Stith v. Perot Systems Corp

United States Court of Appeals
Fifth Circuit
F I L E D
January 31, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10442
Summary Calendar
_______________
PERRY ANN STITH,
Plaintiff-Appellant,
VERSUS
PEROT SYSTEMS CORPORATION,
Defendant-Appellee
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:02-CV-1424-D
______________________________
Before DAVIS, SMITH, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Perry Stith appeals a summary judgment dis-
missing her employment discrimination suit
against her former employer, Perot Systems
Corporation (“Perot”). For essentially the rea-
sons given by the district court in its opinion
entered on March 15, 2004, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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I.
Because the district court’s opinion1 ade-
quately lays out the facts underlying Stith’s
lawsuit, we only briefly summarize them here.
Smith, a black woman who was sixty-seven
years old at the times in question, worked for
Perot’s Healthcare Division as a “Senior Spe-
cialist-Staffing.” She had been commuting on
a weekly basis from her home in Houston to
Dallas, the location of the leadership of the
Healthcare Division. While in Dallas, she
would stay in a corporate apartment, and Perot
would reimburse her for travel and other ex-
penses.
On August 29, 2000, Stith’s supervisor in-
formed her that as a cost-saving measure Perot
would be relocating her position to Dallas. She
was given three options: (1) Move to Dallas at
her own expense; (2) continue to commute to
Dallas, but at her own expense; and (3) secure
another position in the company. Stith was told
she had until September 8 to decide and that
she would continue receiving travel expenses
until October 1. Her supervisor, Ed Putonti,
told her that if she did not make arrangements
to select any of the three options, she would be
terminated on November 7.
Stith sought other alternatives, which Perot
rejected. On September 20, she informed Perot
that she felt she was being discriminated against
and would be consulting counsel. Nevertheless,
she took no significant steps to comply with
any of the three options. Accordingly, on
September 25 she discovered that her position
had been filled by a younger, white woman. On
November 7, because Stith had not exercised
any of the three options, her employment was
terminated.
On August 15, 2001, Stith filed a charge of
discrimination based on race, sex, age, and re-
taliation with the EEOC, which rejected it as
untimely. She then sued Perot, claiming viola-
tions of title VII, 42 U.S.C. § 2000e-5(e), the
Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 619 et seq., and the
Equal Pay Act (“EPA”), 29 U.S.C. § 255, for
alleged discrimination based on race, sex, and
age and on retaliation under the ADEA and
title VII.
II.
We review a summary judgment de novo
and are bound by the same standards as those
employed by the district court. See Chaplin v.
NationsCredit Corp., 307 F.3d 368, 371 (5th
Cir. 2002). Namely, summary judgment is ap-
propriate only where “‘the pleadings, deposi-
tions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if
any,’ when viewed in the light most favorable
to the non-movant, ‘show that there is no gen-
uine issue as to any material fact.’” TIG Ins.
Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Once the moving party has demonstrated that
the non-moving party has no evidence such
that a reasonable jury could support a verdict
in its favor, the non-moving party must put
forth specific facts that demonstrate a genuine
factual issue for trial. See Brennan v. Mer-
cedes Benz USA, 388 F.3d 133, 135 (5th Cir.
2004).
III.
Because Stith’s claims of race, sex, and age
discrimination were not filed with the EEOC
within the statutorily mandated 300 days from
the time of the alleged discrimination, the dis-
trict court properly dismissed them as time-
1 Stith v. Perot Sys. Corp., No. 3:02-CV-1424-
D, 2004 WL 690884, at *1-*2 (N.D. Tex. Mar. 12,
2004).

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barred. See Mennor v. Fort Hood Nat’l Bank,
829 F.2d 553, 555 (5th Cir. 1987). Stith was
informed of Perot’s decision to relocate her po-
sition to Dallas on August 29, 2000, and com-
plained that the decision was discriminatory on
September 20, 2000. Yet, she did not file a
charge of discrimination with the EEOC until
August 15, 2001. These occurrences were 352
and 329 days, respectively, from the date of her
EEOC complaint. Although Stith was termi-
nated within the 300-day period (i.e., on No-
vember 7, 2000, or 282 days before her EEOC
filing), the district court correctly rejected that
date as a basis for calculation.
“The operative date from which the [300-
day period] begins to run is the date of notice
of termination, rather than the final date of em-
ployment.” Clark v. Resistoflex Co., 854 F.2d
762, 765 (5th Cir. 1988). “In the Supreme
Court’s language in [Delaware State College
v.] Ricks, the relevant inquiry is when [the em-
ployer] may be considered to have ‘established
its official positionSSand made that position
apparent’ to [the plaintiff].” Id. (quoting
Ricks, 449 U.S. 250, 262 (1980)).
Consequently, the district court was entirely
correct to conclude that the 300-day period
began, at the latest, on September 20, 2000, be-
cause Stith knew on August 29, 2000, of Per-
ot’s decision to relocate her position to Dallas.
“If these acts were discriminatory, they were
so immediately.” Stith, 2004 WL 690884, at
*5. Further, “a discharge that is the delayed but
inevitable consequence of an earlier decision is
not a discrete act.” Id. at *8 (citations omit-
ted). Thus, no discrete discriminatory act took
place within the 300-day period, and Stith’s
claims are time-barred.
Stith tries to avoid this bar in a number of
fashions. First, she attempts, for the first time
on appeal, to argue that her claims are saved
by the continuing violation doctrine as delin-
eated in Nat’l R.R. Passenger Corp. v. Mor-
gan, 536 U.S. 101 (2002). Whatever merit
this approach might have, Stith cannot avail
herself of it. As Perot correctly points out,
neither Stith’s complaint nor her filings in
opposition to summary judgment make any
mention of a continuing violation. This ab-
sence was noted by the district court. Stith,
2004 WL 690884, at *5. We do not consider
evidence or argument that was not presented
to the district court. See, e.g., Louque v.
Allstate Ins. Co., 314 F.3d 776, 779 (5th Cir.
2002).
Stith’s other attempts to escape the 300-
day limitations period are equally unpersua-
sive. We have previously recognized an equi-
table tolling exception to the 300-day limit.
See Blumberg v. HCA Mgmt. Co., 848 F.2d
642, 644 (5th Cir. 1988). Equitable tolling
applies only where (1) a suit was pending
between the same parties in the wrong forum;
(2) the plaintiff was unaware of the facts
giving rise to the claim because of the defen-
dant’s intentional concealment of them; or
(3) the EEOC misled the plaintiff about the
nature of her rights. Id. Stith claims that the
second possibility applies in her case because
Perot allegedly concealed the facts that give
rise to her claim. The district court peoperly
rejected that argument.
According to Stith, equitable tolling should
apply because, inter alia, Perot did not take
action to help her secure another job in the
company. These actions, if true, however, are
not attempts to conceal the fact of her alleg-
edly discriminatory discharge. At the time of
Perot’s alleged affirmative acts, Stith was
already well aware of Perot’s intention to
terminate her if she did not accept one of the
three options. Accordingly, equitable tolling

