Bradford v. Giessel Barker Lyman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 02-20477
Summary Calendar
____________________
LYNETTE BRADFORD
Plaintiff - Appellant
v.
GEISSEL BARKER & LYMAN INC; STEVE ARNOLD
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for Southern District of Texas
H-00-CV-4055
_________________________________________________________________
January 22, 2003
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
This appeal requires us to review whether the district court
erred in granting summary judgment in favor of the defendants on
the plaintiff’s Title VII retaliation claim and in declining to
exercise supplemental jurisdiction over the plaintiff’s state law
claim for assault and battery. Upon review, 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that this opinion should not be published and is not precedent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.
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I. FACTS and PROCEDURAL HISTORY
Plaintiff Lynette Bradford worked as a legal secretary for the
law firm of Giessel, Barker & Lyman, Inc. (“GB&L”) from January
1995 until early April 1999. In February 1999, Bradford applied
for a part-time position as a legal secretary with the law firm of
Ireson & Weizel. Ireson & Weizel offered her the position on March
23, 1999. On this same date, Bradford presented a resignation
letter to GB&L’s office manager, Cindy Bucek, in which she stated
that:
Due to continuing health problems and by the advice of my
physician, it has been recommended that I cut down on my
hours. Therefore, it is with great regret that I must
resign my full-time position at Giessel, Barker & Lyman.
My last day will be April 6, 1999.
I have enjoyed working here and hope the firm will keep
me in mind for any contract positions or temporary
assignments that may arise. Thank you for your attention
to this matter.
During a meeting between Bradford and Bucek regarding
Bradford’s resignation, Bradford told Bucek that Steve Arnold, the
attorney Bradford had been assigned to work with since October
1998, had been sexually harassing her for the past seven weeks.1
In response, Bucek told Bradford that GB&L would take immediate
action by moving her desk, investigating the matter by talking to
1
Bradford admits that prior to this meeting, she had
never formally complained about Arnold’s alleged harassment
toward her, nor had she talked to any official or shareholder at
GB&L informally regarding the alleged harassment.
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Arnold, and having one of the firm’s shareholders talk to Bradford
about the allegations.
After the meeting ended (late in the afternoon), Bucek
discussed Bradford’s allegations with Gregg Weinberg, one of the
firm’s shareholders. Weinberg was unable to reach Arnold on this
date (March 23, 1999) because Arnold had left for the day and was
also unable to reach Arnold the next day because Arnold was out of
the office for a deposition.2 Weinberg was, however, able to
discuss the matter with Arnold on March 25, 1999. Although Arnold
denied the allegations, Weinberg instructed him not to have any
further contact with Bradford. Weinberg then left a message for
Bradford, requesting that she meet with him. Bradford apparently
attempted unsuccessfully to contact Weinberg by telephone.
Frustrated that her workstation had not yet been moved and
emotional following her discussions with Bucek, Bradford moved her
own workstation to the opposite side of GB&L’s floor. Bradford
then went to visit Bucek. She admits that she was crying and very
emotional during at this time. Bucek informed Bradford that
Weinberg had discussed the matter with Arnold and that Bucek would
find Weinberg and have him again contact Bradford. However, an
emotional Bradford returned to Bucek’s office less than one hour
later. Allegedly in response to Bradford’s emotional state, Bucek
told Bradford to “leave now and the firm w[ould] pay [her] through
2
Bradford testified that she may have formally accepted
the job offer from Ireson & Weizel on this date, March 24, 1999.
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the end of [her] two-week notice.” Bradford left and was paid by
GB&L through her resignation date, April 6, 1999 without complaint.
On November 20, 2000, Bradford filed this lawsuit, claiming
sexual harassment, retaliation and intentional infliction of
emotional distress against GB&L, and claiming intentional
infliction of emotional distress and assault and battery against
Arnold, individually. The district court referred the case to a
magistrate judge, and on March 19, 2002, the district court adopted
the memorandum and recommendation of the magistrate judge granting
summary judgment in favor of GB&L and Arnold on all claims except
Bradford’s assault and battery claim against Arnold. As to this
claim, the court declined to exercise supplemental jurisdiction and
thus dismissed the claim without prejudice. On March 19, 2002, the
district court entered a final judgment stating the same.
Bradford appeals the district court’s judgment only to the
extent it dismissed her Title VII retaliation claim against GB&L
and insofar as the district court declined to exercise supplemental
jurisdiction over her state law claim for assault and battery.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. Daniels v. City
of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 122 S.
