Filed: Nov. 08, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10912 (Summary Calendar) _ WENDELL T. WORSHAM, Plaintiff-Appellant, versus MINYARD FOOD STORES, INC. Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas Division (3:00-CV-1182-P) _ November 7, 2001 Before HIGGINBOTHAM, WIENER and BARKSDALE, Circuit Judges. PER CURIAM*: Plaintiff-Appellant Wendell T. Worsham, proceeding pro se, appeals the district court’s grant of summar
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10912 (Summary Calendar) _ WENDELL T. WORSHAM, Plaintiff-Appellant, versus MINYARD FOOD STORES, INC. Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas Division (3:00-CV-1182-P) _ November 7, 2001 Before HIGGINBOTHAM, WIENER and BARKSDALE, Circuit Judges. PER CURIAM*: Plaintiff-Appellant Wendell T. Worsham, proceeding pro se, appeals the district court’s grant of summary..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-10912
(Summary Calendar)
_______________________________
WENDELL T. WORSHAM,
Plaintiff-Appellant,
versus
MINYARD FOOD STORES, INC.
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
(3:00-CV-1182-P)
_________________________________________________
November 7, 2001
Before HIGGINBOTHAM, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Wendell T. Worsham, proceeding pro se,
appeals the district court’s grant of summary judgment in favor of
defendant-appellee Minyard Food Stores, Inc. (“Minyard”) on his
racial discrimination claims under Title VII. Agreeing with the
result reached by the district court, 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this opinion should not be published and is not precedent except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.
1
I.
FACTS AND PROCEEDINGS
Worsham worked as a night stocker for Minyard from 1995 to
1999. During his employment there, Worsham received several
warnings regarding his poor performance, irregular attendance, and
attitude. His performance reviews also reflect that Worsham did
not always get along with his co-workers. Worsham eventually
became involved in a physical confrontation with a co-worker, for
which both participants received citations from the police officer
who investigated the incident. It was shortly after this
occurrence that Worsham was fired by Minyard.
Subsequent to his firing, Worsham filed a charge of racial
discrimination with the Equal Employment Opportunity Commission
(the “EEOC”). The EEOC determined that Worsham had not presented
a sufficient basis on which to proceed with an investigation. It
therefore dismissed the charge and issued Worsham a right-to-sue
letter.
Worsham attempted repeatedly to procure legal representation
to litigate his claim on a contingent fee basis, but was
unsuccessful, either because the law firms that he contacted
declined to represent him or because he could not afford to pay a
retainer fee. Unable to procure legal representation on his own,
Worsham filed a motion for appointment of counsel. The district
court referred the matter to a magistrate judge, who, after
2
assessing the legal standard for appointment of counsel, denied
such relief and observed in addition that “the merits of
Plaintiff’s claims against Defendant are problematic in the
extreme.”
Undeterred, Worsham filed a suit against Minyard pro se,
inartfully but apparently alleging violations of the First and
Fourteenth Amendments to the United States Constitution,
termination without explanation, wrongful prosecution, failure to
provide a W-2 form, as well as claims under 42 U.S.C. 2000e et seq.
for racial harassment, national origin discrimination, and
discriminatory discharge. Minyard responded with a motion to
dismiss all of Worsham’s proffered causes of action for failure to
state claims on which relief could be granted. The district court
granted Minyard’s motion as to all claims except those for racial
harassment and failure to provide a W-2 form.1
Minyard proceeded to defend these two remaining claims by
serving Worsham with a request for admissions, a request for
production of documents, and a set of interrogatories. Worsham did
not respond to these discovery and admission requests; instead,
approximately two weeks after their filing, he filed a motion to
1
Minyard as a non-governmental actor was not subject to
Fourteenth and First Amendment claims. Worsham failed properly to
exhaust his administrative remedies for a national origin
discrimination claim. He did not allege facts sufficient to cover
the elements of a malicious prosecution claim. And he did not
allege that he was terminated on account of his race.
3
strike or dismiss all Minyard’s discovery and admission requests.2
The district court again referred Worsham’s motion to the
magistrate judge who denied it, stating that Worsham presented no
meritorious grounds for relief.
Almost thirty days after the magistrate judge’s ruling,
Minyard filed a motion for summary judgment. In it, Minyard argued
that Worsham had neither responded nor objected to the admission
requests within the thirty days permitted by Fed. R. Civ. P. 36, so
that Worsham must be deemed to have admitted the inquiries.
Specifically, Minyard contended that Worsham should be deemed to
have admitted that during his employment with Minyard, (1) he was
never the victim of, or subjected to, any form of racial
harassment, and (2) he never complained that he was the victim of,
or being subjected to, any form of racial harassment.
More than thirty days after entry of the magistrate judge’s
ruling, Worsham filed his response to Minyard’s summary judgment
motion, but failed to address Minyard’s assertion that he had made
these two critical admissions (or any other of Minyard’s requests
for admission for that matter). In fact, Worsham never formally
answered the discovery requests or addressed Minyard’s argument.
2
The full title of Worsham’s motion was “Plaintiff’s Motion
for Dismissal or Strike of Defendant’s Motion to Produce Documents
and Defendant’s Request for Discovery Materials, Including
Interrogatories and Request to Admit on the Grounds that Affidavits
Were Made in Bad Faith and Motion Was Filed Without Counsel
Conferring With Counsel (Pro Se) Plaintiff in a Good Faith Attempt
To Resolve the Matter and Failed to Advise Court of Such in Body of
Motion.”
