Ernst v. Methodist Hospital ( 2021 )

Case: 20-20321 Document: 00515892153 Page: 1 Date Filed: 06/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 8, 2021
No. 20-20321 Lyle W. Cayce
Clerk
James Ernst,
Plaintiff—Appellant,
versus
Methodist Hospital System,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-766
Before King, Smith, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Methodist Hospital System (“Houston Methodist”) fired James
Ernst after a job candidate alleged that Ernst had sexually harassed him.
Ernst sued Houston Methodist, alleging sex discrimination, retaliation, and
race discrimination under Title VII. The district court dismissed the sex dis-
crimination and retaliation claims, determining that Ernst had failed to
exhaust his administrative remedies. The court also granted summary judg-
ment on the race discrimination claim. We affirm.
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I.
Ernst worked as a Senior Transportation Analyst for Houston Metho-
dist from 2013 until his termination in 2016. The hospital fired him after a
job applicant alleged that Ernst had sexually harassed him. The candidate
complained that Ernst winked at him, grabbed and rubbed his own penis sug-
gestively, and nodded for the candidate to follow him around the corner to
the men’s room.
On receiving the complaint, Houston Methodist immediately
launched an investigation. The investigators interviewed Ernst the same day
that they received the complaint. Ernst denied any sexual harassment but
confirmed that he nodded to the candidate and conceded that he may have
“adjusted himself,” claiming that he sometimes does so “subconsciously.”
The investigators also interviewed several of Ernst’s colleagues and reviewed
video footage that provided at least some corroboration for the complaint.
The investigators interviewed Ernst a second time and determined
that he gave some inconsistent or otherwise doubtful answers. In addition to
the alleged harassment, the investigators listed “failure to perform his job
duties and responsibilities” as another reason for his termination, determin-
ing that, in the course of his interaction with the candidate, Ernst left the
Transportation Office unattended. On the basis of the investigation, the hos-
pital fired Ernst.
Ernst contested his termination under Houston Methodist’s internal
processes, ultimately appealing to all three levels of the hospital’s review sys-
tem. During his initial appeal, Ernst met with Sheila Coggins, the Director
of Human Resources. At Ernst’s behest, Coggins removed from his Docu-
mentation of Termination the allegation that he had failed to perform his
duties, but she did not overturn his termination for the alleged sexual harass-
ment. Hospital decisionmakers upheld the termination at both the second
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and third levels of internal appeal.
In June 2016, Ernst filed a charge-of-discrimination form with the
Equal Employment Opportunity Commission (“EEOC”). The charge form
included several boxes denoting various types of discrimination. 1 Ernst—
who describes himself as a gay, white man—checked just one box, indicating
that he suffered race discrimination. In the “particulars” field on the form,
Ernst briefly described his termination and alleged only race discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–
2(a)(1).
In addition to completing the charge form, Ernst filed an intake ques-
tionnaire with the EEOC, leveling more allegations. On that form, he
claimed sex discrimination because of his sexual orientation, age discrimin-
ation, and retaliation. Ernst also included his allegation of race discrimin-
ation, asserting that ninety percent of the employees in his department were
African-Ameridcan and that the hospital investigators were biased against
him, treating him less favorably than other employees because he is white.
The EEOC investigated but did not find that Houston Methodist had
racially discriminated. In December 2017, the EEOC issued a notice of dis-
missal, and Ernst received a right-to-sue letter.
Ernst sued, and in his amended complaint, he brought claims for sex
discrimination based on his sexual orientation, retaliation, and race discrim-
ination under Title VII. The district court dismissed the sex-discrimination
and retaliation claims, determining that Ernst had failed to exhaust his
administrative remedies. The court also granted summary judgment on the
1
The form includes boxes for a preparer to indicate that he or she suffered dis-
crimination because of color, sex, religion, national origin, age, disability, genetic condition,
or an unspecified (“other”) reason. It also includes a box for retaliation.
3
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race-discrimination claim, concluding that Ernst had failed to state a prima
facie claim and deciding that, in the alternative, he failed to show that Hou-
ston Methodist’s reasons for firing him were pretextual.
II.
A.
We review de novo a dismissal for failure to exhaust administrative
remedies. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017). “Title VII . . .
provides for private causes of action arising out of employment discrimina-
tion and gives federal courts subject matter jurisdiction to resolve such dis-
putes.” Davis v. Fort Bend Cnty., 893 F.3d 300, 303 (5th Cir. 2018), aff’d,
139 S. Ct. 1843 (2019). Before suing, a plaintiff must exhaust administrative
remedies by filing a charge with the EEOC within 180 days of the discrimin-
atory action. Id. (citing 42 U.S.C. § 2000e–5(e)(1)).
