Lewis v. 20th-82nd Jud Dist ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-50189
Summary Calendar
____________________
ELIZABETH T LEWIS,
Plaintiff-Appellant,
v.
20TH-82ND JUDICIAL DISTRICT JUVENILE PROBATION DEPARTMENT,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-98-CV-301)
_________________________________________________________________
July 29, 1999
Before KING, Chief Judge, and POLITZ and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Plaintiff-appellant Elizabeth T. Lewis appeals the district
court’s grant of defendant-appellee’s motion for summary judgment
on plaintiff-appellant’s claims that she was terminated because
of her national origin/race, sex, and age. She also appeals the
district court’s denial of two subsequent motions brought
pursuant to Federal Rules of Civil Procedure 59 and 60. We
affirm.
*
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this opinion should not be published and is not precedent except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.
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I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff-appellant Elizabeth T. Lewis, an Hispanic female
over forty years of age, worked as a probation officer in the
Cameron, Texas office of defendant-appellee 20th-82nd Judicial
District Juvenile Probation Department (defendant or the
Department). She was hired by Debra Dillenberger, the Chief
Juvenile Probation Officer for the Department, in September 1990.
Seven years later, in August 1997, Pete Ortega, Dillenberger’s
second-in-command, informed Lewis of her termination per
Dillenberger’s instructions.
According to Lewis, she was fired because of her national
origin/race, sex, and age. She filed a discrimination charge
with the Equal Employment Opportunity Commission in March 1998
and was issued a right to sue letter. Lewis thereafter filed a
complaint in the United States District Court for the Western
District of Texas, Austin Division, on June 25, 1998, alleging
violations of Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. §§ 621-634.
On December 11, 1998, defendant filed a motion for summary
judgment. Defendant’s summary judgment evidence consisted of the
affidavits of Dillenberger and Ortega and Lewis’s responses to
interrogatories. On January 7, 1999, defendant filed an
unopposed motion to extend the discovery deadline for the purpose
of awaiting the district court’s rulings on the motions currently
pending before the court. In its motion, defendant stated that
2
the expected rulings could obviate the need for depositions or
clarify the areas in which further discovery might be necessary.
The district court granted the motion on January 11, 1999, and
extended the discovery deadline until February 28, 1999.
On January 19, 1999, the district court granted defendant’s
motion for summary judgment and also entered a take-nothing
judgment in defendant’s favor. In ruling upon defendant’s
summary judgment motion, the district court reasoned that even if
Lewis had established the elements of her prima facie case, which
the court believed she had failed to do, Lewis had not carried
her burden of proving that defendant’s stated reasons for her
termination were a pretext for discrimination. According to the
court, defendant had articulated sufficient legitimate reasons
for Lewis’s termination and Lewis had not offered any evidence
beyond her own subjective beliefs that her termination was the
result of unlawful discrimination.
On February 2, 1999, Lewis filed motions pursuant to Federal
Rules of Civil Procedure 59 and 60, seeking a new trial and
relief from the judgment on the grounds that the district court
should consider evidence that was not previously available, that
the district court’s prior judgment was against the weight of the
evidence, and that discovery had yet to be completed at the time
of the district court’s ruling. The district court denied the
motions on February 12, 1999. On February 19, 1999, Lewis filed
her notice of appeal.
II. STANDARD OF REVIEW
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We review a district court’s grant of a motion for summary
judgment de novo, applying the same standards as the district
court. See Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998);
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
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 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). We review a
district court’s ruling on a Rule 59 or Rule 60 motion for abuse
of discretion. See Jones v. Central Bank, 161 F.3d 311, 312 (5th
Cir. 1998); Samaras v. America’s Favorite Chicken Co. (In re Al
Copeland Enters., Inc.), 153 F.3d 268, 271 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1251 (1999).
III. DISCUSSION
On appeal, Lewis contends that the district court erred in
granting summary judgment to defendant and in denying her Rule 59
and 60 motions because, according to Lewis, there was sufficient
evidence on the record, and in the additional affidavits
presented to the court in connection with her Rule 59 and 60
motions, to create a genuine issue of material fact as to whether
defendant had a legitimate, non-discriminatory reason for
terminating Lewis and whether discrimination motivated
defendant’s decision. She further contends that the district
court should have delayed its ruling on defendant’s summary
judgment motion until the close of discovery because deposition
4
testimony would have been helpful in clarifying the issues. We
examine each of the district court’s rulings in turn.