4
More than four months after the magistrate judge’s ruling —
and thus approximately three months after Minyard filed for summary
judgment and Worsham responded — the district court granted
Minyard’s summary judgment motion. It did so based largely on the
material facts in question that Worsham, by his failure to properly
respond or object, was deemed to have admitted. Worsham timely
appealed the district court’s judgment.
II.
ANALYSIS
A. Summary Judgment in favor of Minyard
1. Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court.3 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.4 An issue is material if its resolution
could affect the outcome of the action.5 In deciding whether a
fact issue has been created, we must view the facts and the
inferences to be drawn therefrom in the light most favorable to the
3
Morris v. Covan World Wide Moving, Inc.,
144 F.3d 377, 380
(5th Cir. 1998).
4
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5
nonmoving party.6
The standard for summary judgment mirrors that for judgment as
a matter of law.7 Thus, the court must review all of the evidence
in the record, but make no credibility determinations or weigh any
evidence.8 In reviewing all the evidence, the court must disregard
all evidence favorable to the moving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as that evidence supporting
the moving party that is uncontradicted and unimpeached.9
2. Summary Judgment
Rule 36 of the Federal Rules of Civil Procedure specifies that
if a party neither responds nor objects to a request for admissions
within thirty days, he is deemed to have admitted the requested
admissions.10 None contends that Worsham ever responded to the
requests; and the district court held that Worsham never objected
to them either. On appeal, Worsham insists that his motion to
strike or dismiss the discovery requests constituted an objection
for purposes of Rule 36, and that the motion should have been
6
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
7
Celotex Corp., 477 U.S. at 323.
8
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
9
Id. at 151.
10
Fed. R. Civ. P. 36(a).
6
treated as such by the magistrate judge. We may affirm the
district court’s ruling on grounds other than those advanced by
that court.11 Rather than attempting to determine whether Minyard’s
discovery requests were proper or whether Worsham’s motion
constituted an objection to these requests, we affirm the summary
judgment of the district court without regard to the deemed
admissions.
After conducting an exhaustive de novo review, we conclude
that, even if we were to assume that Worsham’s motion to strike or
dismiss should be considered as a proper objection to Minyard’s
discovery request or that Worsham properly denied the facts in
question, he still has not raised a genuine issue of material fact
and therefore cannot withstand Minyard’s summary judgment motion.
To state a claim for racial harassment, Worsham bears the burden of
proving that his workplace was an “objectionable environment [that
was] both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so.”12 Moreover, the harassment
must have been severe or pervasive and must have altered the
conditions of employment, destroying Worsham’s equal opportunity in
11
Employers Ins. of Wassau v. Occidental Petroleum Corp., 978
F.2d 1422, 1427 (5th Cir. 1992).
12
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)
(citing Harris v. Forklift Sys. Inc.,
510 U.S. 17, 21-22 (1993)).
7
the workplace.13 To avoid summary judgment, Worsham had to raise
a genuine dispute of material fact with regards to his workplace
conditions. He failed to do so.
Worsham’s evidence consists of nothing more than his own
conclusional statements in his Complaint, his motions, and his
responses to motions that he filed with the district court. He has
presented no affidavits or other admissible summary judgment
evidence to support his naked, self-serving allegations. Even if
we were to assume further that his allegations of workplace
harassment were true, Worsham has not presented any evidence (and
does not even clearly allege) that the workplace harassment was
based on his race. In most instances, Worsham only alleges that he
was subjected to “harassment” or “a form of harassment” by his co-
workers. Therefore, he does not clearly state a Title VII claim.
Additionally, although Worsham avers that he repeatedly
complained to his supervisors about his alleged race-based
harassment, he has not adduced evidence of such complaints
sufficient to avoid summary judgment. He attempts to prove that he
put his supervisors on notice by highlighting calls made from his
cell phone to Minyard’s employee concerns hotline; however, making
phone calls does not alone tend to prove that he was harassed on
account of his race or that his supervisors were put on notice of
13
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754
(1998); DeAngelis v. El Paso Mun. Police Officers Ass’n,
51 F.3d
591, 593 (5th Cir. 1995).
8
any alleged racial harassment. Moreover, Worsham’s alleged
workplace conditions did not amount to a constructive discharge,
forcing him to quit. Rather, by his own admission, he was fired by
Minyard despite his attempts to continue working. Finally, Worsham
cannot rebut Minyard’s proffered non-discriminatory evidence which
indicates that Worsham had difficulty cooperating with his fellow
employees, following directions, and arriving at work regularly and
on-time.
Again, to withstand summary judgment, Worsham had to produce
more than a scintilla of evidence, more than merely colorable
evidence.14 Our review of the entire record, and our consideration
of the record as a whole, confirms that Worsham has not raised a
genuine dispute as to whether he put his employer on notice of any
alleged racial harassment or whether any adverse employment action
was taken on account of his race.
B. Other Points of Error.
In addition to appealing the grant of summary judgment,
Worsham advances several points of error including, inter alia,
summary judgment on his W-2 form claim, the denial of court-
appointed counsel, and the awarding of costs to Minyard. Without
exhaustively addressing each point of error raised by Worsham,
suffice it that we find no reversible error in any of the district
court’s rulings.
14
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
9
III.
CONCLUSION
For the foregoing reasons, the judgment of the district court
and all of its rulings are, in all respects,
AFFIRMED.
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