Pfau v. Yellen ( 2022 )

Case: 22-50542 Document: 00516555386 Page: 1 Date Filed: 11/23/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50542
Summary Calendar FILED
November 23, 2022
Lyle W. Cayce
Marie Pfau, Clerk
Plaintiff—Appellant,
versus
Janet Yellen, in her official capacity as Secretary of
the Treasury,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-cv-422
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant, Marie Pfau, appeals the district court’s order to
grant Defendant-Appellee’s Rule 50(a) motion for judgment as a matter of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-50542 Document: 00516555386 Page: 2 Date Filed: 11/23/2022
No. 22-50542
law which the court granted after plaintiff presented her case. We find no
error and AFFIRM.
I. BACKGROUND
Pfau, formerly a seasonal clerk for the Internal Revenue Service
(“IRS”), filed suit against the Secretary of the Treasury alleging that her
employer engaged in sex and age discrimination and retaliation in violation of
Title VII of the Civil Rights Act and the Age Discrimination in Employment
Act of 1967 (“ADEA”). Specifically, Pfau claimed that certain actions of her
co-worker, Mario Drumgoole, constituted sex and age discrimination and
created a hostile work environment.
The district court partially granted the Government’s Rule 12(b)(6)
motion and dismissed Pfau’s age discrimination and retaliation claims under
Title VII and the ADEA. Pfau’s only remaining claim, sex discrimination
based on a hostile work environment, proceeded to trial on May 31, 2022. At
trial, Pfau testified generally that a co-employee, Drumgoole, frequently
spoke in an excessively loud manner to co-workers and to her which she
found disruptive and disturbing. More specifically, she testified about the
following six incidents involving Drumgoole that she believes constituted
harassment:
(1) Drumgoole “announced” to the office he was going to let everybody go
home because the department’s computer system was malfunctioning; (2)
Drumgoole “interjected himself” into Pfau’s conversation with her co-
worker, Margaret Rhoads; (3) Pfau overheard Drumgoole tell Rhoads that
Rhoads “was going to get a complaint filed against her for not working;” (4)
Pfau overheard Drumgoole and Rhoads reference “old people having sex;”
(5) Drumgoole “yelled” at Pfau to “get back to work right now;” and (6)
Pfau saw Drumgoole walking around the office “smack[ing] his fist into one
hand and grunt[ing].”
2
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No. 22-50542
At the close of Pfau’s case, the Government moved for judgment as a
matter of law pursuant to Rule 50(a). The district court granted the
Government’s motion, finding that Pfau had presented “simply no
competent evidence” to support the essential elements of her hostile work
environment claim. Pfau timely appealed.
II. DISCUSSION
On appeal, Pfau argues that the district court erred in granting the
Government’s Rule 50(a) motion. We review the district court’s grant of a
motion for judgment as a matter of law de novo, applying the same standard
as the district court. 1 Under this standard, “we view the entire trial record
in the light most favorable to the non-movant, drawing reasonable factual
inferences in its favor.” 2 Judgment as a matter of law is appropriate after a
party has been fully heard by the jury on a given issue, and “there is no legally
sufficient evidentiary basis for a reasonable jury to have found for that party
with respect to that issue.” 3
As an initial matter, Defendant-Appellee notes that Pfau forfeited her
challenge to the district court’s ruling on the sufficiency of the evidence by
failing to cite to the trial record in her brief. We agree. A party forfeits an
argument by failing to adequately brief it on appeal. 4 Federal Rule of
Appellate Procedure 28(a)(8)(A) requires an appellant’s brief to include the
“appellant’s contentions and the reasons for them, with citations to the
1
Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 392-93 (5th Cir. 2012).
2
Burch v. Coca-Cola Co., 119 F.3d 305, 313 (5th Cir. 1997) (citing Conkling v. Turner,
18 F.3d 1285, 1300 (5th Cir. 1994)).
3
Id.4
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
3
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authorities and parts of the record on which the appellant relies.” 5 In evaluating
the appeal of a judgment as a matter of law, this Court has previously noted
that it “cannot conduct meaningful appellate review of a district court’s
decision to grant judgment as a matter of law without the testimony that
would support or refute that determination.” 6
Here, Pfau failed to adequately brief her sufficiency of the evidence
argument because she does not cite to or analyze the evidence introduced at
trial as required by Rule 28. 7 Instead of citing to the trial record, Pfau’s
appellate brief cites exclusively to her original complaint and defendant’s
motion to dismiss. 8 But in a Rule 50(a) appeal, like this one, this Court must
evaluate the evidence adduced at trial, not assertions in the parties’
pleadings. 9 Thus, because Pfau’s brief fails to provide citations to any trial
5
Fed. R. App. P. 28(a)(8)(A) (emphasis added).
