Butler v. MBNA Technology, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 24, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
Summary Calendar
No. 04-10058
_____________________
FIROOZEH H. BUTLER,
Plaintiff - Appellant,
versus
MBNA TECHNOLOGY, INC., formerly
known as MBNA Hallmark Information
Services, Inc.,
Defendant - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
USDC No. 3:02-CV-1715-H
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Firoozeh Butler brought this suit against MBNA Technology,
Inc., alleging retaliatory discrimination and a hostile work
environment under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. The district court
dismissed Butler’s claims under § 1981 for failure to state a
claim. She has not appealed that decision. The case went to trial
*
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this opinion should not be published and is not precedent except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.
and, after the close of plaintiff’s case, the district court
granted MBNA’s motion for judgment as a matter of law on Butler’s
Title VII hostile work environment claim. The court held that
Butler could not rely on a “continuing violation” theory to extend
the three hundred day statute of limitations for hostile work
environment claims, and that the single incident within the statute
of limitations period was insufficient as a matter of law to
establish a hostile work environment. As to the retaliatory
discrimination claim, the jury returned a verdict against Butler,
concluding that she had not suffered an “adverse employment
decision”. Butler appeals the court’s ruling and the jury’s
verdict.
I
Butler is of Iranian descent and is a practicing Muslim. She
has been employed by MBNA since 1993, and has worked in several
different departments under various supervisors. The record is
unclear as to precisely how and when the alleged discriminatory
treatment began. It appears that the first incident occurred in
1995 or 1996, when Don Little, a supervisor, allegedly remarked to
Butler that Iranians are “crazy” and “smell bad”. In March 1997,
her then-supervisor, Mike Sullivan, allegedly commented to her that
Iranians are “crazy” and “put dirty laundry on their heads”.
Butler testified that after she reported this comment to a
superior, Sullivan “began yelling and cursing at” her in a vacant
office and blocked the door when she tried to leave. In April
2
2000, Mary Thompson, Butler’s project leader, allegedly told Butler
that the two could not communicate due to cultural differences and
that “American people don’t forget that Iranians take hostages.”
In May 2000, Kim Murphy, an employee in MBNA’s Human Resources
Department, allegedly referred to Middle Easterners as “camel
jockeys” or “CJ”. Finally, Butler claims to have been subjected to
harassment in October 2001, when the aforementioned Don Little
posted a picture of Taliban leader Mullah Mohammed Omar in his
cubicle. The picture featured a quotation of Omar using the term
“jihad”, which Butler says she found offensive.
Butler further claims to have been subjected to retaliatory
discrimination as a result of her complaints to management about
the above events. In March 2001, Butler, who had been a “Tier 3"
software engineer, was reassigned to the lower “Tier 2".1 She
alleges that this change was made because she “began to complain on
a regular basis to her supervisors and the HR department.”
II
We review the district court’s order granting judgment as a
matter of law de novo. Stevenson v. E.I. DuPont de Nemours & Co.,
327 F.3d 400, 404-05 (5th Cir. 2003). Judgment as a matter of law
1
The parties disagree as to whether this change in Butler’s
status constituted a “reclassification” or a “demotion”. The
distinction is essentially semantic and does not affect our
analysis. This court’s interpretation of the “adverse employment
decision” element of a Title VII retaliation claim is well settled
and our evaluation hinges on the substance of the decision, rather
than the label applied to it. See Pegram v. Honeywell, Inc., 361
F.3d 272, 282 (5th Cir. 2004).
3
is appropriate only if “there is no legally sufficient evidentiary
basis for a reasonable jury to find for” the non-movant. FED. R.
CIV. P. 50(a).
We review the jury’s verdict for MBNA only to determine
whether it is “supported by substantial evidence.” Snyder v.
Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998). “Substantial
evidence” is evidence “of such weight and quality that reasonable
and fair minded men in the exercise of impartial judgment might
reach different conclusions.” Id. (quoting Boeing Co. v. Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other
grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th
Cir. 1997)).
III
We look first to Butler’s hostile work environment claim. We
begin by determining whether the district court erred in rejecting
Butler’s “continuing violation” theory with respect to her hostile
work environment claim. We must then decide whether the district
court erred in granting MBNA’s motion for judgment as a matter of
law on the claim.
A
In order to rely on a continuing violation theory, a plaintiff
must show that the harassment within the limitations period and the
harassment outside the limitations period constituted “a series of
related acts” and that “an organized scheme led to and included the
present violation.” See Pegram v. Honeywell, Inc., 361 F.3d 272,
4
279 (5th Cir. 2004); Felton v. Polles, 315 F.3d 470, 485 (5th Cir.
