Mauritz v. Lynn ( 2023 )

Case: 22-60371 Document: 00516729857 Page: 1 Date Filed: 04/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 27, 2023
No. 22-60371 Lyle W. Cayce
Clerk
Nena Mauritz; Matthew Mauritz,
Plaintiffs—Appellants,
versus
Scott Lynn; Hattiesburg Clinic, P.A.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC 2:20-CV-184
Before Stewart, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Nena Mauritz, an employee at the Hattiesburg Clinic (the “Clinic”),
and her husband, Matthew Mauritz, sued Dr. Scott Lynn and the Clinic,
alleging intentional infliction of emotional distress against Dr. Lynn; assault
and battery against Dr. Lynn; negligence against the Clinic; loss of
consortium against Dr. Lynn and the Clinic; and claims against the Clinic
under the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq.
(“ADA”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60371
et seq. (“Title VII”) for discrimination and harassment based on Nena’s 1
disability and her sex. The district court granted in part the Clinic’s motion
for summary judgment, dismissed Nena’s claims under Title VII and the
ADA, and declined to exercise supplemental jurisdiction over Nena and
Matthew’s state law claims. The case was remanded to state court, and Nena
appealed.2
I.
Nena Mauritz has worked at the Clinic since 2009. From 2010 until
2019, she worked in the Clinic’s neurology department; she transferred to
the endocrinology department in 2019. Nena also suffers from multiple
sclerosis, and has been a patient at the Clinic since 2007. During her time
working in the neurology department, Nena was harassed and discriminated
against by a doctor in the department, Dr. Scott Lynn.
Beginning around 2012 or 2013, Dr. Lynn started calling Nena
“Swiss-cheese brain,” referencing her disability. This comment continued
throughout her employment in the neurology department, and eventually Dr.
Lynn called Nena “Swiss-cheese brain” whenever she made a mistake. In
spring 2015, Dr. Lynn said that Nena was “prostituting herself out” in front
of two pharmaceutical representatives. Dr. Lynn told another employee to
tell Nena “[f]*** you” when that employee next saw Nena.
On May 8, 2015, Nena met with Joy Yates, a Clinic administrator,
about Dr. Lynn’s conduct. On May 26, 2015, Dr. Lynn remarked to Nena
that Nena’s daughter would “get pregnant when she is 17 or 18 and then
1
Because Nena and her husband share the same last name, we refer to Nena
Mauritz as “Nena” and Matthew Mauritz as “Matthew.”
2
Scott Lynn and the Clinic subsequently appealed the district court’s decision to
decline to exercise supplemental jurisdiction over the state law claims. That appeal is not
before us.
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[Nena would] have a baby to love,” which Nena stated was a reference to her
inability to have more biological children. Following the May 26, 2015,
comment, Nena met with Yates and the Clinic’s executive director, Tommy
Thornton, on May 27, 2015. Nena told Thornton “about names [she] was
called and things [ ] Dr. Lynn had said about [Nena’s] daughter.” Nena
expressed some trepidation with Dr. Lynn “knowing anything about [her]
talking with the administration,” but she asked for assistance to be
transferred out of the neurology department, because she did not think that
Dr. Lynn would “let her leave.” Thornton stated that Dr. Lynn would not
be allowed to retaliate, and asked if Nena would be willing to stay for six to
eight weeks in the neurology lab.
After being informed that Nena planned to transfer departments, Dr.
Lynn created an assistant manager position within the neurology department.
Clinic administration informed Nena that the new position would involve less
contact with Dr. Lynn. Although Nena interviewed for four different jobs
within the Clinic, she either was not offered a position or removed herself
from consideration for the job. During this time, Nena felt that she was being
“manipulated” by Clinic administrators, because there had been “no effort”
to “assist in transferring [her] out of the [neurology] department.” In
October 2015, Nena took the assistant manager position within the neurology
department.
On November 3, 2015, Dr. Lynn texted Nena a picture of Nena from
college, where Nena’s midriff was showing; Dr. Lynn also showed the
picture to other employees within the department, “taunt[ed]” Nena with
it, and refused to delete it after Nena asked him to. On other occasions, Dr.
