Merriman v. Potter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2007
No. 06-41400 Charles R. Fulbruge III
Summary Calendar Clerk
MARILYN MERRIMAN
Plaintiff-Appellant
v.
JOHN E POTTER, Postmaster General
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas, Texarkana
USDC No. 5:05-CV-80
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Marilyn Merriman (“Merriman”), proceeding pro se,
appeals the district court’s entry of final judgment following a jury verdict
awarding no damages in her Title VII sex discrimination case against her former
employer, the United States Postal Service (“Postal Service”). Merriman also
challenges the district court’s earlier grant of summary judgment on her claim
for additional back pay. For the following reasons, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-41400
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual Background
Beginning in August 1998, Merriman worked as a part-time flexible mail
handler at the Texarkana Main Post Office. She worked her last shift on August
23, 2000. The following day, Merriman learned of the death of her son and took
medical leave. Later, Merriman refused to return to work on the basis of her
sexual harassment claims. Eventually, she was placed on leave without pay
(“LWOP”) status and was officially terminated on November 1, 2002.
In her original complaint, Merriman alleged that, during her two years of
active employment, she was subjected to numerous incidents of sex and age
discrimination and harassment by her male co-workers. She claimed numerous
incidents of gender discrimination and retaliation, including that her male co-
workers made lewd comments, slashed her car tires, and vandalized her
workplace locker.
Merriman first made contact with an Equal Employment Opportunity
(“EEO”) counselor on May 26, 2000, and on July 25, 2000, she filed a formal
discrimination complaint with the Equal Employment Opportunity Commission
(“EEOC”), alleging a hostile work environment created by multiple incidents of
sex and age discrimination and retaliation by her co-workers Greg Tyler
(“Tyler”), Hubert Anderson (“Anderson”), and Eric Larkin (“Larkin”). Pursuant
to the EEOC’s forty-five-day limitations period, Merriman’s claim covered only
an April 13, 2000 incident involving Tyler. In this incident, Tyler allegedly made
lewd and discriminatory comments during an argument at work in which both
Merriman and Tyler were screaming. When Merriman’s supervisor, Georgia
Hobson (“Hobson”), learned of this incident, she called a meeting of all the
employees under her supervision to denounce such behavior, and she informed
Texarkana Postmaster Craig Herring (“Herring”) of the incident. Merriman
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No. 06-41400
reported no other problems with co-workers occurring after the April 13, 2000
incident.
B. Procedural History
On March 20, 2003, after a hearing, an EEOC administrative judge (“AJ”)
found in Merriman’s favor on her hostile work environment claim, concluding
that Merriman had been harassed by Tyler and that the Postal Service failed to
take immediate and effective action. The AJ awarded $15,000 in compensatory
damages, back pay with seniority and benefits from the date of her release, and
attorneys’ fees of $2,000. The AJ also ordered the Postal Service to reinstate
Merriman and offer her a position in a different facility in the area. In
compliance with this ruling, the Postal Service paid a total of nearly $43,000 to
Merriman ($15,000 in compensatory damages, $25,000 in back pay (pre-tax),
$843.73 in interest, and $2,000 for attorneys’ fees), reinstated her employment,
and offered her a position in another facility. Merriman accepted the payments
but declined the job offer.
Merriman then appealed the AJ’s decision, claiming that her
compensatory damages were not limited to the $15,000 paid by the Postal
Service and that she should be entitled to additional back pay. She also alleged
that submitting the back pay forms the Postal Service requested would have
waived some of her rights. The EEOC upheld the $15,000 compensatory
damages award and ruled that Merriman was required to submit back pay
worksheets in order to receive any additional back pay. The EEOC remanded
the case to give Merriman time to complete the back pay worksheets. Merriman
never filed the worksheets. On November 23, 2004, she filed the present action
in the United States District Court for the Western District of Texas, Austin
Division. The case was transferred, on the Postal Service’s unopposed motion
for venue change, to the Eastern District of Texas, Texarkana Division.