2002) (citing Celestine v. Petroleos de Venezuela SA, 266 F.3d 343,
352 (5th Cir. 2001)). This court has looked to at least three
factors in determining whether acts are sufficiently related to
constitute a continuing violation: (1) whether the alleged acts
involve the same type of discrimination, tending to connect them in
a continuing violation; (2) whether the acts are in the nature of
recurring events, or are more in the nature of isolated events; and
(3) whether the act or acts have the degree of permanence that
should alert an employee to assert his rights. Huckabay v. Moore,
142 F.3d 233, 239 (5th Cir. 1998). When we examine the facts here
in the light of these legal considerations, we find that the
district court did not err.
First, we will assume, notwithstanding a difference in
character, that the alleged events are sufficiently similar in type
to the event within the statutory period to permit a showing that
they are part of a continuing violation. Butler filed her initial
complaint with the EEOC on November 5, 2001. As such, the only
events that the district court could consider in ruling on her
hostile work environment claim were those that occurred within the
three hundred days preceding November 5 –- i.e., events that took
place on or after January 10, 2001. See National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 105-05 (2002); Huckabay, 142 F.3d at238 (citing 42 U.S.C. § 2000e-5(e)(1)). Butler alleges only one
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act of harassment within that period –- the posted picture of
Taliban leader Mullah Mohammed Omar in October 2001.2 Butler
contends that the picture offended her because it included a
quotation in which Omar used the term “jihad.” Butler testified
that she found the association of the term “jihad” with the war in
Afghanistan offensive because, “Jihad has nothing to do with war.
Jihad is a religious thing that people pray and sacrifice their
lives and meditate . . . .”
We believe that Butler’s claims concerning the Mullah Omar
picture are best described as allegations of religious
discrimination. Butler admits that she is not of Afghani national
origin and that she is not in any way affiliated with the Taliban.
Further, her arguments relating to the use of the term “jihad” make
it clear that the source of her displeasure was the misuse of an
important tenet of the Muslim religion. By contrast, none of the
events that occurred prior to the statute of limitations period
were religious in nature. Instead, each of the prior incidents
involved discrimination based specifically on Butler’s Iranian
2
The posted picture of Mullah Omar included the following
text: “A hard lesson that some have yet to learn: October 2001-
Taliban supreme leader Mullah Mohammed Omar: ‘The situation where
we are now, there are two things: either death or victory. To
those who are fighting and bombarding us, they should understand
the Afghan man is a fighter willing to die for jihad.’ June 1944-
General George S. Patton: ‘I want you to remember that no bastard
ever won a war by dying for his country. He won it by making the
other poor dumb bastard die for his country.’”
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national origin or, in one case, on her being of Middle Eastern
descent.
Nevertheless, we will assume that Islam is the dominant
religion of Iran and the Middle East in general, and that the
religion is often closely associated with the region in American
popular perception. Thus, we will assume that, on these particular
facts, the alleged harassment based on nationality and the alleged
harassment based on religion could be shown to be sufficiently
similar to be connected in an “organized scheme”. As we note
below, however, Butler fails to make such a showing.
Second, Butler has not shown that the alleged acts occurred
with sufficient frequency to support a continuing violation theory.
She alleges five incidents of harassment over the course of
approximately five years. Further, only one event outside the
limitations period –- the alleged comments by Don Little in 1995 or
1996 –- involved harassment by the same person as the Mullah Omar
incident in October 2001. More than five years passed between the
two incidents. This court has held that a “three year break” will
defeat any attempt to establish a continuing violation. Felton, 315
F.3d at 486. As such, we conclude that Butler’s allegations are
more in the nature of isolated work incidents than a continuing
violation.
Third, as to the question of the permanence of the harassment,
we find that the four alleged incidents outside the statute of
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limitations period were significantly more likely to put Butler on
notice that the harassment was an ongoing thing and that her rights
had been violated, than the one incident within the period. The
four alleged incidents were all directed specifically toward Butler
and all involved derogatory comments about her Iranian national
origin or Middle Eastern descent. This court has previously said
that “where a pattern of harassment spreads out over years, and it
is evident long before the plaintiff sues that she was a victim of
actionable harassment, she cannot reach back and base her suit on
conduct that occurred outside the statute of limitations.”
Celestine, 266 F.3d at 344 (quoting Hardin v. S.C. Johnson & Son,
Inc., 167 F.3d 340, 344 (7th Cir. 1999)). The several directly
offensive comments made outside the statute of limitations period
would seem far more likely to alert an employee to the existence of
a hostile work environment than the posting of an indirectly
offensive quote within a co-worker’s cubicle. As a result, we hold
that Butler had sufficient notice of a basis for violation of her
rights, long before the single incident within the statute of
limitations.
