Spiller v. Ella Smithers Geriatric Center

• Decision Date: 18 December 1990
• Docket Number: Nos. 89-2962,89-6176,s. 89-2962
• Citation: 919 F.2d 339
• Parties: 57 Fair Empl.Prac.Cas. 99, 55 Empl. Prac. Dec. P 40,460, 18 Fed.R.Serv.3d 768 Beth SPILLER, Plaintiff-Appellant, and Stephen Smiley Brown, Appellant, v. ELLA SMITHERS GERIATRIC CENTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 339

919 F.2d 339

57 Fair Empl.Prac.Cas. 99, 55 Empl. Prac.

Dec. P 40,460,

18 Fed.R.Serv.3d 768

Beth SPILLER, Plaintiff-Appellant and Stephen Smiley Brown, Appellant, v. ELLA SMITHERS GERIATRIC CENTER, Defendant-Appellee.

Nos. 89-2962, 89-6176.

United States Court of Appeals Fifth Circuit.

Dec. 18, 1990.

Stephen S. Brown, Houston, Tex., for appellants.

Carla Cotropia, Mills, Shirley, Eckel & Basset, Galveston, Tex., for defendant-appellee.

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

Before GEE and DAVIS, Circuit Judges, and LITTLE, District Judge. ¹

LITTLE, District Judge:

I. Facts

On 14 May 1986 appellee Ella Smithers Geriatric Center fired appellant Beth Spiller. Spiller presented a race discrimination claim to the Equal Employment Opportunity Commission (E.E.O.C.) on 7 May 1987 and later brought an age discrimination claim on 3 August 1987. The E.E.O.C. denied review of her race discrimination allegation because it was presented more than 180 days after the alleged discriminatory act. The record does not reflect what action the E.E.O.C. took concerning the age discrimination claim.

Appellant Stephen S. Brown, Spiller's attorney, filed suit on behalf of Spiller in the United States District Court for the Southern District of Texas on 6 August 1987; the case was assigned to Judge Norman Black. Brown sued under a plethora of statutes including 42 U.S.C. Sec. 1981, 42 U.S.C. Sec. 1985, 42 U.S.C. Sec. 2000e et seq. (Title VII), and 29 U.S.C. Sec. 621 et seq. (the Age Discrimination in Employment Act [A.D.E.A.]. Brown also sued under the Texas common law of torts and contracts. The complaint erroneously stated that both the A.D.E.A. and Title VII claims had been submitted to the E.E.O.C. within the 180-day limitations period.

During the course of discovery, appellee moved to amend the Rule 16 scheduling order to allow additional time to file motions; Judge Black never formally ruled upon this motion. Appellee moved for summary judgment on 1 June 1989, some thirty days after the motion cut-off date. On 18 July 1989 the court granted appellee's motion for summary judgment and assessed a $5,000 sanction on Brown pursuant to Rule 11. On 27 July 1989 appellee filed a supplemental motion for sanctions under Rule 11; Judge Black gave Brown an opportunity to respond to appellee's motion, and he filed an opposition memorandum on 4 August 1989. Finally, on 12 September 1989 the court awarded appellee $20,309.38 in attorney fees. This amount included the $5,000 that the court had previously assessed. Brown has now appealed both the grant of summary judgment and the imposition of sanctions.

II. Summary Judgment ²

Brown first argues that the lower court improperly granted appellee's motion for summary judgment. Brown's attack on the trial court's ruling is bifurcated: he argues that appellee's summary judgment motion was procedurally improper and substantively meritless.

A. Propriety of Motions After the Cut-Off Date

First, Brown claims that the trial court should not have considered the motion because it was presented after the scheduling order's motion cut-off date had passed. The Federal Rules of Civil Procedure direct that such an order "limits the time ... to file and hear motions." Fed.R.Civ.P. 16. The rules also, however, give district judges the power to modify or amend scheduling orders "upon a showing of good cause." Id. Although Judge Black never explicitly ruled on appellee's motion to amend the pretrial order, he impliedly granted it when he allowed appellee to file its motion for summary judgment after the original cut-off date (over Brown's objections). Cf. Reeves v. MCI Telecommunications Corp., 909 F.2d 144, 144 (5th Cir.1990) (denial of motion can be inferred by inconsistent order or judgment); Addington v. Farmer's Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981) (same).

