Smith v. Univ TX Hlth Houston

United States Court of Appeals
Fifth Circuit
F I L E D
June 16, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-20792
Summary Calendar
_______________
RUTH A. SMITH,
Plaintiff-Appellant,
VERSUS
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-01-CV-1475
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Plaintiff Ruth Smith appeals the denial of
her motion to reopen following entry of sum-
mary judgment for defendant University of
Texas Health Science Center at Houston
(“UTHSCH”). Finding no error, we affirm.
I.
Since March 1999, Smith, who is black, has
been employed by UTHSCH as a medicare
officer. In May 2000, she was assigned to the
* 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termined that this opinion should not be published and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
circumstances set forth in 5TH CIR. R. 47.5.4.

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newly created Multi-Specialty Invoice Follow-
Up Group as a Coordinator or team leader.
The group was supervised by Mary McCullen,
a white woman, who reported to Ryan Bien, a
white man. Bien reported to Ira Berezowsky,
the Director of Physicians’ Business Services.
Smith’s performance ratings were consistently
“Distinguished” or “Satisfactory.”
On July 19, 2000, McCullen sent a memo-
randum to her coordinators stating that arriv-
ing late or leaving early would be a “written
up” process. On September 29, 2000, Smith
observed Rhonda Alfara, a black female em-
ployee, talking about personal matters on the
telephone. Smith attempted to notify Alfara’s
coordinator, but that coordinator was not in
the office. Instead, Smith notified McCullen,
who talked to Alfaro. Alfaro then left for
lunch but resumed talking on the phone when
whe returned. Smith later saw McCullen and
said, “The quiet was good while it lasted.”
McCullen told Smith, “You know you have
the right to go over and ask any employee to
get to work.”
Later, McCullen announced to Smith and
other employees that everyone could leave fif-
teen minutes early, because the department
had collected over $5 million for the month.
Smith stated, “Why are they talking about
leaving early? They need to be made to spend
the night to earn their check that they get on
Friday.” McCullen stated, “This is why I’m
supervisor and Ruth is not.”
McCullen called Smith into her office.
Smith alleges that McCullen immediately start-
ed threatening and chastising Smith, shouting,
“You better not do this no more. You better
not do that.” Smith said that she was only
expressing an opinion and that she had the
right to do so. McCullen replied by saying,
“Niggers don’t have no rights.” Smith asked
McCullen to call Berezowsky, but McCullen
refused. Smith asked that Dena Thurman, the
Human Resources Manager, be called, but
McCullen stated that Thurman was not there.
Several other employees were summoned into
McClellan’s office to witness the events.
Smith then contacted Human Resources
about the problems she had had with McCul-
len. On October 2, 2000, Bien asked Smith to
give him the opportunity to resolve the situa-
tion without going to Berezowsky. On Octo-
ber 9, Smith advised Bien that she would re-
solve the case for an apology, a transfer, and
a third party present for all dealings with Mc-
Cullen. Bien said that he could not ask Mc-
Cullen to apologize, and he began an investi-
gation on October 11. Berezowski states that
Bien conducted a thorough investigation and
could find no support or corroboration for
Smith’s allegation against McCullen.
Smith contends that on October 3, she re-
quested that Bien promote her to one of the
two positions available for Analysts. Smith
cites her deposition as evidence of her request.
Her deposition, however, was taken on
March 12, 2002, and thus could not evidence
a request for a promotion that is alleged to
have occurred almost six months thereafter.
Instead, the district court concluded that the
evidence indicated that had Smith requested a
promotion during the time that UTHSCH was
investigating her complaint.
The Analyst position requested at that time
was one for which Smith was not qualified, in
that it required computer skills that she did not
possess. Furthermore, although Smith made
oral requests for a promotion, she never made
a formal application for that promotion or for
other positions through Human Resources.