A. Summary Judgment Motion
To establish a case of discriminatory discharge under either
Title VII or ADEA, the plaintiff is first required to satisfy the
elements of a prima facie case under the applicable statute. See
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
2746-47 (1993); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992
(5th Cir. 1996) (en banc). Under Title VII, a prima facie case
consists of a showing that the plaintiff is a member of the
protected class, that she was qualified for the position from
which she was discharged, that she was discharged, and that the
employer filled the position after her discharge with someone
outside the protected class. See Hicks, 113 S. Ct. at 2747. To
establish a prima facie case under ADEA, the plaintiff must show
that she was discharged, that she was qualified for the position,
that she was within the protected class at the time of her
discharge, and that she was either replaced by someone younger or
otherwise discharged because of age. See Rhodes, 75 F.3d at 992;
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
Once the plaintiff has established a prima facie case, the burden
then shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the termination. See Hicks, 113 S. Ct.
at 2747; Rhodes, 75 F.3d at 992-93; Bodenheimer, 5 F.3d at 957.
If the defendant satisfies this burden, the plaintiff must prove
by a preponderance of the evidence that the defendant’s reasons
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are pretextual and that discrimination actually motivated the
termination. See Hicks, 113 S. Ct. at 2747-48; Rhodes, 75 F.3d
at 993-94; Bodenheimer, 5 F.3d at 957.
In its summary judgment motion, defendant presented
competent summary judgment evidence that Lewis’s poor performance
was the reason for her termination. Specifically, defendant
offered evidence describing a number of incidents in which, inter
alia, Lewis had failed to follow instructions, had failed to keep
appointments with probationers, was warned that her cases were
pending for too long, had failed to hold required meetings, had
attempted to deceive her supervisors about the fact that she had
failed to hold one particular meeting, and had misled her
supervisors about the status of an aggravated assault case.
Although Lewis challenges the validity of defendant’s
proffered reasons for her termination, as the district court
found, she has failed to present sufficient evidence from which
to conclude that defendant’s reasons for her termination are a
pretext and that discrimination actually motivated the
termination. Simply put, even if the reasons given are not the
real reasons defendant terminated Lewis, there is no evidence,
apart from Lewis’s assertions, that her national origin/race,
sex, or age lay behind her termination.
As evidence of national origin/race discrimination, Lewis’s
sole contention is that she is Hispanic and Dillenberger is
white. This is insufficient to establish pretext. See Hicks,
113 S. Ct. at 2747-48; see also Faruki v. Parsons S.I.P., Inc.,
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123 F.3d 315, 320 n.3 (5th Cir. 1997) (“Where . . . the same
actor hires and fires an employee, an inference that
discrimination was not the employer's motive in terminating the
employee is created.”) (citing Brown v. CSC Logic, Inc., 82 F.3d
651, 658 (5th Cir.1996)).
Similarly, Lewis has failed to put forth sufficient evidence
to establish that defendant terminated her because of her sex.
Her only contentions regarding this claim are that she received
word of her termination from a male, Ortega, that Ortega was
“resentful of [Lewis’s] professional reputation and professional
competence,” that “Ortega as a male felt a need to impose his
dominance as a male over [Lewis] in the workplace,” and that
Dillenberger and Ortega’s dislike of her husband, the county
attorney, caused them to target Lewis for discrimination. Even
were these conclusory assertions sufficient, the uncontradicted
summary judgment evidence establishes that it was Dillenberger,
not Ortega, who was responsible for the decision to discharge
Lewis.1 Therefore, Ortega’s alleged dislike of Lewis because of
her sex could not have influenced the decision to fire Lewis, and
there is no evidence that Lewis’s sex motivated Dillenberger, who
is herself a woman. See Faruki, 123 F.3d at 320 n.3; Brown, 82
1
Lewis argues that the summary judgment evidence does not
establish that Dillenberger made the decision to terminate Lewis
because Dillenberger’s own affidavit states “On August 12, 1997,
Mr. Ortega fired Mrs. Lewis.” However, Dillenberger’s affidavit
also states “On August 12, 1997, I instructed Pete Ortega . . .
to inform Mrs. Lewis that her employment with the Department was
terminated. This decision was made by me, and I had Mr. Ortega
communicate this to Mrs. Lewis because I was out of town.”
7
F.3d at 658.
Moreover, Dillenberger and Ortega’s alleged dislike of
Lewis’s husband does not establish that the Department’s decision
to terminate Lewis was based on Lewis’s sex. Although
discrimination against married women is unlawful under Title VII,
Lewis has presented no evidence that she was treated differently
than married men in her office were treated. See Coleman v. B-G
Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1203
(10th Cir. 1997) (“Title VII not only forbids discrimination
against women in general, but also discrimination against
subclasses of women . . . . [However,] the plaintiff must still
prove that the subclass of women was unfavorably treated as
compared to the corresponding subclass of men.”). At best,
Lewis’s allegations might establish that she was terminated
because her supervisors did not like her husband. However, Lewis
has presented no evidence from which to conclude that she was
terminated specifically because she is a married woman. See id.(“To be actionable, . . . gender-plus discrimination must be
premised on gender.”). In other words, Lewis has not shown that
it was her sex in addition to her marital status that motivated
her termination. Her claim of discriminatory discharge based on
her sex therefore fails.
