     Case: 09-60716    Document: 00511100481        Page: 1    Date Filed: 05/04/2010




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

                                                  FILED
                                                                          May 4, 2010

                                    No. 09-60716                        Lyle W. Cayce
                                  Summary Calendar                           Clerk



MICHAEL TILLMAN,
                                                 Plaintiff-Appellant,
v.
SOUTHERN WOOD PRESERVING OF HATTIESURG, INC.,
                                                 Defendant-Appellee.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:07-CV-170


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Micheal Tillman sued his former employer, Southern Wood Preserving of
Hattiesburg, Inc., for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e). He alleged that Southern Wood discriminated against him on the
basis of his race and that Southern Wood retaliated against him for filing a
complaint with the Equal Employment Opportunity Commission. On Southern
Wood’s motion for summary judgment, the district court (1) dismissed the claims
that were based on conduct prior to September 17, 2005 as time-barred and (2)


        *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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dismissed Tillman’s constructive-discharge claim, finding that there is no
genuine issue of material fact and that Southern Wood is entitled to judgment
as a matter of law. The district court denied summary judgment on all of
Tillman’s remaining claims. We AFFIRM.
                       I. FACTS AND PROCEEDINGS
      Beginning in 1997, Tillman worked for Southern Wood as a pole framer
and general laborer.   On April 12, 2005, Southern Wood employees held a
disciplinary meeting to discuss Tillman’s failure to report to work or to call in
after leaving work early during the previous afternoon. Tillman’s supervisor
reprimanded him at that meeting for his conduct. Despite the reprimand, on or
shortly after July 31, 2006, Tillman again left work early and did not inform the
plant supervisor that he would never return. Tillman officially resigned on
August 4, 2006.
      Tillman filed his first complaint with the EEOC in March 2005 and filed
a Title VII action on January 20, 2006. The district court granted summary
judgment in favor of Southern Wood on all of these claims and entered a final
order of dismissal. This court affirmed that judgment on October 12, 2007. See
Tillman v. Southern Wood Pres. of Hattiesburg, Inc., 250 F. App’x 622 (5th Cir.
2007).
      On March 16, 2006, before the district court’s first grant of summary
judgment, Tillman filed a second complaint with the EEOC, again alleging race
discrimination and retaliation. Tillman alleged (1) that he did not receive a pay
raise when all of the other employees received pay raises, (2) that Southern
Wood denied him the opportunity to work overtime on the weekends, and (3)
that Southern Wood retaliated against him for filing a complaint with the
EEOC. Tillman filed his second Title VII action on August 20, 2007.
      Southern Wood moved for summary judgment, and the district court
granted partial summary judgment, dismissing Tillman’s constructive-discharge

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claim and all claims based on events occurring before September 17, 2005.
Tillman timely appealed. This court dismissed for lack of jurisdiction because
the district court had not expressly determined, as required by Federal Rule of
Civil Procedure 54(b), that there “is no just reason for delay.” Tillman v.
Southern Wood Pres. of Hattiesburg Inc., 330 F. App’x 491, 492 (5th Cir. 2009).1
On remand, the district court entered final judgment on Tillman’s constructive-
discharge claim and all claims based on events occurring before September 17,
2005, expressly finding “no reason to delay the entry of said final judgment.”
The district court further found “that it would be in the interest of judicial
economy to allow the appeal to go forward . . . prior to trying the remaining
claims, and that the complaint as to Tillman’s other claims against Southern
Wood has been stayed pending resolution of the appeal.”                      Tillman timely
appealed.
                                     II. DISCUSSION
       Our review of the district court’s grant of summary judgment is de novo.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005). Summary
judgment is proper when the “pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “The party moving for summary judgment must ‘demonstrate the
absence of a genuine issue of material fact,’ but need not negate the elements of
the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The
court must draw all justifiable inferences in favor of the nonmovant.


       1
        Rule 54(b) provides, “When an action presents more than one claim for relief–whether
as a claim, counterclaim, crossclaim, or third-party claim–or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that there is no just reason for delay.
. . .”

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Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
      We first address the dismissal of all claims based on events prior to
September 17, 2005. The events at issue are (1) the April 12, 2005 reprimand,
(2) Tillman’s alleged exclusion from the June 2005 across-the-board pay raises,
and (3) the denial of Saturday overtime work prior to September 17, 2005. Title
VII claims are subject to a 180-day statute of limitations:
      (e) Time for filing charges; time for service of notice of charge on
      respondent; filing of charge by Commission with State or local
      agency.

      (1) A charge under this section shall be filed within one hundred
      and eighty days after the alleged unlawful employment practice
      occurred . . . .