Ct. 347 (2001). Summary judgment should be granted if there is no
genuine issue of material fact for trial and the moving party is
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entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
However, when the non-moving party bears the burden of proof on a
claim, the moving party may obtain summary judgment without
providing evidence that negates the non-moving party’s claim. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). Rather, the
moving party need only highlight the absence of evidence in support
of the non-moving party’s claim. See id.We review the district court’s decision to decline to exercise
supplemental jurisdiction over Bradford’s pendent state law claim
for an abuse of discretion. See Robertson v. Neuromedical Ctr.,
161 F.3d 292, 296 (5th Cir. 1998); McClelland v. Gronwaldt, 155
F.3d 507, 519 (5th Cir. 1998).
III. ANALYSIS OF THE DISTRICT COURT’S ORDER
A. Retaliation
Title VII makes it an “unlawful employment practice for an
employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment
practice” by the statute. 42 U.S.C. § 2000e-3(a) (2000). To prove
a prima facie case of retaliation under Title VII, Bradford is
required to present evidence that (1) she engaged in activity that
is protected under Title VII, (2) GB&L took adverse employment
action against her, and (3) a causal connection exists between the
protected activity and the adverse employment action taken against
her. See Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001); Cain
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v. Blackwell, 246 F.3d 758, 761 (5th Cir. 2001). Here, neither
party disputes that Bradford engaged in protected activity by
complaining to Bucek regarding Arnold’s alleged acts of sexual
harassment toward her. Instead, in the district court and on
appeal, GB&L contends that Bradford’s retaliation claim fails
because she cannot prove that GB&L took adverse employment action
against her, and, even if she can prove this element, she cannot
demonstrate the necessary causal nexus between this adverse
employment action and her protected activity.
The district court agreed with GB&L. In dismissing Bradford’s
retaliation claim, it held that “Plaintiff has not established a
prima facie case of retaliation because she has not suffered an
adverse employment action.” Specifically, it concluded that “[t]he
summary judgment evidence fails to raise a fact issue that
Plaintiff was constructively discharged because there is no
evidence that she was subjected to such intolerable working
conditions that would make a reasonable employee feel compelled to
resign.” (emphasis added).
On appeal (and in her objections to the magistrate judge’s
memorandum and recommendation to the district court), Bradford
argues that the district court erred in limiting its analysis of
her retaliation claim to evidence of constructive discharge when
“the uncontroverted evidence” demonstrates “that [she] was directly
terminated against her will and in violation of the controlling
law.” She also contends that, “to a lesser extent,” the district
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court also erred in its finding that she did not raise a fact issue
regarding whether she was constructively discharged because there
was “some evidence of constructive discharge” as well. As Bradford
represented to the district court that her retaliation claim was
rooted in both a constructive discharge theory and a direct
wrongful discharge theory, we address each theory in turn.
(1) Constructive Discharge
“To prove a constructive discharge, [Bradford] must show that
a ‘reasonable person in [her] shoes would have felt compelled to
resign.’ . . . Moreover, to be actionable, [Bradford] must
demonstrate a ‘greater severity or pervasiveness of harassment than
the minimum required to prove a hostile work environment claim.’”
Woods v. Delta Beverage Group, 274 F.3d 295, 301 (5th Cir. 2001)
(citations omitted); see also Faruki v. Parsons S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997). As stated, here the district court
held that Bradford did not raise a genuine fact issue regarding
whether she was constructively discharged in retaliation for
engaging in protected activity because she did not prove that she
was subjected to intolerable working conditions.
Assuming that Bradford could demonstrate the conditions at
GB&L rose to the level of severe intolerableness necessary to be
actionable under a constructive discharge theory, we find no causal
connection between this alleged constructive discharge and her
protected conduct. Bradford indisputably resigned (or felt
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compelled to resign) before she complained of being sexually
harassed by Arnold. Because Bradford fails to causally connect the
alleged adverse employment action to the protected activity in this
case, she cannot maintain her retaliation claim under a
constructive discharge theory. See, e.g., Zaffuto v. City of
Hammond, 308 F.3d 485, 492 (5th Cir. 2002) (holding that the
plaintiff officer failed to state a Title VII retaliation claim
where the record demonstrated that the suspension occurred before
the plaintiff engaged in protected activity); Soledad v. United
States Dep’t of Treasury, 304 F.3d 500, 507 (5th Cir. 2002)
(affirming the grant of summary judgment on plaintiff’s Title VII
retaliation claim where there was little evidence to show that the
defendant “took certain actions because of [plaintiff’s] protected
activity”); Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d
334, 338-39 (5th Cir. 1999) (affirming summary judgment in a
retaliation case because the employer was not aware of the
plaintiff’s discrimination complaint when it made the employment
decision that the plaintiff claimed was retaliatory).
