Filed: Jun. 12, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS for the Fifth Circuit June 12, 2006 Charles R. Fulbruge III Clerk No. 05-20236 ERIC HAMIC, Plaintiff-Appellant, VERSUS HARRIS COUNTY W.C. & I.D. NO. 36, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Texas (4:04-CV-1327) Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Eric Hamic (“Hamic”) appeals two decisions of the district court: (1) an order g
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS for the Fifth Circuit June 12, 2006 Charles R. Fulbruge III Clerk No. 05-20236 ERIC HAMIC, Plaintiff-Appellant, VERSUS HARRIS COUNTY W.C. & I.D. NO. 36, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Texas (4:04-CV-1327) Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Eric Hamic (“Hamic”) appeals two decisions of the district court: (1) an order gr..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit June 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-20236
ERIC HAMIC,
Plaintiff-Appellant,
VERSUS
HARRIS COUNTY W.C. & I.D. NO. 36,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CV-1327)
Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Eric Hamic (“Hamic”) appeals two decisions of the district
court: (1) an order granting summary judgment in favor of Appellee
Harris County W.C. & I.D. No. 36 (“District No. 36”) on Hamic’s
claim that District No. 36 breached its employment contract with
him and (2) an order granting summary judgment in favor of District
No. 36 on Hamic’s claim that District No. 36 unlawfully
discriminated and retaliated against him in violation of 42 U.S.C.
*
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opinion should not be published and is not precedent except under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.
§ 2000e for refusing a direct order that Hamic alleges was unlawful
under that section. We affirm both decisions.
I.
On March 29, 2000, Hamic and District No. 36 entered into an
employment contract (the “Contract”) under which Hamic was employed
to serve as the General Manager of District No. 36 for a term of
five years. One provision of the Contract states, “Hamic shall have
the full authority of his position and title.” Hamic alleges that
this provision gave him “the full authority to hire and fire, [to]
evaluate performance and award raises or issue constructive
reviews, and [to] manage the day-to-day operations of the water
district,” authority that was allegedly undermined by the Board of
Directors of District No. 36 (the “Board”), as described below. The
“full authority” provision forms the heart of the contract dispute.
On December 20, 2000, Geraldo Parra, a member of the Board,
allegedly gave Hamic a direct order to fire a non-Hispanic employee
so that an Hispanic employee could be hired. Hamic refused, and,
according to Hamic, relations between himself and three members of
the Board (Geraldo Parra, Eladio Ayala, and Mike Black)
subsequently deteriorated. Hamic makes the following allegations
regarding what occurred after he refused Parra’s order: (1) on
various occasions, members of the Board “attempted to coerce,
order, and otherwise induce [Hamic] to hire only Hispanics
and . . . made remarks . . . show[ing] an animus toward[s] ‘white’
or Caucasian persons”; (2) on various occasions, members of the
2
Board “expressly usurped the authority of [Hamic] to hire and fire
Water District employees and hired employees without the consent or
approval of [Hamic]”; (3) on various occasions, members of the
Board made false accusations to third parties about Hamic’s
expertise, managerial abilities, and managerial decisions and
falsely attributed various problems to him; (4) members of the
Board removed Hamic’s business telephone; (5) members of the Board
“instructed employees to, and allowed employees to, refuse to
follow [Hamic’s] directions in his capacity as General Manager”;
(6) on various occasions, Mike Black ordered Hamic “to perform
irregular and suspect acts in an attempt to exacerbate the already
hostile working environment and interfere with [Hamic’s] ability to
do his job,” namely, he ordered Hamic “to make a report of every
conversation that [Hamic] had during the day to include any
conversation with his wife” and issued “numerous burdensome ‘to do’
lists that were not approved by a quorum of the Board”; (7) members
of the Board engaged in general daily harassment; and (8) Eladio
Ayala testified that as part of a “‘plan,’” he, Geraldo Parra, and
Mike Black “‘slowly . . . made things more difficult for [Hamic] by
giving him trouble with everything he did, by undermining his
authority with the employees, and taking away his duties such as
hiring and firing, so that he eventually became just a
figurehead.’” Hamic alleges that these conditions created a hostile
work environment and constituted retaliation for his refusal to
comply with Parra’s direct order. These conditions form the basis
3
of Hamic’s employment discrimination charge (as well as the factual
basis for his breach of contract claim).
