Wellman v. HEB Grocery

Case: 21-20660 Document: 00516545996 Page: 1 Date Filed: 11/15/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-20660 FILED
November 15, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Debra-Ann Wellman,
Plaintiff—Appellant,
versus
HEB Grocery Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-3139
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Debra-Ann Wellman brings various state and federal law claims
against HEB. The district court granted HEB’s motion for judgment on the
pleadings. We AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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: 21-20660 Document: 00516545996 Page: 2 Date Filed: 11/15/2022
No. 21-20660
Debra-Ann Wellman was an employee of HEB Grocery Company
(“HEB”). Wellman alleges that HEB employees discriminated against,
abused, stalked, and harassed her for not participating in their purportedly
illegal activities. Proceeding pro se, Wellman sued HEB in district court,
alleging various state and federal claims in her amended complaint. The
district court granted HEB’s motion for judgment on the pleadings. Wellman
appeals.
We review a district court’s decision to grant a motion for judgment
on the pleadings de novo. Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017).
First, Wellman alleges that HEB “deliberately” caused her “physical
bodily harm” through alleged tortious acts of its employees. In Texas,
employer liability for intentionally tortious actions of an employee requires
that such actions be “closely connected with the employee’s authorized
duties.” M.D.C.G. v. United States, 956 F.3d 762, 769 (5th Cir. 2020)
(quoting G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 884 (Tex. App.—
Dallas 2003, no pet.)). Wellman does not proffer any evidence suggesting
that the alleged acts were performed within the scope of these employees’
employment. Accordingly, HEB is not liable for any intentional torts
allegedly committed by its employees.
Second, Wellman also brings claims arising under federal statutes,
namely the Americans with Disabilities Act (“ADA”), the Age
Discrimination in Employment Act (“ADEA”), the Genetic Information
Nondiscrimination Act (“GINA”), and Title VII of the Civil Rights Act of
1964 (“Title VII”). We consider these in turn.
Concerning her ADA claim, we understand that Wellman’s alleged
physical disability stems from an October 31, 2019 incident when she was
electrically shocked and thrown to the ground. Wellman suggests that she
was negatively affected after this incident by HEB’s failing to provide
2
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No. 21-20660
necessary medical care, continuing to stalk her, and interfering with her
ability to obtain counsel. But Wellman’s complaint does not suggest that
HEB’s alleged conduct was on the “basis of [her] disability,” 42 U.S.C.
§ 12112(a), which requires showing, inter alia, “that [she] was subject to an
adverse employment decision on account of [her] disability.” See EEOC v.
LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (emphasis added).
Accordingly, she fails to establish a prima facie case of ADA discrimination.
With respect to her ADEA claim, Wellman did not wait the required
sixty days from filing an EEOC charge to file a civil action; therefore, she did
not exhaust her administrative remedies. 29 U.S.C. § 626(d); Julian v. City
of Houston, 314 F.3d 721, 726 (5th Cir. 2002). Wellman also did not exhaust
administrative remedies for her GINA claim because her EEOC charge did
not allege any GINA-specific facts nor have the requisite checked box
indicating a genetic information discrimination claim. See Jefferson v. Christus
St. Joseph Hosp., 374 F. App’x 485, 490 (5th Cir. 2010) (district court did not
err in determining unchecked claims on EEOC charges were unexhausted).
Concerning her Title VII disparate treatment claim, Wellman’s only
alleged adverse employment action is that she was “never allowed to move
forward or laterally, in her career.” But Wellman does not show the requisite
nexus between this alleged action and any alleged protected status sufficient
for disparate treatment. See Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir.
2013). With respect to a Title VII retaliation claim, Wellman does not plead
any facts showing that she was engaging in the type of activity that would
qualify her for Title VII’s antiretaliation protections. 42 U.S.C. § 2000e-3(a).
Finally, Wellman’s hostile work environment claim cannot succeed because
Wellman’s proffered evidence of comments from coworkers about her Italian
heritage and Catholic religious affiliations were largely episodic and
insufficient to support such a claim. See White v. Gov’t Emps. Ins. Co., 457 F.
App’x 374, 381–82 (5th Cir. 2012) (evidence of only a few incidents does
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“not rise to the level of severity or pervasiveness required to support a hostile
work environment claim.”).
Wellman’s other arguments challenging various aspects of the district
court’s adjudication are similarly without merit. She challenges her lack of
appointed counsel, but in civil cases, a party has “no automatic right to the
appointment of counsel,” and “a federal court has considerable discretion in
determining whether to appoint counsel.” Salmon v. Corpus Christi Indep.
Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990). Her various arguments alleging
impropriety by the district court are not supported by the record.1
For the foregoing reasons, we AFFIRM.
1
Any other arguments Wellman did not raise in her brief are waived, even under
the more liberal standards we afford pro se litigants. Davison v. Huntington Ingalls, Inc., 712
F.3d 884, 885 (5th Cir. 2013).
4