     Case: 13-20225      Document: 00512779273         Page: 1    Date Filed: 09/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20225                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 23, 2014
KERYL DOUGLAS,                                                             Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

HOUSTON HOUSING AUTHORITY; ERNIE ETUK,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CV-61


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Keryl L. Douglas appeals the district court’s order
granting summary judgment in favor of Defendants-Appellees, Houston
Housing Authority (“HHA”) and Ernie Etuk, HHA’s former President and CEO
(HHA and Etuk collectively, “Defendants”).              Douglas further appeals the
district court’s order granting Defendants’ motion for attorneys’ fees. This
appeal is part of the third lawsuit that Douglas has filed against HHA and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 13-20225
Etuk, which have all been related to her brief employment with, and
termination from, HHA. Douglas raises a number of arguments as to why the
orders granting summary judgment and attorneys’ fees were inappropriate.
For the reasons discussed below, we AFFIRM the judgment of the district
court.
             I.   FACTUAL AND PROCEDURAL BACKGROUND 1
         In August of 2009, HHA hired Douglas to serve as Director of
Intergovernmental Affairs and Grant Writer. In October of 2009, Etuk, HHA’s
President and CEO at the time, promoted Douglas to the position of Director
of Houston Housing Resource, Inc. (“HHR”). On January 28, 2010, Douglas
sent correspondence to the United States Department of Housing and Urban
Development, wherein she alleged thirty instances of organizational
wrongdoing. On January 29, 2010, Douglas sent an email to HHA’s human
resources director alleging that her supervisor had created a hostile work
environment and had treated Caucasian employees more favorably than those
of other races. Douglas was placed on leave, with pay, during the pendency of
HHA’s investigation of the allegations. On February 2, 2010, following the
conclusion of HHA’s investigation, Etuk terminated Douglas’s employment due
to her unwillingness or inability to accept the authority and direction of her
supervisors.
         On May 3, 2010, Douglas filed her first lawsuit (“Douglas I”) against
HHA and Etuk in the 190th Judicial District Court, Harris County, Texas.
Douglas asserted six state law claims arising from her employment and
termination from HHA. Both Defendants sought dismissal of all claims in
Douglas I. On May 11, 2011 the court dismissed Douglas I, with prejudice, in