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Smith also claims that she requested a transfer
to another hospital operated by the University
of Texas, but she never made a formal request
for this transfer.
At Smith’s request, she was transferred to
another supervisor and reported directly to Bi-
en. She contends that this was a demotion, be-
cause, although she retained her title as Medi-
caid Coordinator, she no longer supervised
anyone. After two months of reporting to
Bien, Smith requested and received twelve
weeks’ paid medical leave as a result of the
stress she alleges she experienced on account
of the September 29 incident.
Smith returned to work on March 5, 2001.
She continued to report to Bien until a reorga-
nization caused her to be assigned to a new
supervisor, Jane Hughes. Smith states that she
has a good working relationship with Hughes,
has no complaint about her change in position,
and still is employed at UTHSCH.
Smith claims that McCullen encouraged
other employees to lodge grievances against
her, and she provides unsworn statements and
letters of other employees to the effect that she
was helpful and had trained them well. Smith
also avers that she has not received merit rais-
es, promotions, or transfers since September
2000. The record reflects, however, that she
received a merit raise in February 2001, and
her salary increased after she filed her charge
of discrimination.
II.
Smith sued, making claims under title VII
for (1) race discrimination, (2) racial harass-
ment, (3) retaliation, and (4) constructive
discharge, and under Texas common law for
intentional infliction of emotional distress
(“i.i.e.d.”). The basis for her complaints were
McCullen’s alleged statement to her. She also
claimed that Bien “poked fun” at her regarding
her complaint and personal appearance and
that Bien and Berezowsky failed properly to
resolve her grievance, although the district
court determined that UTHSCH had produced
uncontradicted evidence that Smith had with-
drawn her grievance twice and that there was
no paperwork or evidence that she had for-
mally reinstated her grievance.
Relying on claims of lack of smiles and
greetings in the hallway and on Bien’s commu-
nicating with her by e-mail, Smith asserts that
various co-workers ceased speaking with her
while the grievance was pending. She also
complains of an alleged unfair write-up that
resulted in her being placed on probation, but
she acknowledges that she was never placed
on probation.
After discovery, UTHSCH moved for sum-
mary judgment pursuant to FED. R. CIV. P. 56.
Smith filed no response in the time allowed. In
a memorandum and order, the district court
gave a thorough analysis of the merits of
Smith’s claims, concluding that she had failed
to raise a genuine issue of material fact on her
title VII, race discrimination, hostile environ-
ment, retaliation, and constructive discharge
claims and that her i.i.e.d. claim was barred by
sovereign immunity. Accordingly, the court
entered summary judgment.
Smith filed a “Motion to Reopen,” alleging
that her lawyer had failed to respond on her
behalf and had misled her into believing that
the response had been filed. The district court
construed this as a motion under FED. R. CIV.
P. 59(e) to alter or amend the judgment. The
court granted the motion to the extent that it
permitted Smith to file a response to the mo-
tion for summary judgment. After considering

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Smith’s response, the court once again pro-
vided a thorough analysis of her claims and de-
nied the Motion to Reopen. Smith appeals pro
se.
III.
We review for abuse of discretion a deci-
sion to reconsider a summary judgment in light
of new materials. We review de novo a deci-
sion that summary judgment was appropriate.
Ford Motor Credit Co. v. Bright, 34 F.3d 322,
324 (5th Cir. 1994); Fields v. City of South
Houston, Tex., 922 F.2d 1183 (5th Cir. 1991).
A motion under rule 59(e) “is not the proper
vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or
raised before the entry of judgment.” Templet
v. HydroChem Inc., 2004 U.S. App. LEXIS
7627, at *12 (5th Cir. Apr. 20, 2004) (citing
Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990)).
A.
1.
The district court held that Smith had failed
to meet the requirements of a claim for dis-
crimination under title VII because she had not
shown an adverse employment action. As the
court noted, only “ultimate employment deci-
sions” are actionable under title VII. See
Bennett v. Total Minatome Corp., 138 F.3d
1053, 1060 n.10 (5th Cir. 1998) (citing Mat-
tern v. Eastman Kodak Co., 104 F3d 702, 707
(5th Cir. 1997).
The court first addressed Smith’s claim that
she had been denied a promotion, deciding that
she had admitted that she had never formally
applied for the promotion in question and that
she did not possess the computer skills re-
quired for the job she allegedly sought. There-
fore, Smith had failed to show that she was
qualified for or actually put herself into consid-
eration for the position.
The court then addressed Smith’s conten-
tion that she had been denied a transfer. The
court determined that Smith had not formally
applied for the transfer and that there was no
evidence that the denial of such a transfer
would have been a change in job duties, condi-
tions, or benefits of employment such that its
denial constituted an adverse employment
decision. The court ruled that neither of
Smith’s alleged employment decisions consti-
tuted an “adverse employment decision” ac-
tionable under title VII.
Assuming arguendo that one of these deci-
sions had been an adverse employment action,
the court noted that Smith had attempted to
support her claim for discrimination under title
VII by direct evidence in the form of her own
testimony that McCullen made the alleged
offensive racial comment. Assuming, for
purposes of summary judgment, that McCullen
did make that statement, the district court
found that the comment was governed by this
court’s “stray remark” doctrine.
For a comment in the workplace to provide
evidence of discrimination, it must, inter alia,
be “made by an individual with authority over
the employment decision at issue.” Patel v.
Midland Mem. Hosp. & Med. Ctr., 298 F.3d
333, 343 (5th Cir. 2002), cert. denied, 537
U.S. 1108 (2003). The district court held that
Smith had not presented evidence that McCul-
len had authority over the decisions of which
Smith complains or that McCullen’s comment
was related to either decision.
In her appellate brief, Smith does no more
than assert that she was denied a promotion
and a transfer for which she was qualified, and
does not address the issue of whether either

