UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-30382
(Summary Calendar)
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RITA M. KENT,
Plaintiff-Appellant,
versus
THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE
OF NEW ORLEANS doing business as St. Ann
School,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CV-1505-N)
September 11, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Rita Kent contends that the district court erred in
determining that no triable issue existed over whether her former
*
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that this opinion should not be published and is not precedent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.
employer’s nondiscriminatory reasons for not rehiring her were
pretextual. We affirm.
I
Rita Kent worked as an elementary school teacher at St. Ann
School (“St. Ann”) for twelve years during the period from 1979 to
1994. St. Ann, which is owned and operated by the Roman Catholic
Church of the Archdiocese of New Orleans (“Archdiocese”), rehires
its teachers each year.
In 1984, doctors diagnosed Kent as suffering from chronic
venous stasis of the lower extremities, a condition that prevented
her from standing or walking for long periods of time. Kent’s
venous stasis worsened as she became pregnant with her fourth,
fifth, and sixth children, who were born, respectively, in 1989,
1992, and 1993. While pregnant with her fifth child, Kent did not
teach during the 1991-92 school year. She returned to St. Ann for
the 1992-93 school year but then left half way through when she
became pregnant with her sixth child. In January 1994, Kent’s
doctor released her to return to teaching. But Kent did not
immediately return to St. Ann because it was the middle of the
school year.
Monsignor Charles E. Duke, then pastor of St. Ann, was
apparently the ultimate authority at the school. However, based on
his deposition testimony, he seemed to leave the decision to hire
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or fire St. Ann teachers to the school’s principal. Susan Kropog
became principal at St. Ann starting with the 1994-95 school year.
Before that, Kropog had worked as a teacher at the school from 1980
to 1988 and as assistant principal from 1988 to 1994. As assistant
principal, Kropog supervised Kent and had the chance to watch her
teach. Early in 1994, Kropog told Kent that St. Ann would not
rehire her. Instead, Kropog planned to hire Stephanie Raziano, the
woman who had replaced Kent when she left during the 1992-93 school
year. Raziano, though, had already decided to move to another
state. Kropog then solicited fifty to seventy-five job
applications from qualified candidates for the position. From
these applications, Kropog hired Leslie Bruno, a woman with eleven
years of teaching experience whom Kropog considered better
qualified than Kent.
Subsequently, Kent sued the Archdiocese, alleging that St. Ann
violated the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and that St. Ann breached an oral contract under
Louisiana law. The district court then granted the Archdiocese’s
summary judgment on Kent’s ADA claim and declined to exercise
supplemental jurisdiction over Kent’s breach-of-contract claim
pursuant to 28 U.S.C. § 1367(c)(3).
II
We review a district court's grant of summary judgment de
novo. New York Life Ins. Co. v. The Travelers Ins. Co., 92 F.3d
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336, 338 (5th Cir. 1996). In doing so, we employ the same criteria
as the district court, and construe all facts and inferences in the
light most favorable to the nonmoving party. LeJeune v. Shell Oil
Co., 950 F.2d 267, 268 (5th Cir. 1992). Summary judgment is
appropriate where the moving party establishes that "there is no
genuine issue of material fact and that [it] is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). The moving
party must show that if the evidentiary material of record were
reduced to admissible evidence in court, it would be insufficient
to permit the nonmoving party to carry its burden of proof.
Celotex v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2554, 91 L.
Ed. 2d 265 (1986).
Once the moving party has carried its burden under Rule 56,
"its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citations omitted).
The opposing party must set forth specific facts showing a genuine
issue for trial and may not rest upon the mere allegations or
denials of its pleadings. FED. R. CIV. P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91
L. Ed. 2d 202 (1986).
III
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On appeal, Kent argues that the district court erred in
granting the Archdiocese’s motion for summary judgment.
Specifically, she asserts that the district court mistakenly found
that there was no genuine dispute of material fact over whether St.
Ann’s nondiscriminatory reasons for declining to rehire her were
pretextual.
The Supreme Court has established an elaborate three-prong
test))complete with shifting burdens of proof and persuasion))to
determine if a plaintiff can show an ADA violation. See generally
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
125 L. Ed. 2d 407 (1993); Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d
207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Only the third prong
is at issue in this appeal. Under this prong, the plaintiff must
demonstrate that the defendant’s articulated rationale was merely
a pretext for discrimination. Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 993 (5th Cir. 1996) (en banc). The plaintiff may do so
by coming forward either with direct or circumstantial evidence of
discriminatory intent. Williams v. Time Warner Operation, Inc., 98
F.3d 179, 181 (5th Cir. 1996). In sum,
a jury issue will be presented and a plaintiff can avoid
summary judgment . . . if the evidence taken as a whole
(1) creates a fact issue as to whether each of the
employer’s stated reasons was what actually motivated the
employer and (2) creates a reasonable inference that
[disability] was a determinative factor in the actions of
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which plaintiff complains. The employer, of course, will
be entitled to summary judgment if the evidence taken as
a whole would not allow a jury to infer that the actual
reason for the discharge was discriminatory.
Rhodes, 75 F.3d at 995 (emphasis added).
