     Case: 09-10974     Document: 00511143359          Page: 1    Date Filed: 06/16/2010



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

                                                                             FILED
                                                                            June 16, 2010
                                       No. 09-10974
                                                                            Lyle W. Cayce
                                                                                 Clerk
KASHA WILLIAMS,

                                                Plaintiff – Appellant

v.

MERCK & COMPANY, INC; GRACE PELKOWSKI,

                                                Defendants – Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 07-CV-08134-K


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Kasha Williams filed this discrimination suit against her former employer,
Merck. The district judge granted summary judgment for Merck, and she now
appeals. Williams worked as a pharmaceutical representative in Longview,
Texas, which meant spending significant time driving across a large, mostly
rural area to and from hospitals, doctors’ offices, and pharmacies. Much of
Williams’s job involved presenting product information to doctors and providing
them with drug samples. Merck representatives generally work in loosely-



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10974

formed teams of two; although each representative independently conducts sales
calls, the two representatives coordinate their efforts and Merck holds the pair
jointly accountable for sales and market-share targets. Merck paired Williams
with Lance Noll, a white male.
      Williams resigned after missing sales objectives for several years,
abandoning     an   effort   to   improve       sales   performance   because   it   was
“overwhelming,” receiving three reprimands for providing doctors with excessive
amounts of drug samples, misidentifying doctors and drug lot numbers in her
sampling reports, failing to report accidents she had while driving her company
vehicle, and failing to report three recent traffic tickets in violation of Merck
policy.   She is a black woman—the only black employee at Merck in the
Longview area at the time—and claims that Merck, specifically her supervisor
Grace Pelkowski, subjected her to a hostile work environment, refused to
promote her, and constructively discharged her, all because of her race. She also
alleges that Merck retaliated against her for complaining.


                                            I
      On April 30, 2007, Williams filed the first of two charges of
discrimination.1 She specified that the alleged race discrimination began in
September 2006 and ended on January 2, 2007, the day she tendered her
resignation to Merck. After obtaining a right to sue letter, she filed this action
in state court. Merck removed the lawsuit to federal court.
      Williams’s complaint puts forth three claims, all under the Texas Labor
Code—racial harassment, disparate treatment based on race, and retaliation—so
it must meet the requirements for diversity jurisdiction. On first glance, it does:
the amount-in-controversy exceeds $75,000 excluding interest and costs, and we



      1
        Williams’s administrative forms alleged both race and sex discrimination, but she
presents only the former issue in federal court.

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are persuaded that the parties are in complete diversity—Merck, the defendant,
is a New Jersey corporation with a principal place of business in New Jersey and
Williams, the plaintiff, is a Texas resident.2
       While Grace Pelkowski appears in the caption as a defendant and she too
resides in Texas, Pelkowski is not a proper party to this action. Williams chose
to sue exclusively under the Texas Labor Code, which only provides a cause of
action against employers—not supervisors or co-workers like Pelkowski.3
Because “there is absolutely no possibility that [Williams] will be able to
establish a cause of action against [Pelkowski] in state court,” Pelkowski cannot
be joined, complete diversity remains intact, and we have jurisdiction to consider
Williams’s case against Merck.4


                                               II
       Williams complains on appeal that Pelkowski created a racially hostile
work environment by asking Williams to prepare a list of strengths and
weaknesses as part of a plan to improve sales performance; conducting
unscheduled field visits with Williams; sarcastically referring to Williams as a
“superstar,” saying, for example, “Look Kasha, I know you wanna be the
superstar,” during a mid-year review; posting Williams’s sales position on a job


       2
           See 28 U.S.C. § 1332.
       3
         See TEX . LAB . CODE ANN . § 21.051 (1996) (prohibiting discrimination by an “employer,”
as part of the Texas Commission on Human Rights Act [TCHRA]); Marabella v. Autonation
U.S.A. Corp., 88 F. Supp. 2d 750, 752 (S.D. Tex. 2000) (“Texas state and federal courts have
uniformly held that supervisory personnel are not liable in their individual capacity under the
TCHRA.”); Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex. App.—Waco 2000, pet.
denied) (“[S]upervisors and managers are not liable in their individual capacities for alleged
acts of discrimination under the TCHRA.”); City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.
App.—Austin 1992, no writ) (“The [TCHRA] does not create a cause of action against
supervisors or individual employees.”).
       4
         See Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983); see also Cavallini
v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995) (quoting Green, 707 F.2d at
205).

