Frank v. Harris County , 118 F. App'x 799 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 15, 2004
Charles R. Fulbruge III
Clerk
No. 03-21025
YOLANDA FRANK,
Plaintiff-Appellant,
VERSUS
HARRIS COUNTY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas, Houston Division
(4:99-CV-2383)
Before BARKSDALE, GARZA and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:*
Plaintiff-Appellant Yolanda Frank (“Frank”), a former deputy
for Defendant-Appellee Harris County (the “county”), appeals the
district court’s summary judgment dismissal of her 42 U.S.C. § 1983claim. Frank also appeals the district court’s grant of judgment
as a matter of law on her Title VII quid pro quo harassment and
retaliation claims, 42 U.S.C. § 2000e et seq. We AFFIRM.
BACKGROUND
Frank was hired on February 1, 1997, to serve as a deputy
*
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this opinion should not be published and is not precedent except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.
constable, under the supervision of Constable A.B. Chambers
(“Chambers”), in the Absent Student Assistance Program division
(“ASAP”), a contract program with the Houston Independent School
District. Based on the affiliation with the school district, ASAP
employees were hired for a limited period of one school year and
let go at the end of each year. Employees submitted new employment
applications for each following school year. Accordingly, Frank
was terminated at the end of the year on May 11, 1998, and rehired
on July 29, 1998, for the 1998-99 school year. Once rehired, Frank
entered into a new 90-day probationary period, consistent with
policy. Frank was terminated on October 16, 1998, within the 90-
day probationary period. The parties dispute the reason for
Frank’s termination. Frank claims she was terminated for
rejecting, yet not reporting, the numerous sexual advances of
Constable Chambers. Frank describes at least six incidents of
unwanted and offensive sexual advances and touchings she endured
from Chambers. The county responds that Frank was terminated
because of some five incidents of insubordination or failure to
obey orders during her 90-day probationary period.
Frank filed suit against the county, alleging that Constable
Chambers sexually harassed her on the job and that she was
wrongfully terminated. The county filed a motion for summary
judgment as to all claims. The district court granted the county’s
motion for summary judgment on Frank’s § 1983 claim and denied
summary judgment as to the sexual harassment and retaliation claims
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arising under Title VII. By written memorandum and order, the
district court held that: (1) Frank was an employee of Harris
County; (2) Constable Chambers, as an elected official, was not an
employee of Harris County; (3) Frank failed to establish a genuine
issue of material fact as to whether the county had a well-settled
custom or policy causing her injury and therefore that summary
judgment was properly granted to the county on the § 1983 claim;
(4) a genuine issue of material fact precluded summary judgment as
to Frank’s sexual harassment claim on a quid pro quo theory; and
(5) a genuine issue of material fact precluded summary judgment as
to Frank’s retaliation claim.
The surviving Title VII claims were tried to a jury, and a
verdict was rendered for Frank in excess of $400,000. After the
jury returned its verdict, the county reurged its motion for
judgment as a matter of law under FED. R. CIV. P. 50, and the
district court granted the county’s motion by written memorandum
and order. The district court reiterated its prior determination
of the employment status of the individuals — that Frank was an
employee of the county and Chambers, as an elected constable, was
not an employee of the county. Then the district court granted
judgment as a matter of law to the county on both Frank’s quid pro
quo harassment claim and retaliation claim.
DISCUSSION
Frank argues that three issues require reversal and remand.
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As explained here, we disagree.
I. Summary Judgment Properly Entered on § 1983 Claim
First, Frank argues the district court erred in granting
summary judgment to the county on her § 1983 claim. This Court
reviews the grant of summary judgment de novo and uses the same
standard as does the district court in evaluating the motion,
examining the record in the light most favorable to the nonmovant,
here, Frank. See Duckett v. City of Cedar Park, 950 F.2d 272, 276
(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 issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In order for the county to be liable under § 1983, Frank must
show, among other things, either the unconstitutional action of
policymakers or an unconstitutional policy or custom. See Johnson
v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). The district court
correctly determined that Frank failed to raise a genuine issue of
material fact as to whether any official policy or custom governed
the alleged conduct and whether Chambers was the final policy
maker. See Rhode v. Denson, 776 F.2d 107 (5th Cir. 1985) (holding
elected constable not the final policymaker and therefore
unconstitutional acts of elected county official not chargeable
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against the county); see also Drain v. Galveston County, 979 F.
