Price vs. McLennan County, TX, (5th Cir. 1999)

Text

---

Overall, Stefka complains that the Sheriff’s Department took retaliatory actions against her as demonstrated by repeated denials of her requests to transfer to day positions at the jail even though her seniority entitled her to a transfer. 3 Additionally, Stefka claims that she was falsely accused of violating Sheriff’s Department pol i ci es and received unusually severe punishment including revocation of her deputization and suspension of duty without pay. Indeed, several incidents did lead the Sheriff’s Department to take some employment action against Stefka. On November 2, 1996, Stefka’s former sister-in-law filed a complaint with t he Sheriff’s Department after Stefka and another jailer, Paul Caudle (“Caudle”), participated or assisted in the division of marital assets between Stefka’s brother and his estranged wife. At the time, both were off-duty. After an investigation, during which both Stefka and Caudle were placed on administrative leave with pay, the Sheriff’s Department chose to no longer sponsor either Stefka or Caudle’s peace officer credentials. Both jailers were required to turn in their peace officer credentials on November 15, 1996.

On December 2, 1996, Stefka was observed sleeping on-duty at the jail. Stefka explained that she was unable to stay awake because she was taking medication which, as a side effect, made her drowsy. The SheriffÂ’s Department conducted an investigation and concluded that Stefka wo uld receive five days leave without pay effective December 30, 1996. She was also placed on probation for six months. Stefka complains that she was treated more harshly than other officers with similar misconduct in retaliation for her testimony in the EEOC investigation. Her application to a field offi cer po sit io n made during this month was also rejected; the position was awarded to a male applicant.

On November 20, 1996, Stefka filed a charge of discrimination with the EEOC complaining that the SheriffÂ’s Department was discriminating against her based on her sex and in retaliation for her participation in PriceÂ’s 1994 charge to the EEOC. She received a notice of her right to sue on May 26, 1998 and filed her complaint in the district court on August 20, 1998. The district court entered its order granting summary judgment in favor of McLennan County on December 4, 1998.

Stefka raises essentially two arguments in her t imely appeal. First, she contends that the district court erred in denying her motion to extend discovery. Second, Stefka argues that the district co urt improperly granted McLennan CountyÂ’s motion for summary judgment. See id .

On September 8, 1998 McLennan County filed its motion to dismiss or, in the alternative, for summary judgment. Three days later, the district court entered its scheduling order indicating that dispositive motions were to be filed and discovery completed by January 11, 1999. Nevertheless, the effect of McLennan CountyÂ’s immedi at e motion for summary judgment provided notice to Stefka that she must actively discover and present to the court the evidence necessary to resist a grant of summary judgment. She failed to do so and chose to file a motion for a continuance on October 26, 1998. Although Stefka argues that she needed more time to complete discovery and file supplemental summary judgment evidence, this case does not present facts w hich are particularly difficult to investigate. Inasmuch as the district court did not rule on the motion for summary judgment until December 4, 1998, we find that Stefka had adequate time to conduct discovery and present evidence opposing summary judgment.

Moreover, we are unable to find that the district court abused its discretion because StefkaÂ’s motion for a continuance is substant ively inadequate. Therein, Stefka failed to detail the specific evidence she was seeking; the relevance of the evidence; and the reasons she was unable to present it. S ee E xxon Corp. , 40 F.3d at 1487. Instead, it appears that Stefka endeavored to do too little too late. At most, the affidavit in support of the motion explains that the sought information was within the exclusive control of McLennan County. This assertion is not sufficient because in an adversarial proceeding, the sought information is often within the exclusive control of the party opponent.

Instead, Stefka was required to state reasons which precluded, undermined, or impeded her efforts to discover the evidence. S ee Keebler Co. v. Murray Bakery Products , 86 F.2d 1386, 1389 (Fed. Cir. 1989). Finding no abuse of discretion, we affirm the district courtÂ’s decision to deny the motion to continue.

B. Motion for Summary Judgment Next, Stefka challenges t h e district courtÂ’s grant of summary judgment for McLennan County.

StefkaÂ’s arguments collapse into two categories: (1) the district courtÂ’s finding that she had not exhausted her administrative remedies; and (2) the district courtÂ’s finding th at the basis for her retaliation claims were not adverse employment actions.

We will consider each in turn.

We review a grant of summary judgment de novo , applying the same criteria as the district court. S ee Merritt-Campbell, Inc. v. RxP Products, Inc. , 164 F.3d 957 , 961 (5th Cir.1999).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." F ED . R. C IV . P. 56(c); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). The moving party must first demonstrate that there are no genuine issues of material fact. S ee 477 U.S. at 248. Once the moving part y makes this showing, the nonmovant must come forward with summary judgment evidence sufficient to establish the existence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); T opalian v. Ehrman , 954 F.2d 1125, 1131 (5th Cir. 1992) ("The nonmo vant must com e fo rward with evidence establishing each of the challenged elements of its case for which t he nonmovant will bear the burden of proof at trial."). 1. Exhaustion of Administrative Remedies It is well settled that the filing of an administrative complaint is a jurisdictional prerequisite to an action under Title VII. S ee Dollis v. Rubin , 77 F.3d 777, 781 (5 th Cir. 1995). General l y , allegations that are not in an administrative charge cannot be raised in a subsequent complaint filed in district court. S ee id . However, such allegations may be brought where they are similar to or grew out of the claims brought before the EEOC. S ee NatÂ’l AssÂ’n of GovÂ’t Employees v. City of Pub. Serv.

Bd. of San Antonio , 40 F.3d 698, 711 (5th Cir. 1994).

