           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 16, 2008

                                     No. 07-60656                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


VENISSA SADDLER

                                                  Plaintiff-Appellant
v.

QUITMAN COUNTY SCHOOL DISTRICT;
VALMADGE TOWNER, In His Individual Capacity

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                   2:05-CV-218


Before HIGGINBOTHAM, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
       Venissa Saddler sued Quitman County School District (QCSD), as well as
the Superintendent, Valmadge Towner, in his individual capacity. The district
court granted summary judgment in Defendants’ favor, and Saddler appeals.
The two issues that concern us are the “personal staff” exception to Title VII 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60656

Saddler’s purported federal equal protection claims against Towner. For the
reasons that follow, we affirm.
                                       I
      Saddler met Towner in the 1990s. Beginning in 1997, the two began a
lengthy sexual relationship, which ended, according to Saddler, in 2003. Towner
was elected Superintendent of QCSD in 2003, and his term in office commenced
in January 2004. Towner created an executive secretary position and recruited
Saddler to fill it.
      The events leading to this lawsuit revolve around Saddler’s allegation that
Towner engaged in a pattern of sexual harassment directed at her, harassment
that began shortly after she started her job. Events culminated during the
morning of September 15, 2005, when Saddler alleges that Towner raped her in
his office. Although there are questions as to when and to whom she reported
the alleged rape, it was eventually reported to law enforcement. However, the
district attorney declined to prosecute. Saddler also filed a complaint alleging
phone harassment charges against Towner based on conversations following the
alleged rape.
      Following the alleged assault, Saddler took a long medical leave of
absence, returning to work in May 2006. She did not return to her position as
Towner’s executive secretary; rather, she was transferred to a job in an
elementary school. Defendants explained that it would be better for all of the
parties to separate Saddler and Towner when she returned to work, to minimize
any contact between the two. The transfer did not result in a reduction in her
pay or benefits. In contrast, Saddler says that the transfer was a retaliatory
demotion for her having reported the sexual assault and harassment.
      Saddler filed a charge with the EEOC in September 2005. She sued QCSD
and Towner in October 2005, and filed an amended complaint in August 2006.
As construed by the district court, the amended complaint alleged sexual


                                       2
                                         No. 07-60656

harassment and retaliation claims under Title VII, as well as Fourteenth
Amendment substantive due process and equal protection claims, against QCSD.
The court read her complaint as alleging state-law claims against Towner,
though there is now a dispute as to whether she also brought federal claims
against him. Towner counter-claimed under state law. QCSD filed a motion for
summary judgment. Saddler filed a motion in opposition, but conceded the
substantive due process claim.
      The district court granted QCSD’s motion. The court ruled that Title VII’s
“personal staff” exception applied to Saddler, and therefore she was not an
employee under Title VII.             The court further ruled that Saddler’s equal
protection claims against QCSD failed as a matter law. Having dismissed what
it considered to be Saddler’s federal claims, the court declined supplemental
jurisdiction over the various state-law claims. Saddler appealed. Subsequent
to the completion of briefing, Saddler filed a motion to dismiss her appeal for
lack of appellate jurisdiction.
                                                 II
                                                 A
      We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court.1 “A summary judgment
motion is properly granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there is ‘no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.’”2
                                                 B




      1
          Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 991 (5th Cir. 2005).
      2
          Id. (quoting Fed. R. Civ. P. 56(c)).

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                                      No. 07-60656

      In her opening brief, Saddler challenged the district court’s judgment on
two grounds. First, she argued that there were material issues of fact as to
whether she fell within Title VII’s personal staff exception. Second, Saddler
contended that the district court erred in granting summary judgment on her
equal protection claims against Towner. In her reply brief, Saddler injected, as
relevant to our disposition of the appeal, another issue: whether QCSD waived
the personal staff exception by failing to plead it as an affirmative defense. After
filing her reply brief, Saddler filed a motion to dismiss her appeal for lack of
appellate jurisdiction, arguing that the district court had not in fact ruled on her
federal equal protection claims against Towner, and therefore, there was no final
judgment from which to appeal.
                                             1
      We begin with Saddler’s contention that the district court never ruled on
her federal equal protection claims against Towner because it implicates our
jurisdiction, and then turn to her original contention that the district court erred
in granting summary judgment on those claims.
      28 U.S.C. § 1291 limits our jurisdiction to appeals from “final decisions of
the district courts.”3 “Hence, as a general rule, all claims and issues in a case
must be adjudicated before appeal, and a notice of appeal is effective only if it is
from a final order or judgment.”4
      Saddler’s motion to dismiss is not well taken. As the master of her
complaint, it should have been obvious to her if the district court’s summary
judgment decision left some claims unresolved, yet she appealed. Similarly, in
her opening brief, Saddler stated that there was a final judgment; indeed, she
argued that the district court erred by granting summary judgment on her equal


