Heath v. Bd. of Supervisors for the S. Univ. & Agric. & Mech. Coll.

• Citation: 850 F.3d 731
• Decision Date: 08 March 2017
• Docket Number: No. 16-30625,16-30625
• Parties: Panagiota HEATH, also known as Penney Heath, Plaintiff-Appellant v. BOARD OF SUPERVISORS FOR the SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE ; Mostafa Elaasar, in his official and personal capacities, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

850 F.3d 731

Panagiota HEATH, also known as Penney Heath, Plaintiff-Appellant

v.BOARD OF SUPERVISORS FOR the SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE ; Mostafa Elaasar, in his official and personal capacities, Defendants-Appellees

No. 16-30625

United States Court of Appeals, Fifth Circuit.

Filed March 8, 2017

Revised March 13, 2017

Dale Edward Williams, Law Office of Dale Edward Williams, Covington, LA, for Plaintiff-Appellant.

Elizabeth O'Connell Clinton, William Peter Connick, Sr., Connick & Connick, L.L.C., Metairie, LA, for Defendants-Appellees.

James Mark Tucker, U.S. Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission.

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Panagiota Heath is a math professor at Southern University's New Orleans campus. When Mostafa Elaasar became her supervisor in 2003, she alleges he began a campaign of harassment that continued through the filing of this lawsuit a decade later. She seeks to hold the school liable for the harassment under Title VII and Elaasar individually responsible under section 1983.

Although Heath's allegations cover a substantial period of time, the trial court believed it could only consider the conduct occurring within 300 days of Heath's filing of a complaint with the EEOC for the Title VII claims and within one year of filing the lawsuit for the section 1983 claims. Looking only at the conduct occurring during that narrow timeframe, the magistrate judge granted summary judgment in favor of the Defendants. The principal question in this appeal is whether the continuing violation doctrine required consideration of a lengthier period of time in evaluating the merit of Heath's claims. Answering that question requires us to assess the impact of the Supreme Court's decision in National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), on earlier continuing violation decisions from this court.

I.

Taking the facts in the light most favorable to Heath as we must at the summary judgment stage, once Elaasar became chairman of the College of Natural Sciences in 2003, he began to interfere with Heath's classes. Among other things, this took the form of rewriting exams and coercing a student to make a complaint against her. Elaasar denied Heath's request for a sabbatical in 2008, telling her he did not believe she was capable of writing a book. Sometime in 2009, Elaasar told Heath to "stop misbehaving." Another professor reported that Elaasar had said that Heath was excluded from meetings because she "talk[ed] too much for a woman."

Heath filed a lawsuit in state court in 2009 asserting sex discrimination and other claims but the suit was dismissed when Heath stopped pursuing it. Sometime after Heath filed the state lawsuit, another female faculty member emailed Heath regarding a "new culture" in the math department under Elaasar, with people, "mostly males," who have "been known to be dominating to women." The email stated that, "[i]f you are a strong liberal woman," in sciences and mathematics, "then your job is going to be tough." Another university employee wrote a letter to the administration expressing concern that Heath was being "railroaded" as the result of "cultural and gender biases." Heath complained to Southern about Elaasar's conduct, but the university did not respond.

Heath's physician recommended a sabbatical due to significant job related stresses and associated health problems. Elaasar and a higher-ranking university official approved Heath's request for leave for the 2010-2011 academic year.

According to Heath, when she returned in fall 2011, so did Elaasar's harassment. Elaasar refused to allow her to participate in any committees, would not allow her to teach online courses or in the tutoring lab, would not permit her to write grants for the department, would not allow her to teach advanced classes, and isolated her from departmental business by meeting privately with other instructors. He refused to acknowledge her when she asked to speak in departmental meetings, and if she did speak, he cut her off. Students corroborate Heath's contentions, describing Elaasar's treatment of her in the classroom as "unprofessional, unwelcoming, and even aggressive;" he "belittled or otherwise spoke down when speaking to Dr. Heath, and also when speaking about her to students when she was not present." He "would usually attempt to physically intimidate her as well as to disrespect her." His "barbaric" treatment displayed "open hatred and contempt" for Heath. As a result, more than 200 students signed a petition asking the university to change Heath's working environment to be "non-hostile" and "non-harassing." Heath made multiple complaints about Elaasar's behavior to Southern in fall 2012. There is no indication that Southern responded.

