     Case: 14-60236      Document: 00512950721         Page: 1    Date Filed: 02/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60236                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
LOLITA R. WARD,                                                          February 26, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellant,                                              Clerk

v.

JACKSON STATE UNIVERSITY; DOCTOR VIVIAN FULLER, Individually;
DOCTOR CAROLYN MYERS, Individually; JOHN DOES 1-10,

              Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-616


Before KING, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Lolita Ward alleges that Jackson State University and several
of its employees (JSU) violated Title VII of the Civil Rights Act of 1964 by firing
her in retaliation for reporting sexual harassment. The district court granted
summary judgment to JSU because Ward failed to show JSU knew about




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-60236      Document: 00512950721      Page: 2    Date Filed: 02/26/2015



                                   No. 14-60236
Ward’s harassment complaint at the time it terminated her employment. We
affirm.
                                          I
      In August 2011, JSU hired Dr. Vivian Fuller as its new athletic director.
At that time, Ward worked as a secretary in the athletic department. Ward
claims that shortly after Fuller arrived at JSU, Fuller began sexually
harassing her. Ward further alleges that after she rejected Fuller’s advances,
Fuller became hostile toward her. Fuller gave Ward notice of her termination
in October 2011.
      Ward testified that prior to her termination, she contacted Georgina
Felder, an athletic department secretary, about Fuller’s alleged harassment.
Ward testified that Felder told her that Felder had contacted Sandra Sellers,
the head of human resources, about Ward’s concerns. This testimony is the
only evidence in the record that any JSU official had knowledge of Ward’s
sexual harassment complaint before Fuller terminated her employment.
      Following her termination, Ward advanced her sexual harassment claim
through the proper administrative channels. After the EEOC determined it
could not conclude that a Title VII violation had occurred, Ward filed suit in
federal district court. The district court granted summary judgment in favor
of JSU. Ward now appeals.
                                         II
      “We must first review the trial court’s evidentiary rulings under an
abuse of discretion standard. Then, with the record defined, we must review
de novo the order granting judgment as a matter of law.” 1 “A court ‘abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly



      1  Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668-6 (5th Cir. 1999) (citations
omitted).
                                          2
     Case: 14-60236         Document: 00512950721          Page: 3    Date Filed: 02/26/2015



                                         No. 14-60236
erroneous assessment of the evidence.’” 2 “[W]e review a grant of summary
judgment de novo, applying the same standards as the district court.” 3 A grant
of summary judgment is proper if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 4        We construe all facts and inferences “in the light most
favorable to the non-movant.” 5
                                               III
       Under Title VII of the Civil Rights Act, it is unlawful for an employer to
retaliate against an employee for filing a sexual harassment report. 6                       To
establish a prima facie retaliation claim, “a plaintiff must show that (1) she
participated in an activity protected under the statute; (2) her employer took
an adverse employment action against her; and (3) a causal connection exists
between the protected activity and the adverse action.” 7
       That Ward satisfied the first two elements is undisputed; JSU contends
solely that Ward cannot establish causation. To establish causation, Ward
must at least demonstrate that prior to her termination, Fuller was aware of
Ward’s sexual harassment complaint, 8 because “[i]f an employer is unaware of




       Aransas Project v. Shaw, 775 F.3d 641, 655 (5th Cir. 2014) (quoting United States v.
       2

Yanez Sosa, 513 F.3d 194, 200 (5th Cir.2008)).
       3 Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014) (quoting EEOC
v. Agro Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009)) (internal quotation marks omitted).
       4   Id. (quoting FED. R. CIV. P. 56(a)) (internal quotation marks omitted).
       5 Id. (quoting Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 248 (5th Cir. 2008))
(internal quotation marks omitted).
       6   See 42 U.S.C. § 2000e-3(a).
       7 Feist v. La., Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 454 (5th Cir.
2013) (citation omitted).
       8 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (citing Gee v.
Principi, 289 F.3d 342, 346 (5th Cir.2002)) (“In determining whether an adverse employment
action occurred, we focus on the final decisionmaker.”).
                                                3
     Case: 14-60236         Document: 00512950721          Page: 4    Date Filed: 02/26/2015



                                         No. 14-60236
an employee’s protected conduct at the time of the adverse employment action,
the employer plainly could not have retaliated against the employee based on
that conduct.” 9
       The district court excluded as hearsay the only evidence tending to show
Fuller knew about Ward’s complaint at the time Fuller terminated Ward’s
employment. 10




       9Ackel v. Nat’l Commc’ns., Inc., 339 F.3d 376, 385-86 (5th Cir. 2003) (quoting Chaney
v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999)) (internal
quotation marks omitted).
       10   The text of the testimony follows:
                 [JSU COUNSEL]: And to your knowledge, you don’t have any personal
                 knowledge of Ms. Felder contacting HR to report that August 22
                 incident, do you?
                 [WARD]: She reported the incident. I don’t know what she reported,
                 but she did tell me that she had contacted Sandra Sellers through e-mail
                 correspondence and everything.
                 ...
                 [JSU COUNSEL]: And did she copy you on this alleged e-mail?
                 WARD]: No.
                 [JSU COUNSEL]: You just going [sic] by her telling you that she had e-
                 mailed Sandra?
                 [WARD]: Yes.
                 ...
                 [JSU COUNSEL]: What did she tell you specifically that she told
                 Sandra Sellers?
                 [WARD]: That things were getting out of hand in the athletics
                 department, that Ms. Ward is—obviously there is something going on.
                 Everyone notices it, that there’s a big difference in Ms. Ward and they
                 notice that something is going on with Dr. Fuller and her and before it
                 gets out of hand or anyone gets hurt, they need to address it.
                 [JSU COUNSEL]: Now, you didn’t say in that—in what you just told
                 me that Ms. Felder told you that she specifically told Sandra Sellers
                 about the tongue gesture. Didn’t Ms. Felder tell you that she
                 specifically reported to Sandra Sellers about an alleged tongue gesture
                 by Dr. Fuller?
                                                 4
     Case: 14-60236          Document: 00512950721         Page: 5     Date Filed: 02/26/2015