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No. 06-41400
Merriman brought suit pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-16 (“Title VII”), claiming that the multiple
episodes of sexual harassment resulted in a hostile work environment and
constructive discharge by the Postal Service. The complaint generally alleged
sexual harassment and discrimination throughout her employment, but only
specifically alleged harassment, discrimination, and retaliation involving Tyler.
The Postal Service moved for dismissal of the constructive discharge claim
for lack of subject matter jurisdiction and moved for summary judgment on
Merriman’s other claims. On April 28, 2006, the district court denied the Postal
Service’s motion to dismiss. The court also denied the Postal Service’s summary
judgment motion on all of Merriman’s remaining claims except her claim for
additional back pay damages. The court ruled that Merriman’s failure to submit
the back pay worksheets during the EEOC proceedings was a failure to exhaust
administrative remedies, thus depriving her of the right to appeal under Title
VII. The court also ruled that the forty-five-day limitations period barred
Merriman from raising claims arising from incidents that occurred before the
April 13, 2000 incident.
The hostile work environment and constructive discharge claims were
tried before a jury on August 30 and 31, 2006. The jury found that Merriman
had been subjected to sexual harassment and that her supervisors knew or
should have been aware of the conduct. The jury concluded, however, that the
Postal Service did not fail to take prompt remedial action in response to
Merriman’s complaints. The court thus entered judgment in favor of the Postal
Service. Merriman did not move for a directed verdict prior to submission of the
case. She also did not file a motion for judgment notwithstanding the verdict or
a motion for a new trial. This appeal was docketed on September 20, 2006. We
have jurisdiction under 28 U.S.C. § 1291, because this is an appeal from a final
judgment of the district court.
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II. STANDARD OF REVIEW
A. Summary Judgment
We review a district court’s order granting summary judgment de novo.
Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460, 464 (5th Cir. 2006).
Summary judgment is appropriate when, after considering the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits, “there
is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Bulko v. Morgan Stanley
DW, Inc., 450 F.3d 622, 624 (5th Cir. 2006). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In considering a summary judgment motion, all facts and evidence must be
taken in the light most favorable to the non-moving party. United Fire & Cas.
Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).
B. Jury Verdict
To preserve review of a jury verdict based on sufficiency of the evidence,
a party must move for judgment as a matter of law after the close of all evidence.
FED. R. CIV. P. 50; United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 960
(5th Cir. 1998). This rule is designed to (1) “‘enable the trial court to re-examine
the sufficiency of the evidence as a matter of law’” after the verdict, and (2)
“‘alert the opposing party to the insufficiency of his case before being submitted
to the jury.’” Flintco, 143 F.3d at 960 (quoting MacArthur v. Univ. of Tex. Health
Ctr. at Tyler, 45 F.3d 890, 897 (5th Cir. 1995)). The Fifth Circuit construes this
requirement liberally, but we will not excuse a party’s complete failure to move
for directed verdict before submission of a case to the jury. See Hinojosa v. City
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No. 06-41400
of Terrell, 834 F.2d 1223, 1228 (5th Cir. 1988).1 Therefore, we review only
whether “there was any evidence to support the jury’s verdict, irrespective of its
sufficiency, or whether plain error was committed which, if not noticed, would
result in manifest miscarriage of justice.” Id. (quoting Stewart v. Thigpen, 730
F.2d 1002, 1007 (5th Cir. 1984)). Appellate relief is limited to ordering a new
trial. Id.III. DISCUSSION
A. Summary Judgment on Back Pay Claim
The district court granted partial summary judgment for the Postal
Service, ruling that Merriman’s failure to complete the back pay worksheets was
a failure to exhaust administrative remedies. On appeal, Merriman argues that
the Postal Service refused to send her the correct documents for payment of
additional back pay. As a remedy, she requests additional back pay with
interest.
Although Merriman did question the appropriateness of the back pay
forms during her administrative appeals, she did not offer any excuse in her
district court pleadings for failing to file the back pay forms. The only excuse
she gives first appears in her appellate briefs—and we do not consider material
that was not before the district court. See Kemlon Prods. & Dev. Co. v. United
States, 646 F.2d 223, 224 (5th Cir. 1981).
Under Title VII, a federal employee is required to exhaust administrative
remedies against an employer before bringing suit in federal court. Francis v.