      3
          Swope v. Columbian Chems. Co., 281 F.3d 185, 191 (5th Cir. 2002).
      4
          Id.

                                             4
                                         No. 07-60656

protection claims against Towner. Saddler’s change of course is, to put it
charitably, curious. In any event, having reviewed the amended complaint, the
district court’s memorandum opinion, and the parties’ summary judgment
filings, we conclude that the district court did in fact dispose of all of Saddler’s
claims, and therefore, we have jurisdiction.
       Far from leaving the equal protection claims against Towner unaddressed,
the district court construed Saddler’s amended complaint as only raising state-
law claims against Towner. In its memorandum opinion, the court summarized
its construction of Saddler’s complaint as follows:
       The Amended Complaint appears to levy the following claims
       against the District: (1) substantive due process claim pursuant to
       the Fourteenth Amendment to the U.S. Constitution; (2) gender
       discrimination in violation of the Equal Protection Clause of the
       Fourteenth Amendment; (3) sexual harassment in violation of Title
       VII; and (4) retaliation pursuant to Title VII. Against Defendant
       Valmadge Towner, in his individual capacity, the plaintiff asserts
       state-law claims of malicious interference and assault and battery.5

That the district court did not understand Saddler as alleging federal equal
protection claims against Towner is confirmed by its disposition of Saddler’s and
Towner’s state-law claims: “However, because the court has dismissed the
plaintiff’s [] federal claims asserted in this action, the court declines to exercise
supplemental jurisdiction over the remaining state-law claims pursuant to 28
U.S.C. § 1367(c)(3).”6 Saddler’s motion to dismiss is in substance an improper




       5
        Saddler v. Quitman County Sch. Dist., No. 2:05CV21-P-A, 2007 WL 2287838, at *1
N.D. Miss. Aug. 3, 2007). The district court’s construction of Saddler’s complaint is consistent
with Saddler’s description of her claims in her opposition to QCSD’s summary judgment
motion. Saddler listed the federal claims she was pursuing against QCSD, and then stated
that “Saddler is also suing the individual Defendant, Valmadge Towner, for state law claims
of assault and battery and malicious interference with employment.”
       6
           Id. at *6 (emphasis added).

                                               5
                                        No. 07-60656

attempt to appeal the district court’s construction of her amended complaint.
The motion to dismiss is denied.
       Nowhere in her briefs does Saddler mention that the district court’s
construction of her complaint was in error; rather, she only outlines part of the
merits of equal protection claims against Towner. Nor is there any indication
that Saddler raised the issue of the district court’s construction of her complaint
before that court. She has, therefore, abandoned any argument as to the district
court’s construction of her complaint.7 It is obvious, then, that there is no merit
to the contention that the district court erred by granting summary judgment on
her federal equal protection claims against Towner: The district court did not
grant summary judgment on such claims because there were no such claims
before it.
                                                2
       Turning to the district court’s application of the “personal staff” exception
to Title VII, we face a threshold question. Saddler argues in her reply brief that
QCSD failed to plead the exception, which is an affirmative defense,8 in its
answer, instead raising it for the first time in its summary judgment motion.




       7
         See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (“‘[T]he Court
will not allow a party to raise an issue for the first time on appeal merely because a party
believes that he might prevail if given the opportunity to try a case again on a different
theory.’” (quoting Forbush v. J.C. Penny Co., 98 F.3d 817, 822 (5th Cir. 1996))); N. Alamo
Water Supply Co. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996) (“We will not consider
an issue that a party fails to raise in the district court, absent extraordinary circumstances.”);
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not
raised and argued in its initial brief on appeal. . . . A party who inadequately briefs an issue
is considered to have abandoned the claim.”). Saddler confirmed in her reply brief that she was
not appealing from the district court’s granting of summary judgment on her equal protection
claims against QCSD. Any arguments as to the district court’s disposition of those claims are
abandoned. See Cinel, 15 F.3d at 1345.
       8
        See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 467 (5th Cir. 2001) (holding that
the “personal staff” exception is an affirmative defense that must be pled).