Lynn would call Nena “out in front of people when [she] was not wearing
heels to work,” because “Dr. Lynn knew [Nena] had balance and gait issues
from MS.” In May 2016, Dr. Lynn touched a button on Nena’s shirt and
pressed on her left breast. At one point in July 2017, Dr. Lynn commented
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that Nena’s “high-cost drugs” were increasing the Clinic’s healthcare costs;
on a different occasion, Dr. Lynn handed Nena a plastic bag and told her to
put the bag over her head and to take a deep breath. The next month, after
Nena got her words mixed up while talking to Dr. Lynn, he asked Nena
“[W]hat’s wrong with you?” and then stated, “[N]ever mind, we all know
you have something wrong with your brain.” During this time, Nena met
with Yates monthly, and brought up her issues with Dr. Lynn’s behavior,
although she told Yates not to directly confront Dr. Lynn. However, Nena
believed that Dr. Farrell, another Clinic doctor, would speak to Dr. Lynn
about his behavior, and keep Nena out of the spotlight by focusing on Dr.
Lynn’s treatment of a former employee, Kristen Fischer.
On July 16, 2019, when Nena was standing in the doorway of another
employee’s office, with her back to the door, Dr. Lynn pushed her. Nena was
able to catch herself on a chair. When she turned to her right, she saw Dr.
Lynn walking past her, putting his arms out, and saying, “I’d love to see
lopsided Nena fall.” Nena told her co-worker Julia Starrett about the
incident. On July 25, Kristy Gould spoke with Nena. Nena said that she was
“not interested in pursuing anything because [she] had no faith in [the]
administration[.]” However, in August 2019, after Starrett reported Dr.
Lynn’s conduct to Clinic administration through a third-party survey, the
Clinic investigated the July 16, 2019, pushing incident. The Clinic Board of
Directors suspended Dr. Lynn for a week, withheld one month of his salary,
required him to complete an independent, professional behavioral counseling
program, and required him to participate in ongoing outpatient therapy.
After further investigation, the Clinic imposed additional penalties, including
moving Dr. Lynn’s practice away from the main Clinic building and requiring
him to pay the costs of the investigation and any monetary settlement paid.
Nena was placed on administrative leave with pay, and she interviewed for
and accepted a manager position in the endocrinology department. After the
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July 16, 2019, pushing incident, Nena did not suffer any further harassment.
Nena filed an EEOC charge on January 13, 2020, alleging that Dr.
Lynn verbally, physically, and sexually harassed her. She received a Notice
of Right to Sue on January 28, 2021. On July 2, 2020, Nena and Matthew
filed suit against Dr. Lynn and the Clinic in Mississippi state court, for claims
arising out of the multiple incidents of alleged harassment by Dr. Lynn. The
Clinic removed the case to federal court on October 2, 2020. On May 18,
2021, Nena and Matthew filed an amended complaint, alleging the following:
intentional infliction of emotional distress against Dr. Lynn; assault and
battery against Dr. Lynn; negligence against the Clinic; loss of consortium
against Dr. Lynn and the Clinic; and claims against the Clinic under the ADA
and Title VII for discrimination and harassment based on Nena’s disability
and her sex. The district court granted the Clinic’s motion for summary
judgment as to Nena’s ADA and Title VII claims, reasoning that Nena failed
to carry her burden of proving that the Clinic failed to take prompt remedial
action as to her ADA claim, and that her Title VII claim was untimely because
she failed to point to a specific act of sexual harassment that occurred during
the 180-day limitations period.
II.
This court reviews a district court’s decision to grant summary
judgment de novo, using the same standards the district court used to decide
the motion. See Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir.
2016). Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “A dispute as to a material fact
is ‘genuine’ if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Boudreaux v. Swift Transp. Co., 402 F.3d
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536, 540 (5th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
250, 251–52 (2015)).
III.
A. Nena’s ADA Claim
Under 42 U.S.C. § 2000e-5(e)(1), a charge of discrimination must be
filed within 180 days “after the alleged unlawful employment practice
occurred.” See 42 U.S.C. § 2000e-5(e)(1); Waltman v. Int’l Paper Co., 875
F.2d 468, 474 (5th Cir. 1989). The 180-day period for filing an EEOC charge
“begins to run from the time the complainant knows or reasonably should
have known that the challenged act has occurred.” Vadie v. Miss. State Univ.,
218 F.3d 365, 371 (5th Cir. 2000) (citations omitted). Nena filed her EEOC
charge on January 13, 2020, so only acts that occurred on or after July 15,
2019, fall within the statutory time period.
