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

                                                 FILED
                                                                          October 19, 2009

                                       No. 08-60984                    Charles R. Fulbruge III
                                                                               Clerk

WANDA JONES,

                                                   Plaintiff - Appellant
v.

NORFOLK SOUTHERN COMPANY; RON STOCK,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-cv-00513


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Wanda Jones (“Jones”) appeals the district court’s summary judgment
against her. The issues in this appeal are: (1) whether the district court applied
the proper test to decide that Norfolk Southern Co. (“Norfolk”) was not Jones’s
joint employer under Title VII, and (2) whether the district court properly
granted summary judgment on Jones’s tortious interference claim for failing to
show Norfolk acted without right or justifiable cause. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60984

                         I. Facts and Proceedings Below
      The facts of this case, viewed in the light most favorable to Jones as the
non-moving party, are as follows. T.V. Minority Company Inc. (“TVM”) is a
trucking and freight management company based in Taylor, Michigan. Since
1995, TVM has operated as an independent contractor for Norfolk. TVM is
responsible for the loading and unloading of automobiles at Norfolk’s Meridian,
Mississippi facility. The contract governing these operations at Norfolk’s facility
expressly reserved to Norfolk an absolute right to ban any TVM employee from
the premises if, in Norfolk’s sole judgment, the employee posed a risk or threat
to the safe and efficient operation of the facility.
      In 2001, TVM hired Jones as its on-site manager for its operations at
Norfolk’s Meridian Facility. Jones’s position required her to report daily to her
supervisor, Gary Locklear (“Locklear”), who was also a TVM employee. Locklear
worked out of TVM’s offices in Michigan but made periodic visits to the Meridian
Facility.   Defendant, Ron Stock (“Stock”), was employed as an operations
manager by Norfolk. Stock made monthly visits to the Meridian Facility that
generally lasted one or two days and during which part of his work day was
spent meeting with various employees and contractors around the facility.
      Jones claims that Stock harassed her on the bases of gender and religious
beliefs during these monthly visits. For example, Jones alleges that Stock made
“snide and mocking comments about her religiosity” and instructed a
“co-employee to put a Jesus stamp on a document if they wanted [her] to sign it.”
Jones also alleges that Stock once asked her what her husband had bought her
from Victoria’s Secret, once informed her he was sleeping on the sofa because his
wife was mad at him, and once told employees at a different Norfolk facility that
Jones and the manager of another Norfolk tenant “were in bed together.”
      Jones allegedly complained of this conduct both to Locklear and Stock and
threatend to contact the EEOC.         The contents of these conversations are

                                         2
                                      No. 08-60984

disputed.    Jones claimed the conversation was merely “heated.”                 Locklear
claimed Jones used extreme profanity and threatened to close the facility if
Locklear did not meet her demands. Following this conversation, Locklear
drafted two letters of reprimand and sent them to Stock to decide which letter
would be given to Jones. The letter Jones ultimately received warned her that
her use of extreme profanity in her conversation with Locklear was
inappropriate, that threats to close the facility would not be tolerated, and that
she had behaved unprofessionally. A short time later, Jones received a second
letter from Locklear relieving her of her duties at the Meridian Facility. The
letter stated that Jones had been barred from the facility by Norfolk and that
TVM would relocate Jones to another facility or accept her resignation. Jones
claims this communication constituted a constructive discharge from her
employment with TVM.
       On August 29, 2007, Jones filed suit in the Southern District of Mississippi
against TVM, Norfolk, and Stock, raising claims of discrimination and
retaliation in violation of Title VII. Specifically, Jones claimed Norfolk was
liable under Title VII as a “joint employer” under the test announced in North
American Soccer League v. NLRB, 613 F.2d 1379, 1381-83 (5th Cir. 1980) and
Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 138-40 (2d Cir. 1985). Jones’s
claims against TVM were dismissed by agreement, and the remaining
defendants then moved for summary judgment, which was granted. This appeal
followed.1
                                II. Standard of Review
       A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th


       1
         Although the district court granted summary judgment to both Norfolk and Stock,
Jones does not raise any issue regarding the summary judgment in Stock’s favor. Accordingly,
we do not address him separately.

