Amos vs. Esmor Texas Inc, (5th Cir. 1995)

Docket Number: 95-10208

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* Local Rule 47.5 provides: "The publication of opini ons that have no precedential value and merely decide p articular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-10208 Summary Calendar BRENDA F. AMOS, Plaintiff-Appellant, VERSUS ESMOR MANSFIELD, INC. f/k/a/ ESMOR TEXAS, INC., RON KING, SKYLER BARKER and WILLIAMS KAESLER, Defendants-Appellees.

Appeal from the United States District Court For the Northern District of Texas (CA H 94 4309 (CR H 91 180 2)) (August 28, 1995) Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM * : FACTS AND PROCEEDINGS BELOW Appellant brought this action pursuant to Title VII, 42 U.S.C. §§ 2000e, alleging that she was discharged by her employer in retaliation for her complaining about harassment, sexual har assment, and racism. The district court granted Appellees' motion for summary judgment. Appellant then filed a timely notice of appeal.

GROUNDS OF THE MOTION FOR SUMMARY JUDGMENT Appellees' grounds for summary judgment ruled upon by the district court were as follows: (1) Appellant failed to timely file her charge of discrimination as required by 42 U.S.C. § 2000e- 5(e); (2) bec ause Appellant failed to include the individual defendants in her charge of discrimination, Title VII claims against them are now prohibited; and (3) Appellant is unable to overcome Appellees' articulated nondiscriminatory reasons for the discharge. 1. Timeliness of Appellant's Charge of Discrimination Pursuant to 42 U.S.C. § 2000e-5(e), a complaining party must file a charge within 180 days of the alleged discrimination. In order to qualify for the 300-day period mentioned in the statute, the complaini ng party must institute proceedings with the state referral agency. B lumberg v. HCA Management Co. , 848 F.2d 642, 646 (5th Cir. 1988), cert. denied , 488 U.S. 1007 (1989). Appellant filed her charge with the Equal Employment Opportunity Commission, not with the Texas Commission on Human Rights. Moreover, Appellant failed to come forward with any summary judgment evidence that she did file her charge with the state agency. Therefore, Appellant was required to file her charge within 180 days of the alleged discrimination. This she did not do. Summary judgment was appropriate on this basis. 2. Liability of Individual Defendants Appellant is not entitled to proceed with Title VII claims against the individual defendants as they were not named in Appellant's charg e of discrimination. 42 U.S.C. § 2000e-5(f)(1); Terrell v. United States Pipe & Foundry Co. , 644 F.2d 1112, 1122 (5th Cir. Unit B May 1981), va cated on other grounds sub nom. International Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Terrell , 456 U.S. 955 (1982), and cert. denied , 456 U.S. 972 (1982); Ajaz v. Continental Airl ines , 156 F.R.D. 145 (S.D. Tex. 1994). The district court correctly ruled that the individual defendants were entitled to summary judgment on this basis. 3. O vercoming Articulated Nondiscriminatory Reasons for Discharge Appellees articulated legitimate, nondiscriminatory reasons for Appellant's discharge, including insubordination and poor work pe rformance. Appellant failed to come forward with any summary judgment evidence to show that these reasons are pretextual. See Hill v. K-Mart Corp. , 699 F.2d 776, 779 (5th Cir. 1983). The district court correctly granted summary judgment on this basis.

Accordingly, the order of the district court is AFFIRMED.