In her November 26, 1996 charge of discrimination, Stefka indicated that she was discriminated against based on sex and in retaliation for participating in an earlier case. She lists her placement on administrative leave and the revocation of her deputization as the personal harm she experienced. Neither of these two actions relate to any sex-based discrimination. Indeed, Stefka failed to articulate any basis for her sex discrimination claim or discuss the personal harm she experienced. 5 Having failed to amplify her claim before the EEOC, we must d et ermine whether the facts giving rise t o her sex discrimination claim are similar to the allegations contained in the charge or grew out of those allegations during the pen d ency of this case. We find that the Sheriff’s Department’s denial of the patrol field officer position in December 1996 does not grow out of the allegations brought in her EEOC charge of discrimination. The EEOC had concluded its investigation of the denial of patrol field officer positions to women and is s ued its determination on August 29, 1995. Consequently, it was incumbent upon Stefka to bring the basis of her sex discrimination claim to the attenti on of the EEOC. By failing to do so, she has not exhausted her administrative remedies on this claim. 6 Accordingly, we affirm the district court. 2. Adverse Employment Action Relief under Title VII is appropria t e o nly where there is an ultimate employment decision including hiring, discharging, promoting, compensating, or grantin g leave. S ee Webb v. Cardiotohoracic Associates of North America, P.A. , 139 F.3d 532, 540 (5 th Cir. 1998). Title VII is not designed to address every decision made by an employer that arguably might have some tangential effect. S ee id . Courts have resisted adopting an expansive definition of “adverse employment action” thereby removing such events as disciplinary filings, supervisor reprimands, poor performance by an employee, or anything which may jeopardize future employment from the sphere o f actionable conduct. See Mattern v. Eastman Kodak Co. , 104 F.3d 702, 708 (5 th Cir. 1997).

Stefka considers the following conduct adverse employment actions: (1) the decision not to assign her to a day shift; (2) her placement o n administ rat ive leave without pay; and (3) the revocation of her peace officer credentials. We disagree. None of these actions rise to the level of an ultimate employment action. First, nothing in the record indicates that being assigned t o a day shift amounts to a promotion. It is a convenience which can hast en promotion within the SheriffÂ’s Department.

However, it is not a prerequisite to advancing within the SheriffÂ’s Department. In like manner, we cannot say that StefkaÂ’s placement on administrative leave without pay was an adverse employment action. After an investigation, the SheriffÂ’s Department found that she was derelict in her duties and determined an appropriate response. Nevertheless, Stefka complains that she was penalized more harshly than other persons found sleeping on the job. While this may be true, we are not inclined to view her infraction as an isolated i ncident bearing upon her appreciation, or lack thereof, for her position and its incumbent responsibilities.

Indeed, one month prior to being found sleeping on the job, Stefka abused her position as a peace officer by intervening in a private civil matter on behalf of her brother. The sponsorship of the SheriffÂ’s Department was gratui tous since jailers, t he capacity in which Stefka was hired, are not required to maintain peace officer credentials. Under this circumstance, we cannot say that the SheriffÂ’s Department was required to maintain its sponsorship after Stefka acted in contravention to its policies. StefkaÂ’s claim of retaliation is further undermined by the fact that the SheriffÂ’s Department imposed the same penalty on Caudle who did not participate in the EEOC investigation which forms the basis of StefkaÂ’s retaliation claim.

Again, we affirm the district court.

C. McLennan CountyÂ’s Motion to Dismiss For the sake of completion, we address McLennan CountyÂ’s alternative argum ent that the district court should have granted its motion to dismiss.

As we explained in J ackson v. City of Atlanta , 73 F.3d 60, 62 (5th Cir. 1996), denials of motions to dismiss in the Title VII context are nonfinal orders from which no appeal is allowed.

C ONCLUSION For the reasons stated herein, we affirm.

* Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4. 1 Federal Rule of Appellate Procedure 28 requires briefs submitted to this court to contai n a statement of facts. AppellantÂ’s counsel failed to include any statement of facts thereby requiring this court to rely on the facts as articulated by the Appellee. However, a thorough review of the record 1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50013 Summary Calendar WANDA J. PRICE; ET AL, Plaint iffs, BETTY S. STEFKA, Plaintiff-Appellant, versus MCLENNAN COUNTY, TX, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas (Waco Division) USDC No. W-98-CV-271 July 8, 1999 Before WIENER, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM: * Plaintiff-Appellant Betty S. Stefka (§ 2000e, et seq . (1994). For the reasons ascribed, we affirm. F ACTUAL AND P ROCEDURAL B ACKGROUND

leads us to conclude that the Appellee either declines to mention or glosses over facts which are not favorable to its position. These inadequacies impede the appellate process and reflect poorly on the attorneys participating in this appeal. 2 I n t he complaint, both Price and Stefka allege that the SheriffÂ’s Department retaliated against them for filing charges with the EEOC. This alleged conduct forms the basis of the appeal before us. Inasmuch as Price is not a party to this appeal, we focus on the facts pertaining to Stefka. 3 Based on information in the record, Stefka was passed over fo r a transfer to the day shi ft i n August 1996, and in January and October 1997

4 Federal Rule of Civil Procedure 56(f) provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the partyÂ’s opposition, the court may refuse applicatio n fo r judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken of discovery to be had or may make such other order as is just. F ED . R. C IV . P. 56(f)

5 The event giving rise to her sex discrimination claim, the denial of the field patrol officer position, did no t occur until December 16, 1996, nearly three weeks after she filed her charge of discrimination

6 Having failed to exhaust her administrative remedies on this issue, we need not further consider the facts or information relating to her denial of the patrol field officer position

---