Pope v. MCI Telecommunications Corp.
| Decision Date | 06 August 1991 |
| Docket Number | No. 90-2597,90-2597 |
| Citation | 937 F.2d 258 |
| Parties | 57 Empl. Prac. Dec. P 40,911, 20 Fed.R.Serv.3d 1033 Brenda POPE, Plaintiff-Appellant, v. MCI TELECOMMUNICATIONS CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gordon R. Cooper, II, Cooper & Cooper, Houston, Tex., for plaintiff-appellant.
Kerry Notestine, Bracewell & Patterson, Houston, Tex., Brian Schaffer, MCI Telecommunications Corp., Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, SMITH and WIENER, Circuit Judges.
The appellant, Brenda Pope, a black woman, appeals from the district court's decisions refusing to remand to state court, refusing leave to amend the pleadings a fourth time, and granting summary judgment and attorney's fees for her former employer, MCI Telecommunications Corp. in this wrongful discharge and employment discrimination action.
Because the district court had diversity jurisdiction over Pope's state law causes of action; because it was within the court's discretion to refuse a fourth amendment on the eve of trial; because there are no genuine issues of material fact such that a reasonable finder of fact could hold in Pope's favor; and because the Texas statute under which Pope chose to sue permits the award of attorney's fees to the prevailing party, we affirm the district court's decisions.
This lawsuit, like a wayward cat in one of its later incarnations, has presented itself in several forms.
Pope, employed by MCI since 1980, first filed, on June 6, 1986, charges with the Texas Commission on Human Rights (TCHR) and with the Equal Employment Opportunity Commission (EEOC), alleging sexual and racial harassment and that the overall level of her pay was less than that of her white male counterparts. She then filed suit in Texas state court on June 8, 1987. She amended her state court petition for the first time on July 8, 1987.
Subsequently, on August 3, 1987, MCI removed to federal court on the basis of federal question jurisdiction (discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988) and the Civil Rights Act of 1870, 42 U.S.C. Sec. 1981 (1988)) and diversity of citizenship.
Pope continued to work for MCI while the suit was pending. The removed suit was amended two more times to reflect subsequent events, including the denial of a promotion, a work-related injury and Workers' Compensation claim, and finally Pope's termination from employment by MCI. While the suit was pending, in October 1988, MCI began restructuring Pope's department and consolidated many positions. On December 13, 1988, Pope applied for a promotion to the position of Regional Customer Service Manager. Another applicant, a white woman, whom Pope has alleged was less qualified, was selected on January 11, 1989.
On January 30, 1989, Pope sustained injuries to her head, lower back and right wrist in an auto accident while on company business, and she consequently took an extended leave of absence to recover. Her position at that time was Communications Specialist Manager. MCI's reinstatement-from-leave policy provides reinstatement to an employee who has been on leave for more than 42 days only if the same or a comparable position is available. If no such position exists, an employee is to be provided up to two weeks of assistance to identify a position that she can fill. After this two-week period, the employee may be laid off.
During Pope's absence, the second of two Communications Specialist Managers for the Houston region filled both spots; MCI decided to retain this second person, Ms. Vernetta Dickerson, a black woman, and reorganize the department to permanently require only one Communications Specialist Manager.
Pope returned on February 13, 1989, but was not permitted to work because she did not have a full release from her physician. She returned on March 30, 1989, after more than 42 days of leave, to find that MCI had no position for her, due to the restructuring that occurred in her absence. She was terminated effective April 20, 1989 and received severance pay of more than $15,000; it is disputed whether she was offered the two weeks of assistance in finding another position within the company.
On May 25, 1989, nearly two months after Pope was dismissed, she initiated a claim under the Texas Workers' Compensation Act for the January 30, 1989 auto accident injuries. Her claim form is dated May 25, 1989, as is a letter from her attorney to the Industrial Accident Board stating that she had retained him to represent her before the Board.