Supp. 1101 (S.D. Tex. 1997) (holding county cannot be held liable
for conduct of elected official constable under § 1983 because he
is not final policymaker).
Frank argues on appeal that her case is distinguishable from
those relied upon by the district court because Constable Chambers
admitted in deposition testimony that he was the final policymaker,
creating an issue that should have been submitted to the jury. The
county disputes that Chambers so testified and argues that, even if
he did, such testimony is merely a legal conclusion which is
contrary to established law. As a matter of law in this Circuit,
an elected county constable is not, absent specific facts not
present in this case, the final policymaker such that his
unconstitutional conduct may be chargeable against the county. See
Rhode, 776 F.2d at 109-10.
The determining factor, however, is neither that a constable
is elected by voters from a subunit of the County nor that the
commissioner's court controls his salary. The critical
circumstance is that . . . a constable . . . was not given
that discretion, or range of choice, that is at the core of
the power to impose one's own chosen policy. It is true that
a constable possesses a limited range of choice, which is
essential even to virtually ministerial tasks. But a
constable's range of choice is no greater than that, for
example, of a peace officer who must decide whether to arrest
for a misdemeanor committed in his presence.
Id. at 109.
Chambers’s testimony is not controlling on the issue of
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whether, as a matter of law, he was the final policymaker.
Moreover, Frank did not adduce evidence or argument, beyond this
testimony, to support a finding that an unconstitutional custom or
policy of sexual harassment existed. Because Frank failed to
submit a genuine issue of material fact on the question of whether
an unconstitutional custom or policy of sexual harassment existed,
the district court properly granted judgment to the county on the
§ 1983 claim.
II. Judgment as a Matter of Law on Frank’s Title VII Claims
Next, Frank appeals the district court’s grant of judgment as
a matter of law under Rule 50 as to her Title VII claims for both
quid pro quo harassment and retaliation. This Court reviews the
grant of a Rule 50 motion de novo, applying the same standards as
the district court applied and considering all the evidence in the
light most favorable to the jury’s verdict. Resolution Trust Corp.
v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993). “If during a trial
by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue, the court may determine the issue
against that party and may grant a motion for judgment as a matter
of law against that party.” FED. R. CIV. P. 50(a)(1).
A. Frank’s Title VII quid pro quo harassment claim
In determining that judgment should be entered for the county
on Frank’s Title VII quid pro quo harassment claim, the district
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court made several initial findings, each now challenged by Frank.
First, the district court found, initially on the motion for
summary judgment and again – but without new evidence – on the Rule
50 motion, that Frank was employed by Harris County. The court
applied the hybrid economic realities/control test as described in
Bloom v. Bexar County, 130 F.3d 722 (5th Cir. 1997), and per this
Court’s instruction, analyzed the control factor under Texas law.
Finding that the county exercises considerable control over
deputies (e.g., salary and benefit provisions, tax withholding, and
establishment of terms and conditions of employment), Frank was
correctly held to be an employee of Harris County for purposes of
Title VII.
Next, the court determined that Chambers was not employed by
the county, primarily because he is an elected official who is not
subject to the civil service laws of the state government. See 42
U.S.C. § 2000e(f). For purposes of Title VII, the Equal Employment
Opportunity Act of 1972 provides that elected officials are not
employees. Id. Frank argued to the district court and argues now
on appeal that the county can be liable for Chambers’s conduct –
irrespective of his employment status – because he was Frank’s
supervisor. For this proposition, Frank relies upon Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998). Burlington does not
support Frank’s argument in this regard because the supervisor in
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Burlington was an employee of the defendant employer, a private
corporation. 524 U.S. at 747. In Faragher, the Court considered
a governmental employer, but again, the supervisor was an employee.
524 U.S. at 780 (“This case calls for identification of the
circumstances under which an employer may be held liable under
Title VII . . . for the acts of a supervisory employee.”). Neither
case supports Frank’s position.
This Circuit has recognized that employers may be liable under
Title VII for the conduct of non-employees in the workplace when
the employer knows of the harassment but fails to act. Garziano v.