         This case has a long and convoluted history, most of which is not necessary to dispose
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of this appeal. Accordingly, we will discuss only the facts necessary to our consideration of
this appeal.
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                                No. 13-20225
its entirety. On May 30, 2013, the First Court of Appeals in Houston
affirmed the dismissal of her claims.
      On April 15, 2011, Douglas filed her second lawsuit (“Douglas II”)
against HHA and Etuk (and sixteen other defendants) in the 129th Judicial
District Court, Harris County, Texas. Once again, Douglas alleged claims
related to her employment and termination from HHA. On April 28, 2011,
Douglas II was removed to the United States District Court for the Southern
District of Texas and assigned to Judge Lynn N. Hughes. On December 9,
2012, the district court dismissed Douglass II in a written order, which
denied Douglas’s motion to recuse, dismissed with prejudice all of Douglas’s
claims against HHA and Etuk for failure to state a claim, and sanctioned
Douglas in the amount of $4,200. On April 3, 2013, this court dismissed
Douglas’ appeal in Douglas II, because Douglas failed to file the required
brief and record excerpts.
      On May 8, 2012, Douglas filed the present action (“Douglas III”) in the
281st Judicial District Court, Harris County, Texas, and initially asserted
only state law claims against HHA and Etuk. On January 9, 2013, after
Douglas amended her state court petition to add both a Title VII and 42
U.S.C. § 1981 claim, HHA and Etuk removed the action to federal court,
where it was originally assigned to Judge Gray H. Miller. On January 23,
2013, Judge Hughes consolidated Douglas II and Douglas III. On February
26, 2013, Douglas filed a motion seeking Judge Hughes’s recusal and a stay.
During a hearing on this motion, Douglas also asked that Douglas III be
severed from Douglas II. The district court denied the motion seeking a
recusal and a stay, but ordered that the two cases be severed. No further
action in the district court ensued in Douglas II. On March 26, 2013, the
district court entered summary judgment in Douglas III in favor of the
Defendants. On April 9, 2013, HHA filed a Motion for Attorneys’ Fees. On
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April 24, 2013, Douglas filed her Notice of Appeal related to the dismissal of
her claims. On May 3, 2013, the district court granted HHA’s motion and
ordered that Douglas pay $30,591 in attorneys’ fees. Douglas has not filed a
notice of appeal related to the order granting the Defendants attorneys’ fees.
                      II.   STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Shields v. Twiss, 389 F.3d
142, 149 (5th Cir. 2004). More specifically, “summary judgment is proper ‘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 a judgment as a
matter of law.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
We review the district court’s case management decisions, including decisions
related to recusal, discovery, consolidation, and attorneys’ fees, for abuse of
discretion. See Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (“The
judge abuses his discretion in denying recusal where a reasonable man,
cognizant of the relevant circumstances surrounding [the] judge’s failure to
recuse, would harbor legitimate doubts about that judge’s impartiality.”)
(internal citation and quotation marks omitted); Ctr. for Biological Diversity,
Inc. v. BP Am. Prod. Co., 704 F.3d 413, 432 (5th Cir. 2013) (“The trial court’s
managerial power is especially strong and flexible in matters of consolidation.”)
(internal citation and quotation marks omitted); Ackerson v. Bean Dredging
LLC, 589 F.3d 196, 209 (5th Cir. 2009) (discovery); Mathis v. Exxon Corp., 302
F.3d 448, 462–63 (5th Cir. 2002) (attorneys’ fees).
                             III.    ANALYSIS
      We first address two overarching issues. First, Douglas appears to use
her appellate brief as an opportunity to attack the final judgment entered in
Douglas II. The res judicata doctrine prevents her from attacking the final
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judgment in Douglas II here. See e.g. Federated Dep’t Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981) (“A final judgment on the merits of an action precludes
the parties . . . from relitigating issues that were or could have been raised in
that action.”). Second, Douglas repeatedly argues that the district court made
dozens of errors throughout the proceedings below. While she alleges generally
that genuine issues of material fact exist, she does not point to any specific
issue. Accordingly, her argument that summary judgment was inappropriate
because fact issues exist fails. See Celotex Corp., 477 U.S. at 323.
      We next turn to Douglas’s five arguments regarding the district court’s
management of the proceedings below. 2 First, Douglas argues that the district
court erred when it denied her motion to remand. However, 28 U.S.C. § 1441
allows defendants to remove “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction.” Accordingly,
when Douglas chose to amend her state court pleadings to assert federal
claims, the defendants were permitted, as they chose to do, to remove the case
to federal district court.
          Next, Douglas argues that Judge Hughes erred when he denied her
motion to recuse. Under 28 U.S.C. § 144, “[w]henever a party . . . makes and
files a timely and sufficient affidavit that the judge . . . has a personal bias . . .
against him . . . such judge shall proceed no further therein.” In order for the
affidavit to be legally sufficient, “[t]he facts must be such that, if true, they
would convince a reasonable person that bias exists,” and “[t]he facts must
show the bias is personal, as opposed to judicial in nature.” Phillips v. Joint
Legislative Comm. on Performance & Expenditure Review of Miss., 637 F.2d
1014, 1019 (5th Cir. 1981). Furthermore, under 28 U.S.C. § 455(a), a judge