To exhaust, a plaintiff must file a timely charge with the EEOC and
then receive a notice of the right to sue. Taylor v. Books A Million, Inc.,
296 F.3d 376, 379 (5th Cir. 2002). Administrative exhaustion “is not a juris-
dictional requirement,” Stroy v. Gibson ex rel. Dep’t of Veteran Affs., 896 F.3d
693, 698 (5th Cir. 2018), but neither is it merely “a procedural ‘gotcha’
issue,” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 272 (5th Cir. 2008).
Instead, administrative exhaustion “is a mainstay of proper enforcement of
Title VII remedies,” id., and exists “to facilitate the [EEOC’s] investigation
and conciliatory functions and to recognize its role as primary enforcer of
anti-discrimination laws,” Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012).
To satisfy exhaustion, a claim generally must arise out of the plaintiff’s
EEOC charge. See id. That requirement relates to a key purpose of an
employment-discrimination charge, which is to give the employer notice of
the existence and general substance of the discrimination allegations. See
Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003).
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To exhaust, however, a claim need not always arise from the EEOC
charge form. In some circumstances, other documents can serve as a charge.
In Federal Express Corp. v. Holowecki, 552 U.S. 389, 405–07 (2008), the Court
determined that a sufficiently detailed and verified intake questionnaire suf-
ficed as a charge under the Age Discrimination in Employment Act. In
assessing whether a filing is a charge, the key question is whether “the filing,
taken as a whole, should be construed as a request by the employee for the
agency to take whatever action is necessary to vindicate her rights.” Id.
at 398. Holowecki’s holding “extends to Title VII,” and “a questionnaire
may qualify as a charge if it satisfies the EEOC’s charge-filing requirements.”
EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749, 753–54 (5th Cir. 2020)
(per curiam), cert. denied, 141 S. Ct. 1048 (2021).
EEOC regulations set the standards for Title VII charges. See id.at 753 n.5. An employee alleging discrimination under Title VII must submit
a charge to the EEOC. See 29 C.F.R. § 1601.7(a). That charge must “be in
writing and signed and . . . verified.” Id. § 1601.9. To satisfy the verification
requirement, a charge must be “sworn to or affirmed before a notary public,
designated representative of the [EEOC], or other person duly authorized by
law to administer oaths . . . or supported by an unsworn declaration in writing
under penalty of perjury.” Id. § 1601.3(a). Substantively, a charge must in-
clude the name and contact information of the person making the charge, the
same information of the accused individuals, a factual statement of the allega-
tions, the size of the employer, and disclosure of whether the allegations have
already been brought to a state or local agency. See id. § 1601.12(a).
B.
Ernst contends that, by alleging sex discrimination and retaliation in
his EEOC intake questionnaire, he exhausted administrative remedies. It is
undisputed that although the charge form included only an allegation of race
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discrimination, the intake questionnaire included allegations of sex discrimin-
ation on the basis of sexual orientation and retaliation.
Ernst avers that, under Holowecki, he exhausted his administrative
remedies because the intake questionnaire constitutes a charge. Ernst con-
tends that he identified the relevant parties and provided a statement of
alleged facts, identified relevant dates, and provided his and Houston Metho-
dist’s required information, thereby satisfying the charge requirements
under 29 C.F.R. § 1601.12(b).
Houston Methodist asserts that Ernst failed to exhaust. First, it posits
that the intake questionnaire fails to constitute a charge because it did not
satisfy the formal regulatory requirements, particularly because it was not
verified.2 Second, the hospital contends that Ernst failed to satisfy the charge
requirement—and, thereby failed to exhaust his administrative remedies—
because Houston Methodist did not receive notice of his sex-discrimination
and retaliation allegations during the EEOC investigation.
Ernst has failed to establish that he satisfied the EEOC verification
requirements for a charge. Although the record includes the statement of
facts he laid out in his questionnaire, it does not indicate that the ques-
tionnaire was signed and verified as required. See id. § 1601.9.3 An intake
2
Ernst contends that Houston Methodist waived any verification requirement
defense, citing Gad v. Kansas State University, 787 F.3d 1032, 1039 (10th Cir. 2015), for the
proposition that “when an employer files a response on the merits without identifying a
known verification defect, he foregoes the protection that the requirement affords—i.e., he
has waived any verification objection” (cleaned up). Houston Methodist raised the verifi-
cation objection early in the litigation, however, including it in its reply brief in support of
its motion to dismiss. There was no waiver.
3
In his reply brief on appeal, Ernst included an image of what appears to be his
signature on the intake questionnaire. As Houston Methodist contends—and Ernst con-
ceded at oral argument—that signature is not in the record. Because we may not consider
evidence produced for the first time on appeal, we do not take cognizance of the signature
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questionnaire that “is not verified as required by EEOC regulations . . . .
cannot be deemed a charge.” Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437,
443 (5th Cir. 2017).
Moreover, it is undisputed that Houston Methodist never received
notice of the intake questionnaire during the EEOC investigation. It first
learned of the sex-discrimination and retaliation allegations from Ernst’s
original complaint, to which Ernst attached his intake questionnaire. “One
of the central purposes of the employment discrimination charge is to put
employers on notice of ‘the existence and nature of the charges against
them.’” Manning, 332 F.3d at 878 (quoting EEOC v. Shell Oil Co., 466 U.S.