E.I. Du Pont de Nemours & Co., 818 F.2d 380, 387 (5th Cir. 1987).
Based upon Chambers’s status as a non-employee, Frank may state a
Title VII claim against the county for Chambers’s unconstitutional
and tortious conduct, only if the county knew or should have known
of the conduct and failed to take immediate and appropriate
corrective action. See 29 C.F.R. § 1604.11(e).
The district court found that Frank adduced no evidence of the
county’s knowledge. The district court, in its order regarding
summary judgment, believed that Frank filed her EEOC charge on
January 22, 1998, thereby permitting time for the EEOC and Texas
Commission on Human Rights to inform the county of the problem and
conduct investigation. But to the contrary, at trial the
undisputed fact emerged that Frank did not file her first complaint
regarding Chambers’s conduct until February 1999, four months after
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her employment ended. By Frank’s own testimony, she did not report
the offensive conduct until after her termination. Also, Frank did
not report the conduct to the human resources department, to any of
her supervisors, to the district attorney’s office, or to the
mental health program. Therefore, the district court’s original
assumption that the county had knowledge of the problem was
incorrect; and in the subsequent order regarding the Rule 50
motion, the district court corrected this inaccuracy.
Frank argues that another individual’s prior cause of action,
in which the plaintiff complained of Chambers’s conduct, Moore v.
Harris County, No. 98-01776 (S.D. Tex. filed June 5, 1998),
provided the requisite knowledge to the county to support quid pro
quo liability for a non-employee’s conduct. The district court
rejected this argument because Moore resulted in a judgment for
Chambers on the merits, and therefore did not advance Frank’s
argument, and because the evidence of the existence of other
complaints against Chambers was admitted solely for the purposes of
showing Chambers’s motive, opportunity, or intent to sexually
harass Frank.
Even if the county knows or should know of harassment once a
suit is filed and some evidence of harassment is presented, the
Moore case is, on this record, insufficient to reverse the judgment
for the county because no other evidence of the county’s knowledge
was presented and, most importantly, Frank does not argue that the
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testimony or depositions or other evidence presented in Moore put
the county on notice of Chambers’s conduct. Instead she merely
argues that the case’s existence is sufficient to provide notice.
We disagree. On this record, we affirm the district court’s
judgment as matter of law on Frank’s Title VII claim for harassment
by a non-employee.
B. Frank’s Title VII retaliation claim
The district court also entered judgment as a matter of law
for the county on Frank’s retaliation claim. To state a claim for
retaliatory discharge under Title VII, Frank must show that: (1)
she engaged in a protected activity; (2) the employer took an
adverse employment action against her; and (3) there was a causal
connection between the protected activity and that adverse
reaction. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d
512, 519 (5th Cir. 2001).
The court reversed the jury’s verdict on this claim because it
determined Frank failed to engage in a protected activity. A
protected activity is “opposition to any practice rendered unlawful
by Title VII, including making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under
Title VII.” Id. (citing 42 U.S.C. § 2000e-3(a) and Evans v. City
of Houston, 246 F.3d 344, 352-53 (5th Cir. 2001)). The district
court found that Frank, by her own testimony, did not participate
in a protected activity, that is, filing an EEOC complaint, until
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after her termination.
On appeal, Frank argues that the protected activity she
engaged in was her “express rejection” of Chambers’s sexual
advances. But Frank provides no authority for the proposition that
a single “express rejection” to Chambers constitutes as a matter of
law a protected activity for purposes of retaliation. Also, Frank
offers no explanation or evidence in support of the required
element of causal connection. To demonstrate causation, Frank must
adduce evidence that “but for” the protected activity, the adverse
employment action would not have occurred. See Mota, 261 F.3d at
519 (internal quotation marks and citations omitted). Frank fails
to explain on appeal, as below, how her opposition to Chambers’s
advances, which by her own testimony consisted largely of
unexpressed disapproval and was not reported to the county or the
EEOC prior to termination, caused her ultimate termination.
Therefore, we affirm the district court’s grant of judgment as
a matter of law on the retaliation claim.
CONCLUSION
Having fully considered the briefs, record on appeal and oral
arguments of the parties, we conclude the district court properly
entered judgment for the county on both the motion for summary
judgment and the motion for judgment as a matter of law.
AFFIRMED.
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