On August 16, 1989, she filed a second charge with the TCHR, alleging that she was unlawfully denied the promotion in retaliation for the original discrimination charges and lawsuit, and that she was terminated in retaliation for filing her Workers' Compensation claim. This complaint was filed with TCHR 217 days after MCI's January 11, 1989 decision giving the promotion for which Pope had applied to an allegedly less qualified white woman. On August 18, 1989, Pope amended her pending lawsuit a second time to assert these additional, state-law causes of action, charging discrimination in violation of article 5221k of the Texas Commission on Human Rights Act, 1 and retaliation for filing a Workers' Compensation claim, a violation of article 8307c of the Texas Workers' Compensation Act. 2 In September 1989, in her third amended complaint, Pope expressly abandoned her federal claims, preserving only her state-law claims. These state-law claims are all that is before us in this appeal.
On January 15, 1990, MCI filed its motion for summary judgment. Before the court ruled, Pope on February 5, 1990 moved to remand the case to state court. The asserted basis of this motion was that: i) the district court was required to remand since Sec. 1445(c) of Title 28 forbids the removal of Workers' Compensation cases, 3 and ii) Sec. 1447(c) required a district court to remand where a case was removed "improvidently and without jurisdiction." 4 Pope also contended that because she no longer sought recovery under federal law, the district court lacked subject matter jurisdiction over her state-law claims.
On May 7, 1990, Pope moved for leave to amend her complaint a fourth time to introduce a common law claim of intentional infliction of emotional distress. This motion was less than one week before the rescheduled May 11, 1990 docket call (which had originally been set for April 20, 1990) and was nearly three months after the district court's February 15, 1990 deadline for non-dispositive motions which had been set by the court's original scheduling order nearly a year earlier on July 28, 1989.
On June 1, 1990, the district court denied Pope's motion to amend her complaint as untimely. The court denied the motion to remand, stating that the case was properly removable at the time it entered the federal system, and that the remaining state-law claims could be maintained on the basis of diversity. Acting on Pope's third amended complaint which asserted the remaining, state-law causes of action for racial and sex harassment, unequal compensation, retaliatory denial of promotion, and unlawful discharge for instituting a Workers' Compensation claim, the district court granted summary judgment in favor of MCI. The court held that the Texas article 5221k claims of unequal compensation, sex and racial harassment and retaliatory denial of promotion were time-barred, and that there was no genuine issue of material fact regarding the article 8307c claim for unlawful discharge under the Texas Workers' Compensation statute, because Pope offered no evidence of a causal link, as required by Texas law, between her termination and her filing of a claim for Workers' Compensation benefits.
These decisions were incorporated in three separate documents signed by the court on June 1: 1) an order denying Pope's motion for leave to amend; 2) a memorandum and order denying Pope's motion to remand and granting MCI's motion for summary judgment; and 3) a final judgment in favor of MCI which expressly provided that MCI recover its costs 5 as permitted by article 5221k. 6 No mention was made of attorney's fees as such. The district clerk entered all three documents on June 8, 1990.
MCI filed a bill for costs on June 18, 1990 in the amount of $78,768.99, including charges of $65,862.50 representing attorney's fees paid by MCI to its counsel. On June 27, 1990, Pope filed her notice of appeal from "the District Court's Memorandum and Order entered in this cause on June 8, 1990 in which the Court granted Defendant's Motion for Summary Judgment, denied Plaintiff's Motion to Remand and denied Plaintiff's Motion for Leave to Amend." The notice of appeal did not mention either the award of costs or attorney's fees as such. On July 18, the district court issued its order approving MCI's costs and attorney's fees, stating that Pope's claims were "frivolous, unreasonable and groundless." Pope never objected to the allowance of costs or attorney's fees, much less the large dollar amount thereof. Nor did she explicitly appeal this second order, or attempt to amend the notice of appeal, but raised the issue for the first time in her briefs to this court and at oral argument before us.
The district court's denial of Pope's motion to remand is reviewed for abuse of discretion. 7
Pope's original brief to this court argued that the district court was required to remand the case because 28 U.S.C. Sec. 1445(c) prohibits removal to federal district court of state Workers' Compensation claims 8 and because 28 U.S.C. Sec. 1447(c) required remand where a case was removed "improvidently and without jurisdiction." 9 She contended that the district court lacked subject matter jurisdiction over her...
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