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recruiting website while Williams was on two-week disability leave; repeating
language to Williams that Williams had used in her complaint to human
resources and to Pelkowski’s superiors; and interrupting Williams as she spoke
to physicians during one of Pelkowski’s surprise field visits.5                        Although
Williams’s claims arise under Texas law, the Texas Labor Code is “intended to
correlate state law with federal law in employment discrimination cases” and
courts look to federal law to interpret the statute’s provisions.6
       Harassment is only actionable “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” 7 To prove that the complained of conduct is
racially discriminatory, a black plaintiff may put forth evidence of race-specific
and derogatory terms that makes it clear that the harasser is “motivated by
general hostility to the presence” of black people in the workforce.8                       Or, a
plaintiff may demonstrate discriminatory motives through comparative evidence

       5
         Williams’s additional allegations—that Pelkowski attempted to discipline Williams
while she was on temporary disability leave, initiated an audit of her driving record,
threatened to fire her, and “stripped [her] of her mentorship role”—are made without citations
to, or support in, the record. We do not consider them. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (“[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material
fact.”).
       6
           AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008).
       7
         Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation
marks omitted). To establish a successful claim of racial harassment, Williams must first
prove (1) that she belongs to a protected group, (2) that she was subject to unwelcome
harassment, (3) that the harassment was based on her race, and (4) that the harassment
affected a term, condition, or privilege of her employment. Celestine v. Petróleos de Venezuella
SA, 266 F.3d 343, 353 (5th Cir. 2001).
       8
        See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (Title VII sex
discrimination). Hostile work environment claims based on racial harassment are reviewed
under the same standard as those based on sexual harassment. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 116 n.10 (2002).

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about how the alleged harasser treated members of all races.9                     “Whatever
evidentiary route the plaintiff chooses to follow, he or she must always prove
that the conduct at issue was not merely tinged with offensive [racial]
connotations, but actually constituted discrimination because of [race].”10
       Noticeably absent from Williams’s claim of racial harassment is any
plausible allegation—predicated on either race-specific and derogatory terms or
comparisons to other employees—that her putative harasser’s conduct was
actually based on race.11 Nothing about sarcastic “superstar” comments or the
posting of Williams’s job on a website, for example, necessarily demonstrates
racial animus, particularly in the context of Williams’s less-than-stellar
performance record.
       Williams has maintained that her experience with Pelkowski largely
mirrored those of four white employees—Jennifer Knight, Cortney Spurger,
Scott Beadle, and Jody Westbrook—a telling observation since “[t]o be
actionable, the challenged conduct must be both objectively offensive, meaning
that a reasonable person would find it hostile and abusive, and subjectively
offensive, meaning that the victim perceived it to be so.”12
       In her deposition testimony, Williams stated that Knight, a former Merck
representative “had similar encounters with Grace Pelkowski [and] felt forced
to leave the company.” Spurger, according to Williams, “was afraid she was next




       9
      See Oncale, 523 U.S. at 80–81 (internal ellipses and quotation marks omitted); see also
Vaughn v. Pool Offshore Co., 683 F.2d 922, 924–25 (5th Cir. 1982).
       10
          See Oncale, 523 U.S. at 81; see also TEX . LAB . CODE ANN . § 21.051 (providing that
Texas law only prohibits employment practices if committed “because of race, color, disability,
religion, sex, national origin, or age”) (emphasis added).
       11
            Harris, 510 U.S. at 23.
       12
         Shepard v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999) (citations
omitted) (emphasis added).