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does not apply.
IV.
In addition to her claims of discrimination
discussed above, Stith avers that Perot sub-
jected her to a hostile work environment, dis-
crimination by virtue of disparate impact, and
unequal pay in violation of title VII and the
ADEA. With respect to the disparate impact
claim, Stith’s argument borders on the frivo-
lous. Not only was disparate impact never
raised in the district court as a theory of recov-
ery, but Stith failed to exhaust her administra-
tive remedy by raising it in her EEOC com-
plaint.
Filing a charge with the EEOC is a condition
precedent to the filing of a title VII or ADEA
suit. A suit that flows from an EEOC com-
plaint is limited by charges of discrimination
“like or related to” allegations contained in the
EEOC complaint. Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970). Because Stith did not include disparate
impact discrimination in her EEOC complaint
and has, therefore, failed to exhaust her admin-
istrative remedy, she cannot recover on that
theory.
Although a generous reading of Stith’s fil-
ings in the district court could yield the conclu-
sion that she did raise the specter of a hostile
work environment claim, it likewise fails for
lack of exhaustion of administrative remedies.
Nowhere in the narrative of her EEOC charge
is anything other than the alleged discrete acts
of discrimination (i.e., the relocation of her
position to Dallas) even mentioned. Further-
more, any evidence in the record of alleged
abusive comments took place well outside the
300-day filing period, so the claim is time-
barred even if considered part of the EEOC
charge.
Stith’s equal pay claims under title VII and
the ADEA similarly must fail. The district
court correctly concluded that her EEOC
charge did not make any claims of unequal pay
based on age or sex. Further, any claim of un-
equal pay based on race accrued no later than
August 29, 2000, and therefore was properly
rejected as time-barred. See part. III., supra.
V.
In contrast to causes of action brought
under Title VII and the ADEA, Equal Pay Act
claims do not require exhaustion of adminis-
trative remedies. See County of Washington v.
Gunther, 452 U.S. 161, 175 n.14 (1981).
Nevertheless, Stith’s EPA claims were prop-
erly dismissed, because she is unable to dem-
onstrate a genuine issue of material fact.
As the district court’s opinion cogently
enunciates,
The EPA prohibits employers from discrim-
inating on the basis of sex by paying wages
to employees of one sex that are less than
the rate paid employees of the opposite sex
for equal work on jobs that require equal
skill, effort, and responsibility and are
performed under similar working condi-
tions. 29 U.S.C. § 206(d)(1) . To establish
a prima facie case under the EPA, Stith
must show “1. [that Perot] is subject to the
Act; 2. she performed work in a position
requiring equal skill, effort, and responsi-
bility under similar working conditions ;
and 3. she was paid less than the employee
of the opposite sex providing the basis of
comparison.” Chance v. Rice Univ., 984
F.2d 151, 153 (5th Cir. 1993) (footnote
omitted). Stith must show that any pay
disparity is a result of sex and cannot be
attributed to any other factor, and she must
also show that her male comparators hold

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positions that require virtually identical
skills, effort, and responsibilities. 29 U.S.C.
§ 206(d)(1); Brennan v. City Stores, Inc.,
479 F.2d 235, 238 (5th Cir. 1973). “If the
plaintiff meets this burden, the burden of
proof ‘shifts to the employer to show that
the differential is justified under one of the
Act’s four exceptions.’” Plemer v. Par-
sons-Gilbane, 713 F.2d 1127, 1136 (5th Cir.
1983).
Stith, 2004 WL 690884, at *7.
Stith utterly failed to demonstrate that her
proffered comparators were either payed more
or that the males held positions of equal skill,
effort, or responsibility. For example, Stith
points to her own supervisor as one who pur-
portedly holds an equal position. Additionally,
it is not apparent, from her brief, whether Stith
even challenges this conclusion on appeal.
Were her claim not completely devoid of merit,
therefore, it therefore would likely be waived
for lack of adequate briefing. See FED. R. APP.
P. 28(a)(9)(A); United States v. Martinez, 263
F.3d 436, 438 (5th Cir. 2001). The dismissal of
the Equal Pay Act claims is affirmed.
VI.
The district court’s final basis of decision
was that, although Stith’s retaliation claims are
not time-barred, no reasonable jury could have
found retaliation based on the facts reflected in
the record. Again, Stith’s brief does not specif-
ically debate this point, and the argument is,
therefore, waived. See id.
AFFIRMED.

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