Unlike an intentional discrimination claim, however, which focuses
on a specific discriminatory act, “a hostile environment claim arises from the
‘cumulative effect of individual acts,’ some of which ‘may not be actionable
on [their] own.’” Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 583–84 (5th
Cir. 2020) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002)). “That means that ‘the filing clock cannot begin running with the
first act, because at that point the plaintiff has no claim; nor can a claim expire
as to that first act, because the full course of conduct is the actionable
infringement.’” Id. at 584 (quoting Heath v. Bd. of Supervisors for Agric. &
Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017), as revised (Mar. 13, 2017)).
Therefore, if “an act contributing to the claim occurs within the filing period,
the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.” Morgan, 536 U.S. at 117.
The continuing violation doctrine applies here because Nena points to
a pattern of conduct related to her disability beginning in 2012 and continuing
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until the July 16, 2019, pushing incident. Because the July 16, 2019, pushing
incident occurred within the prescription period, Nena’s hostile work
environment claim is timely. On appeal, the Clinic argues that the district
court erroneously determined that the violation was continuing and without
an intervening act. We disagree. The Clinic does not point to any evidence
of an intervening cause, and it does not meaningfully contest Nena’s version
of events—wherein Dr. Lynn frequently and often made remarks about her
disability throughout her time working in the neurology department,
ultimately culminating in the July 19, 2019, pushing incident. Nena has
adequately demonstrated that the continuing violation doctrine applies to her
ADA hostile work environment claim.
In addition to the claim being timely, Nena must show that: “(1) [she]
belongs to a protected group, (2) was subject to unwelcome harassment (3)
based on [her] disability, (4) which affected a term, condition, or privilege of
employment, and (5) [the Clinic] knew or should have known of the
harassment and failed to take prompt, remedial action.” Thompson v.
Microsoft Corp., 2 F.4th 460, 470–71 (5th Cir. 2021) (internal citation
omitted). To determine “whether harassment is sufficiently pervasive or
severe,” a court considers “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. (quotation omitted).
The district court relied on the fifth element—failure to take prompt
remedial action—to determine that Nena failed to meet her burden. The
district court concluded that the Clinic took prompt remedial action to
prevent Dr. Lynn from further harassing Nena after the July 16, 2019,
pushing incident, demonstrated by their investigation, and culminating in Dr.
Lynn’s reprimand. Further, after meeting with Nena following the initial
investigation, the Clinic continued investigating and imposed additional
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penalties on Dr. Lynn. The district court was unpersuaded by Nena’s
argument that the Clinic failed to take any action prior to the pushing
incident, because although Nena did report the harassment, it was her
“uncontroverted testimony” that she asked the Clinic not to confront Dr.
Lynn about his behavior.
“A defendant may avoid [ADA] liability when harassment occurred
but the defendant took ‘prompt remedial action’ to protect the claimant.”
Williams-Boldware v. Denton Cnty., 741 F.3d 635, 640 (5th Cir. 2014) (internal
quotation omitted). “Whether an employer’s response to discriminatory
conduct is sufficient will necessarily depend on the particular facts of the
case—the severity and persistence of the harassment, and the effectiveness
of any initial remedial steps.” Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d
396, 399–400 (5th Cir. 1996) (internal quotation and citation omitted). An
“employer may be liable despite having taken remedial steps if the plaintiff
can establish that the employer’s response was not ‘reasonably calculated’ to
halt the harassment.” Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d
606, 615–16 (5th Cir. 1999) (internal quotation marks and citation omitted).
We have long recognized that to demonstrate that an employer has
failed to take prompt remedial action, the employee must first show that she
took “advantage of corrective opportunities provided by the
employer.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 437 (5th
Cir. 2005) (quoting Woods v. Delta Beverage Group, 274 F.3d 295, 300 n.3 (5th
Cir. 2001)). “Nonetheless, if an employee believes that bringing a
subsequent [] harassment complaint would be futile, or ‘it becomes
objectively obvious that the employer has no real intention of stopping the
harassment, the harassed employee is not obligated to go through the wasted
motion of reporting the harassment.’” Id.Construing all inferences in favor of Nena, we cannot say that the
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evidence “is so weak or tenuous” as to whether the Clinic took prompt
remedial action to protect her before the July pushing incident that summary
judgment is warranted in the Clinic’s favor.3 Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (internal quotation marks and citation
omitted). There is a factual dispute over whether Nena directed the
administration to not act, or if she merely wanted her name to be left out of
the conversation. The district court concluded that it was Nena’s
“uncontroverted testimony that each time she reported Dr. Lynn’s behavior
she asked the Clinic not to confront Dr. Lynn about his behavior.” The
district court also pointed to Nena’s statements that she did not want Dr.
