Filed: Aug. 21, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 21, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-31208 PEARL MOODY, Plaintiff-Appellant, versus UNITED STATES SECRETARY OF THE ARMY, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana (01-CV-111) Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges. PER CURIAM:* Pearl Moody appeals the district court’s grant of summary judgm
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 21, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-31208 PEARL MOODY, Plaintiff-Appellant, versus UNITED STATES SECRETARY OF THE ARMY, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana (01-CV-111) Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges. PER CURIAM:* Pearl Moody appeals the district court’s grant of summary judgme..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-31208
PEARL MOODY,
Plaintiff-Appellant,
versus
UNITED STATES SECRETARY OF THE ARMY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(01-CV-111)
Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.
PER CURIAM:*
Pearl Moody appeals the district court’s grant of summary
judgment, dismissing all of her claims. Moody alleged that her
employer, the United States Army, discriminated against her because
of her age, in violation of the Age Discrimination in Employment
Act (ADEA),1 as well as Louisiana’s state age discrimination law.2
*
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this opinion should not be published and is not precedent except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
29 U.S.C. § 621, et seq.
2
The district court dismissed Moody’s state law claims and
she has not appealed that decision here.
We affirm on the basis that Moody has failed to demonstrate a prima
facie case of age discrimination.
I.
Moody alleges that her supervisor, Ellis Smith, harassed her
for several years based on her age, and refused to give her a
promotion or reevaluate her job and upgrade her pay scale to
reflect the work she was actually doing. Moody complained to the
Equal Employment Opportunity Office, and eventually entered a
settlement agreement to resolve the dispute. However, after Moody
concluded that the Army was failing to follow through on the
settlement, she sued in district court. The Army moved to dismiss
on the basis that the dispute had been resolved by the settlement
agreement, but the district court concluded that both parties
breached the terms of the agreement and therefore it was void.
Neither party appeals that decision. The Army then moved for
summary judgment based on Moody’s alleged failure to exhaust
administrative remedies, or alternatively, failure to make out a
prima facie case of age discrimination. The district court granted
summary judgment in favor of the Army and dismissed Moody’s claims
with prejudice. The district court also granted the Army’s motion
to strike several exhibits from Moody’s response, and denied
Moody’s Rule 59(e) Motion to Amend Judgment. Moody has not
appealed either of these decisions. Moody timely appealed the
grant of summary judgment.
II.
2
We review a grant of summary judgment de novo, applying the
same standard as the district court.3 Summary judgment is
appropriate when, viewing the evidence in the light most favorable
to the nonmoving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.4
An issue is genuine if the evidence is sufficient for a reasonable
jury to return a verdict for the nonmoving party.5 Although the
district court dismissed Moody’s claims for failure to exhaust
administrative remedies, the Army also urges that Moody failed to
make out a prima facie case of discrimination. We turn to this
alternative basis first.6
A claim for violation of the ADEA may be established by direct
or circumstantial evidence. If the plaintiff provides
circumstantial evidence of discrimination, the familiar burden
3
See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998).
4
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
see also Fed. R. Civ. P. 56(c).
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
6
The timely filing requirements of the ADEA function as
statutes of limitations rather than a prerequisite for
jurisdiction. See Rhodes v. Guiberson Oil Tools Div., 927 F.2d
876, 878 (5th Cir. 1991); Henderson v. United States Veterans
Admin.,
790 F.2d 436, 440 (5th Cir. 1986). Therefore, we need not
decide the timeliness of Moody’s claims before addressing their
merits.
3
shifting framework of McDonnell Douglas applies.7 Under McDonnell
Douglas, the plaintiff must first establish a prima facie case of
discrimination, which the defendant must then rebut by producing a
legitimate, nondiscriminatory justification for its actions. The
plaintiff must then demonstrate that the proffered reasons are
pretextual, and establish that the defendant’s actions were
discriminatory.8
To establish a prima facie case of failure to promote based on
age discrimination, the employee must demonstrate that “1) he
belongs to the protected class, 2) he applied to and was qualified
for a position for which applicants were being sought, 3) he was
rejected, and 4) another applicant not belonging to the protected
class was hired.”9 Here, Moody alleges that she asked for a
promotion on numerous occasions, although she only cites a single
occasion in February of 1995 when she applied for an open position.
She claims that Smith changed the job description of the position
for which she applied, and “[t]he effect of this change was to deny
Moody the promotion.” She also alleges that Smith gave the
promotion to a much younger employee.
