Stewart v. Dept of Hlth & Hosp

United States Court of Appeals
Fifth Circuit
F I L E D
December 1, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30409
Summary Calendar
_______________
ALMA C. STEWART,
Plaintiff-Appellant,
VERSUS
DEPARTMENT OF HEALTH AND HOSPITALS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:02-CV-1117-C-M2
_________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Alma Stewart sued the Louisiana Depart-
ment of Health and Hospitals (“DHH”), alleg-
ing race and sex discrimination, the mainte-
nance of a hostile work environment, and con-
structive discharge under title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
(continued...)
*(...continued)
cumstances set forth in 5TH CIR. R. 47.5.4.

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The district court granted DHH’s motion for
summary judgment, and Stewart appeals, con-
tending that there are genuine issues of mate-
rial fact. We affirm, albeit for reasons that are
in some respects different from those relied on
by the district court.
I.
Stewart began her career with DHH in
1975, first as a registered nurse, and eventually
moved up through the ranks of the depart-
ment’s civil service employees, finally in 1996
being named deputy assistant secretary in the
Office for Citizens with Developmental Dis-
abilities (“OCDD”). At pay grade GS-28,
Stewart was the highest ranking black female
civil service employee at DHH. Within a few
years, Kendrick Hodge, a white male, was
made a “co-deputy” with Stewart.
In February 2001, Stewart was transferred
from OCDD to a position that she alleges was
not comparable to, and was inferior to, her
former position; Hodge remained in his posi-
tion at OCDD. Stewart claims she was uncer-
tain as to the nature and responsibilities of her
new position and as to whom she was to re-
port to. Stewart claims that this transfer,
among other acts and practices, is an adverse
employment action with discriminatory pur-
pose.
Stewart further alleges that she was denied
the opportunity to take leave from her position
in Louisiana to work temporarily at the Dis-
trict of Columbia Administration on Mental
Retardation and Developmental Disabilities;
she was granted one month’s leave instead of
the six that she requested. After she was un-
able to extend the leave, Stewart returned to
Louisiana, where she was given a list of tasks
that she claims were beneath her level of ex-
pertise and were more appropriate for a more
junior employee.
Still hoping to return to Washington, Stew-
art retained counsel to help negotiate a further
period of leave. These negotiations yielded an
agreement by which she would take adminis-
trative leave from October 15, 2001, to
May 11, 2002, at which time she would resign.
She accepted that proposal and did resign.
II.
In granting summary judgment, the district
court did not issue a written opinion, but in-
stead orally explained its reasoning at the mo-
tion hearing, finding that even if Stewart could
demonstrate a prima facie case of discrimina-
tion under title VII, DHH had put forth legiti-
mate non-discriminatory reasons for its ac-
tions. The court did not find that there was
any evidence refuting these explanations, so
Stewart could not demonstrate any discrimina-
tory purpose. The court further held that
Stewart could not maintain her hostile work
environment claim in that she had failed to es-
tablish that she was subjected to any unwel-
come harassment, let alone that such harass-
ment was based on her race or sex. Lastly, the
court concluded that Steward had resigned
voluntarily and that the circumstances did not
support her allegation of constructive dis-
charge.
III.
A.
We review a summary judgment de novo
and are bound by the same standards that
guide the district court. See Chaplin v. Na-
tionsCredit Corp., 307 F.3d 368 (5th Cir.
2002). Summary judgment is appropriate
where “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, to-
gether with the affidavits, if any,’ when viewed
in the light most favorable to the non-movant,