Brown, 58 F.3d 191, 192 (5th Cir. 1995) (citing Brown v. Gen. Servs. Admin., 425
U.S. 820, 832-33 (1976)). “To satisfy the exhaustion requirement, the employee
must cooperate in good faith with the agency and the Equal Employment
1
Although Merriman pursues this appeal pro se, she was represented by counsel during
the district court proceedings.
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No. 06-41400
Opportunity Commission in the administrative proceedings.” Id. (citing Munoz
v. Aldridge, 894 F.2d 1489, 1493 (5th Cir. 1990)).
Though the exact definition of “good-faith participation” is unclear, the
EEOC held in its appeal decision that “good faith requires complainant to
complete back pay worksheets to the best of her ability in order to assist the
agency in accurately calculating the back pay due complainant.” The EEOC
remanded this issue to allow Merriman “one more opportunity” to comply with
the good faith requirement.
In its summary judgment order, the district court concluded that
Merriman had not complied with the good faith requirement. We agree.
Merriman did not address the matter in her responsive briefing on the summary
judgment motion and offered the district court no reasonable excuse for failing
to cooperate with the administrative process. Indeed, Merriman’s original
complaint mentions back pay only in its prayer for relief. Even viewing the
evidence in the light most favorable to Merriman, there simply was no evidence
before the district court that she complied or attempted to comply with the
administrative proceedings. Therefore, summary judgment was appropriate.
B. Limitation of the Case to One Incident
Merriman implicitly challenges the district court’s April 28, 2006 order
limiting her claim to the single incident occurring on April 13, 2000. In her
appellate brief, she makes a variety of claims, referring to “several incidents of
violent behavior” and alleging that the harassment continued for a period of two
years.
As a general rule, EEO regulations require an employee to report
discriminatory incidents within forty-five days. 29 C.F.R. § 1614.105(a)(1);
Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (affirming summary
judgment in favor of Postal Service where plaintiff failed to contact an EEO
counselor within forty-five days of the alleged discriminatory conduct).
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No. 06-41400
Merriman argued that her prior claims should be covered under the “continuing
violation” exception to the forty-five-day limitation. Abrams v. Baylor College
of Med., 805 F.2d 528, 532 (5th Cir. 1986) (recognizing an exception to the
limitation period “[w]here the unlawful employment practice manifests itself
over time, rather than as a series of discrete acts”). The district court correctly
rejected this argument.
Under the continuing violation exception, a plaintiff must prove that a
“‘persisting and continuing system of discriminatory practices’ produces ‘effects
that may not manifest themselves as individually discriminatory except in
cumulation over a period of time,’ and that one of the acts falls within the []
limitations period.” Davis v. Metwest, Inc., No. CIV.A. 3:97-CV-2831D, 1999 WL
102814, at *2 (N.D. Tex. Feb. 24, 1999) (quoting Messer v. Meno, 130 F.3d 130,
135 (5th Cir. 1997)). By contrast, the offenses against Merriman, as the district
court described them, were “discrete and in some instances blatant.” The acts
committed against Merriman thus did not require accumulation for their
discriminatory character to be apparent. Her continuing violation argument is
also weakened by her claim that she made multiple prior complaints to Postal
Service supervisors about the alleged harassment. Allowing Merriman to assert
individual claims older than forty-five days would defeat any effect of the
limitations period. See Abrams, 805 F.2d at 533 (“This theory of continuing
violation has to be guardedly employed because within it are the seeds of the
destruction of statutes of limitation in Title VII cases.”). Therefore, the district
court was correct in limiting Merriman’s claim.
C. Jury Verdict on Sexual Harassment Claim
Finally, Merriman challenges the final judgment that the district court
entered on the jury verdict. Throughout her brief, she makes a variety of claims
questioning the sufficiency of the evidence underlying the jury verdict.
Merriman claims that the Postal Service failed to “take prompt or appropriate
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No. 06-41400
immediate action to ensure the safety and welfare of its female employee” and
that her supervisor, Hobson, “failed to act to prevent or discontinue any similar
gestures or remarks.”