54, 77 (1984)). That rationale for the charge requirement is important
because, in addition to promoting fairness for the employer, it gives the
EEOC the opportunity to investigate and facilitate potential conciliation
before lawsuits ensue. See id.; Filer, 690 F.3d at 647.
The only charge of which Houston Methodist received notice was
Ernst’s race-discrimination allegation. Because the intake questionnaire was
not verified, and Houston Methodist did not receive notice of its additional
allegations during the EEOC investigation, Ernst failed to exhaust admin-
istrative remedies. The district court properly dismissed the sex-
discrimination and retaliation claims.
III.
A.
The district court granted summary judgment on the race-
shown in the brief. See, e.g., In re Deepwater Horizon, 739 F.3d 790, 798 (5th Cir. 2014).
Moreover, even if the signature were properly in the record, it would fail the verification
requirement because there is no indication that it was signed before a notary, an EEOC
representative or other authorized person, or under penalty of perjury. See 29 C.F.R.
§ 1601.3(a).
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discrimination claim for failure to establish a prima facie case. To establish a
prima facie claim for race discrimination under Title VII, a plaintiff must
show
“that he (1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was re-
placed by someone outside his protected group or was treated
less favorably than other similarly situated employees outside
the protected group.”
Stroy, 896 F.3d at 698 (cleaned up). If the plaintiff establishes a prima facie
claim, the burden shifts to the employer to offer a non-discriminatory reason
for the adverse action. See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 557
(5th Cir. 2007) (per curiam). If the employer offers such a reason, the burden
shifts back to the plaintiff to show that that reason is pretext for a discrimin-
atory purpose. See id.B.
There is no dispute that Ernst satisfied the first three elements; the
parties disagree on the fourth. Ernst has failed to show that he was replaced
or that a comparator received more favorable treatment, so summary judg-
ment was proper.
Ernst contends that Greg Cubit, another employee in his department
at Houston Methodist who is of another race, replaced him in his role.
Ernst’s contention fails because Cubit did not replace Ernst. Ernst asserts
that his role was offered to Cubit, but he does not allege that Cubit actually
replaced him. Moreover, Houston Methodist disputes that the hospital
offered Ernst’s job to Cubit; it correctly points out that Ernst’s assertion is
unsubstantiated and speculative.4 Instead, Houston Methodist avers that
4
Cf. Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (stating that “unsub-
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Ernst’s duties were divided among other employees within his department.
“An employee has not been replaced when his former duties are distributed
among other co-workers.”5 Thus, Ernst has not established that he was
replaced by someone outside his protected class.
Ernst contends that, even if he was not replaced, he satisfies the fourth
element because he was treated less favorably than Cubit. To satisfy the
fourth element, a plaintiff must point to a comparator who was “similarly
situated” and received more favorable treatment. See Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009). The plaintiff “must establish that the
comparator was treated more favorably than the plaintiff under nearly identi-
cal circumstances.” Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 410
(5th Cir. 2016) (cleaned up). “The employment actions being compared will
be deemed to have been taken under nearly identical circumstances when the
employees being compared held the same job or responsibilities, shared the
same supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories.” Lee, 574 F.3d
at 260.
Ernst fails to establish that Cubit was a similarly situated comparator.
stantiated assertions will not satisfy the plaintiff’s burden” to withstand a motion for sum-
mary judgment”).
5
Griffin v. Kennard Indep. Sch. Dist., 567 F. App’x 293, 294–95 (5th Cir. 2014) (per
curiam) (cleaned up). Ernst points to Young v. Harris Health Care, Inc., No. 99-30186, 2000
WL 1029180, at *3 (5th Cir. July 14, 2000) (unpublished), in which we determined that a
plaintiff had established a prima facie case of age discrimination where her role was restruc-
tured, and her responsibilities were all absorbed by younger employees. But as an unpub-
lished case, it is not binding. Moreover, it is distinguishable because, in Young, the plaintiff
established that all the individuals to whom her responsibilities were allocated were “sub-
stantially younger” than was she. Id. Houston Methodist has produced evidence that at
least one employee besides Cubit absorbed some of Ernst’s job responsibilities, and there
is no information in the record regarding her race.
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First, Ernst testified that, although Cubit was a Transportation Analyst,
Ernst was a Senior Transportation Analyst, and the two positions entailed
different responsibilities. Second, Ernst implicitly conceded that he and
Cubit did not “share[] the same supervisor,” id., because he testified that he
served as Cubit’s supervisor. Third, although Ernst complains that Cubit
received more favorable treatment from Houston Methodist, that allegation
is undermined by the fact that Cubit was also later terminated for alleged
misconduct. The district court correctly determined that Ernst failed to
establish a prima facie case of race discrimination, and summary judgment
was proper.
AFFIRMED.
10