MacArthur v. University of Texas Health Center at Tyler

• Citation: 45 F.3d 890
• Decision Date: 08 February 1995
• Docket Number: No. 93-5570,93-5570
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 400, 31 Fed.R.Serv.3d 1149 Cassandra MacARTHUR, Plaintiff-Appellant, Cross-Appellee, v. UNIVERSITY OF TEXAS HEALTH CENTER AT TYLER and Michael Wilson, sued in his individual and official capacities, Defendants-Appellees, and Richard Painter, sued in his individual and official capacities, Defendant-Appellee-Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 890

45 F.3d 890

67 Fair Empl.Prac.Cas. (BNA) 400, 31

Fed.R.Serv.3d 1149

Cassandra MacARTHUR, Plaintiff-Appellant, Cross-Appellee, v. UNIVERSITY OF TEXAS HEALTH CENTER AT TYLER and Michael Wilson, sued in his individual and official capacities, Defendants-Appellees and Richard Painter, sued in his individual and official capacities, Defendant-Appellee-Cross-Appellant.

No. 93-5570.

United States Court of Appeals, Fifth Circuit.

Feb. 8, 1995.

Rehearing Denied March 8, 1995. ^*

Timothy B. Garrigan, Stuckey & Garrigan, Nacogdoches, TX, for appellant.

Dennis Garza, Asst. Atty. Gen., and Dan Morales, Atty. Gen., Austin, TX, for appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Cassandra MacArthur, a research laboratory technician, filed this employment discrimination action against University of Texas Health Center at Tyler, and against Dr. Richard Painter and Dr. Michael Wilson, who worked with her at the Health Center. The district court submitted to the jury special interrogatories on MacArthur's claims of sex discrimination, First Amendment retaliation and intentional infliction of emotional distress. The jury refused to award her damages on her claims of First Amendment retaliation or sex discrimination, but found in her favor and against Dr. Painter on the state law claim of intentional infliction of emotional distress. On appeal, she raises several evidentiary rulings related to the Title VII retaliation claim, which she pleaded, but which she failed to present to the jury for determination. Dr. Painter cross-appeals and challenges the sufficiency of the evidence to support the jury's award of damages to MacArthur for intentional infliction of emotional distress. Upon review of the record, we dismiss the appeal of MacArthur's Title VII retaliation claim and reverse judgment against Painter on intentional infliction of emotional distress.

I

Cassandra MacArthur worked for University of Texas Health Center at Tyler ("UTHC") as a research lab technician in the biochemistry department for approximately six years. During her employment with UTHC, MacArthur's direct supervisor was Dr. Alan Cohen, a biochemistry faculty member and Executive Associate Director of UTHC. Dr. Richard Painter was the department chair of biochemistry and Dr. Michael Wilson was the Assistant Director of Human Resources while MacArthur worked for UTHC. This case arises out of alleged events occurring between MacArthur and Dr. Painter. Many of the details of these events are disputed among the parties.

Problems began between MacArthur and Painter in October 1988, when MacArthur reported to Cohen an incident in which Painter yelled and screamed at a female employee, Ferdicia Carr. MacArthur testified that she complained to Cohen that Painter "can't continue to abuse women in this manner." Cohen--a witness friendly to MacArthur--testified, however, that he did not remember whether MacArthur complained of Painter's alleged sex discrimination. MacArthur, nevertheless, argues that Painter began to retaliate against her after she reported this single incident. The most serious of these alleged retaliatory events by Painter and Wilson against MacArthur occurred in August 1989 when MacArthur admittedly and erroneously disposed of radiation in the regular wastebasket, rather than in the radioactive materials wastebasket. As a result of this error, the Radiation Safety Committee first placed MacArthur on probation, allowing her to use radiation only under supervision. The committee ultimately indefinitely revoked her privilege to use radiation when it found her incompetent not only in disposal, but also in use of the radioactive materials. This sanction resulted in MacArthur's demotion and salary reduction. Cohen warned MacArthur in a memorandum dated June 19, 1990, that if she failed to have her radiation privileges reinstated by December 6, 1990, she would be terminated. MacArthur resigned approximately one week after receiving this memorandum. MacArthur argues that UTHC imposed an exaggerated discipline on her as compared to that resulting from other more serious radiation problems by co-workers. She contends that this was the result of Painter's involvement and control of the committee that ultimately imposed the punishment. ¹

