 896 S.W.2d 143, 149 (Tex. 1995).
Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).

13
Rather, the only remedy afforded by that constitution is equitable

relief from governmental actions taken in violation of its

dictates. Id. On appeal, Huckabay claims that he desires

equitable reliefSSnamely restoration to his previous position and

pay level of mechanic, rather than laborer. While he may indeed

desire such a result, his complaint requests only monetary

compensation.10 Huckabay’s claim for monetary relief under the

Texas Constitution is foreclosed as a matter of law.

VI.

Huckabay has presented a title VII hostile environment claim

with sufficient specificity to withstand summary judgment.

Further, because the alleged hostile environment is a continuing

violation, and because Huckabay has adduced summary judgment

evidence of certain specific violations that took place within the

300-day statutory period, the claim is not time-barred. But we

agree that summary judgment was proper as to all of Huckabay's

other claims and that Moore may not be held liable in his

10
Huckabay also claims that his complaint should be read as requesting
backpay, and that backpay can be considered equitable relief under Texas law.
He cites us to City of Austin v. Gifford, 824 S.W.2d 735 (Tex. App.SSAustin 1992,
no writ), which involved a claim for backpay under the Texas Human Rights Act,
which authorizes an “equitable award of back pay.” TEX. LABOR CODE ANN.
§ 21.001-.306 (West 1996).
This does not mean that backpay awards are equitable relief in the sense
that Huckabay suggests. The statute uses the term “equitable” to mean “fair and
just”; it does not use the term to mean “not legal.” Cf. O'Bryant v. City of
Midland, 949 S.W.2d 406, 413-14 (Tex. App.SSAustin 1997, writ granted)
(“officers' request for back pay for violations of their constitutional rights
is essentially an action at law”). See also, e.g., BLACK'S LAW DICTIONARY 537 (6th
ed. 1990) (“equitable” defined in both senses). Suits for damages are, by their
nature, suits at law, see O'Bryant, 949 S.W.2d at 413-14, and Bouillon,
896 S.W.2d at 149, made plain that the Texas Constitution does not give rise to
such suits for monetary relief.

14
individual capacity. We therefore REVERSE the summary judgment

only with respect to the hostile environment claim, AFFIRM in all

other respects, and REMAND for a trial on the merits.