St. Ann offered two nondiscriminatory reasons for not rehiring
Kent. First, Kropog states that she thought that Bruno was better
qualified than Kent. Second, Kropog claims that, based on her ten
years experience working with or supervising Kent, she believed
that Kent had a poor attendance record and other professional
shortcomings. As support for this conclusion, Kropog averred that
(1) she had personal knowledge of Kent’s abilities as a teacher and
frequent absences and tardiness, (2) she was aware that a former
St. Ann principal had criticized Kent’s teaching, (3) Kent offered
to tutor students for pay after school, which Kropog regarded as
inappropriate, (4) Kent paced her social studies class too slowly,
(5) Kropog met with Kent in 1993 and told her that it was
unprofessional to discuss another teacher with a parent, that
Kent’s classroom pace was too sluggish, and that Kent might not be
challenging her students, and (6) Kropog believed Kent was an
“undesirable employee” and did not consider Kent’s disability in
deciding not to rehire her.
Kent cannot muster any direct proof of discriminatory intent.
However, she points to circumstantial evidence. First, Kent states
that her supervisors, including Kropog, gave her many favorable
written performance appraisals. Second, she claims that Kropog was
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willing to provide a positive, written evaluation to Kent after
declining to rehire her. Third, Kent notes that she had previously
been rehired almost a dozen times at St. Ann. Fourth, Kent avers
that the only school year in which she used up more than her
allotted number of sick days was 1989-90, and that she was rehired
twice more after that. Moreover, Kent asserts that Kropog admits
that the school did not keep track of tardiness, and Kent claims
that she was late to school just several times during her twelve
years at St. Ann. Fifth, while Kropog maintains that she did not
know about Kent’s disability, Kent claims that she told Kropog at
least three times about her health problems. Also, Father Duke
testified that he knew that Kent “wasn’t as well as she could be,”
and that “I would have been under the impression that with [Kent’s]
situation it might have been very difficult for her to come back
and teach” because of “[t]he number of children she had, the health
problems she had, et cetera . . . .” When asked by Kent’s attorney
whether Kropog “ever mention[ed] to you that [Kent’s] health
problems was [sic] one of the factors in not asking her to return
. . .,” Duke replied “[c]ould have been. I don’t remember.”
Sixth, St. Ann declined to rehire Kent for the school year
immediately after she had to leave St. Ann mid-year for health
reasons. Seventh, Kropog stated that a parent, Suzanne Cornibe,
visited her and told her that Kent had complained about another
teacher. However, Cornibe testified that she never spoke to
Kropog.
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We first consider St. Ann’s contention that Kropog decided not
to rehire Kent because she thought that Bruno was better qualified.
With regard to this proffered nondiscriminatory reason, Kent
offered the district court little, if any, evidence to suggest that
the reason was pretextual. In fact, Kent did not even present
Bruno’s St. Ann employment application to the court until after it
granted the summary judgment motion; Kent attached the employment
application to its motion to alter and amend the district court’s
judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure, and, on this basis, argued that Bruno “was not better
qualified than . . . Kent.”
The district court denied Kent’s motion to alter or amend the
judgment, but it did not mention Bruno’s employment application in
its order. We review the denial of a Rule 59(e) motion for abuse
of discretion. Batterton v. Texas Gen. Land Office, 783 F.2d 1220,
1225 (5th Cir.), cert. denied, 479 U.S. 914, 107 S. Ct. 316, 93 L.
Ed. 2d 289 (1986).
We have stated that Rule 59(e) “motions serve the narrow
purpose of allowing a party to correct manifest errors of law or
fact or to present newly discovered evidence.” Waltman v.
International Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)
(citation and internal quotation marks omitted); accord Southern
Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 n.16
(5th Cir. 1993); Simon v. United States, 891 F.2d 1154, 1159 (5th
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Cir. 1990). Kent concedes in her brief that the Bruno document is
not “newly discovered evidence.” We agree. And we also determine
that the district court did not make a manifest error of law or
fact warranting correction. Therefore, the district court did not
clearly err in denying Kent’s Rule 59(e) motion, and the Bruno
employment application is not part of the summary judgment record.
Since Kent failed to offer any evidence regarding Bruno’s
qualifications))or any proof about Kropog’s thoughts about or
relationship with Bruno))it is difficult to see how Kent can raise
a jury question over whether Kropog really believed that Bruno was
more qualified than Kent. In fact, in reviewing the record, it is
clear that Kent has not presented any evidence rebutting Kropog’s
asserted nondiscriminatory reason here, other than showing that
various St. Ann supervisors (including Kropog) used to regard Kent
as a good teacher and that some of Kropog’s statements about Kent
seem inconsistent with other proof. But Kent must do more than
offer evidence that people at St. Ann and elsewhere regarded her as
a competent teacher or that certain reasons that Kropog gave for
not rehiring her seem suspect. Rather, Kent must point to
sufficient proof in the record to permit a jury to infer that
Kropog really did not consider Bruno more qualified than Kent and
instead declined to rehire Kent because she suffered from chronic
venous stasis. This Kent has not done.
Therefore, after reviewing the evidence as a whole, we
determine that Kent has failed to create a genuine dispute of
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material fact that Kropog’s first stated nondiscriminatory reason
was merely a pretext for discrimination. Accordingly, the district
court did not err in granting St. Ann’s motion for summary
judgment.
AFFIRMED.
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Kent v. Roman Cath Church
Combined Opinion