6
McNeil v. BMC Software Inc., 306 F. App’x 889, 892-93 (5th Cir. 2009) (per
curiam) (unpublished) (noting that plaintiff provided “no citations whatsoever to any trial
testimony in the appellate record”). Unpublished opinions issued in or after 1996 are “not
controlling precedent” except in limited circumstances, but they “may be persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
7
See Fed. R. App. P. 28(a)(8)(A); see also Conto v. Concord Hosp., Inc., 265 F.3d
79, 81 (1st Cir. 2001) (“Not surprisingly, the Federal Rules of Appellate Procedure require
that appellants, rather than the courts of appeals, ferret out and articulate the record
evidence considered material to each legal theory advanced on appeal.”).
8
For example, in support of the third element of her hostile work environment
claim, plaintiff’s brief cites to defendant’s motion to dismiss for the assertions that “other
members of the protected class reported harassment by Drumgoogle” and that Pfau
“observed that women were treated differently and negatively by Drumgoole.” In turn,
defendant’s motion cites to plaintiff’s original complaint for these assertions.
9
See Burch, 119 F.3d at 313 (noting that this Court reviews the “trial record” in
reviewing a judgment as a matter of law under Rule 50(a)).
4
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testimony that would provide a legally sufficient evidentiary basis to support
her claim for a hostile work environment, she has forfeited her challenge. 10
Moreover, even if plaintiff had adequately briefed her argument on
appeal, we nevertheless find that the district court correctly concluded that
there was no legally sufficient basis for a reasonable jury to find for Pfau on
her hostile work environment claim. Title VII makes it unlawful for
employers to require “people to work in a discriminatorily hostile or abusive
environment.” 11 To establish a hostile work environment claim, the plaintiff
must prove: “(1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment complained of was based on race;
(4) the harassment complained of affected a term, condition, or privilege of
employment; (5) the employer knew or should have known of the harassment
in question and failed to take prompt remedial action.” 12
After reviewing the evidence presented at trial in the light most
favorable to plaintiff, we conclude that Pfau has not presented sufficient
evidence to support the essential elements of her claim. Although Pfau
testified that she believes the six incidents she identified at trial constitute
harassment in violation of Title VII because “men were not insulted as [she]
was,” Pfau failed to introduce any evidence that would suggest these
10
See McNeil, 306 F. App’x at 892-93 & n.5 (holding that plaintiff waived her
challenge because she provided “no citations whatsoever to any trial testimony in the
appellate record” and that even if the court “were to consider the pre-trial affidavits and
depositions discussed in [plaintiff’s] appellate brief as if they were contained in a trial
transcript, . . . [plaintiff’s] claim would still fail”).
11
Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
12
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
5
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incidents were motivated by her sex. 13 To the contrary, as pointed out by the
Government, Drumgoole’s conduct was generally made in front of both male
and female coworkers. Moreover, the identified incidents were “offhand
comments” that were neither sufficiently severe nor pervasive to alter the
conditions of Pfau’s employment and create a hostile working environment. 14
Finally, plaintiff cannot establish that her employer failed to take prompt
remedial action because it is undisputed in the record that Pfau refused her
employer’s offer to relocate her workstation away from Drumgoole. 15
Accordingly, because Pfau failed to present competent evidence at trial to
meet the elements of her hostile work environment claim, the district court
committed no error in granting a judgment as a matter of law.
III.
For the reasons above, the district court’s judgment is AFFIRMED.
13
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that the
“critical issue” in cases alleging harassment on the basis of sex “is whether members of
one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed” (internal quotation marks omitted)).
14
See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]imple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.” (citation
omitted) (internal quotation marks omitted)); Hockman v. Westward Commc’n, LLC, 407
F.3d 317, 321, 329 (5th Cir. 2004) (noting that a co-worker’s comments to plaintiff “about
[a former employee’s] body and requests to be alone with [plaintiff] are offhand comments
that are boorish and offensive, but not severe” and that the co-worker’s “newspaper slap”
amounted to “simple teasing” (quoting Faragher, 524 U.S. at 788) (internal quotation
marks omitted)).
15
See Hockman, 407 F.3d at 330 (noting that a plaintiff “cannot prove that [her
employer] failed to take prompt remedial action where she unreasonably failed to take
advantage of corrective opportunities provided by [her employer]”).
6