The Fifth Circuit has repeatedly held that it will review the modification of a pretrial order "under the 'abuse of discretion' standard." Bradley v. United States, 866 F.2d 120, 124 (5th Cir.1989); Lirette v. Popich Bros. Water Transportation, Inc. 660 F.2d 142, 144 (5th Cir.1981). This court finds no abuse of discretion in Judge Black's determination that good cause existed to allow a motion after the pretrial order's motion cut-off date.

B. The Grant of Summary Judgment

Brown also attacks the merits of the trial court's decision to grant summary judgment. Rule 56 states that summary judgment is appropriate if there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. A mere scintilla of evidence will not defeat a motion for summary judgment; there must be sufficient evidence upon which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) (summary judgment appropriate even if "there is some metaphysical doubt as to the material facts").

1. Age Discrimination Under the A.D.E.A.

Spiller's age discrimination claim was ripe for summary judgment. The A.D.E.A. mandates that an aggrieved party present a claim to the E.E.O.C. within 180 days of the purported violation or lose the right to sue. 29 U.S.C. Sec. 626(d)(1). This requirement is not jurisdictional, but is instead a "pre-condition to filing suit in district court." Pruet Production Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir.1986); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.1981) (en banc). Spiller presented her age discrimination charge to the E.E.O.C. some 450 days after the alleged act of discrimination; on its face, the claim is thus untimely.

Finding that Spiller's claim was late does not, of course, end the inquiry because the 180-day filing limit for A.D.E.A. charges is subject to equitable tolling. Pruet, 784 F.2d at 1279; Coke, 616 F.2d at 595; see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (Title VII case ³). When Brown responded to appellee's motion for summary judgment on the age discrimination claim, his only argument in favor of tolling was the unsupported assertion that the Center had failed to post notices advising employees of their rights under the A.D.E.A. Brown has abandoned this ground on appeal and has instead raised a host of nebulous and confusing allegations. Clearly, tolling was not called for, and appellee was entitled to summary judgment on Spiller's age discrimination claim.

2. Racial Discrimination Under 42 U.S.C. Sec. 1981

Summary judgment was also an appropriate mechanism for disposing of Spiller's Sec. 1981 claim. Spiller claimed that Dalia Harrelson, a Hispanic American, discharged her because Spiller is a Caucasian. On 15 June 1989 the United States Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Patterson stripped conduct occurring after the formation of a contract from the ambit of Sec. 1981. Id. 109 S.Ct. at 2374. The Court's holding indicates that a claim for discriminatory discharge of an at-will employee is no longer cognizable under Sec. 1981. Reeves, 909 F.2d at 145; Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 808 (5th Cir.1990). This circuit has also held that the Patterson decision applies retroactively. Lavender, 897 F.2d at 807. Therefore, summary judgment was appropriate.

Spiller's Sec. 1981 claim would be ripe for summary judgment even if Patterson had not foreclosed it. ⁴ Spiller attempted to prove discrimination by traveling the well-worn path first blazed by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which set forth the four requirements to establish a prima facie case of discrimination under Sec. 1981. Under McDonnell Douglas, Spiller had to show that she belonged to a protected group, was qualified for a position, was discharged from that position, and was replaced by a nonminority. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Jatoi v. Hurst-Euless-Bedford Hospital Authority, 807 F.2d 1214, 1219 (5th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988).

Spiller was unable to meet McDonnell Douglas' fourth criteria because she was not replaced by a Hispanic American. She could have still established a prima facie case if she could have proven that it was "more likely than not that the employer's actions were based on illegal discriminatory criteria." Jatoi, 807 F.2d at 1219. The trial court, however, found that the Center discharged Spiller because of her poor work performance, and this determination is amply supported by the record. The Center documented numerous instances of Spiller's negligent behavior both at that facility and at other health care complexes. The Center employed a heterogenous assortment of nurses of different races, and there was simply no credible evidence that Dalia Harrelson discriminated against Spiller. This court agrees with Judge Black that racial motivations did not prompt Spiller's discharge.

3. Texas Common Law of Torts

Finally, the lower court properly granted summary judgment on appellant's so-called "public policy tort." Understandably, Judge Black had some difficulty understanding the thrust of this claim; Brown left clarification of this tort completely to the imagination, and his argument seems to involve a mishmashed analysis of the Texas common law of torts and contract. ⁵ Presumably, Brown's "public policy tort" refers to the trend in Texas to carve out exceptions to the at-will employee doctrine. That state's highest court has decided that a public policy halo surrounds the...