      2 Douglas attempts to make eleven arguments; however, six are duplicative of the five
that we discuss.
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should recuse himself “in any proceeding in which his impartiality might
reasonably be questioned.”         “In order to determine whether a court’s
impartiality is reasonably in question, the objective inquiry is whether a well-
informed, thoughtful and objective observer would question the court’s
impartiality.” Republic of Panama v. Am. Tobacco Co., 217 F.3d 343, 346 (5th
Cir. 2000) (quoting Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir. 1997)).
      Douglas contends, without citation to the record, that the district judge
called her “insane,” that he “made statements on the record and in his opinions
that he knew or should have known were unfair . . . attempts to . . . to
intentionally disparage [Douglas’s] professional reputation . . . ,” and that “he
would defeat even Douglas’ state litigation.” Appellant’s Br. 37–38. Despite
this, a judge who presides over a case is not recusable for bias even if he is
“exceedingly ill disposed towards [a party],” if that opinion was acquired during
the proceedings. Liteky v. United States, 510 U.S. 540, 550–51 (1994). In fact,
under §§ 144 and 455, “judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel . . . ordinarily do not
support a bias or partiality challenge.” Id. at 555. Based on our independent
review of the voluminous record, Douglas has not shown that a “well-informed,
thoughtful and objective observer would question the court’s impartiality,”
Republic of Panama, 217 F.3d at 346; accordingly, the district court did not
abuse its discretion when it denied Douglas’ motion to recuse.
      Next, Douglas challenges the consolidation of Douglas III with
Douglas II. It is true that the “filing of a notice of appeal . . . confers jurisdiction
on the court of appeals and divests the district court of its control over those
aspects of the case involved in the appeal.” Sanders v. La. Div. of Admin., 551
F. App’x. 95, 98 (5th Cir. 2013) (unpublished) (internal citations and quotation
marks omitted). Accordingly, since a notice of appeal had been filed in Douglas
II, the district court should not have consolidated Douglas III with Douglas II.
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However, “consolidation is improper [only] if it would prejudice the rights of
the parties.” St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass'n of New Orleans,
Inc., 712 F.2d 978, 989 (5th Cir. 1983). Douglas II and Douglas III were
consolidated for approximately one month.                   The Defendants’ dispositive
motion, Douglas’ responsive briefing, and the district court’s order of dismissal
were all docketed under Douglas III. Douglas does not point to any evidence
in the record that she was prejudiced as a result of the mistaken consolidation. 3
Furthermore, the district court did not abuse its discretion when it transferred
the case from Judge Gray. See United States v. Osum, 943 F.2d 1394, 1399
(5th Cir. 1991) (“The trial court has broad discretion in determining whether a
transfer is warranted.”). Since Douglas does not make a “strong showing that
the [transfer was] prejudicial,” id., the transfer from Judge Gray to Judge
Hughes was proper.
       Next, Douglas argues that the district court erred because it granted
summary judgment before she had an opportunity to conduct discovery or
amend her complaint. Douglas does not point to any place in the record
showing that she actually moved for additional discovery or an opportunity to
amend. Accordingly, this argument fails.
       Finally, Douglas challenges the district court’s order granting attorneys’
fees to the defendants. However, this argument is foreclosed because Douglas
failed to file a notice of appeal addressing the attorneys’ fees issue. Although
a mistake “in designating a judgment appealed . . . should not bar an appeal if


       3 Douglas cites United Student Aid Funds., Inc. v. Espinosa, 559 U.S. 260 (2010) for
the proposition that the district court’s error in consolidating Douglas II and Douglas II
voided the judgment in this case. But Espinosa is inapposite, as the Court was considering
a motion under Federal Rule of Civil Procedure 60. Moreover, the Court held that a judgment
can be voided pursuant to that Rule only in the “rare instance where a judgment is premised
either on a certain type of jurisdictional error or on a violation of due process that deprives a
party of notice or the opportunity to heard.” United Student Aid Funds., Inc., 559 U.S. at 271
(citing Kocher v. Dow Chemical Co., 132 F.3d 1225, 1229 (9th Cir. 1997)).
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the intent to appeal a particular judgment can be fairly inferred,” Friou v.
Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991), that is not the case
here. On April 24, 2013, Douglas filed a notice of appeal “from the Final
Judgment, Orders and Opinions” of the district court. However, the district
court’s order awarding attorneys’ fees was not entered until May 3, 2013.
Douglas did not file an additional notice of appeal covering this order.
Accordingly, the intent to appeal the award of attorneys’ fees cannot be fairly
inferred, and as such, she is barred from appealing this issue. See id.; see also
15B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3915.6
(2d ed.) (“[A] separate appeal must be taken from [a] fee order.”).
                           IV.   CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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