Additionally, MacArthur argued that an incident involving Painter's laboratory technician, Izola Williams, constituted further unlawful retaliation. Williams asked MacArthur to assist her with using an incubator. Over the weekend, MacArthur adjusted a switch on the incubator in an attempt to correct the pace of the machine. She reported this fact later to Williams who in turn informed Painter. On Monday, Painter found the cells in the incubator dead and blamed MacArthur. He then wrote a memorandum to Cohen, recommending that MacArthur be restricted from the tissue culture facility. He also yelled at MacArthur to stay out of his laboratory. MacArthur argues that Painter, thus, "threatened [her] career when he made public, trumped-up charges of sabotage against [her]." ²

With respect to Dr. Wilson's retaliation, MacArthur points to the internal grievance she filed with Wilson's department after the incubator incident occurring in Dr. Painter's laboratory against Painter concerning his "intimidation of women." MacArthur argues that Wilson then retaliated against her for complaining about management by "torpedoing her grievance" and by "losing" critical records. Henry Jackson, Director of Affirmative Action and Equal Employment for UTHC, conducted the investigation into MacArthur's allegations. MacArthur argues that during the investigation into her grievance Wilson stated to Jackson not "to worry" about Painter's concerns that he was receiving no "managerial support," ³ because UTHC still had MacArthur's performance and radiation problems to resolve. She contends that this statement indicated that Wilson was going to use her problems with radiation as a means to fire her. Jackson testified that he understood this statement to mean that UTHC would be forced to terminate her employment because the Radiation Safety Committee was going to suspend indefinitely MacArthur's radiation privileges based on her substandard performance and problems with radiation.

On October 1, 1992, following her resignation in June, MacArthur filed this suit in the United States District Court for the Eastern District of Texas against UTHC, and Wilson and Painter in both their individual and official capacities. She alleged discrimination because of her sex, and retaliation because of her opposition to sex discrimination pursuant to Title VII of the Civil Rights Act of 1964. MacArthur further alleged a cause of action under 42 U.S.C. Sec. 1983 based on retaliation for her exercise of protected First Amendment speech concerning sex discrimination. She additionally asserted a cause of action under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and, finally, a state law claim of intentional infliction of emotional distress. ⁴

Prior to trial, the defendants submitted to the district court a motion in limine asking the court to exclude all evidence of retaliation by UTHC against employees other than MacArthur. The court granted the defendants' motion and assigned the case to a different district court judge for trial. During trial, the district court excluded certain other evidence offered by MacArthur to prove her retaliation claims. MacArthur argues that the district court erroneously granted the motion in limine and erroneously excluded critical evidence that Wilson had previously retaliated against other employees who complained about management. She also argues that the district court erred by excluding evidence that the Radiation Safety Committee disciplined other radiation problems more leniently than it disciplined her.

The district court, without objection and with approval of the parties, submitted to the jury special interrogatories only on three issues: Title VII sex discrimination, First Amendment retaliation, and intentional infliction of emotional distress. MacArthur submitted no interrogatory to the jury on a Title VII retaliation claim, nor was the jury so instructed, nor did she argue to the jury retaliation based on Title VII. The jury awarded MacArthur $65,000 for intentional infliction of emotional distress against Dr. Painter. The jury found in favor of the defendants, however, on the Title VII sex discrimination claim and on the First Amendment retaliation claim. The district court entered judgment based on this verdict, dismissing all claims against the defendants and awarding the plaintiff judgment of $65,000 on the intentional infliction of emotional distress claim. Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, MacArthur made a timely motion for a partial new trial, arguing that the district court erroneously excluded certain evidence of retaliatory treatment of "comparatively situated employees," offered to prove her claims of "discrimination/retaliation." ⁵ The district court, without comment on the merits, denied in whole MacArthur's motion for a partial new trial. MacArthur filed a timely notice of appeal from the district court's final judgment and denial of a partial new trial. Her appeal, however, only raises error with respect to a Title VII retaliation claim. Furthermore, on appeal, she raises only one issue--that the district court committed reversible error by excluding evidence that would have proved the defendants' discriminatory intent in support of her Title VII retaliation claim. The defendants cross-appealed arguing that the evidence was insufficient to support the jury's verdict for intentional infliction of emotional distress.

II

A

MacArthur argues that the district court abused its discretion by excluding...