In early 2013, Heath filed a charge with the EEOC alleging a hostile work environment based on sex as well as retaliation for her state court lawsuit. The charge did not mention discrimination on the basis of race, religion, or national origin, though this lawsuit alleges that the harassment is also attributable to those factors. Heath is of Greek descent and a practicing member of the Greek Orthodox Church. In support of her claims that the harassment was also based on her national origin and religion, she recounts, among other things, Elaasar telling her that he was a "radical Muslim" and that one day Muslims would "rise and kill all the Christians."

After the EEOC issued a right-to-sue letter, Heath filed this case making those Title VII allegations of a hostile work environment predicated on sex, race, religion, and national origin. The complaint relies on the same allegations to bring a section 1983 harassment claim against Elaasar. Finally, it asserts that the university retaliated against Heath in response to her state lawsuit.

A magistrate judge, hearing the case by consent, granted summary judgment on all claims in favor of Defendants. She concluded that: (1) Heath did not exhaust her Title VII claims based on race, religion, or national origin; (2) the court could not consider most of the harassing conduct Heath relied on because it occurred outside the statute of limitations (300 days before the filing of her EEOC charge for the Title VII claim,¹ and one year before the filing of her lawsuit for the 1983 claim); (3) considering only Defendants' conduct within that window of time, Heath had not presented adequate evidence to support a hostile work environment claim; and (4) Heath had not shown that any adverse employment actions during the relevant time period were in retaliation for her state court suit.

On appeal, Heath does not challenge the dismissal of her Title VII claims based on race, religion, or national origin. That leaves for our consideration whether the district court erred by dismissing Heath's Title VII claims for sex-based hostile work environment and retaliation, and her hostile work environment claim under section 1983 that covers various forms of discrimination.

II.

A.

The EEOC filed an amicus brief because it believes the magistrate judge neglected Supreme Court guidance on application of the continuing violation doctrine. That doctrine provides that when a plaintiff alleges a hostile work environment claim, "as long as an employee files her complaint while at least one act which comprises the hostile work environment claim is still timely, ‘the entire time period of the hostile environment may be considered by a court for the purpose of determining liability.’ " Hartz v. Adm'rs of Tulane Educ. Fund , 275 Fed.Appx. 281, 289 (5th Cir. 2008) (quoting National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ).

In refusing to treat Heath's hostile work environment claims as continuing violations, the magistrate judge relied on the following three factors we considered prior to the Supreme Court's decision in Morgan : (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts are recurring or more in the nature of an isolated work assignment or incident; and (3) whether the act has the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights. Celestine v. Petroleos de Venezuella SA , 266 F.3d 343, 352 (5th Cir. 2001) (Celestine I ). Following pre-Morgancase law that deemed the third factor to be "perhaps of most importance," Huckabay v. Moore , 142 F.3d 233, 239 (5th Cir. 1998) (quoting Berry v. Bd. of Sup'rs of L.S.U. , 715 F.2d 971, 981 (5th Cir. 1983) ), the magistrate judge held there was no continuing violation based entirely on its finding that "the resumption of [Elaasar's] behavior after [Heath's] return from her sabbatical should have alerted Heath to act to protect her rights" in 2011, well before she filed her EEOC complaint in 2013.

The magistrate judge did not consider Morgan . That decision distinguishes discrete acts that form the basis of traditional discrimination claims from continuing conduct that forms the basis of hostile work environment claims. Claims alleging discrete acts are not subject to the continuing violation doctrine; hostile workplace claims are. Hostile environment claims are "continuing" because they involve repeated conduct, so the "unlawful employment practice" cannot be said to occur on any particular day. Morgan , 536 U.S. at 115–17, 122 S.Ct. 2061. As long as "an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id.² As one circuit has helpfully described Morgan 's reasoning, a plaintiff's hostile environment claim "is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the...