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‘show that there is no genuine issue as to any
material fact.’” TIG Ins. Co. v. Sedgwick
James, 276 F.3d 754, 759 (5th Cir. 2002)
(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986)). Once the moving
party has demonstrated that the non-moving
party has no evidence such that a reasonable
jury could support a verdict in its favor, the
non-moving party must put forth specific facts
that demonstrate a genuine factual issue for
trial. Id.
B.
Stewart must establish a prima facie case
that she (1) was a member of the protected
class; (2) was qualified for her job; (3) suffered
an adverse employment action; and (4) was
replaced by someone outside the protected
class. According to McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973),
once this prima facie case is made, DHH must
demonstrate a legitimate nondiscriminatory
reason for its action.
At that point, the burden returns to Stewart
to show that the offered explanation is mere
pretext and that there was intentional discrimi-
nation. Id. Further, demonstrating the falsity
of a proffered non-discriminatory explanation
may suffice to satisfy the plaintiff’s burden.1
Accordingly, if Stewart can show genuine is-
sues of material fact as to whether she can es-
tablish a prima facie case and a genuine issue
of fact as to the veracity of DHH’s non-dis-
criminatory explanation, she will survive sum-
mary judgment on the merits.
Normally, we would evaluate the district
court’s assessment of the case based on this
methodology. The parties are very much in
dispute as to whether Stewart has demon-
strated at least a genuine issue of fact with re-
spect to the veracity of DHH’s explanations.
It turns out, however, that we can decide this
case on a much easier ground: the fact that
this action is time-barred, as we will explain.
C.
Although DHH argued the time bar in the
district court, the court did not address that is-
sue in its oral explanation. “We may affirm for
any reason supported by the record, even if
not relied upon by the district court.” LLEH,
Inc. v. Wichita County, Tex., 289 F.3d 358,
364 (5th Cir. 2002)
DHH points out that a charge of discrimi-
nation under title VII must be filed within 300
days after its occurrence. 42 U.S.C. § 2000e-
5(e)(1). Stewart was transferred on Febru-
ary 19, 2001, yet did not file her EEOC com-
plaint until April 3, 2002SSwell outside the
statutorily mandated period. The other ad-
verse employment actions of which Stewart
complains occurred before June 7, 2001, in-
cluding her claims of inadequate working con-
ditions and her being placed in a less presti-
gious role with unclear responsibilities, and
therefore were not complained of timely.
Stewart in no way refutes this argument. In
her reply brief, she essentially abandons her
claims based on these discrete acts and argues
that these allegedly adverse actions may be
considered in evaluating her claim based on a
hostile work environment. Citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002), Stewart argues that we may con-
1 See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 148, (2000) (“Thus, a plain-
tiff’s prima facie case, combined with sufficient ev-
idence to find that the employer’s asserted jus-
tification is false, may permit the trier of fact to
conclude that the employer unlawfully discrimin-
ated.”).