Finally, Lewis has failed to put forth sufficient evidence
to establish that her age motivated defendant’s decision to
terminate her. Her only allegation with respect to this claim is
that defendant replaced her with someone younger than forty years
8
of age. Defendant counters that both Dillenberger and Ortega are
over the age of forty and that defendant employs a significant
percentage of workers who are over forty, and did so at the time
of Lewis’s employment. Lewis has failed to meet her burden of
presenting evidence from which a rational factfinder could infer
that age motivated her termination. See Rhodes, 75 F.3d at 994(“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.”).
In sum, “[i]t is more than well-settled that an employee's
subjective belief that he suffered an adverse employment action
as a result of discrimination, without more, is not enough to
survive a summary judgment motion, in the face of proof showing
an adequate non-discriminatory reason.” Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996).
Defendant has set forth sufficient non-discriminatory reasons for
Lewis’s termination and Lewis has failed to present evidence that
raises an inference that discrimination was the true motivation
for defendant’s decision. The district court therefore did not
err in granting defendant’s motion for summary judgment.
B. Rule 59 and 60 Motions
In bringing her motions under Rules 59 and 60, Lewis argued
that she had new evidence, not available previously, that would
lead the court to decide defendant’s summary judgment motion
differently. This evidence consists of three affidavits—Lewis’s
own affidavit, that of her husband, and that of a co-worker. In
9
ruling on a motion for a new trial, “[w]hen a party offers
alleged newly-discovered evidence, the district court should
consider whether the omitted evidence was available to the moving
party prior to the time for filing his response to the summary
judgment motion.” Becerra v. Asher, 105 F.3d 1042, 1047 n.20
(5th Cir.), cert. denied, 118 S. Ct. 82 (1997); see Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.
1990). Similarly, Federal Rule of Civil Procedure 60 allows for
relief from a judgment upon the movant’s proffer of newly
discovered evidence that could not have been discovered earlier.
See FED. R. CIV. P. 60(b) (“[T]he court may relieve a party . . .
from a final judgment, order, or proceeding for the following
reasons . . . (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial under Rule 59(b) . . . .”). Clearly, the three
affidavits proffered by Lewis—her own, her husband’s, and a co-
worker’s—were readily available to Lewis prior to filing her
response to defendant’s summary judgment motion. Lewis has made
no showing to the contrary. In any event, the affidavits contain
nothing that would raise an inference that defendant terminated
Lewis because of her national origin/race, sex, or age. Thus,
the district court did not abuse its discretion in denying
Lewis’s motions under Rules 59 and 60.
Lewis further contends that the district court should have
postponed its ruling on defendant’s summary judgment motion until
the completion of discovery because the deposition testimony of
10
Dillenberger, Ortega, and two state judges was necessary to
verify the affidavits submitted by the Department and “to explore
whether facts other than related by them were involved in the
case.” Defendant counters that it brought its unopposed motion
to extend the discovery deadline for the express purpose of
delaying oral depositions until after the district court had
ruled on the dispositive motions then pending before it.
We review a district court's decision to preclude further
discovery prior to granting summary judgment for abuse of
discretion. See Exxon Corp. v. Crosby-Miss. Resources, Ltd., 40
F.3d 1474, 1487 (5th Cir. 1995); Wichita Falls Office Assocs. v.
Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992). The party
seeking additional discovery must: “(1) request extended
discovery prior to the district court's ruling on summary
judgment, (2) place the district court on notice that further
discovery pertaining to the summary judgment is being sought, and
(3) demonstrate to the district court how the requested discovery
pertains to the pending motion.” Exxon Corp., 40 F.3d at 1487.
Lewis did not seek a continuance of the district court’s summary
judgment ruling, and, as the district court noted, she did not
identify what information might be revealed by further discovery
or how such information would support her claims or defeat
defendant’s summary judgment motion. Thus, the district court
did not abuse its discretion in deciding defendant’s summary
judgment motion prior to the close of discovery.
IV. CONCLUSION
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For the foregoing reasons, we AFFIRM the judgment of the
court, which granted summary judgment to defendant, and AFFIRM
the district court’s denial of plaintiff’s motions brought under
Rules 59 and 60 of the Federal Rules of Civil Procedure.
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