Boze v. Branstetter

• Citation: 912 F.2d 801
• Decision Date: 25 September 1990
• Docket Number: No. 90-2001,90-2001
• Parties: Page 801 912 F.2d 801 53 Fair Empl.Prac.Cas. 1630, 54 Empl. Prac. Dec. P 40,259 Uriele Lawrence BOZE, Plaintiff-Appellant, v. C. Burton BRANSTETTER, Individually and in his Capacity as Regional Counsel for Chevron, U.S.A., Inc., and Chevron, U.S.A., Inc., Defendants-Appellees. United States Court of Appeals, Fifth Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 801

912 F.2d 801

53 Fair Empl.Prac.Cas. 1630,

54 Empl. Prac. Dec. P 40,259

Uriele Lawrence BOZE, Plaintiff-Appellant v C. Burton BRANSTETTER, Individually and in his Capacity as

Regional Counsel for Chevron, U.S.A., Inc., and

Chevron, U.S.A., Inc., Defendants-Appellees.

No. 90-2001.

United States Court of Appeals Fifth Circuit.

Sept. 25, 1990.

Ray L. Shackelford, Houston, Tex., for plaintiff-appellant.

Richard R. Brann, Baker & Botts, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, DUHE and WIENER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant, Uriele Lawrence Boze (Boze), appeals from the district court's grant of a motion for summary judgment dismissing Boze's suit against Chevron U.S.A., Inc. (Chevron) and C. Burton Branstetter (Branstetter), regional counsel for Chevron. In his suit Boze claimed constructive discharge in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 (1982). Boze also claimed that Branstetter had defamed him in violation of Tex.Civ.Prac. & Rem.Code Ann. Sec. 73.001 (Vernon, 1986). Finding no reversible error, we affirm.

I

After a hearing on November 9, 1989, the district court granted the defendants' motion for summary judgment. On November 13, 1989, the court signed the final judgment dismissing the case with prejudice, and the clerk entered judgment the following day.

On December 13, 1989, Boze timely filed a notice of appeal. Boze did not order a transcript of the proceedings for the record on appeal. Instead, on the transcript order form, he checked on the multiple choice list the box which signified that the "[t]ranscript is unnecessary for appeal purposes." An appellant who does not order the entire transcript must within ten days after filing a notice of appeal file a statement of the issues which the appellant intends to present on appeal. FRAP 10(b)(3). Boze did not file such a statement. He did not serve on Chevron and Branstetter within that same ten-day period as FRAP 10(b)(3) requires either (1) a copy of the certificate which FRAP 10(b)(1) mandates of an appellant who does not order a transcript of the proceedings; nor (2) the statement of the issues that he intended to present on appeal. ¹

II

Boze is a black attorney at law who worked from 1978 until 1984 for Gulf Oil Corporation (Gulf) in its Houston law department. Branstetter had worked there as an attorney in that same department since 1973. Branstetter had never supervised Boze at Gulf but, Boze alleges, on at least one assignment during their tenure at Gulf, Branstetter had behaved in a racist manner towards Boze. He also alleges that Branstetter on several occasions had helped Boze's immediate supervisor prepare performance evaluations which criticized Boze's work.

In 1984 Chevron acquired Gulf. Boze accepted employment in Chevron's law department in Houston. There Branstetter, who was regional counsel, directly supervised Boze from July 1985 until Boze resigned in December 1986. Boze claims that Branstetter criticized Boze's performance several times without knowing anything about his professional activities.

The catalyst provoking Boze to resign was a critical performance evaluation dated October 6, 1986, which Branstetter prepared. Boze received the evaluation on October 8th. As a result of that evaluation, Branstetter placed Boze on probation for sixty days. He also added that if Boze failed to improve within that time and to "sustain the corrections throughout his career," the company would have "no alternative but disciplinary action, including discharge." Among the improvements which the evaluation sought were, as Boze states in his brief, that he "first demonstrate dependability and job commitment by getting to work on time, applying himself consistently while at work, and staying at work throughout the workday unless he had approval of Appellee B[ranstetter] to leave." No other attorney at Chevron, Boze states, had to get permission to leave during the workday. Boze also had "to accept guidance on style and substantive matters without argument, and was required to improve the quality and organization of oral and written communications."