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on Grace’s list of people to get rid of and was very upset [and said] ‘Kasha, I
think she is after me now.’”
      In her EEOC statement, Williams drew parallels to the experiences of
Beadle and Westbrook, also former sales representatives. Williams explained:
“the words Grace said to me were frighteningly almost exact to what she’d said
to [Beadle] prior to his decision to resign and go to work for another company.”
As for Westbrook: “Jody tried to retain her job by reaching out to Human
Resources,” but “Pelkowski was willing to go as far as necessary to terminate or
force Jody out of Merck,” including firing her “on a technicality.” “It was not
until Grace began attacking me in September 2006,” Williams wrote, “that it was
crystal clear to me, what Jody Westbrook had suffered through.”
      Williams apparently complained about Pelkowski three times in late
November 2006: first to a Merck ombudsman, Elizabeth Lyle; second to Ann
Myers in human resources; and third to Pelkowski’s supervisor, Marc
Dervishian. At no point did she mention anything about racial discrimination.
According to Lyle, Williams believed Pelkowski was “angry because she did not
get the ‘buy-in’ she desired” from Williams regarding the plan for improving
sales in the Longview territory,13 and “chose to refrain from suggesting the use
of discriminatory practices by Grace Pelkowski.” Williams complained to Myers
that she “wasn’t being treated right [and] felt like [she] couldn’t promote within
the company.” Williams’s conversation with Dervishian went the same way: she
“wasn’t being treated the same as [her] counterparts [such] as Lance [Noll]” and
was “concern[ed] with not being able to be promoted.”
      When asked at her deposition: “Other than your feelings, though—other
than your feelings, why do you think it was because you’re a Black female?”
Williams said: “I just—again, just differences in the way—the way sometimes
corporate America and people in positions of power treat others. Because I—I


      13
           Williams later said the same thing in her EEOC complaint.

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was subject to watch the differences in how, say, Grace Pelkowski treated me
versus how she treated a White female or a White male, just observing, in
observing. That’s—that’s all I can say on that.” We have long cautioned that
such “conclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant’s burden in a motion for summary
judgment.” 14
       Given Williams’s own perceptions of Pelkowski’s motives, Williams’s
attempts on appeal to analogize her situation to that of her white counterpart,
Lance Noll, are not enough to recast any harassment as the product of racial
animosity. Due to their disappointing sales and market-share performance in
Merck’s Longview territory, both Williams and Noll were rated “below objective”
on their performance reviews, both were ineligible for promotion, both were
subject to an improvement plan, and both had to list areas for improvement.
Williams concedes as much on appeal, explaining that she “was held . . . equally
accountable for the lagging sales numbers as her Caucasian counterpart.”
       In short, Williams cannot survive summary judgment on her hostile work
environment claim without narrating a coherent and reasonable basis for
concluding that she experienced harassment because of her race. And, though
she also argues constructive discharge—that her “working conditions [were] so
intolerable that a reasonable person would have felt compelled to resign”—that
claim fails for the same reason.15 “Creation of a hostile work environment is a
necessary predicate to a hostile-environment constructive discharge case”
because any such discharge is an “aggravated case” of harassment or hostile




       14
         See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (internal quotation marks
omitted)).
       15
            See Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).

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work environment.16 Williams’s additional claim of discharge founders absent
this prerequisite.


                                               III
       Williams next urges that she did not get two promotions at Merck because
of her race. While Williams may not have been a model employee, if equally bad
or worse white men or women employed by Merck as pharmaceutical
representatives were not subjected to the same alleged adverse employment
actions, and Merck failed to offer a nondiscriminatory explanation for the
difference in treatment, or it did but Williams presented evidence that the
explanation was a pretext, then her disparate treatment claim should be set for
trial.17
       But Williams was not entitled to the first promotion she apparently
sought—an elevation to a Senior Professional Representative position—because
below objective sales in the Longview territory rendered both her and Noll
ineligible for such a promotion under mandatory Merck policy. And Merck made
its decision on Williams’s second potential “promotion”—a lateral move to the
vaccine division—some sixteen months before Williams filed her first charge of
discrimination and well past Texas law’s 180-day statute of limitations.18 The