Because Merriman failed to move for a directed verdict or judgment
notwithstanding the verdict, the verdict is reviewed under an “any evidence”
standard. Hinojosa, 834 F.2d at 1228. The record easily meets this standard.
For example, the jury could have credited Hobson’s own testimony, in which she
testified about a meeting she held immediately following Merriman’s report of
the April 13, 2000 incident. At that meeting, Hobson told all the facility’s mail
handlers that “this type of behavior would not be tolerated.” The jury could have
found this to be sufficient evidence of the Postal Service adequately responding
to Merriman’s complaints.
The Postal Service objects to this claim on the basis that Merriman failed
to comply with the requirement that a sufficiency of the evidence claim must
include in the record “all evidence relevant.” See FED. R. APP. P. 10(b)(2).
Regardless of whether Merriman complied with this rule, the evidence she did
offer in her record excerpts easily satisfies the “any evidence” standard of review.
D. Sufficiency of Appellant’s Brief
The Postal Service argues that the court should dismiss Merriman’s
appeal for failing to specifically brief points of error or provide citations to the
record or relevant legal authority. We must construe Merriman’s pro se
complaint liberally, and we should be mindful that “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)
(per curiam) (internal quotation marks omitted). However, even a pro se
appellant must brief the reasons for the requested relief, including “citation to
the authorities, statutes and parts of the record relied on.” FED. R. APP. P.
28(a)(4); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). When an appellant
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No. 06-41400
does not argue that the district court erred in any way, the court may dismiss
the appeal for failure to comply with Rule 28. See, e.g., Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995) (dismissing an appeal in which the “appellate brief does
little more than restate the relevant factual events leading to his original
complaint”). Issues not properly briefed under Rule 28 are deemed abandoned,
and this court “will not raise and discuss legal issues that [the appellant] has
failed to assert.” Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
On occasion, this court has accepted appeals despite technical deficiencies
in pro se briefs as long as the appellant alleged at least some error on the part
of the district court. See, e.g., United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1995) (considering appellant’s claims despite his failure to cite relevant portions
of the record); Abdul-Alim Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 n.1
(5th Cir. 1983) (considering a brief because it contained an assertion of trial
court error). We generally only accept a noncompliant brief if it does not
prejudice the opposing party. Grant, 59 F.3d at 525. Prejudice exists when an
appellant’s brief’s deficiencies force the appellee to “speculate as to the relevant
issues” on appeal. Id. (“[Appellant’s] failure to articulate any appellate
argument therefore deprived the [appellee] of [its] opportunity to address fully
all the issues and prejudiced [its] ability to prepare and present arguments to
this Court”). Prejudice does not exist, however, when the disputed issues are
obvious and the opposing party has the opportunity to address all relevant issues
in the case. Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)
(allowing a technically noncompliant pro se appeal to go forward when there was
only one issue on appeal); see also Fed. Sav. & Loan Ins. Co. v. Haralson, 813
F.2d 370, 373 n.3 (11th Cir. 1987) (allowing a pro se appellant to proceed where
the opponent could not claim that “it was not aware of the issues in this appeal
or that it was hampered in its ability to respond”).
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No. 06-41400
Merriman’s brief states a series of factual allegations, some not previously
briefed, and recounts in detail the history of the administrative proceedings and
federal court litigation in this case. Although her brief fails to identify any
specific error committed by the district court or any legal basis for reversal of its
summary judgment order or the jury verdict, it is apparent which issues she is
challenging. In its brief, the Postal Service surmised that the following issues
were central to Merriman’s appeal: (1) whether the district court properly
granted summary judgment on Merriman’s back pay claim; (2) whether
limitation of the suit to cover only the April 13, 2000 incident was proper; and
(3) whether the jury verdict was adequately supported by the evidence. It is a
close question as to whether Merriman adequately briefed any of these points on
appeal. Because, however, each argument is easily dispatched on other grounds,
we need not decide whether the brief’s technical shortcomings might prejudice
the Postal Service.
IV. CONCLUSION
For the reasons given above, we AFFIRM the district court’s summary
judgment order and AFFIRM the district court’s entry of final judgment on the
jury verdict.
AFFIRMED.
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