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


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  •                                                       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. § 1983
    claim.    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    this opinion should not be published and is not precedent except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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