Filed: Jul. 16, 2004
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 July 16, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 03-20648 Summary Calendar _ BARBARA NORTON, et al., Plaintiffs, THERESA FUENTEZ Plaintiff-Appellant, versus HOUSTON INDUSTRIES INC., et al, Defendants HOUSTON INDUSTRIES INC.; THE HOUSTON LIGHTING & POWER COMPANY; DON D. JORDAN; DON D. SYKORA; SUSAN FABRE; MCKINSEY & COMPANY INC., Defendants - Appellees _ IVIS W. JOHNSON, SR., et al,
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 16, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 03-20648 Summary Calendar _ BARBARA NORTON, et al., Plaintiffs, THERESA FUENTEZ Plaintiff-Appellant, versus HOUSTON INDUSTRIES INC., et al, Defendants HOUSTON INDUSTRIES INC.; THE HOUSTON LIGHTING & POWER COMPANY; DON D. JORDAN; DON D. SYKORA; SUSAN FABRE; MCKINSEY & COMPANY INC., Defendants - Appellees _ IVIS W. JOHNSON, SR., et al, ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 03-20648
Summary Calendar
__________________________
BARBARA NORTON, et al.,
Plaintiffs,
THERESA FUENTEZ
Plaintiff-Appellant,
versus
HOUSTON INDUSTRIES INC., et al,
Defendants
HOUSTON INDUSTRIES INC.; THE HOUSTON LIGHTING & POWER COMPANY;
DON D. JORDAN; DON D. SYKORA; SUSAN FABRE; MCKINSEY & COMPANY
INC.,
Defendants - Appellees
______________________________________________________________________________
IVIS W. JOHNSON, SR., et al,
Plaintiffs,
MARIA T. FUENTEZ,
Plaintiff-Appellant,
versus
THE HOUSTON LIGHTING & POWER COMPANY; HOUSTON INDUSTRIES INC.;
DON D. JORDAN; DON D. SYKORA,
Defendants-Appellees
______________________________________________________________________________
MARIA TERESA FUENTEZ
Plaintiff-Appellant,
versus
THE HOUSTON LIGHTING & POWER COMPANY
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
Southern District of Texas, Houston Division
(No. H-92-CV-323-9 )
___________________________________________________
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
*
PER CURIAM:
Maria Teresa Fuentez (“Fuentez”), a Hispanic woman, was hired by Houston
Lighting & Power Company (“Houston”) in 1984. In 1990, Houston hired an outside
consultant to perform a climate assessment of the company; shortly after the climate
assessment Houston reassigned Fuentez to a new position. Fuentez filed a grievance with
Houston’s human resources department, asserting that she was reassigned because of her
race and sex. In October 1991, several months after Fuentez’ reassignment, Houston
instituted a program, called “Success Through Excellence in Performance” (“STEP”), that
*
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.
2
was designed to reduce costs. Soon after STEP, more than 900 employees—including
Fuentez—lost their jobs as part of an RIF (reduction in force). Fuentez sued Houston
arguing, among other things, that her demotion and termination were violations of Title
VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. (2000), because they were
based on her race and sex. At trial, Houston moved for judgment as a matter of law. The
judge granted the motion; Fuentez appeals.
We review the district court’s granting of judgment as a matter of law de novo,
applying the same standard as the district court. See, e.g., Laxton v. Gap Inc., 333 F.3d 572,
577 (5th Cir. 2003). Judgment as a matter of law is proper when “there is no legally
sufficient evidentiary basis for a reasonable jury to have found for that party.” Foreman
v. Babcock & Wilcox Co.,
117 F.3d 800, 804 (5th Cir. 1997) (quoting FED. R. CIV. P. 50(a)).
First, Fuentez argues that Houston demoted her on June 26, 1991 because she is a
Hispanic woman, in violation of Title VII. Adverse actions that occur more than 300 days
before the filing of an EEOC complaint are time-barred. See 42 U.S.C. § 2000e-5(e)(1).
Here, Fuentez filed her EEOC complaint on May 26, 1992; consequently, suits based on
actions occurring before July 30, 1991—including her demotion—are barred by statute.
Second, Fuentez argues that Houston fired her because she is a Hispanic female,
in violation of Title VII. Under the burden-shifting framework for Title VII , Fuentez must
first make a prima facie case of a violation; if she does then Houston has an opportunity
to offer a legitimate, non-discriminatory reason for the disputed action, in which case
Fuentez must provide evidence rebutting the offered reason. See McDonnell Douglas
3
Corp. v. Green, 411 U.S. 792, 802–04 (1973). Even assuming, arguendo, that Fuentez
2
establishes a prima facie case of discrimination, we reject her claim because she fails to
rebut the legitimate, non-discriminatory reason proffered by Houston. Houston maintains
that her position was eliminated in order to cut costs, an argument bolstered by both the
cost-saving STEP program closely preceding Fuentez’ termination and the fact that more
than 900 other employees were fired as well. Fuentez offers no evidence, other than her
own subjective belief, to rebut Houston’s cost-cutting move. Subjective belief alone is
insufficient. Little v. Republic Ref. Co., 924 F.2d 93, 96 (5th Cir. 1991) (noting that the
Court was “not prepared to hold that a subjective belief of discrimination, however
genuine, can be the basis of judicial relief”) (quoting Elliott v. Group Med. & Surgical
Servs.,
714 F.2d 556, 567 (5th Cir. 1983) (quotations omitted)).
Third, Fuentez argues that Houston fired her in retaliation for her filed grievance.
For a valid retaliation claim, Fuentez must show that there was a causal connection
between the filing of the grievance and her discharge. See, e.g, Fierros v. Texas Dep’t of
Health, 274 F.3d 187, 191 (5th Cir. 2001). The only evidence that Fuentez offers is that she
was discharged after she filed the grievance. The mere fact that an adverse employment
action occurred after a complaint was filed is not sufficient to establish a causal connection.
See Raggs v. Miss. Power & Light Co.,
278 F.3d 463, 471–72 (5th Cir. 2002).
2
One of the (four) requirements of the McDonnell Douglas framework is that the
plaintiff be replaced by someone not in a protected class. 411 U.S. at 802–05. It is
unclear whether Fuentez satisfies this prong because, while someone did take on at
least part of her duties, no one was specifically hired for her position.
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3
Finally, Fuentez brings a claim of intentional infliction of emotional distress. This
Court requires a high threshold of harm for this type of claim. See Walker v. Thompson,
214 F.3d 615, 628 (5th Cir. 2000) (“Insults, indignities, threats, annoyances, or petty
oppressions, without more, do not rise to the level of intentional infliction of emotional
distress.”); Ugalde v. W.A. McKenzie Asphalt Co.,
990 F.2d 239, 243 (5th Cir. 1993)
(holding that a supervisor’s use of racial epithets, while condemnable, does not rise to the
level of extreme or outrageous conduct). Fuentez’ complaints of emotional
harm—stemming from her firing and the fact that she was not given a baby shower—do
not meet that high standard.
Accordingly, the judgment of the district court is AFFIRMED.
3
Fuentez also asserts that Houston conspiratorially acted against her. The
argument, however, is limited to the section headings of her brief: she offers no
substantiation to her claim, and this Court finds none.
5