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was an “adverse employment action” within
the meaning of Fifth Circuit law. Nor does she
assert that McCullen had authority over the
decisions. Notwithstanding the likelihood that
Smith has waived these issues on appeal, we
have reviewed the record and the opinion of
the district court and find no error.
2.
Smith claimed that she was subjected to a
racially hostile work environment and was har-
assed on the basis of her race. The district
court noted that to prevail on a hostile work
environment claim, a plaintiff must show that
conduct that was so “severe or pervasive” as
to create an environment that a reasonable per-
son would find hostile or abusive. See Weller
v. Citation Oil & Gas Corp., 84 F.3d 191, 194
(5th Cir. 1996). The court decided that the
only racially charged conduct for which Smith
had submitted evidence was McCullen’s al-
leged offensive statement.
The court held that although this single
comment, if made, would have been offensive
(and we certainly agree), it could not by itself
constitute “severe” or “pervasive” conduct.
Thus, Smith could not meet her burden to
show conduct that was actionable under a title
VII hostile environment theory. The district
court also noted that Smith’s other alleged in-
stances of mistreatment, including that her co-
workers did not smile at her in the hallway,
that Bien and Berezowsky failed to resolve her
grievance, and that Bien or others “poked fun
at her” were not supported by the evidence,
were too vague and speculative to support a
claim, and were innocuous if they actually
occurred.
The court concluded that the conduct Smith
alleged did not constitute abusive behavior by
UTHSCH and did not create a hostile work
environment. Once again, aside from a recita-
tion of her alleged facts and reiteration that she
has suffered harassment, Smith’s brief does not
address the issue of whether the behavior was
actionable under title VII. We find no error.
3.
Smith contends that after she complained of
McCullen’s comments and filed a grievance,
UTHSCH engaged in unlawful retaliation. As
we noted above, only ultimate employment
decisions are actionable under title VII. Smith
alleges that she was ostracized by her co-
workers, that Bien and McCullen criticized
and poked fun at her, that Bien and
Berezowsky did not resolve her grievance, that
Smith was unfairly “written up” and placed on
probation, and that her past accomplishments
had been diminished through lowered perfor-
mance ratings.
The district court held that none of these
was an ultimate employment decision sufficient
to give rise to a cause of action. The court
also noted that, as discussed above, the denial
of a transfer to an identical position and a
promotion for which Smith did not apply and
was not qualified could not give rise to a cause
of action under title VII.
Smith also claimed that McCullen coerced
another employee into filing a false complaint
against her. The court ruled that this conten-
tion was without any evidentiary support.
Finally, the court concluded that although
the transfer of Smith to a position in which she
did not supervise other employees could be an
adverse employment action sufficient to estab-
lish a prima facie case of discrimination, Smith
had provided no evidence to show that
UTHSCH’s proffered reasons of high employ-
ee turnover and poor employee relations were

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pretextual. Once again, Smith’s briefing is in-
adequate on this point. We find no error.
4.
The district court held that Smith’s claim
for constructive discharge was without merit
because (1) Smith did not describe conditions
such that a reasonable person would have felt
compelled to resign, and (2) she is still em-
ployed at UTHSCH and currently has no com-
plaints. Smith has not addressed this issue on
appeal, so it is waived. Even absent waiver,
there is no error.
B.
The district court dismissed Smith’s claim
for i.i.e.d. for want of subject matter jurisdic-
tion, holding that the claim was barred by the
state’s sovereign immunity under the Eleventh
Amendment. Alternately, the court held that
the claim failed on the merits.
Smith does not address this issue in her
opening brief on appeal. In her reply brief, she
provides a discussion of intentional infliction
of emotional distress but does not address
sovereign immunity except to assert that
UTHSCH did not raise sovereign immunity as
a defense. Because we do not consider issues
raised for the first time in a reply brief, United
States v. Avants, 2004 U.S. App. LEXIS
7519, at *34 (5th Cir. Apr. 19, 2004), the
matter is waived. “Although we liberally
construe the briefs of pro se appellants, we
also require that arguments must be briefed to
be preserved.” Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (quoting Price v.
Digital Equip. Corp., 846 F.2d 1026, 1028
(5th Cir. 1988) (citations omitted).
AFFIRMED.

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