Audibert v. Lowe's Home Centers, Inc. ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 05-60097
Summary Calendar
____________________
ANDREA AUDIBERT
Plaintiff-Appellant
v.
LOWE’S HOME CENTERS, INC
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Biloxi
No. 1:03-CV-306
_________________________________________________________________
Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Andrea Audibert filed this suit for
employment discrimination after her employer, defendant-appellee
Lowe’s Home Centers, Inc., fired her. Audibert now claims the
district court erred in granting Lowe’s motion for summary
*
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that this opinion should not be published and is not precedent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.
judgment. For the following reasons, we AFFIRM the judgment of
the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Andrea Audibert (“Audibert”) began work
as a Cabinet Specialist with defendant-appellee Lowe’s Home
Centers, Inc. (“Lowe’s”), in Gulfport, Mississippi, on February
22, 2002. During her first ninety days of employment, Audibert
worked with and was trained by Nancy Clingon (“Clingon”), another
Cabinet Specialist who was, by all accounts, one of the top
Cabinet Specialists in the region. After ninety days, Clingon
left on maternity leave, and Audibert worked with and was trained
by Tammy White, a Special Order Specialist at Lowe’s. On August
14, 2002, Lowe’s terminated Audibert’s employment.
Audibert filed suit on May 7, 2003, alleging that her
termination constituted unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ § 2000e et seq. [hereinafter “Title VII”]. Specifically, her
complaint alleged she was supervised by white males who failed to
provide her with adequate training, issued spurious disciplinary
reports, “stalked, watched, followed, spied on, talked to
differently, and harassed” her “throughout her tenure,” and
ultimately fired her on the basis of her sex. (Pl.’s Compl. at
3-5.) When this complaint was filed, Audibert was represented by
counsel.
2
Soon thereafter, and for the majority of all subsequent
proceedings, Audibert proceeded pro se. Unfortunately, Audibert
provided very little evidence to support her case before the
district court.1 In her briefs before this court, Audibert
suggests this dearth of evidence is due to unfair discovery
limitations. Audibert submitted at least five extremely broad
discovery requests, demanding the full records for several former
co-workers, biographical and statistical information for every
Lowe’s kitchen design employee “thru [sic] the entire United
States,” and “all things, all documents, all statements, all
knowledge of facts, sworn or unsworn, relating to this case.”
See, e.g., Pl.’s Fifth Disc. Req. at 5. With the permission of
the lower court, Lowe’s refused to comply with the majority of
these discovery requests.
On September 15, 2004, Lowe’s moved for summary judgment
pursuant to FED. R. CIV. P. 56. The district court granted this
1
Beyond her own conclusory allegations, the only piece of
evidence supporting Audibert’s case is a two-page affidavit
provided by Nancy Clingon on November 30, 2004. Clingon, who had
not been employed by Lowe’s for at least a year at the time of
the affidavit, stated that Audibert
was singled out for unwarranted criticism and
demeaning assignments by an inner circle of
males . . . . Ms. Audibert was targeted with
a concerted campaign to run her out of the
workplace by questioning her every action and
following up with repeated, bogus write-ups.
In contrast, male Cabinet Specialists . . .
were not exposed to these hostile conditions
. . . and received extensive training . . .
that was not offered to Ms. Audibert.
(Aff. of Nancy Clingon at 2.)
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motion on December 30, 2004, and issued a memorandum opinion and
order explaining its reasoning. Audibert filed a pro se notice
of appeal on February 1, 2005, one day after the deadline for
filing a timely notice of appeal. According to Audibert, she
missed this deadline due to her child’s serious medical problems.
On May 16, 2005, this court reinstated her appeal.
II. STANDARD OF REVIEW
The Supreme Court has held that “summary judgment is proper
‘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.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED.
R. CIV. P. 56(c)). We review “the grant of summary judgment de
novo, applying the same standard as the district court.” Pratt
v. City of Houston, 247 F.3d 601, 605-06 (5th Cir. 2001) (citing
Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000)).
III. DISCUSSION
Lowe’s argues that we should strike Audibert’s brief as
defective. Although her brief is lacking in many respects, we
decline to strike it entirely. We hold the pleadings and briefs
of pro se litigants and appellants “to less stringent standards”
than those “drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972); see also Calhoun v. Hargrove, 312 F.3d 730, 733-34
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(5th Cir. 2002) (noting that this court has long held that “‘pro
se complaints are held to less stringent standards than formal
pleadings drafted by lawyers’”) (quoting Miller v. Stanmore, 636
F.2d 986, 988 (5th Cir. 1981)).
However, “regardless of whether the plaintiff is proceeding
[pro se] or represented by counsel, ‘conclusory allegations or
legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.’” Taylor v. Books a
Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting S.
Christian Leadership Conference v. Sup. Ct. of the State of La.,
252 F.3d 781, 786 (5th Cir. 2001)). As the district court
correctly observed, Audibert’s conclusory allegations,
speculation, conjecture, and unsubstantiated assertions do not
satisfy her burden of proof and production. See, e.g., Grimes v.