7
See Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir.
2001) (citing McDonnell Douglas v. Green,
411 U.S. 792 (1973)).
8
Id. at 350.
9
Medina v. Ramsey Steel Co., 238 F.3d 674, 680-81 (5th Cir.
2001).
4
It is clear that Moody, who is 62 years-old, is a member of
the protected class and that she was rejected for the promotion.
However, the summary judgment evidence does not establish that
Moody was qualified for the position for which she applied.
Likewise, there is no summary judgment evidence before us which
indicates that the position was given to someone who was not a
member of the protected class.10 Therefore, Moody has failed to
establish a prima facie case based on a failure to promote.
Similarly, Moody has also failed to establish a prima facie
case for any claim that she failed to receive a pay raise or a
reevaluation of her pay scale to reflect the work she was actually
performing. To establish such a claim, she must demonstrate that
younger employees who were similarly situated received raises or
reevaluation of their pay scales.11 Although she claims that she
is the lowest paid employee in her department, she has not
presented any evidence that other similarly situated younger
employees are paid more. The fact that she is the lowest paid
employee, without more, cannot establish a prima facie case of
discrimination.
10
Moody refers only to a stricken exhibit which states that
the position was given to “a friend” of Smith’s. Even if we were
to consider this stricken evidence, it does not establish that
Moody was qualified for the position or that it was given to
someone younger.
11
See Bennett v. Total Minatome Corp., 138 F.3d 1053, 1062
(5th Cir. 1998).
5
Because Moody has failed to establish a prima facie case of
discrimination under the McDonnell Douglas framework, she must
establish discrimination by direct evidence.12 Although Moody
alleges that Smith engaged in a long-running pattern of harassment,
her detailed log of Smith’s behavior cites only four instances
where Smith’s behavior evidences discriminatory animus. In August,
1997, he asked Moody, “Granny have you not got anything to do?”; on
August 26, 1998, he directed someone to Moody by stating, “See that
old woman and she will take care of you”; on August 31, 1998, he
asked Moody, “old woman, when are you going to retire and go home
so someone younger can have a job?”; and again on September 17,
1998, he asked, “Granny, when are you going to retire and let
someone younger have a job?”13
We analyze remarks presented as direct evidence of
discrimination under the test articulated in Brown v. CSC Logic,
Inc.14 “For comments in the workplace to provide sufficient
evidence of discrimination, they must be 1) related to the
12
See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 404
(5th Cir. 2001) (stating that where the plaintiff’s claims cannot
survive under the McDonnell Douglas framework, the plaintiff must
prove discrimination by direct evidence).
13
Moody also complains of other harassing behavior by Smith,
and alleges that it was motivated by her age. Even assuming that
this unsupported allegation is true, Smith’s other behavior is not
direct evidence of age discrimination.
14
See Laxton v. Gap, Inc., 333 F.3d 572, 583 n. 4 (5th Cir.
2003);
Auguster, 249 F.3d at 405.
6
protected class of persons of which the plaintiff is a member; 2)
proximate in time to the [employment decision]; 3) made by an
individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.”15
We begin by noting that all of the remarks occurred well after
the denial of the promotion in 1995, and thus cannot be evidence of
discriminatory motive in denying the promotion. They could,
however, be evidence of discriminatory motive in failing to give
Moody a raise, or to reevaluate her pay scale. Only the remarks
made on August 31 and September 17 are arguably related to a
failure to grant a pay raise, whereas the other two remarks merely
evidence animus directed at Moody based on her age and thus are not
direct evidence of discrimination. However, because Moody does not
indicate when she asked for and was denied a pay raise, other than
to state that she “repeatedly asked” for a promotion, we cannot
evaluate whether these comments are proximate in time to any
employment action. We therefore find that these two comments do
not raise an issue of material fact sufficient to avoid summary
judgment.
Finally, Moody alleges that the comments listed above
constitute a hostile work environment. While these comments are
offensive and boorish, they are not “sufficiently severe or
15
Id. (internal quotation marks and brackets omitted).
7
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.”16
III.
We therefore AFFIRM the district court’s grant of summary
judgment dismissing all of Moody’s claims with prejudice.
16
Shepard v. Comptroller of Pub. Accounts of the State of
Tex., 168 F.3d 871, 874 (5th Cir. 1999) (internal quotation marks
and brackets omitted).
8