                                           No. 14-60236
       Ward submits that the district court erred in raising the hearsay issue
sua sponte. But “on a motion for summary judgment, the evidence proffered
by the plaintiff to satisfy his burden of proof must be competent and admissible
at trial.” 11 Accordingly, “despite the lack of discussion of hearsay prior to [its]
initial opinion,” the district court properly considered the admissibility of the
evidence. 12
       The Federal Rules of Evidence define “hearsay” as “a statement that: (1)
the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter asserted in
the statement.” 13 In the testimony at issue, Ward stated that Felder said to
Ward that Felder had told Sellers about Ward’s allegations. Ward offers this
statement to prove the truth of the matter asserted, i.e., that Felder relayed
Ward’s allegations to Sellers. Accordingly, the district court did not abuse its
discretion in excluding this testimony as hearsay.
       Ward also argues that the testimony should be admitted pursuant to the
invited-error doctrine because JSU reproduced the testimony in its summary
judgment brief.            Under the invited-error doctrine, “when injection of
inadmissible evidence is attributable to the actions of the defense, the defense
cannot later object to such ‘invited error.’” 14 But JSU used the testimony solely
to support a non-hearsay proposition: that Ward did not report her sexual


                 [WARD]: She didn’t tell me that she said anything about the tongue
                 gesture. She just called her and told her about the things that was going
                 on over in the AAC between Ms. Ward and Dr. Fuller, the way that I
                 was being treated.
       11Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (emphasis added) (citing
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam)).
       12   Id. at 461.
       13   FED. R. EVID. 801(c)(1)-(2).
       14 United States v. Delgado, 672 F.3d 320, 339 (5th Cir. 2012) (en banc) (quoting United
States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989)).
                                                 5
     Case: 14-60236         Document: 00512950721        Page: 6     Date Filed: 02/26/2015



                                          No. 14-60236
harassment allegations to any JSU employee except Felder. Accordingly, JSU
did not inject inadmissible testimony into the proceeding, 15 and therefore, the
invited-error doctrine is inapplicable.
       Finally, Ward alleges that the testimony should have been excluded from
the definition of hearsay under Federal Rule of Evidence 801(d)(2)(D). Rule
801(d)(2)(D) provides that a statement is not hearsay if it is “offered against
an opposing party and . . . was made by the party’s agent or employee on a
matter within the scope of that relationship and while it existed.” 16
       To determine if a statement falls within the scope of employment, we
examine whether the statement relates to the employee’s duties. 17 At the time
Felder made the alleged statement, her duties were exclusively secretarial in
nature.       Her duties did not include the handling of sexual harassment
reports. 18     Accordingly, the district court did not abuse its discretion in




       15United States v. Watkins, 591 F.3d 780, 787 (5th Cir. 2009) (citing FED. R. EVID.
803; United States v. Enstam, 622 F.2d 857, 865 (5th Cir. 1980)) (“[W]hen evidence is offered
for some purpose other than the truth of the matter asserted therein, it is not hearsay.”); cf.
21 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE
§ 5039.2 (2d ed. 2014) (“‘[I]nvited error’ does not bar review of objection to opponent’s
improper use of evidence elicited by appellant; e.g., appellant offers statement for nonhearsay
purpose and opponent wants to use for the truth of the matter asserted.”).
       16   FED. R. EVID. 801(d)(2)(D).
       17MetroplexCore, L.L.C. v. Parsons Transp., Inc., 743 F.3d 964, 978-79 (5th Cir. 2014)
(per curiam) (“Perrin was an ‘agent or employee’ of Parsons, a party to this action, and the
parties do not dispute that Perrin was acting within the scope of her duties as Vice-President
when she made the alleged statements. The statements would therefore be admissible as
nonhearsay.” (citation omitted)).
       18  See Staheli v. Univ. of Miss., 854 F.2d 121, 126-27 (5th Cir. 1988) (excluding the
testimony of a professor as to an out of court statement by the university chancellor about
why the plaintiff was denied tenure because the professor lacked authority to make tenure
decisions); see also Kelly v. Labouisse, 364 F. App’x 895, 896 (5th Cir. 2010) (per curiam)
(excluding the out-of-court statements of a general farm hand as to the ownership of a cow
because he did not “maintain[] cattle records” or have an “accounting responsibility for the
cattle”); Ramirez v. Gonzales, 225 F. App’x 203, 210 (5th Cir. 2007) (per curiam) (excluding a
secretary’s testimony as to an out-of-court statement made by her supervisor about the
                                               6
     Case: 14-60236       Document: 00512950721           Page: 7   Date Filed: 02/26/2015



                                      No. 14-60236
excluding her alleged statement because it was not made within the scope of
her employment. Therefore, JSU is entitled to summary judgment because
there is no admissible evidence to create a genuine issue of material fact as to
causation.
                                     *       *        *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




reason for the termination of the plaintiff’s employment because she “was not involved in the
decision to terminate [the plaintiff]”).
                                             7