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sider “the entire scope of a hostile work envi-
ronment claim, including behavior alleged out-
side the statutory time period,” so long as at
least one of the alleged acts contributing to
hostile environment occurred within the statu-
tory time period. This argument is entirely un-
helpful, however, to Stewart’s claims for
discrete acts of discrimination, and therefore
the district court’s decision with respect to
those claims is affirmed, and we will move on
to consider Stewart’s other theories.
D.
To make out a claim under a hostile work
environment theory, a plaintiff must prove that
the “workplace is permeated with discrimina-
tory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the
conditions of the victim’s employment and
create an abusive working environment.”
Harris v. Forklift Sys. Inc., 510 U.S. 17, 21
(1993) (citations and quotations omitted).
Whether conduct rises to a sufficient level of
abusiveness or hostility based on a discrimina-
tory intent “depends on a totality of circum-
stances, focusing on factors such as the fre-
quency of the conduct, the severity of the
conduct, the degree to which the conduct is
physically threatening or humiliating, and the
degree to which the conduct unreasonably in-
terferes with an employee’s work perform-
ance.” Long v. Eastfield College, 88 F.3d
300, 309 (5th Cir. 1996).
Stewart has not produced any evidence
supporting such a claim. In its oral explana-
tion, the district court found there was an ab-
sence of any evidence displaying race- or sex-
based ridicule, intimidation, or insults, “either
in the form of comments, derogatory state-
ments, epithets, or what have you.” Stewart
conceded, in deposition, that she did not even
begin to contemplate that there might have
been a discriminatory motive behind the al-
leged adverse actions until she was about to
resign. There is no evidence that the work-
place environment was made intolerable be-
cause of race- or sex-based action, so sum-
mary judgment was proper on Stewart’s hos-
tile work environment claim.
E.
Stewart’s final claim is based on construc-
tive discharge. This claim requires evidence of
discharge as part of the plaintiff’s prima facie
case; without such a showing, the existence of
discriminatory purpose or pretext is wholly
irrelevant. Barrow v. New Orleans S.S. Ass’n,
10 F.3d 292, 297 (5th Cir. 1994). Such a
claim requires evidence that the “working
conditions [were] so intolerable that a rea-
sonable employee would feel compelled to re-
sign.” Id. In evaluating such a charge, the
court will consider, inter alia, whether the
plaintiff suffered (1) demotion; (2) reduction in
salary; (3) reduction in responsibility; (4) re-
assignment to work under a supervisor who is
younger and less experienced; (5) harassment;
(6) assignment to menial tasks; and (7) offers
to accept early retirement that would make the
plaintiff worse off. Id. Stewart argues that
she has raised genuine issues of material fact
with respect to factors (3), (5), (6), and (7).
Stewart overlooks the fact that her resigna-
tion was carefully negotiated by her private
counsel. As the district court correctly noted,
this negotiation yielded her 300 hours of paid
administrative leave. Such conditions can
hardly be described as constituting an involun-
tary termination that resulted from intolerable
working conditions. “Stated more simply,
[plaintiff’s] resignation must have been reason-
ab[ly compelled] under all the circumstances.”
Id. Stewart’s resignation was perfectly rea-
sonable, not because working conditions were

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intolerable, but because she voluntarily chose
to accept a favorable severance package.
The district court noted that Stewart’s situ-
ation was that “she’s got less work and no
boss . . . . Sounds like a raise to me.” Such is
not the stuff of which constructive discharges
are made.2 Because Stewart’s resignation can-
not therefore be accurately characterized as
compelled, summary judgment is appropriate
on that claim.
F.
DHH seeks attorney’s fees as a prevailing
party under 42 U.S.C. § 2000-5(K). DHH
also sought attorney’s fees in the district court
as part of its summary judgment motion, but
apparently that court never ruled on DHH’s
request. In its oral assignment of reasons, the
court stated with respect to the request for at-
torney’s fees, “I’ll worry about that at a later
date.” Notwithstanding that comment, the
court entered a judgment in which it dismissed
all pending motions as moot.
Under title VII, a prevailing party may be
awarded attorney’s fees at the discretion of the
court. 42 U.S.C. § 2000e-5(k). According to
Christianburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978), prevailing defendants
may recover such fees only where the court
finds that “the plaintiff’s action was frivolous,
unreasonable, or without foundation, even
though not brought in subjective bad faith.”4
Normally we will not disturb the district
court’s decision absent a clear abuse of discre-
tion. See EEOC v. Tarrant Distrib. Inc., 750
F.2d 1249, 1251 (5th Cir. 1984). Here, how-
ever, it does not appear that the court ever
considered the defendant’s request. We con-
clude that it would be an abuse of discretion to
award fees here, because the claim is not frivo-
lous to the extent that fees would be justified
under the standards in the statute and caselaw.
Therefore, it is not necessary to remand for
determination of the appropriateness of fees.
AFFIRMED.
2 See McCann v. Litton Sys., Inc., 986 F.2d
946, 952 (5th Cir. 1993) (finding a “slight decrease
in pay coupled with a loss of some supervisory
responsibilities” insufficient to constitute con-
structive discharge).
4 See also Dean v. Riser, 240 F.3d 505, 508
(continued...)
4(...continued)
(5th Cir. 2001) (“Thus, attorney’s fees for prevail-
ing defendants are presumptively unavailable un-
less a showing is made that the underlying civil
rights suit was vexatious, frivolous, or otherwise
without merit.”).

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