                                               In the
                 United States Court of Appeals
                                  for the Fifth Circuit
                                         _______________

                                           m 02-30488
                                         Summary Calendar
                                         _______________



                                    COURTNEY ANN HARRIS,

                                                            Plaintiff-Appellant,

                                              VERSUS

                        BILLY R. TRAVIS; RENEE HEGWOOD;
            LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
                              AND JERRY GOODWIN,

                                                            Defendants-Appellees.


                                   _________________________

                           Appeal from the United States District Court
                              for the Western District of Louisiana
                                        m 99-CV-1946
                                 _________________________

                                       December 20, 2002


Before HIGGINBOTHAM, SMITH, and                        Courtney Harris appeals a partial summary
  CLEMENT, Circuit Judges.                          judgment and subsequent jury verdict on her
                                                    employment discrimination claims. Finding
JERRY E. SMITH, Circuit Judge:*

                                                    (...continued)
   *
     Pursuant to 5TH CIR. R. 47.5, the court has    published and is not precedent except under the
determined that this opinion should not be          limited circumstances set forth in 5TH CIR. R.
                         (continued...)             47.5.4.
error in neither the summary judgment nor the                 After the EEOC dismissed Harris’s
verdict, we affirm.                                        complaint and issued a right-to-sue letter, she
                                                           sued the DPSC, Travis, Hegwood, and Jerry
                       I.                                  Goodwin, who succeeded Travis as warden in
    Harris, a black woman over the age of for-             August 1999, alleging violations of title VII of
ty, has worked at the Louisiana Department of              the Civil Rights Act of 1964, 42 U.S.C. §
Public Safety and Corrections (“DPSC”) at the              2000e et seq., and the Age Discrimination in
A.L. Swanson Correctional Center for Youth                 Employment Act (“ADEA”), 29 U.S.C. § 621
(“Swanson”) in secretarial positions since                 et seq.2 She also alleged violations of 42
1974. She applied for a promotion from the                 U.S.C. §§ 1981, 1983, 1985, and 1986 against
position of Secretary II to Administrative Sec-            Travis, Hegwood, and Goodwin only. The
retary in the warden’s office in September                 court entered summary judgment on all claims
1997, at roughly the same time that Billy Tra-             except the title VII claims against DPSC and
vis became the warden at Swanson. A                        the §§ 1981 and 1983 claims against Travis
younger white woman received the position                  based on the failure to promote in November
instead.                                                   1998, the re-allocation of Harris’s secretarial
                                                           duties, and the relocation of her office. After
   In early 1998, Travis “detailed” Harris to an           a two-day trial, the jury returned a verdict for
Administrative Secretary position to support               DPSC and Travis.
Rene Hegwood, Swanson’s human resources
manager.1 When this detail ended in July 1998                                     II.
and Harris returned to her Secretary II                                           A.
position, Tressie Tyler and Kristi Beard,                     We review a summary judgment de novo
younger white women, had assumed the bulk                  and apply the same standards as did the district
of her duties. Harris also had to move to a                court. TIG Ins. Co. v. Sedgwick James, 276
smaller, less comfortable office in another                F.3d 754, 759 (5t h Cir. 2002). Summary
building.                                                  judgment is appropriate only if “the pleadings,
                                                           depositions, answers to interrogatories, and
   In November 1998, Harris applied for the                admissions on file, together with the affidavits,
position of Administrative Secretary in the                if any,” when viewed in the light most
mental health unit at Swanson. Rachel Child-               favorable to the non-moving party, “show that
ress, a younger white woman, was appointed                 there is no genuine issue as to any material
instead. Harris then filed an EEOC complaint               fact.” Anderson v. Liberty Lobby, Inc., 477
based on all these events. While the complaint             U.S. 242, 249-50 (1986). A dispute about a
was pending, she applied for a lateral transfer            material fact is “genuine” if the evidence
into the administrative director’s office; she             would permit a reasonable jury to return a
was denied the transfer and alleges that the               verdict for the non-moving party. Id. at 248.
position was given to a younger white woman.               The court must draw all reasonable inferences


                                                              2
                                                                In her first amended complaint, Harris also
   1
     A “detail” is a temporary assignment to a new         alleged a state law promissory estoppel claim
position on a trial basis to evaluate the employee’s       against all defendants, but she later abandoned that
performance in that position.                              claim.