Tex. Dep’t of Mental Health and Mental Retardation, 102 F.3d 137,
139-40 (5th Cir. 1996) (stating that “unsubstantiated assertions
are not competent summary judgment evidence”); Grizzle v.
Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)
(stating that an employee’s “own self-serving generalized
testimony stating her subjective belief that discrimination
occurred . . . . is simply insufficient to support a jury
verdict”).
In order “[t]o survive a motion for summary judgment, a
Title VII plaintiff” such as Audibert “must first establish a
prima facie case of discrimination by a preponderance of the
5
evidence.” Pratt, 247 F.3d at 606 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-804 (1973)). The district
court correctly recognized that Audibert’s conclusory allegations
fail to establish a prima facie case. See District Ct. Mem. Op.
and Order at 5-6 (stating that Audibert failed to prove the
second and fourth elements of a prima facie case of
discrimination).2
In her briefs before this court, Audibert suggests this
absence of evidence actually provides positive justification for
overturning the district court’s summary judgment. See, e.g.,
Appellant’s Reply Br. at 4 (stating that “we are asking the
Courts to deny Summary Judgment due to a lack of discovery
information”). This argument is entirely unfounded, and its
reasoning is exactly backward. We have repeatedly held that “a
2
To establish a prima facie disparate treatment case
under Title VII, Audibert needed to show “‘that she: (1) is a
member of a protected class; (2) was qualified for her position;
(3) was subject to an adverse employment action; and (4) . . .
that others similarly situated were treated more favorably.’”
Okoye v. Univ. of Tex. Houston Health Science Center, 245 F.3d
507, 512-13 (5th Cir. 2003) (quoting Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)).
Lowe’s conceded that Audibert satisfied the first and third
elements of a prima facie case. But Lowe’s contended, and the
district court correctly accepted, that “[b]ecause Audibert has
failed to provide any evidence that tends to show that she was
qualified for the position, she has failed to establish the
second element of a prima facie case.” (District Ct. Mem. Op.
and Order at 6.) Lowe’s also contended, and the district court
also correctly accepted, that Audibert “failed to establish this
[fourth] element” of a prima facie case because she “failed . . .
to identify any similarly situated male coworker who was treated
more favorably.” Id.6
summary judgment motion can be decided without any discovery.”
Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999)
(citing United States v. Bloom, 112 F.3d 200, 205 n.17 (5th Cir.
1997)). It is well established “that a plaintiff’s entitlement
to discovery prior to a ruling on a motion for summary judgment
is not unlimited, and may be cut off when the record shows that
the requested discovery is not likely to produce the facts needed
by the plaintiff to withstand a motion for summary judgment.”
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.
1990) (citing Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d
1017, 1029-30 (5th Cir. 1983)). Audibert’s overbroad discovery
requests were properly denied, and these denials furnish
absolutely no reason to overturn the district court’s decision.
Moreover, even if Audibert’s evidence sufficed to establish
a prima facie case, the district court correctly recognized that
she could not establish that Lowe’s stated reason for terminating
her was pretextual. Once an employer articulates a legitimate,
nondiscriminatory purpose for terminating an employee, the
employee must demonstrate that the employer’s purpose was a mere
pretext for prohibited discrimination. See, e.g., McDonnell
Douglas, 411 U.S. at 802-805 (stating that once the initial
burden of a Title VII prima facie case has been satisfied, and
the employer states a “legitimate, nondiscriminatory reason” for
the challenged action, the plaintiff must “demonstrate by
competent evidence that the presumptively valid reasons” given
7
for the challenged action “were in fact a coverup” for
discrimination); Pratt, 247 F.3d at 606 (stating that once a
prima facie case pursuant to Title VII has been established, and
the defendant articulates “some legitimate, non-discriminatory
reason for the challenged employment action,” the burden rests on
“the plaintiff to demonstrate that the articulated reason was
merely a pretext for discrimination”). Clingon’s affidavit, the
only substantive piece of evidence provided by Audibert, fails to
show that Lowe’s stated reason for terminating her was
pretextual.
Audibert attempted to use Clingon’s affidavit to establish
pretext by showing that male employees were given preferential
treatment under circumstances similar to her own. But even if
Clingon’s affidavit is accepted as true, it can only demonstrate
that these male employees were given preferential treatment
because they were not subjected to the same hostile conditions as
Audibert. To demonstrate that these male employees were given
preferential treatment in situations similar to her own, Audibert
needed to provide evidence that they engaged in misconduct nearly
identical to the misconduct for which she was allegedly
discharged. Alternatively, she needed to provide evidence to
show that she did not engage in the misconduct for which she was
allegedly discharged. Beyond her unsubstantiated assertions and
conclusory allegations, she failed on both counts, and therefore
the district court correctly recognized that she failed to create
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a fact issue about whether Lowe’s stated reason for firing her
was a pretext for discrimination. In her briefs before this
court, she provides no additional authority or argument to
overturn this decision.
IV. CONCLUSION
For the foregoing reasons, the decision of the district
court is
AFFIRMED.
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