42 U.S.C. § 2000e-5(e). Here, Title VII bars all claims that are based on discrete
acts that occurred before September 17, 2005, 180 days before Tillman filed his
complaint with the EEOC. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114, (2002); Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999).
The Supreme Court has defined “discrete acts” as easily identifiable incidents,
including termination, failure to promote, denial of transfer, and refusal to hire.
Morgan, 536 U.S. at 114; see also Stewart v. Miss. Transp. Com’n, 586 F.3d
321, 328 (5th Cir. 2009). Under this standard, the April 12, 2005 reprimand, the
alleged June 2005 pay-raise exclusion, and the denials of weekend overtime
qualify as such discrete acts. See Miller v. N.H. Dep’t of Corr., 296 F.3d 18,
21–22 (1st Cir. 2002) (holding that a letter of warning and a performance
evaluation were discrete acts). Because these events occurred before September
2005, the district court properly dismissed any claims based on them as time-
barred.
      Tillman contends that his pre-September 17, 2005 claims are not time-
barred under the continuing-violation doctrine for hostile-work-environment


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claims. The district court, however, found that “Tillman does not argue that the
aforementioned events can properly be considered under the continuing
violations doctrine for his hostile work environment claims . . . . Tillman’s
failure to argue this point—and to provide supporting evidence—forces the
Court to decide this issue in Southern Wood’s favor.”                  Having reviewed
Tillman’s summary-judgment papers, we agree. This court has repeatedly held
that “the continuing violation doctrine does not automatically attach in hostile
work environment cases, and the burden remains on the employee to
demonstrate an organized scheme led to and included the present violation.”
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001) (citing
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998); Berry v. Bd. of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983)) (emphases added); see
also Stewart v. Miss. Transp. Com’n, 586 F.3d 321, 328 (5th Cir. 2009) (“This
continuing violation doctrine is limited in three ways. First, the plaintiff must
demonstrate that the separate acts are related, or else there is no single
violation that encompasses the earlier acts.” (citation and internal quotation
marks omitted) (emphases added)).2
       Tillman incorrectly believes that he had no obligation to argue the
continuing-violation doctrine. Tillman contends in his brief before us, “At no
time did Southern Wood make any allegation that its acts of discrimination
which occurred before September 17, 2005 were barred under the continuing
violations provision of Mr. Tillman’s Hostile Work Environment Claim.”
(emphases in original). This misses the point: in its summary-judgment papers,


       2
         Tillman’s argument that the Lilly Ledbetter Fair Pay Act of 2009 saves his time-
barred claims because they were pending on May 28, 2007, the retroactive date of enactment,
is misplaced. The Act does not apply to discrete acts such as the ones at hand. See Harris v.
Auxilium Pharm., Inc., 664 F. Supp. 2d 711, 746-47 (S.D. Tex. 2009).



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Southern Wood argued that the discrete events prior to September 17, 2005
were time-barred. These events unquestionably fall outside of the 180-day
period. Thus, to survive summary judgment on the basis of the continuing-
violation doctrine, Tillman had the burden to show that it applied.             See
Celestine, 266 F.3d at 352. Because Tillman did not make this argument before
the district court, he may not do so now. Martco Ltd. P’ship v. Wellons, Inc., 588
F.3d 864, 877 (5th Cir. 2009).
      Finally, the district court properly dismissed the constructive-discharge
claim. “Constructive discharge occurs when an employee has quit [his] job under
circumstances that are treated as an involuntary termination of employment.”
Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).
              The general rule is that if the employer deliberately
      makes an employee’s working conditions so intolerable that
      the employee is forced into an involuntary resignation, then
      the employer has encompassed a constructive discharge and
      is as liable for any illegal conduct involved therein as if it had
      formally discharged the aggrieved employee.          Whether an
      employee would feel forced to resign is case- and fact-specific
      [sic], but this Court considers the following factors relevant,
      singly [sic] or in combination: (1) demotion; (2) reduction in
      salary; (3) reduction in job responsibilities; (4) reassignment
      to menial or degrading work; (5) reassignment to work under
      a younger or less experienced/qualified supervisor; (6)
      badgering, harassment, or humiliation by the employer
      calculated to encourage the employee’s resignation; or (7)
      offers of early retirement or continued employment on terms
      less favorable than the employee’s former status.
Id. at 649-50 (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990);
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
      Tillman must meet an objective, “reasonable employee” test by
demonstrating that a reasonable person in his shoes would have felt compelled
to resign. See Penn. State Police v. Suders, 542 U.S. 129, 141 (2004); Barrow v.
New Orleans S.S. Ass’n, 10 F.3d 292, 297 n.19 (5th Cir. 1994); Haley, 391 F.3d

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at 650. “[C]onstructive discharge requires a greater degree of harassment than
that required by a hostile environment claim.” Brown, 237 F.3d at 566. “The
resigning employee bears the burden to prove constructive discharge.” Haley,
391 F.3d at 650.
       Here, Tillman offers no summary-judgment evidence of a constructive
discharge. Southern Wood did not demote Tillman; nor did it reduce his hourly
pay or his job responsibilities. He received the same work assignments as other
employees. Tillman’s supervisor remained the same, and no one badgered,
harassed, or humiliated him. Southern Wood did not offer him early retirement
or a job on terms less favorable than his former status. Indeed, Southern Wood
offered Tillman a position as a load operator.3 Tillman rejected this offer, and
an experienced operator was hired at the same rate rejected by Tillman. The
district court determined that Tillman’s allegations of harassment were not
“remotely near what is required to establish a constructive discharge claim.” We
agree. Drawing all justifiable inferences in Tillman’s favor, Tillman’s allegations
fail to assert a claim of constructive discharge.
                                      III. CONCLUSION
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       3
         Although the salary for that position was initially 50 cents less per hour than that
offered by his then-current position, Hartfield testified that the new position offered
opportunities for raises. Furthermore, Southern Wood also gave Tillman the option of staying
at his then-current position at the same salary.

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