       16
            Id. at 147, 149.
       17
        Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005); Bryan v. McKinsey & Co.,
375 F.3d 358, 360 (5th Cir. 2004).
       18
          See TEX . LAB . CODE ANN . § 21.202(a) (prescribing 180-day limitations period).
“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are
easy to identify. Each incident of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful employment practice.’ [Williams] can only
file a charge to cover discrete acts that ‘occurred’ within the appropriate time period.” See
Morgan, 536 U.S. at 115 (Title VII). Williams does not argue otherwise on appeal. See
Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004) (explaining that, by not raising
the issue in his initial brief on appeal, plaintiff waived argument that race discrimination
claims under Texas law could not be revived through continuing violations doctrine).

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district court correctly granted summary judgment to Merck on Williams’s
disparate treatment claim.


                                                IV
       Williams filed a second discrimination charge on July 24, 2007, this time
alleging Pelkowski had retaliated against her for complaining.19 Assuming for
argument’s sake that retaliation did occur, it ended—at the very latest—on
January 2, 2007, the day Williams resigned from Merck. Williams filed her
retaliation charge on July 24, 2007, or, in other words, twenty-three days late
under Texas law.20             As the limitations period is both mandatory and
jurisdictional, Williams’s retaliation claim is automatically time-barred and
Merck is entitled to summary judgment.21


                                                 V
       Carried with the case are two motions related to Williams’s untimely
service of her opening appellate brief on Merck’s counsel. Merck’s lawyers say
Williams’s counsel delivered a brief to them two days late, though even that
particular brief was not the brief for this case—it was for another Fifth Circuit
appeal. According to Merck’s lawyers, they twice prompted Williams’s counsel
to serve a correct brief but still had not received a copy ten days after the
opening brief was due. At that point, they filed a motion to dismiss the case with
prejudice and to compel submission of the brief, and requested attorney’s fees for
having had to do so. Williams’s counsel denied that she served the wrong brief
and filed her own motion for attorney’s fees.


       19
         Williams also alleged discrimination on the basis of “disability,” but does not push
that claim on appeal.
       20
            See TEX . LAB . CODE ANN . § 21.202(a) (prescribing 180-day limitations period).
       21
         See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); TEX .
LAB . CODE ANN . § 21.202(a).

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       Regardless of whose account is accurate, we can be sure that, at best,
Williams’s counsel served her client’s opening brief on Merck’s lawyers two days
late and twice filed insufficient record excerpts to this court, missing one
deadline and receiving three extensions of time along the way. And while this
is not enough to exact attorney’s fees, it warrants a caution.
       On a related note, we are unfortunately obliged to remind Williams’s
counsel that litigants must append record citations to factual assertions in their
briefs to this court.22 Citations on the order of “See Pelkowski entire Deposition”
and “See deposition of Williams” are not what we, as a court bound to apply the
law to the facts, are looking for. Page numbers are important and not just
because they are convenient. Concise and thoughtful briefing (replete with
meaningful citations) best serves client interests, encourages fairness and
mutual respect among parties to a lawsuit, and, as a happy byproduct, promotes
the judiciary’s truthseeking function.


                                                 VI
       Without a genuine issue of material fact, Williams’s case cannot go to
trial.23    We AFFIRM summary judgment in Merck’s favor and DENY both
pending motions for attorney’s fees.




       22
          See FED . R. APP . P. 28(a)(7) and (a)(9)(A); 5TH CIR . R. 28.2.2 (“Every assertion in briefs
regarding matter in the record must be supported by a reference to the page number of the
original record, whether in paper or electronic form, where the matter is found.”).
       23
          See FED . R. CIV . P. 56(c); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 433
(5th Cir. 2005).

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