                                                       2
in favor of the non-moving party. Id. at 255.                 Summary judgment was appropriate on the
                                                          title VII and ADEA claims against Travis and
   At the same time, not all disputes or all in-          Hegwood, because individuals cannot be liable
ferences are reasonable, and the court is not             personally under either statute. Indest v.
obliged to accept mere assertions. Thus, once             Freeman Decorating, Inc., 164 F.3d 258, 262
the moving party has initially shown “that                (5th Cir. 1999) (title VII); Stults v. Conoco,
there is an absence of evidence to support the            Inc., 76 F.3d 651, 655 (5th Cir. 1996)
non-moving party’s cause,” Celotex Corp. v.               (ADEA). Harris also sued Travis in his official
Catrett, 477 U.S. 317, 325 (1986), the non-               capacity for violations of title VII. Yet, a
moving party must produce “specific facts”                plaintiff may not sue both the employer and its
showing a genuine factual issue for trial. FED.           agent in an official capacity. Indest, 164 F.3d
R. CIV. P. 56(e); Matsushita Elec. Indus.                 at 262.
Corp. v. Zenith Radio, 475 U.S. 574, 587
(1986). The non-moving party cannot rest on                  DPSC was entitled to summary judgment
mere conclusional allegations and denials,                on the ADEA claim, because it has sovereign
speculation, improbabl e inferences,                      immunity from the ADEA. Kimel v. Fla. Bd.
unsubstantiated assertions, and legalistic                of Regents, 528 U.S. 62 (2000). We already
arguments, none of which will substitute for              have held, on another occasion, that DPSC has
specific facts showing a genuine issue for trial.         sovereign immunity as an agency of the state
TIG, 276 F.3d at 759.                                     of Louisiana. Champagne v. Jefferson Parish
                                                          Sheriff’s Office, 188 F.3d 312, 313-14 (5th
                      B.                                  Cir. 1999). Harris gives no reason to
   The district court carefully explained, in             reconsider or distinguish this holding.
well reasoned opinions, why most of Harris’s
claims cannot survive summary judgment. We                   DPSC also was entitled to summary
agree with these opinions, which we review                judgment on three aspects of Harris’s title VII
briefly, and we affirm.                                   claims. First, DPSC is not liable for the failure
                                                          to promote Harris in November 1997, because
   The court properly entered summary                     she did not file an EEOC complaint until
judgment on all claims against Goodwin,                   December 1998, outsi de the 300-day
because Harris alleged no facts for which                 limitations period for title VII. 42 U.S.C. §
Goodwin could be held liable. The last ground             2000e-5(e)(1). Harris contends that this
for Harris’s claims is the denial of her                  incident is part of a continuing violation and
application for a lateral transfer in May 1999.
Goodwin did not become warden until August
1999. Thus, he cannot be liable on any                       3
                                                              (...continued)
theory.3
                                                          refute the allegations. Yet, Goodwin only needs to
                                                          point to an absence of evidence, whereas Harris
                                                          bears the burden to produce specific facts raising
   3
    Harris alleged continuing harassment and dis-         a genuine issue of material fact regarding any con-
crimination by Goodwin, but she produced no evi-          tinuing harassment and discrimination. (Harris
dence to support these allegations. She argues on         also seems to confuse the standards for a motion to
appeal that Goodwin produced no evidence to               dismiss with those for a motion for summary
                                     (continued...)       judgment.)

                                                      3
thus excepted from the usual 300-day                    discrimination claims are brought under
limitations period. Although this circuit               §§ 1981 and 1983, they are analyzed under the
recognizes a continuing-violation exception,            same framework as is a title VII claim.
“the plaintiff must demonstrate more than a             Lawrence v. Univ. of Tex. Med. Branch, 163
series of discriminatory acts. He must show an          F.3d 309, 311 (5th Cir. 1999) (citation
organized scheme leading to and including a             omitted). The district court, then, properly
present violation, such that it is the cumulative       entered summary judgment for Travis on the
effect of the discriminatory practice, rather           §§ 1981 and 1983 claims insofar as these
than any discrete occurrence, that gives rise to        claims are based on the failure to promote
the cause of action.” Huckabay v. Moore, 142            Harris in November 1997, the denial of her
F.3d 233, 239 (5th Cir. 1998) (citations                request for a lateral transfer, and any
omitted). Harris has produced no such                   discriminatory effect.4
evidence and, indeed, pleaded her complaint in
a style of discrete incidents. The title VII                Finally, the court properly granted summary
claim based on the failure to promote in                judgment on the §§ 1985 and 1986 claims
November 1997 is therefore barred by the                against Travis and Hegwood. To prove a §
statute of limitations.                                 1985 violation, Harris must show that Travis
                                                        and Hegwood discriminated against blacks as
    Second, DPSC is not liable for the denial of        a class, not simply against her because she is
Harris’s request for a lateral transfer in May          black. Newberry v. East Tex. State Univ., 161
1999, because denial of a lateral transfer is not       F.3d 276, 281 (5th Cir. 1998). She has
an adverse employment action covered by title           offered no proof of class-based animus or
VII. Burger v. Cent. Apartment Mgmt., Inc.,             discrimination. Moreover, her § 1985 claim
168 F.3d 875, 879-80 (5th Cir. 1999). Third,            relies exclusively on her title VII claims, but
DPSC is not liable for Harris’s discriminatory-         § 1985 may not be used as a remedy for title
effect claim, which does not require proof of           VII violations. Horaist v. Doctor’s Hosp.,
intent to discriminate, but rather proof of “fa-        255 F.3d 261, 270 (5th Cir. 2001). And,
cially neutral employment standards [that] op-          without an underlying § 1985 violation, her §
erate more harshly on one group than anoth-             1986 claim necessarily fails as well. 42 U.S.C.
er.” Johnson v. Uncle Ben’s, Inc., 965 F.2d             § 1986; Newberry, 161 F.3d at 281 n.3.
1363, 1367 (5th Cir. 1992) (citation omitted).
A plaintiff not only must offer proof of                                       III.
statistical disparities, but also must identify
“specific employment practices that are                    4
allegedly responsible for any observed                       Harris alleged the same violations of §§ 1981
statistical disparities.” Id. (citation omitted).       and 1983 against Hegwood, but the district court
                                                        properly found that Hegwood was entitled to qual-
Harris has done neither; thus, her
                                                        ified immunity against Harris’s claims. Harris al-
discriminatory effect claim cannot withstand            leged only that Hegwood did not interview her
summary judgment.                                       when she applied for the Administrative Secretary
                                                        position in November 1998. Harris produced no
   Likewise, Travis was entitled to summary             evidence that Hegwood participated in the ultimate
judgment on these three aspects of Harris’s             employment decision, and hence no evidence that
§§ 1981 and 1983 claims. When employment                Hegwood violated any of Harris’s clearly
                                                        established rights.