As a matter of further analysis, we should observe that Butler
fails to offer any coherent explanation linking the separate
alleged incidents into an “organized scheme”. Her only argument
that even remotely touches on this point is that all four of the
individuals who allegedly harassed her had access to her “working
8
file”; therefore, they should have been aware of her prior
complaints of discriminatory conduct. This suggests that Butler is
alleging a systemic failure of MBNA managers to keep up to date on
the contents of the working files of their subordinates. Butler’s
theory, however, is purely speculative; she offers no evidentiary
support for her contention that there was any such failure or that
the alleged harassment against her had a causal connection with
such failure. As such, she fails to “show that there has been a
pattern or policy of discrimination” connecting the alleged acts
into a “continuing violation”. Celestine, 266 F.3d at 352.
B
We now turn to the specific question of whether the district
court erred in granting MBNA’s motion for judgment as a matter of
law. To sustain a hostile work environment claim under Title VII,
a plaintiff must show, inter alia, that the alleged harassment
affected a “term, condition, or privilege of employment.”
Celestine, 266 F.3d at 353. For harassment to affect a “term,
condition, or privilege of employment,” it must be “sufficiently
severe or pervasive so as to alter the conditions of employment and
create an abusive working environment.” Id.Without a continuing violation, Butler’s hostile work
environment claim consists of only one alleged incident -- the
Mullah Omar picture and quote posted by Don Little. We think it
almost impossible that a single alleged incident of harassment
9
could be considered “pervasive.” Compare, e.g., Shepherd v.
Comptroller of Public Accounts, 168 F.3d 871, 875 (5th Cir. 1999)
(finding that four sexual comments and several instances of
touching over a two-year period were not sufficient to create a
material issue of fact as to severe or pervasive harassment);
Celestine, 266 F.3d at 354 (finding that the plaintiff could not
establish severe or pervasive harassment based on eight incidents
of alleged racial harassment during a two-year period).
Likewise, we conclude that the conduct alleged here was not
particularly “severe.” The essence of the alleged harassment was
Butler’s disapproval of a quotation that she felt took a tenet of
her religion out of context. There is no evidence in the record
that Little intended the posting to serve as a commentary on the
Muslim religion; construed in the most favorable light for the
plaintiff, it might be seen as an expression of Little’s dislike of
the Taliban, with which, however, Butler is not affiliated.
Further, when Butler complained that the Mullah Omar picture
offended her, MBNA’s personnel department promptly investigated and
had the picture removed. For these reasons, we find that Butler
did not show that the alleged harassment was sufficiently severe or
pervasive to sustain a hostile work environment claim under Title
VII. Thus, the district court did not err in granting MBNA’s
motion for judgment as a matter of law on the claim.
IV
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We turn now to the significantly simpler matter of reviewing
the jury verdict that rejected Butler’s Title VII discrimination
claim. The jury, pursuant to a specific interrogatory, found that
Butler had not suffered an “adverse employment decision”. As noted
before, we review the jury’s verdict for MBNA only to determine
whether it is supported by substantial evidence. See Snyder, 142
F.3d at 795.
To assert a prima facie claim of retaliatory discrimination,
Butler must show (1) that she engaged in protected activity under
Title VII; (2) that she suffered an adverse employment decision;
and (3) that there is a causal link between the protected activity
and the employment decision. See Burger v. Central Apartment
Management, Inc., 168 F.3d 875, 878 (5th Cir. 1999); Anderson v.
Douglas & Lomason Co., Inc., 26 F.3d 1277, 1300 (5th Cir. 1994).
The parties do not dispute that Butler engaged in activities
protected under Title VII. Thus, the only issue before us is the
jury’s finding that Butler’s reassignment was not an “adverse
employment decision.”
This court has determined that an employment action that “does
not affect job duties, compensation or benefits” is not an adverse
employment action. Banks v. East Baton Rouge Parish Sch. Bd., 320
F.3d 570, 575 (5th Cir. 2003) (quoting Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001)). It is undisputed
that Butler presented no evidence at trial that her compensation,
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responsibilities, or benefits were reduced as a result of her
complaints to management. Further, the jury heard testimony from
Butler and other MBNA employees that, in fact, her compensation and
responsibilities remained unchanged after her complaints and
reassignment as a “Tier 2" software engineer. As a result, it is
clear that the jury’s verdict was supported by substantial
evidence.
Having held (1) that the district court properly granted
MBNA’s motion for judgment as a matter of law and (2) that the
jury’s verdict for MBNA was supported by substantial evidence, we
conclude that the judgment of the district court is in all respects
1 AFFIRMED.
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