     Case: 18-20387      Document: 00514900380         Page: 1    Date Filed: 04/03/2019




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

                                    No. 18-20387                            FILED
                                  Summary Calendar                       April 3, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
TINA DAVIS,

              Plaintiff–Appellant

v.

TEXAS CHILDREN'S HOSPITAL,

              Defendant–Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-280


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       Texas Children’s Hospital fired its employee Tina Davis. Davis then sued
the hospital for: (1) discrimination and harassment under 42 U.S.C. § 1981; (2)
retaliation under § 1981; (3) discrimination and harassment under Title VII;
and (4) retaliation under Title VII. Specifically, Davis says that her supervisor
Ms. Conchita and a hospital employee named Omar created a pervasive hostile
work environment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20387
      One example Davis gives: Conchita was yelling at her, and so Davis
walked away. At which point, Conchita supposedly grabbed her from behind.
Next, Davis claims that Omar screamed at her that he “would do what he
wants.” And Davis also alleges that during this altercation, Omar was face to
face with her, inches away, so that his spit hit her face. Davis claims that she
then sought transfer, but in response, her supervisors fired her. So Davis filed
an EEOC complaint. And next, she sued.
      After her deposition, she filed a letter with the district court expressing
her dissatisfaction. The hospital then moved for summary judgment. And the
court granted summary judgment on several grounds.
      First, the court held that Davis failed to exhaust her administrative
remedies for her Title VII harassment claim because her EEOC complaint
failed to “allege facts supporting a harassment claim.” Second, the court found
that Davis had failed to make a prima facie case for § 1981 harassment since
she didn’t offer evidence showing that “any alleged harassment was based on
her race.” The court also noted that in her deposition, Davis even conceded that
the alleged harassment was not based on race. Third, the court reasoned that
even if Davis could make out prima facie Title VII and § 1981 cases, she failed
to show that the hospital’s articulated reasons for firing her—threatening a
coworker, misbehavior, and poor performance—were mere pretext. And fourth,
on retaliation, the Court held that Davis failed to show that she was engaged
in a protected activity for which she was fired.
      Davis makes two arguments on appeal: (1) that the district court erred
in granting summary judgment; and (2) that the district court made ethical
violations, which she raises for the first time on appeal.




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                                    No. 18-20387
        We review the district court’s granting of summary judgment de novo. 1
Under Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate when “there is no genuine dispute of material fact and the movant
is entitled to judgment as a matter of law.” The court must consider the
evidence in the light most favorable to the nonmovant. 2 But the nonmovant
must present more than a mere scintilla of evidence or conclusory allegations. 3
        Yet on appeal, Davis recites only conclusory allegations of racial and sex
discrimination. She cites no evidence supporting those allegations. Nor did she
do so below—not in her complaint; not in her opposition to summary judgment.
And the district court gave her ample opportunity to dispute a material fact:
Davis failed to reply to the summary-judgment motion on time. And yet the
court considered her response anyway, even though it was nearly two months
late.
        Considering that Davis failed to establish prima facie cases for Title VII
and § 1981 harassment and discrimination, as well as for Title VII retaliation,
the district court correctly dismissed her suit. Finally, Davis’s argument that
the district judge should’ve recused himself isn’t properly before this court. As
this Court explained in Andrade, which we decided in 2003, “[r]equests for
recusal raised for the first time on appeal are generally rejected as untimely.” 4
        AFFIRMED.




        Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
        1

        Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
        2
      3 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
      4 Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (citing United States v.

Sanford, 157 F.3d 987, 988–89 (5th Cir. 1998)).

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