Hamic reported the above conditions to the Board and to the
attorney for District No. 36, but, according to Hamic, conditions
did not improve. On June 26, 2002, Hamic filed a charge of
discrimination with the Texas Commission on Human Rights (“TCHR”)
and the Equal Employment Opportunity Commission (“EEOC”), and on
July 17, 2002, Hamic voluntarily resigned from his position as
general manager, a resignation he characterizes as constructive
discharge.2 The EEOC issued Hamic a Right to Sue Letter on February
19, 2003, and the U.S. Department of Justice issued a Right to Sue
Letter on June 27, 2003.3
On July 16, 2002, Hamic filed suit in Texas state court,
claiming that District No. 36 had violated its employment contract.
District No. 36 removed the case to federal court, where Hamic
amended his complaint to add an employment discrimination charge
under federal law, specifically, a hostile environment claim under
42 U.S.C. § 2000e-2 and a retaliation claim under § 2000e-3.4
2
Hamic’s resignation was not effective until August 17, 2002.
3
The TCHR does not appear to have issued a Right to Sue Letter,
but that is irrelevant here where Hamic only appeals his federal
employment discrimination cause of action.
4
The case was removed on federal question grounds pursuant to a
§ 1983 claim that Hamic later dropped. Hamic tried to remand the
case after dropping his § 1983 claim, but the court ruled that
remand was not proper because of the federal employment
discrimination charge Hamic brought in his amended complaint.
4
District No. 36 moved for summary judgment on both issues, breach
of contract and employment discrimination. On August 6, 2004, the
district court granted District No. 36’s motion in part, ruling
that Hamic take nothing on his breach of contract claim. Hamic
moved for reconsideration. The district court denied Hamic’s motion
and ordered District No. 36 to file another motion for summary
judgment, which it did. This motion, which addressed Hamic’s
employment discrimination charge and argued that some of the acts
alleged in support thereof were time barred, was denied. However,
the district court later vacated the denial, entered the opposite
ruling, and ordered Hamic to take nothing on his employment
discrimination charge after reconsidering the parties’ submissions
and hearing arguments from both parties as to whether the
continuing violations doctrine5 applied in Hamic’s case to save any
time barred acts (the court decided it did not). The court entered
final judgment in favor of District No. 36, and Hamic timely
appealed, arguing that a material question of fact exists regarding
his breach of contract claim that precludes summary judgment and
that the district court erred in refusing to apply the continuing
violations doctrine to his § 2000e-3 retaliation claim.
II.
This Court reviews a grant of summary judgment de novo,
5
See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 279-80 (5th
Cir. 2004) (describing the continuing violations doctrine).
5
applying the same standard as the district court. Wheeler v. BL
Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005). Summary judgment is
appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(C). The Court views the evidence in the light most
favorable to the non-movant.
Wheeler, 415 F.3d at 401-02. The non-
movant must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial to avoid summary
judgment.
Id. (citing Celotex Corp. v. Catrett,
477 U.S. 317, 324
(1986)). A genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the non-
movant.
Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248 (1986)). Summary judgment is appropriate, however, if the non-
movant “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.”
Id.
(quoting Celotex, 477 U.S. at 322-23).
A.
With respect to Hamic’s breach of contract claim, the district
court held that District No. 36 did not breach its contract to
employ Hamic as general manager with the full authority of that
position and title. It reasoned that because the Board, by law,
delegates authority to the general manager in its discretion and
because the Board’s delegation defines the position, the general
6
manager’s “full authority” is whatever the Board says it is.6
Moreover, the court found that neither the Water Code nor the
Contract describes Hamic’s specific authority; rather, they explain
how Hamic’s authority is to be determined: by the Board. Thus, the
court determined that Hamic’s authority as general manager under
the Contract was not breached by the Board’s decision to
participate in the hiring process because the Board retained the
ultimate authority to manage the district; nor was Hamic’s
authority breached by any acts of individual members of the Board
that undermined Hamic’s authority because the acts did not prevent
him from doing his job, they simply made his job more difficult.
Having carefully reviewed the record and the parties’ briefs, we
affirm the district court’s decision ordering Hamic to take nothing
on his breach of contract claim essentially for the reasons stated
by the district court.
B.