Boze claims that without his approval Branstetter published this evaluation to P.S. Hobin and J.L. Burch, respectively Chevron's general and associate general counsels. Branstetter replies that in preparing the evaluation he consulted with both of these men who were his supervisors. Boze also alleges that during a meeting on October 8th to discuss the evaluation, Branstetter told him in Burch's presence that he, Boze, was the worst-rated lawyer in the company's legal department.

On December 8, 1986, Boze sent his "final formal response" to the evaluation to Charles B. Renfrew, director and vice president of Chevron. Renfrew notified Boze on December 9th that Chevron would treat his response as an employee grievance under section 344 of the company's policy manual. He also referred the grievance to Hobin to "continue procedures in accordance with company policy."

At a meeting on December 18, 1986, with Boze to discuss his performance, Branstetter removed Boze from probation. The next day Hobin inquired by mail whether Boze wanted to pursue his grievance since he was no longer on probation. By letter dated December 29, 1986, Boze resigned effective January 1, 1987. He claimed that he could "no longer tolerate the prejudice, the double standards, the harassment, the intimidation and the physical and emotional stress associated with working under C. Burton Branstetter." He also asserted that Chevron had ignored his claims in his final formal response and had delegated his grievance for determination to Hobin, one of the individuals of whom he had complained. Boze argues that he was constructively discharged.

III

A.

In reviewing a summary judgment, we apply the same standard as the district court, Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989), and ask whether the pleadings, depositions, and answers to interrogatories, together with the affidavits, demonstrate that no genuine issue of material fact remains and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In making that determination, we must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Accordingly, we view the evidence most favorably to Boze.

B.

As recently as Jurgens v. EEOC, 903 F.2d 386 (5th Cir.1990), this court reiterated the standard for constructive discharge which we had first enunciated in Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975): "The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee." Jurgens, 903 F.2d at 390 (citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980) (quoting Young, 509 F.2d at 144)). In Bourque we specifically endorsed a reasonable-employee test: "To find constructive discharge we believe that 'the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Bourque, 617 F.2d at 65 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)).

In cases after Bourque, we have explicitly placed the burden on the employee to prove constructive discharge. Jurgens, 903 F.2d at 390 (citing Downey v. Southern Natural Gas Co., 649 F.2d 302, 305 (5th Cir. Unit B June 1981)). Proof is not required that the employer imposed intolerable working conditions with the specific intent to force the employee to resign. Jurgens, 903 F.2d at 390 (citing Bourque, 617 F.2d at 65 & n. 5) (acknowledging that some other circuits have endorsed such a strict standard).

We also noted in Bourque that our constructive discharge standard supports the purpose of title VII. We rejected the argument that "to require employees suffering illegal discrimination to seek legal redress while remaining in their jobs would contravene the policies served by title VII because then only 'foolhardy' victims would seek relief from discrimination." Bourque, 617 F.2d at 65-66. "Title VII itself accords legal protection to employees who oppose unlawful discrimination. Moreover, we believe that society and the policies underlying Title VII will be best served if, wherever possible, unlawful discrimination is attacked within the context of existing employment relationships." Id. at 66 (citations and footnote omitted).

After carefully scrutinizing the (incomplete) record before this court and considering all the evidence from which we might infer that Chevron and Branstetter or either of them discriminated against Boze, we do not find even a modicum of evidence to suggest that either of those parties discriminated against Boze. He supplies only the barest, conclusory assertion that he was a victim of racial discrimination. Neither the discrimination that Boze alleges nor the working conditions he decries constitute the intolerable working conditions required to prove constructive discharge. Consequently, we hold that, unlike Boze, a reasonable employee would not have resigned.

Under the prevailing circumstances, a reasonable employee instead of resigning would first have pursued either or both of two courses--completed the internal grievance process, or filed a complaint with the...