Harris v. Travis, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30488
Summary Calendar
_______________
COURTNEY ANN HARRIS,
Plaintiff-Appellant,
VERSUS
BILLY R. TRAVIS; RENEE HEGWOOD;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
AND JERRY GOODWIN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 99-CV-1946
_________________________
December 20, 2002
Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Courtney Harris appeals a partial summary
judgment and subsequent jury verdict on her
employment discrimination claims. Finding
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
(continued...)
(...continued)
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

-- 1 of 6 --

2
error in neither the summary judgment nor the
verdict, we affirm.
I.
Harris, a black woman over the age of for-
ty, has worked at the Louisiana Department of
Public Safety and Corrections (“DPSC”) at the
A.L. Swanson Correctional Center for Youth
(“Swanson”) in secretarial positions since
1974. She applied for a promotion from the
position of Secretary II to Administrative Sec-
retary in the warden’s office in September
1997, at roughly the same time that Billy Tra-
vis became the warden at Swanson. A
younger white woman received the position
instead.
In early 1998, Travis “detailed” Harris to an
Administrative Secretary position to support
Rene Hegwood, Swanson’s human resources
manager.1 When this detail ended in July 1998
and Harris returned to her Secretary II
position, Tressie Tyler and Kristi Beard,
younger white women, had assumed the bulk
of her duties. Harris also had to move to a
smaller, less comfortable office in another
building.
In November 1998, Harris applied for the
position of Administrative Secretary in the
mental health unit at Swanson. Rachel Child-
ress, a younger white woman, was appointed
instead. Harris then filed an EEOC complaint
based on all these events. While the complaint
was pending, she applied for a lateral transfer
into the administrative director’s office; she
was denied the transfer and alleges that the
position was given to a younger white woman.
After the EEOC dismissed Harris’s
complaint and issued a right-to-sue letter, she
sued the DPSC, Travis, Hegwood, and Jerry
Goodwin, who succeeded Travis as warden in
August 1999, alleging violations of title VII of
the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621
et seq.2 She also alleged violations of 42
U.S.C. §§ 1981, 1983, 1985, and 1986 against
Travis, Hegwood, and Goodwin only. The
court entered summary judgment on all claims
except the title VII claims against DPSC and
the §§ 1981 and 1983 claims against Travis
based on the failure to promote in November
1998, the re-allocation of Harris’s secretarial
duties, and the relocation of her office. After
a two-day trial, the jury returned a verdict for
DPSC and Travis.
II.
A.
We review a summary judgment de novo
and apply the same standards as did the district
court. TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5t h Cir. 2002). Summary
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any,” when viewed in the light most
favorable to the non-moving party, “show that
there is no genuine issue as to any material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986). A dispute about a
material fact is “genuine” if the evidence
would permit a reasonable jury to return a
verdict for the non-moving party. Id. at 248.
The court must draw all reasonable inferences
1 A “detail” is a temporary assignment to a new
position on a trial basis to evaluate the employee’s
performance in that position.
2 In her first amended complaint, Harris also
alleged a state law promissory estoppel claim
against all defendants, but she later abandoned that
claim.