With respect to Hamic’s employment discrimination charge, the
district court held that (1) the charge was not subject to the
continuing violations doctrine; (2) the order to fire an Hispanic
person was outside the limitations period and could not support any
6
See TEX. WATER CODE ANN. § 49.056(a) (Vernon 2000) (“The board may
employ or contract with a person to perform such services as
general manager for the district as the board may from time to time
specify. The board may delegate to the general manager full
authority to manage and operate the affairs of the district subject
only to orders of the board.”); see also id. § 49.056(b)
(describing the board’s discretion to delegate personnel decisions
to the general manager).
7
acts that occurred in 2002; and (3) any acts that occurred in 2002
did not otherwise illustrate ethnic retaliation or discrimination.7
Hamic only appeals the district court’s decision to the extent that
it failed to apply the continuing violations doctrine to his
retaliation claim. We affirm the district court’s decision in that
respect.
A plaintiff, like Hamic, who initially institutes proceedings
with an appropriate state agency must file a Title VII employment
discrimination charge with the EEOC within 300 days of the
challenged discrimination. See 42 U.S.C. § 2000e-5(e)(1); see also
Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). The
continuing violations doctrine is an equitable doctrine that
extends the limitations period on otherwise time barred claims when
the unlawful employment practice in question manifests itself over
time, rather than as a series of discrete acts. Pegram v.
Honeywell, Inc.,
361 F.3d 272, 279 (5th Cir. 2004). Previously, a
plaintiff was relieved of establishing that all alleged
discriminatory conduct occurred within the actionable period if he
7
Unfortunately, the district court did not publish a written
decision, so we have had to piece together its holding from the
transcript of a hearing the judge held on February 15, 2005. We
have previously urged courts to provide findings of fact and
conclusions of law when granting summary judgment, and we do so
again here. See Thomas v. N.A. Chase Manhattan Bank,
994 F.2d 236,
241 n.6 (5th Cir. 1993) (citing Wildbur v. Arco Chem. Co.,
974 F.2d
631, 644 (5th Cir. 1992); Williamson v. Tucker,
645 F.2d 404, 411
(5th Cir.), cert. denied,
454 U.S. 897,
102 S. Ct. 396,
70 L. Ed.
2d 212 (1981); Boazman v. Economics Lab., Inc.,
537 F.2d 210, 213
n.5 (5th Cir. 1976)).
8
could show a series of related acts, one or more of which fell
within the limitations period. Id. However, the Supreme Court has
clarified that “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely
filed charges.”
Id. (citing Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002)). The Fifth Circuit states the rule as
follows: “claims based on discrete acts are timely only where such
acts occurred within the limitations period, and . . . claims based
on hostile environment are only timely where at least one act
occurred during the limitations period.”
Id. at 279-80.
Hamic argues on appeal that the district court should have
applied the continuing violations doctrine to his § 2000e-3
retaliation claim. He asserts that the actions taken against him
were not discrete acts, but rather an ongoing pattern of
retaliation, subject to the continuing violations doctrine.
However, retaliation is, by definition, a discrete act, not a
pattern of behavior. See Mattern v. Eastman Kodak Co., 104 F.3d
702, 705-07 (5th Cir. 1997). It requires an adverse employment
action, which has been defined in this Circuit as an ultimate
employment decision, such as “‘hiring, granting leave, discharging,
promoting, and compensating.’” See
id. at 707 (quoting Dollis v.
Rubin,
77 F.3d 777, 781-82 (5th Cir. 1995)). Accordingly, post-
Morgan, a plaintiff can only recover for retaliation to the extent
that it occurred within the limitations period, that is, the
9
continuing violations doctrine does not apply to retaliation. See
Pegram, 361 F.3d at 279-80. Therefore, Hamic’s argument that the
district court should have applied the continuing violations
doctrine to his retaliation claim must fail.
Hamic does not otherwise appeal the district court’s
decision.8 Accordingly, we affirm the district court’s decision
that Hamic take nothing on his employment discrimination charge.
III.
For the foregoing reasons, we AFFIRM the decisions of the
district court granting summary judgment in favor of District No.
36.
8
Hamic urges in his reply brief that, contrary to the district
court’s decision, he was demoted, he resigned as a result of a
hostile environment, and he was constructively discharged. However,
we do not consider arguments raised for the first time in a reply
brief. Wallace v. County of Comal, 400 F.3d 284, 292 (5th Cir.
2005).
10
