Timberlake v. Teamsters Local Union Number 891 , 428 F. App'x 299 ( 2011 )

Case: 10-60632 Document: 00511502833 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-60632 Lyle W. Cayce
Clerk
MICHELLE TIMBERLAKE,
Plaintiff–Appellant,
v.
TEAMSTERS LOCAL UNION NUMBER 891; ROADWAY EXPRESS,
INCORPORATED; WAYNE PHILLIPS, in both his individual and official
capacities,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:08-CV-91
Before DAVIS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Michelle Timberlake filed suit against Roadway Express, Inc., the
Teamsters Local Union Number 891, and Wayne Phillips. Roadway Express was
her employer, the Teamsters her union, and Phillips a union supervisor.
Timberlake alleged racial and sexual harassment, racial and gender
discrimination, unlawful retaliation, breach of contract, intentional infliction of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-60632 Document: 00511502833 Page: 2 Date Filed: 06/08/2011
No. 10-60632
emotional distress, defamation, and false light. The United States District Court
for the Southern District of Mississippi granted summary judgment in favor of
Roadway Express, the Teamsters, and Phillips. Timberlake appealed. Pursuant
to 28 U.S.C. § 1291, our jurisdiction is properly vested over an appeal of a final
judgment.
Timberlake proceeds pro se on appeal. In light of her pro se status, we
interpret her “brief liberally to afford all reasonable inferences which can be
drawn from” it.1 That said, we have nonetheless observed that it is important
for such pro se appellants to include “‘citation to the authorities, statutes and
parts of the record relied on’” in their briefs.2 In short, “‘[a]lthough we liberally
construe the briefs of pro se appellants, we also require that arguments must be
briefed to be preserved.’” 3
Timberlake appears to assert error in the grant of summary judgment
with respect to her harassment claims, her retaliation claims, and her
discrimination claims. She argues that issues of material fact remain, and that
summary judgment was improperly granted as a result. Her briefing on this
point, however, suffers from the absence of citations indicating the locations in
the record of these purported material facts.
Timberlake has included only five citations to the record in her “Facts”
section. She cites to her own unsworn letter describing the conduct of a fellow
driver, yet unsworn documents are not appropriate evidence to consider on a
1
Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d 937,
941 n.4 (5th Cir. 2010).
2
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Weaver v. Puckett, 896
F.2d 126, 128 (5th Cir. 1990)).
3
Id. (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)).
2
Case: 10-60632 Document: 00511502833 Page: 3 Date Filed: 06/08/2011
No. 10-60632
motion for summary judgment.4 She offers a partial citation regarding her fight
with a different fellow driver. She only indicates, however, that the relevant
evidence is within the record, while failing to provide a page. She also cites to
her own deposition statement that another driver told her that he had heard
others discussing a plan to fire her. This—the statement of another offered for
the truth of the matter asserted—constitutes hearsay,5 and deposition hearsay
is not competent summary judgment evidence.6 She further offers a typed
account of her interactions with various Roadway employees, yet—as discussed
above—unsworn statements are not competent evidence insofar as Timberlake
seeks to establish the truth of the matter asserted.7 Finally, she purports to cite
to a favorable ruling from the EEOC in this matter, but the pages referenced
appear, instead, to be pay stubs.
Similarly, in the “Argument” section of her brief, Timberlake has included
only a single citation to the record. That reference is purportedly to the district
court opinion, although the opinion is not located at the listed pages. As a result,
neither the “Facts” nor “Argument” sections of the brief include citations to
relevant facts that could overcome summary judgment. We have recognized that
when an appellant fails to provide “the reasons [s]he deserves the requested
relief with citation to the authorities, statutes and parts of the record relied on,”
that failure constitutes waiver.8 The need for such a linkage between relevant
4
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per
curiam).
5
FED . R. EVID . 801.
6
Martin, 819 F.2d at 549.
7
Id.8
Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (quoting Hughes v.