-- 2 of 6 --

3
in favor of the non-moving party. Id. at 255.
At the same time, not all disputes or all in-
ferences are reasonable, and the court is not
obliged to accept mere assertions. Thus, once
the moving party has initially shown “that
there is an absence of evidence to support the
non-moving party’s cause,” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986), the non-
moving party must produce “specific facts”
showing a genuine factual issue for trial. FED.
R. CIV. P. 56(e); Matsushita Elec. Indus.
Corp. v. Zenith Radio, 475 U.S. 574, 587
(1986). The non-moving party cannot rest on
mere conclusional allegations and denials,
speculation, improbabl e inferences,
unsubstantiated assertions, and legalistic
arguments, none of which will substitute for
specific facts showing a genuine issue for trial.
TIG, 276 F.3d at 759.
B.
The district court carefully explained, in
well reasoned opinions, why most of Harris’s
claims cannot survive summary judgment. We
agree with these opinions, which we review
briefly, and we affirm.
The court properly entered summary
judgment on all claims against Goodwin,
because Harris alleged no facts for which
Goodwin could be held liable. The last ground
for Harris’s claims is the denial of her
application for a lateral transfer in May 1999.
Goodwin did not become warden until August
1999. Thus, he cannot be liable on any
theory.3
Summary judgment was appropriate on the
title VII and ADEA claims against Travis and
Hegwood, because individuals cannot be liable
personally under either statute. Indest v.
Freeman Decorating, Inc., 164 F.3d 258, 262
(5th Cir. 1999) (title VII); Stults v. Conoco,
Inc., 76 F.3d 651, 655 (5th Cir. 1996)
(ADEA). Harris also sued Travis in his official
capacity for violations of title VII. Yet, a
plaintiff may not sue both the employer and its
agent in an official capacity. Indest, 164 F.3d
at 262.
DPSC was entitled to summary judgment
on the ADEA claim, because it has sovereign
immunity from the ADEA. Kimel v. Fla. Bd.
of Regents, 528 U.S. 62 (2000). We already
have held, on another occasion, that DPSC has
sovereign immunity as an agency of the state
of Louisiana. Champagne v. Jefferson Parish
Sheriff’s Office, 188 F.3d 312, 313-14 (5th
Cir. 1999). Harris gives no reason to
reconsider or distinguish this holding.
DPSC also was entitled to summary
judgment on three aspects of Harris’s title VII
claims. First, DPSC is not liable for the failure
to promote Harris in November 1997, because
she did not file an EEOC complaint until
December 1998, outsi de the 300-day
limitations period for title VII. 42 U.S.C. §
2000e-5(e)(1). Harris contends that this
incident is part of a continuing violation and
3 Harris alleged continuing harassment and dis-
crimination by Goodwin, but she produced no evi-
dence to support these allegations. She argues on
appeal that Goodwin produced no evidence to
(continued...)
3(...continued)
refute the allegations. Yet, Goodwin only needs to
point to an absence of evidence, whereas Harris
bears the burden to produce specific facts raising
a genuine issue of material fact regarding any con-
tinuing harassment and discrimination. (Harris
also seems to confuse the standards for a motion to
dismiss with those for a motion for summary
judgment.)

-- 3 of 6 --

4
thus excepted from the usual 300-day
limitations period. Although this circuit
recognizes a continuing-violation exception,
“the plaintiff must demonstrate more than a
series of discriminatory acts. He must show an
organized scheme leading to and including a
present violation, such that it is the cumulative
effect of the discriminatory practice, rather
than any discrete occurrence, that gives rise to
the cause of action.” Huckabay v. Moore, 142
F.3d 233, 239 (5th Cir. 1998) (citations
omitted). Harris has produced no such
evidence and, indeed, pleaded her complaint in
a style of discrete incidents. The title VII
claim based on the failure to promote in
November 1997 is therefore barred by the
statute of limitations.
Second, DPSC is not liable for the denial of
Harris’s request for a lateral transfer in May
1999, because denial of a lateral transfer is not
an adverse employment action covered by title
VII. Burger v. Cent. Apartment Mgmt., Inc.,
168 F.3d 875, 879-80 (5th Cir. 1999). Third,
DPSC is not liable for Harris’s discriminatory-
effect claim, which does not require proof of
intent to discriminate, but rather proof of “fa-
cially neutral employment standards [that] op-
erate more harshly on one group than anoth-
er.” Johnson v. Uncle Ben’s, Inc., 965 F.2d
1363, 1367 (5th Cir. 1992) (citation omitted).
A plaintiff not only must offer proof of
statistical disparities, but also must identify
“specific employment practices that are
allegedly responsible for any observed
statistical disparities.” Id. (citation omitted).
Harris has done neither; thus, her
discriminatory effect claim cannot withstand
summary judgment.
Likewise, Travis was entitled to summary
judgment on these three aspects of Harris’s
§§ 1981 and 1983 claims. When employment
discrimination claims are brought under
§§ 1981 and 1983, they are analyzed under the
same framework as is a title VII claim.
Lawrence v. Univ. of Tex. Med. Branch, 163
F.3d 309, 311 (5th Cir. 1999) (citation
omitted). The district court, then, properly
entered summary judgment for Travis on the
§§ 1981 and 1983 claims insofar as these
claims are based on the failure to promote
Harris in November 1997, the denial of her
request for a lateral transfer, and any
discriminatory effect.4
Finally, the court properly granted summary
judgment on the §§ 1985 and 1986 claims
against Travis and Hegwood. To prove a §
1985 violation, Harris must show that Travis
and Hegwood discriminated against blacks as
a class, not simply against her because she is
black. Newberry v. East Tex. State Univ., 161
F.3d 276, 281 (5th Cir. 1998). She has
offered no proof of class-based animus or
discrimination. Moreover, her § 1985 claim
relies exclusively on her title VII claims, but
§ 1985 may not be used as a remedy for title
VII violations. Horaist v. Doctor’s Hosp.,
255 F.3d 261, 270 (5th Cir. 2001). And,
without an underlying § 1985 violation, her §
1986 claim necessarily fails as well. 42 U.S.C.
§ 1986; Newberry, 161 F.3d at 281 n.3.
III.
4 Harris alleged the same violations of §§ 1981
and 1983 against Hegwood, but the district court
properly found that Hegwood was entitled to qual-
ified immunity against Harris’s claims. Harris al-
leged only that Hegwood did not interview her
when she applied for the Administrative Secretary
position in November 1998. Harris produced no
evidence that Hegwood participated in the ultimate
employment decision, and hence no evidence that
Hegwood violated any of Harris’s clearly
established rights.