                                                    4
   The summary judgment left three main                   discriminatory reason for the employment
factual disputes for trial: (1) the failure to pro-       decisions. Id. If they do so, Harris must offer
mote Harris in November 1998, (2) the re-                 specific evidence to demonstrate that the
allocation of her secretarial duties, and (3) the         reasons are merely pretextual. Id. at 804.
relocation of her office. These disputes went
to trial against DPSC under title VII and                     The evidence more than supports the
against Travis under §§ 1981 and 1983. The                verdict.      DPSC and Travis adduced a
jury returned a verdict for DPSC and Travis,              legitimate, non-discriminatory reason for not
and the court denied Harris’s motion for judg-            promoting Harris to the position of
ment as a matter of law (“j.m.l.”).                       Administrative Secretary at the new mental
                                                          health unit in November 1998, namely, that
    We review de novo a ruling on a motion for            Childress already worked as a mental health
j.m.l. Miss. Chem. Corp. v. Dresser-Rand                  clerk at Swanson’s Department of Social
Co., 287 F.3d 359, 365 (5th Cir. 2002). Yet,              Services and therefore was familiar with the
when an action is tried to a jury, a motion for           secretarial duties associated with mental health
j.m.l. is in effect a challenge to the legal              services at Swanson. Indeed, the evidence
sufficiency of the evidence supporting the                suggests that there was not really any position
verdict. Brown v. Bryan County, Okla., 219                to fill in the first place. As the new unit grew
F.3d 450, 456 (5th Cir. 2000). Thus, we                   rapidly, Travis simply re-designated
review the evidence “drawing all reasonable               Childress’s clerical position to Secretary II
inferences and resolving all credibility                  (not Administrative Secretary, as Harris
determinations in the light most favorable to             asserts) to reflect her increased workload.
the non-moving party.” Id. We will reverse                Harris’s evidence did not establish that this
“only if no reasonable jury could have arrived            explanation was pretextual, and a reasonably
at the verdict.” Snyder v. Trepagnier, 142                jury easily could have credited the explanation.
F.3d 791, 795 (5th Cir. 1998). Because Harris
cannot satisfy this stringent standard, we                   DPSC and Travis also offered legitimate,
affirm.                                                   non-discriminatory reasons for the re-
                                                          allocation of Harris’s secretarial duties and
    We review the verdict under the familiar              relocation of her office after she returned from
evidentiary framework of McDonnell Douglas                detail in July 1998. Harris’s difficulties
Corp. v. Green, 411 U.S. 792 (1973).5 Harris              resulted not from discrimination, but from her
first must state a prima facie case of                    supervisors’ duties and locations. When
employment discrimination, which we will                  Harris returned from the detail, she continued
assume for the purposes of this appeal. Id. at            to work for her former supervisor, Marcia
802-03. Next, the burden shifts to DPSC and               Ensley. During the detail, however, Ensley
Travis to adduce a l egitimate, non-                      had been reassigned from security warden to
                                                          program manager in social work. Just as
                                                          Ensley’s duties changed, so did Harris’s.
   5
       Although McDonnell Douglas burden-                 Beard and Tyler assumed Harris’s older duties
shifting is most common in title VII cases, it also       as the secretaries to Ensley’s replacement.
applies to employment discrimination claims
brought under §§ 1981 and 1983. Wallace v. Tex.              Shortly after Harris’s return, Ensley
Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).

                                                      5
resigned. Travis appointed Ella Gray as the
new program manager in social work, and
Harris continued to serve as the secretary to
the program manager. Yet, Gray wanted to
keep her old office in a different building
rather than move into Ensley’s old office,
thereby requiring Harris to move into a
smaller, less comfortable office in Gray’s
building. Again, Harris’s evidence did not
prove that these explanations for the re-
allocation of her duties and relocation of her
office were pretextual, and a reasonable jury
easily could have credited the explanations.

   AFFIRMED.




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