Lynn “approached about his behavior specifically directed towards [her]”
and that she did not want to “formally report” Dr. Lynn. But the district
court did not view the facts and inferences in the light most favorable to
Nena, because Nena stated on several other occasions—including in
evidence submitted by the Clinic itself—that she was primarily concerned
about “Dr. Lynn knowing anything about [her] talking with administration.”
Nena had endorsed a plan proposed by Yates to have Dr. Lynn confronted
about his behavior, without relating the complaints back to Nena—rather,
the comments would be focused on a different employee’s complaints to
protect current employees. Nena was “under the impression that Dr. Farrell
[the doctor who was going to speak with Dr. Lynn] knew of all of the
complaints, including [Nena’s].”
It also appears that Nena’s reluctance to explicitly seek corrective
opportunities may have been due to a fear of retaliation by Dr. Lynn—fear
that was not unfounded, as Thornton stated that “Dr. Lynn would not be
3
We agree with the district court that the summary judgment record supports the
conclusion that the Clinic took prompt remedial action to prevent further harassment after
learning of the July 16, 2019, pushing incident. Nena does not meaningfully contest this
issue on appeal.
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allowed to retaliate,” with regard to Nena’s concerns about talking with
administration, and Yates stated that she wanted to inform Dr. Lynn
“separately” about Nena’s initial request to transfer, ostensibly to manage
his reaction. Nena’s fears were confirmed when Dr. Lynn purportedly
created an assistant manager position specifically for Nena in neurology once
he found out she was seeking a transfer. Later, while still trying to find a job
to transfer to, Nena felt as though she was “being manipulated” and that
“there seemed to be no effort in [her] opinion to assist in transferring me out
of the department.” Ultimately, Nena accepted the assistant manager
position, but only after feeling as though the administration4 was not putting
in effort to help her and was sending her to interview for positions for which
Nena was unqualified. It is therefore reasonable to infer that Nena believed
that bringing a direct complaint against Dr. Lynn would be futile, because the
Clinic had no “real intention of stopping the harassment.” See Harvill, 433
F.3d at 437.
We therefore REVERSE and REMAND as to Nena’s ADA claim.5
B. Nena’s Title VII Claim
Under 42 U.S.C. § 2000e-5(e)(1), a charge of discrimination must be
4
Indeed, the minutes of the November 25, 2019, board meeting create another
layer of ambiguity. Dr. Lauderdale, after learning of Dr. Lynn’s conduct prior to the July
16, 2019, pushing incident from Nena, indicated that “in her opinion the matter had been
mishandled by Administration . . . Mr. Thornton noted the additional information provided
to Dr. Lauderdale had also been provided to him, Lisa Freeman, and Dr. Farrell. When
questioned, these employees indicated the information had not been brought up over the
last five years and not reported to Administration.” Taking all reasonable inferences in
favor of Nena, her request that she not be named specifically may not be the primary reason
that the administration failed to act. It is possible that Nena’s complaints never made their
way up the administrative ladder.
5
Although the Clinic also argues that we can alternatively affirm because the
conduct was not sufficiently severe or pervasive, we remand so that the district court can
consider this argument in the first instance.
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filed within 180 days “after the alleged unlawful employment practice
occurred.” Waltman v. Int’l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989).
The district court dismissed Nena’s Title VII claim as time barred because
she failed to identify a specific act of sexual harassment that occurred during
the 180-day limitations period prior to the filing of her EEOC charge. We
agree with the Clinic that Nena waived the issue by inadequately briefing it.
A party can waive an argument by inadequately briefing it by, inter alia, failing
to “offer any supporting argument or citation to authority” or to “identify
relevant legal standards and any relevant Fifth circuit cases,” or by failing to
offer record citations. See, e.g., JTB Tools & Oilfield Servs., L.L.C. v. United
States, 831 F.3d 597, 601 (5th Cir. 2016); United States v. Rojas, 812 F.3d 382,
407 n.15 (5th Cir. 2016) (citing United States v. Scroggins, 599 F.3d 433, 446–
47 (5th Cir. 2010)). Here, Nena does not provide any meaningful argument
apart from the assertion that her testimony “was not speculative.” Beyond
that, she does not provide any record citations or relevant caselaw. She has
therefore failed to adequately brief the issue and has waived it. We therefore
AFFIRM the district court’s grant of summary judgment on Nena’s Title
VII claim.
IV.
For the foregoing reasons, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings.
11