                                                6
                                        No. 07-60656

Thus, Saddler continues, QCSD has waived it.9 Yet again, we see no indication
that this issue was raised below; to the contrary, Saddler addressed the merits
of the exception in her opposition to summary judgment. As a general rule, we
will not consider an issue raised for the first time on appeal.10 Moreover, Saddler
failed to raise the issue in her opening brief, effectively denying Defendants the
opportunity to address it.11 Accordingly, we deem it abandoned.
       Title VII limits the class of employees who can take advantage of its
provisions. The definition of employee provides that
       [t]he term “employee” means an individual employed by an
       employer, except that the term “employee” shall not include any
       person elected to public office in any State or political subdivision of
       any State by the qualified voters thereof, or any person chosen by
       such officer to be on such officer’s personal staff, or an appointee on
       the policy making level or an immediate adviser with respect to the
       exercise of the constitutional or legal powers of the office. The
       exemption set forth in the preceding sentence shall not include
       employees subject to the civil service laws of a State government,
       governmental agency or political subdivision. . . .12

Thus, Title VII excludes from its coverage the “personal staff” of elected public-
office holders. The parties do not contest here, nor did they below, that QCSD


       9
        See id. (“Appellants waived the personal staff exception by failing to raise it in a
responsive pleading.”).
       10
          See Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (“‘If a party
fails to assert a legal reason why summary judgment should not be granted, that ground is
waived and cannot be considered or raised on appeal.’” (quoting Keenan v. Tejeda, 290 F.3d
252, 262 (5th Cir. 2002))); N. Alamo Water Supply Co., 90 F.3d at 916 (“We will not consider
an issue that a party fails to raise in the district court, absent extraordinary circumstances.”).
       11
           See Cinel, 15 F.3d at 1345 (“An appellant abandons all issues not raised and argued
in its initial brief on appeal.”). In Saddler’s opening brief, she notes in a footnote that QCSD
first raised the “personal staff” exception for the first time in its summary judgment motion,
and in a parenthetical to a citation states that the exception is an affirmative defense that
should be pled. However, nary an argument appears in the footnote or anywhere else in her
opening brief that QCSD waived it.
       12
            42 U.S.C. § 2000e(f) (emphasis added).

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                                         No. 07-60656

is a political subdivision of Mississippi; that Towner, as Superintendent, was an
elected official; or that Saddler was not subject to the civil service laws of
Mississippi. We take these facts as true. Saddler argues instead that there are
material issues of fact as to whether she was Towner’s “personal staff.”
      Title VII does not define “personal staff.”                    We have identified a
nonexhaustive list of factors to determine whether a plaintiff qualifies as
“personal staff”:
      (1) whether the elected official has plenary powers of appointment
      and removal, (2) whether the person in the position at issue is
      personally accountable to only that elected official, (3) whether the
      person in the position at issue represents the elected official in the
      eyes of the public, (4) whether the elected official exercises a
      considerable amount of control over the position, (5) the level of the
      position within the organization’s chain of command, and (6) the
      actual intimacy of the working relationship between the elected
      official and the person filling the position.13

We have cautioned that “consideration of these factors must be tempered by the
legislative history of this provision which indicates that the exception is to be
narrowly construed.”14 And, as this is a fact-intensive inquiry, it “does not lend
itself well to disposition by summary judgment,”15 though this is not a
categorical prohibition.16
      QCSD made a sufficient showing in its summary judgment motion, which
was supported by documentary exhibits and deposition testimony, that the
personal staff exception applied to Saddler. The burden shifted to Saddler to
demonstrate that there were genuine issues of material fact. Federal Rule of



      13
           Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir. 1985).
      14
           Id.
      15
           Id.
      16
           See id.; see also, e.g., Rutland v. Pepper, 404 F.3d 921 (5th Cir. 2005) (per curiam).

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                                   No. 07-60656

Civil Procedure 56(e) provides that, “[w]hen a motion for summary judgment is
properly made and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its response must—by
affidavits or as otherwise provided in this rule—set out specific facts showing a
genuine issue for trial.”
      Saddler failed to demonstrate that there were material issues of fact. Of
the six Teneyuca factors, Saddler’s opposition to summary judgment only
addressed the first factor—Towner’s power to appoint and remove. Saddler
contended, and argues again in her appeal, that under Mississippi Code
Annotated § 37-7-301(w), the school board had power to employ noninstructional
and noncertified employees. However, Saddler’s response was, and remains,
insufficient for two reasons. First, she failed to account for the superintendent’s
power to employ and discharge under Mississippi Code Annotated § 37-9-
14(2)(y), and that the school board’s power under § 37-7-301(w) is limited to
acting pursuant to the superintendent’s recommendation. Second, and more to
the point, QCSD presented evidence that Towner had the requisite power in fact:
he created the job of executive secretary, recruited Saddler for it, did not
interview anyone else, and hired her outside the normal hiring process. Thus,
while Saddler questioned Towner’s de jure power to hire, she raised no issue of
material fact as to Towner’s de facto power.
      As to the other five factors, Saddler raised two arguments in her
opposition to summary judgment; however, both are irrelevant. That Saddler
shared an office with other employees does not speak to the issue. Nor does it
matter that she was employed by the school district as opposed to being on
Towner’s personal payroll.      When opposing summary judgment, a party’s
“burden is not satisfied with ‘some metaphysical doubt as to the material facts,’
by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’