-- 4 of 6 --

5
The summary judgment left three main
factual disputes for trial: (1) the failure to pro-
mote Harris in November 1998, (2) the re-
allocation of her secretarial duties, and (3) the
relocation of her office. These disputes went
to trial against DPSC under title VII and
against Travis under §§ 1981 and 1983. The
jury returned a verdict for DPSC and Travis,
and the court denied Harris’s motion for judg-
ment as a matter of law (“j.m.l.”).
We review de novo a ruling on a motion for
j.m.l. Miss. Chem. Corp. v. Dresser-Rand
Co., 287 F.3d 359, 365 (5th Cir. 2002). Yet,
when an action is tried to a jury, a motion for
j.m.l. is in effect a challenge to the legal
sufficiency of the evidence supporting the
verdict. Brown v. Bryan County, Okla., 219
F.3d 450, 456 (5th Cir. 2000). Thus, we
review the evidence “drawing all reasonable
inferences and resolving all credibility
determinations in the light most favorable to
the non-moving party.” Id. We will reverse
“only if no reasonable jury could have arrived
at the verdict.” Snyder v. Trepagnier, 142
F.3d 791, 795 (5th Cir. 1998). Because Harris
cannot satisfy this stringent standard, we
affirm.
We review the verdict under the familiar
evidentiary framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).5 Harris
first must state a prima facie case of
employment discrimination, which we will
assume for the purposes of this appeal. Id. at
802-03. Next, the burden shifts to DPSC and
Travis to adduce a l egitimate, non-
discriminatory reason for the employment
decisions. Id. If they do so, Harris must offer
specific evidence to demonstrate that the
reasons are merely pretextual. Id. at 804.
The evidence more than supports the
verdict. DPSC and Travis adduced a
legitimate, non-discriminatory reason for not
promoting Harris to the position of
Administrative Secretary at the new mental
health unit in November 1998, namely, that
Childress already worked as a mental health
clerk at Swanson’s Department of Social
Services and therefore was familiar with the
secretarial duties associated with mental health
services at Swanson. Indeed, the evidence
suggests that there was not really any position
to fill in the first place. As the new unit grew
rapidly, Travis simply re-designated
Childress’s clerical position to Secretary II
(not Administrative Secretary, as Harris
asserts) to reflect her increased workload.
Harris’s evidence did not establish that this
explanation was pretextual, and a reasonably
jury easily could have credited the explanation.
DPSC and Travis also offered legitimate,
non-discriminatory reasons for the re-
allocation of Harris’s secretarial duties and
relocation of her office after she returned from
detail in July 1998. Harris’s difficulties
resulted not from discrimination, but from her
supervisors’ duties and locations. When
Harris returned from the detail, she continued
to work for her former supervisor, Marcia
Ensley. During the detail, however, Ensley
had been reassigned from security warden to
program manager in social work. Just as
Ensley’s duties changed, so did Harris’s.
Beard and Tyler assumed Harris’s older duties
as the secretaries to Ensley’s replacement.
Shortly after Harris’s return, Ensley
5 Although McDonnell Douglas burden-
shifting is most common in title VII cases, it also
applies to employment discrimination claims
brought under §§ 1981 and 1983. Wallace v. Tex.
Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).

-- 5 of 6 --

6
resigned. Travis appointed Ella Gray as the
new program manager in social work, and
Harris continued to serve as the secretary to
the program manager. Yet, Gray wanted to
keep her old office in a different building
rather than move into Ensley’s old office,
thereby requiring Harris to move into a
smaller, less comfortable office in Gray’s
building. Again, Harris’s evidence did not
prove that these explanations for the re-
allocation of her duties and relocation of her
office were pretextual, and a reasonable jury
easily could have credited the explanations.
AFFIRMED.

-- 6 of 6 --