Dretke, 412 F.3d 582, 597 (5th Cir. 2005)); see also FED . R. APP . P. 28(a)(9)(A) (requiring an
appellant’s argument section to contain her “contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies”).
3
Case: 10-60632 Document: 00511502833 Page: 4 Date Filed: 06/08/2011
No. 10-60632
legal arguments and specific facts in the record is heightened by our inability to
consider facts outside the summary judgment record on appeal.9 This further
precludes Timberlake’s express desire for this court to consider new evidence.
As a result of the defects in her brief, she has waived her contention on appeal
that an issue of material fact precludes the grant of summary judgment.
Timberlake appears to argue that reversal is also required because of the
district court’s purported misapplication of “Pegran v. Honevwell Inc. [sic].” She
contends that the district court improperly quoted a section of that opinion
discussing transfers as adverse employment actions, whereas the instant case
involved a firing and rehiring. That said, the district court’s opinion does not
appear to have quoted our decision in Pegram v. Honeywell, Inc.,10 and the
citation Timberlake provided to the record leads to her own deposition
testimony. Further, Timberlake’s analysis of the case is limited to her claim that
the “quoted language” is inapplicable to the instant factual posture. Thereafter,
she does not go beyond her conclusory statement that her temporary termination
constituted an adverse action—declining to cite to case law or statutory
authority. As she has failed to direct the court to the purportedly erroneous
application of the law by the district court and to offer a legal argument
providing the reasons—in lieu of a conclusory assertion—for which she should
be granted relief, her claim is waived.11 Alternatively, we observe that
Timberlake has cited to Pegram’s discussion of adverse employment actions for
discrimination claims.12 The district court also noted that Timberlake had failed
9
Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (per
curiam).
10
361 F.3d 272 (5th Cir. 2004).
11
Hinojosa v. Butler, 547 F.3d 285, 291 n.2 (5th Cir. 2008).
12
361 F.3d at 282.
4
Case: 10-60632 Document: 00511502833 Page: 5 Date Filed: 06/08/2011
No. 10-60632
to adduce evidence that she had been treated less favorably than similarly
situated employees who were not members of her protected class. Nonetheless,
Timberlake does not argue legal error with respect to that element of our
standard, which is also required to prove discrimination.13
Timberlake additionally includes a discussion of “[p]rescription” in her
brief. Any argument of error on this point is unavailing, however, as her case
was not dismissed on the grounds of prescription.
Timberlake further states that papers were “filed fraudulently” in the
district court, permitting the substitution of law firms when her attorney moved
his practice. Timberlake’s attorney, Kevin White, submitted a motion to
substitute counsel of record, stating that “[a]n understanding has been reached”
between Timberlake and White that his new firm would be substituted for his
prior firm. We have previously noted the district court’s “broad discretion” in
evaluating motions to withdraw.14 Insofar as Timberlake asserts error in
permitting this substitution of counsel, her contention is unavailing.
Liberally construing her brief, Timberlake appears to argue that the
purported deficiencies of her counsel are relevant to reversal of the summary
judgment. To the extent that Timberlake seeks to assert a constitutional right
to effective counsel, no such right exists in this civil context.15 Even assuming,
arguendo, that her attorney did mishandle her case, we have recognized that
such an appellant’s cause of action against her attorney “remains separate and
13
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (requiring an employee
alleging racial discrimination to show “that (1) he is a member of a protected class, (2) he was
qualified for the position at issue, (3) he was the subject of an adverse employment action, and
(4) he was treated less favorably because of his membership in that protected class than were
other similarly situated employees who were not members of the protected class, under nearly
identical circumstances”).
14
Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658, 664 (5th Cir. 1996); see
also Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994).
15
Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986) (per curiam).
5
Case: 10-60632 Document: 00511502833 Page: 6 Date Filed: 06/08/2011
No. 10-60632
distinct” from the underlying suit, and “therefore, we cannot grant h[er] any
relief” on appeal.16
* * *
We AFFIRM.
16
Id.6