                                          9
                                        No. 07-60656

of evidence.”17 We cannot fault the district court for concluding that “[t]he other
Teneyuca factors clearly point to Saddler having been a personal staff member
of an elected official given it is undisputed that the plaintiff in her capacity as
an executive secretary worked exclusively as an aid to Towner.”18
       Saddler does muster arguments in her opening brief addressing purported
fact issues as to all of the Teneyuca factors. Although not raised by Defendants,
our review of the record again reveals no indication that these arguments were
presented to the district court. It is well established that, “[a]lthough on
summary judgment the record is reviewed de novo, this court, for obvious
reasons, will not consider evidence or arguments that were not presented to the
district court for its consideration in ruling on the motion.”19
       Finally, Saddler has consistently argued that a person employed as an
“executive secretary” and the like, those who are not “first line advisors,” simply
cannot qualify as “personal staff”; however, we have held otherwise. In Rutland
v. Pepper, the plaintiff had served as “an administrative assistant,” with the title
of “Deputy Clerk,” to the elected county clerk, “performing job duties such as
preparing lists of unpaid taxes, completing personnel action forms, filing
bankruptcy claims, communicating with the public, and performing general




       17
          Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), Lujan v.
Nat’l Wildlife Fed., 497 U.S. 871, 871-73 (1990), Hooper v. Frank, 16 F.3d 92 (5th Cir. 1994),
and Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994)).
       18
            Saddler, 2007 WL 2287838, at *3.
       19
           Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992). The arguments
were not raised in Saddler’s opposition to summary judgment, nor does the docket sheet reflect
that any hearings were held after QCSD submitted its motion for summary judgment. Saddler
did not file a motion for reconsideration. Even if we applied plain error review, see U.S. ex rel.
Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir. 1998), the district court did not plainly err
because it has no duty to scour the record in search of a fact issue on behalf of a party opposing
summary judgment. Skotak, 953 F.2d at 915 n.7.

                                               10
                                        No. 07-60656

clerical work.”20 The defendant moved for summary judgment. We held that the
plaintiff failed to raise any issues of material fact as to her status as “personal
staff,” and therefore the exception precluded recovery.21 Nowhere did we suggest
that the particular character of the plaintiff’s job per se precluded application of
the exception. Saddler’s job as Towner’s executive secretary mirrors closely the
assistant’s job in Rutland,22 and she has not attempted to distinguish the instant
case from it.
       We reiterate our concluding comment in Teneyuca:
       This is not to say that as a matter of law a plaintiff could never
       demonstrate that material facts exist such that summary judgment
       would be inappropriate in another similar case against this or
       another similar defendant. This Court holds only that in this case
       [the plaintiff] failed to demonstrate the presence of material factual
       issues so as to defeat the defendants’ motion for summary
       judgment.23

Accordingly, we find no reversible error in the district court’s ruling that
Saddler, as Towner’s executive secretary, fell within Title VII’s personal staff
exception.
                                              III



       20
          404 F.3d at 922. Rutland considered the “personal staff” exception under the Family
and Medical Leave Act. As we explained there, “Although Teneyuca involves a claim brought
under Title VII rather than the FMLA or the FLSA, because all three statutes contain the
identical definitions of ‘employee,’ courts considering personal staff exemptions to the FLSA
or the FMLA may be guided by cases interpreting an analogous exemption to Title VII.” Id.
at 924 n.2.
       21
            Id. at 924.
       22
         See also Nichols v. Hurley, 921 F.2d 1101, 1108 (10th Cir. 1990) (“Thus, a person can
be a member of an elected official’s personal staff and not be either a policymaker or an
immediate adviser with respect to the constitutional and legal powers of the elected official.”);
Bland v. New York, 263 F. Supp. 2d 526 (E.D.N.Y. 2003) (an elected judge’s secretary was
personal staff).
       23
            767 F.2d at 153.

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                               No. 07-60656

     Saddler’s motion to dismiss is DENIED, and the judgment of the district
court is AFFIRMED.




                                    12