(2) Direct Discharge
Bradford also claims that GB&L directly discharged her forty-
eight hours after she engaged in protected activity. A direct
termination constitutes an adverse employment action under our
circuit precedent. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707
(5th Cir. 1997). However, here, the evidence does not demonstrate
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that GB&L directly discharged Bradford. Rather, the uncontested
evidence demonstrates that Bradford unilaterally resigned and that
she never retracted this resignation.
Bradford’s resignation letter clearly states that “by the
advice of [her] physician,” she was resigning “[d]ue to continuing
health problems” and the need to “cut down” on her hours. During
her employ at GB&L, Bradford underwent several surgeries to remedy
health-related problems. As a result, Bradford was required to
miss fifty-seven work days in 1997 and thirty-seven and one-half
work days in 1998. Bradford admits that at the time she was
allegedly directly discharged by Bucek, she had already accepted a
part-time job with another law firm that allowed her to work less
hours. She also admits that she never retracted her resignation
letter, nor did she tell GB&L that her physician had not, in fact,
advised her to resign from a full-time position. Thus, GB&L would
have no reason to doubt that Bradford was, in fact, still
exercising her decision to resign from a full-time position at GB&L
(for a part-time position already offered to her by another law
firm) due to health problems even after making disclosures to Bucek
regarding Arnold.
In her letter, Bradford states that she had “enjoyed working
[at GB&L] and hope[d] the firm w[ould] keep [her] in mind for any
contract positions or temporary assignments that may arise.” That
both Bradford and Bucek understood that Bradford had somehow
retracted her resignation after making allegations of harassment to
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Bucek and that the firm then directly discharged her forty-eight
hours later is further belied by Bradford’s own deposition
testimony. Bradford’s own testimony reflects that after resigning
and complaining to Bucek, Bucek responded by stating that:
[S]hareholders were going to meet, she [Bucek] would talk
to them; that she didn’t see any problem with me working
there, you know, on a contract basis or temporary
assignments; that they would move me to some other part
of the firm; and that Gregg Weinberg wanted to talk to me
and that he would be talking with me that day.
Rec. at 213. This testimony clearly demonstrates that all
involved, including Bradford, gave full effect to Bradford’s
resignation from her full time position. The only future
relationship (following the completion of Bradford’s last two-weeks
with GB&L) envisioned was that of possible contract or temporary
employment, as dictated by the resignation letter. That Bucek
responded to Bradford’s emotional state two days later by allowing
her to simply serve out the remainder of her two-weeks with GB&L at
home on paid leave is not evidence of a direct discharge in
retaliation for protected conduct. Under her direct discharge
theory, Bradford’s retaliation claim thus fails because she cannot
demonstrate that GB&L took adverse employment action against her.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997)
(discussing adverse employment actions).
B. Supplemental Jurisdiction
After granting summary judgment in favor of GB&L and Arnold on
all claims except Bradford’s claim for assault and battery against
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Arnold under state law, the district court declined to exercise
supplemental jurisdiction over this claim. The claim was thus
dismissed, without prejudice. Bradford appeals this dismissal.
However, as the district court had “dismissed all claims over which
it ha[d] original jurisdiction,” we find no abuse of discretion in
the district court’s dismissal of Bradford’s assault and battery
claim under 28 U.S.C. § 1367. See McCelland v. Gronwaldt, 155 F.3d
507, 519-20 (5th Cir. 1998) (“[W]hen all federal claims are
dismissed or otherwise eliminated from a case prior to trial, we
have stated that our ‘general rule’ is to decline to exercise
jurisdiction over the pendent state law claims.”) (citing Wong v.
Stripling, 881 F.2d 200, 204 (5th Cir. 1989)).3
IV. CONCLUSION
Upon review of the district court’s grant of summary judgment
in favor of GB&L on Bradford’s retaliation claim and its judgment
3
Title 28 U.S.C. § 1367 provides, in relevant part,
that:
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if –
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over which
it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
(5)
28 U.S.C. § 1367©) (2000).
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declining to exercise supplemental jurisdiction over Bradford’s
pendent state law claim for assault and battery, we AFFIRM.
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