Turner v. Baylor Richardson Medical Center, No. 05-11273.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Emilio M. Garza
• Citation: 476 F.3d 337
• Parties: Essie TURNER, Plaintiff-Appellant-Cross-Appellee, v. BAYLOR RICHARDSON MEDICAL CENTER, also known as Richardson Medical Center Foundation; Richardson Hospital Authority, Defendants-Appellees-Cross-Appellants.
• Docket Number: No. 05-11273.
• Decision Date: 19 January 2007

476 F.3d 337 Essie TURNER, Plaintiff-Appellant-Cross-Appellee,
v.
BAYLOR RICHARDSON MEDICAL CENTER, also known as Richardson Medical Center Foundation; Richardson Hospital Authority, Defendants-Appellees-Cross-Appellants. No. 05-11273. United States Court of Appeals, Fifth Circuit. January 19, 2007.

[476 F.3d 341]

Brian Paul Sanford (argued), Emily Michael Stout, Sheils, Winnubst, Sanford & Bethune, Richardson, TX, for Turner.

Patrick Christian Frank (argued), Fiedler, Akin, Frank & Carlton, Dallas, TX, for Defendants.

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

Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Essie Turner ("Turner") appeals the district court's dismissal of her claims against Richardson Medical Center Foundation ("Foundation") and its grant of summary judgment in favor of Richardson Hospital Authority ("RHA") on her Title VII racial discrimination and retaliation claims against it. RHA and the Foundation (collectively, "Appellees") cross-appeal the district court's denial of their motion for award of attorney's fees. We affirm.

I

Turner is an African-American female. RHA is a governmental subunit of the State of Texas and operates a general hospital in Richardson, Texas. The Foundation is a nonprofit Texas corporation that coordinates fundraising activities for RHA and publicizes the availability of the RHA's services to the community. The Foundation's Board of Directors and officers are not affiliated with RHA and are members of the community who voluntarily serve without pay.¹

RHA hired Turner as a secretary in June 1999. Although Turner was officially

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employed by RHA, her secretarial services benefitted the Foundation. Turner was primarily responsible for preparing weekly reports on fundraising activity, which were distributed to several Foundation officers. At no time during Turner's employment did more than two RHA employees perform services for the Foundation.

Initially, Turner was supervised by Ed Foulk, an RHA employee who in turn reported to RHA's Chief Financial Officer, Ed Berry. Foulk was terminated in June 2001, leaving Turner as the only RHA employee performing services for the Foundation. From June 2001 to June 2002, Turner was nominally supervised by Boring. Turner's work reviews from this period were generally positive and she received a merit-based raise and bonus. However, Boring testified that some Foundation board members complained about the timeliness and accuracy of her work. Further, during this time Turner was warned about the need to improve her organizational skills, cease excessive personal phone use, and learn to use Microsoft's Excel spreadsheet software.

In January 2002, RHA hired Mary Colston, a Caucasian female, to fill the position of Foundation Director and serve as Turner's direct supervisor. Within several weeks, Colston and Turner's working relationship began deteriorating. According to Appellees, the difficulties arose and Turner was ultimately dismissed because Turner repeatedly failed to complete her work in an accurate and timely manner, was chronically tardy and otherwise failed to maintain her prescribed work schedule, engaged in excessive personal telephone and email use during business hours, and was insubordinate to Colston.

Turner denies Appellees' account of her work performance. Instead, Turner contends that the difficulties and her eventual discharge were a result of racial discrimination. Turner alleges that Colston made a series of racially insensitive or derogatory remarks to her during the course of her employment. Specifically, Colston allegedly discussed volunteer work she had done with inner-city children, repeatedly referring to them as "ghetto children". When Turner told Colston that she did not want to hear these stories, Colston stopped mentioning them. Later, when Turner mentioned to Colston that she was considering taking college classes, Colston allegedly told Turner that she had previously worked at a university where African-American students attended evening classes because they could not qualify for regular admission. Turner also felt that Colston exhibited surprise or disdain when she learned that Turner shopped at an upscale shopping mall, drove a Volvo, and had a son that bought and sold cars as a hobby. However, Turner concedes that at no time during her employment did she complain to Boring or other RHA employees about racial discrimination or harassment. Nor did she avail herself of RHA's in-house EEOC procedure, anonymous hotline, or hospital grievance procedure for dealing with workplace discrimination.

In March 2002, Colston notified Boring and RHA's Human Resources Representative, Connie Wright, of her dissatisfaction with Turner's workplace behavior and performance. Shortly thereafter, Turner emailed Boring and Wright to complain about Colston's treatment of her during a dispute over a project, but did not mention race. After a meeting was held between Colston, Wright, and Turner, Turner was placed on administrative suspension. Five days later, RHA terminated Turner. Her position was filled by Jenna Holtz, a Caucasian female from a personnel-staffing agency.

Turner later filed a charge of racial discrimination with the Equal Employment

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Opportunity Commission ("EEOC"). The EEOC issued Turner a Notice of Right to Sue. Turner then filed suit against Appellees in district court, alleging racially discriminatory discharge, creation of a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1991 and 42 U.S.C. § 1981. Appellees moved for summary judgment on all claims. Turner then filed a declaration with her Response to Appellees' Motion for Summary Judgment. Appellees moved to strike Turner's declaration, arguing that it was introduced in bad faith and contradicted her prior deposition testimony. Appellees also moved for an award of the attorney's fees incurred in responding to Turner's declaration.

The district court dismissed all claims against the Foundation as a matter of law and granted summary judgment in favor of RHA on the remaining claims against it. The district court then denied Appellees' motion to strike as moot and denied the motion for award of attorney's fees. Turner appealed. Appellees cross-appealed the denial of their motion for award of attorney's fees.

II

We review de novo the district court's ruling on a motion for summary judgment, applying the same legal standard as the district court in the first instance. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir.2002). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Wyatt, 297 F.3d at 408-09. When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Instead, we "draw all reasonable inferences in favor of the nonmoving party." Id.; Wyatt, 297 F.3d at 409. However, a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or "only a scintilla of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Summary judgment is appropriate if a reasonable jury could not return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Turner first argues that the district court erred in dismissing her claims against the Foundation as a matter of law. As Title VII prohibits discrimination in the employment context, see 42 U.S.C. § 2000e-2(a), 2000e-5, generally only employers may be liable under Title VII. See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 462 (5th Cir.2001). In an attempt to bring her Title VII claims against both the Foundation and RHA, Turner argued in her Response to Appellees' Motion for Summary Judgment that the Foundation and RHA could be considered a single entity under an "integrated-enterprise" theory of enterprise liability. The district court held that the Foundation and RHA were not a single integrated enterprise and dismissed Turner's claims against the Foundation as a matter of law.² In her Motion for New Trial, Turner argued for

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the first time that the Foundation and RHA could be considered a single entity under a "joint-employer" theory of liability. The district court held that this argument was waived due to Turner's failure to raise it prior to the entry of judgment.

On appeal, Turner argues that the district court erred in finding that Turner was not an employee of the Foundation under either an integrated-enterprise or joint-employer theory of enterprise liability.³ Appellees maintain that Turner waived the joint-employer argument, and, regardless, that Turner was not an employee of the Foundation under either theory of liability.

We generally evaluate Title VII employer status under the four-part Trevino test, which involves consideration of (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See Vance v. Union Planters Corp., 279 F.3d 295, 297 (5th Cir.2002) (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). We place "highest importance on the second factor, rephrasing and specifying it so as to boil down to an inquiry of `what entity made the final decisions regarding employment matters related to the person claiming discrimination.'" Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d...