                                             3
                                  No. 08-60984

Cir. 2006). The inquiry “is limited to the summary judgment record before the
trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992). The
court must view the evidence in the light most favorable to the non-moving
party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986), and the movant has the burden of showing this court that summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Summary judgment is appropriate where the competent summary judgment
evidence demonstrates that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263;
see F ED. R. C IV. P. 56(c). A genuine issue of material fact exists if a reasonable
jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
                                  III. Discussion
      A. “Joint Employer” Status
      Jones challenges the test the district court used to address her claim that
Norfolk was her joint employer together with TVM. Norfolk argues that Jones
invited this error, if any, by directly encouraging the district court to apply the
legal test she now claims was inappropriate. In Munoz v. State Farm Lloyds,
522 F.3d 568 (5th Cir. 2008), we held that “[t]he invited error doctrine provides
that ‘a party may not complain on appeal of errors that he himself invited or
provoked the court . . . to commit.’” Id. at 573 (second alteration in original)
(quoting United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993)). Invited
error will only be reviewed for manifest injustice. United States v. Solis, 299
F.3d 420, 452 (5th Cir. 2002). Though usually applied to evidentiary errors, the
doctrine may apply in other contexts where a party affirmatively encourages the
court to undertake an act that the party later claims was error. See, e.g., Flores
v. Cameron County, 92 F.3d 258, 270 n.9 (5th Cir. 1996) (barring appeal of jury
instruction where appellant submitted the complained of jury instruction); Fitch

                                         4
                                    No. 08-60984

v. Pub. Util. Comm’n, 261 F. App’x 788, 794 (5th Cir. 2008) (unpublished)
(applying doctrine to prevent appeal of a damages formula proffered by appellant
in an earlier proceeding). Because Jones argued for application of this test in the
district court, Norfolk argues that Jones’s appeal of the court’s use of the test set
forth in North American Soccer League v. NLRB, 613 F.2d 1379, 1381-83 (5th
Cir. 1980), and Clinton’s Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 138-40
(2d Cir. 1985), for assessing “joint employer” status is waived.
      We need not rest our opinion on the doctrine of invited error. Even if we
now applied the Trevino v. Celanese Corp., 701 F.2d 397, 403-404 (5th Cir. 1983),
test advanced by appellant on appeal, it would not change the outcome. We
conclude that Jones has not shown sufficient connection between Norfolk and
TVM to meet either test’s requirements.2 Norfolk’s “power” over TVM employees
was limited to barring TVM employees from the Norfolk facility. This “power”
is insufficient to transform Norfolk into Jones’s employer for Title VII purposes.
Accordingly, the summary judgment on her Title VII claim was proper.
      B. Tortious Interference
      Jones contends that the district court erred when it granted summary
judgment on her tortious interference claim. Under Mississippi law, a claim for
tortious interference lies where: “(1) the [defendant’s] acts were intentional and
willful; (2) . . . they were calculated to cause damages to the plaintiffs in their
lawful business; (3) . . . they were done with the unlawful purpose of causing
damage and loss, without right or justifiable cause on the part of the defendant;
and (4) . . . actual loss occurred.” Levens v. Campell, 733 So. 2d 753, 760-61
(Miss. 1999).    It must also be proven that the contract would have been



      2
         In so holding, we do not pass on which test should apply to the instant case. We
merely conclude that any possible error in applying the North American Soccer League and
Clinton’s Ditch standard was harmless because neither that standard nor the Trevino would
allow for the imposition of liability on Norfolk under the facts of this case.

                                           5
                                       No. 08-60984

performed but for the alleged interference. Par Indus., Inc. v. Target Container
Co., 708 So. 2d 44, 48 (Miss. 1998). We agree with the district court that Jones
failed to raise an issue of material fact as to the third element because Norfolk
acted under its rights as a property owner when it excluded her from the
Meridian Facility.
       Jones argues that “property rights under state law do not trump civil
rights under federal law.” She then reargues her employment claims.
       In Biglane v. Under the Hill Corp., 949 So. 2d 9 (Miss. 2007), the
Mississippi Supreme Court held that:
   Ownership of the property is important because it speaks to the third
   factor of the tort - that the allegedly tortious acts must be performed
   without right or justifiable cause. It is a basic tenet of property law that
   a landowner or tenant may use the premises they control in whatever
   fashion they desire, so long as the law is obeyed.
Id. at 16. The court’s citation to Ewing v. Adams, 573 So. 2d 1364, 1368 (Miss.
1990) clarifies the last clause of this passage. “[S]o long as the law is obeyed”
does not mean “so long as exercising the right does not give rise to another,
unrelated claim.” Instead, as noted in Ewing, it means so long as the land itself
is being used for a “lawful or valid purpose.” Id. In this context, the court went
on to explain “[g]enerally speaking, it cannot be malicious 3 for a person to refuse
access to others to their private property.” Biglane, 949 So. 2d at 16. Norfolk
was not using the land unlawfully–whatever its motivations for excluding
Jones–and Jones failed to raise a genuine issue of fact suggesting otherwise. As
such, Mississippi law supports the district court’s grant of summary judgment.
                                      IV. Conclusion
       The district court’s judgment is AFFIRMED.


       3
         Under Mississippi law, the phrase “without right or justifiable cause” serves as a
malice requirement in tortious interference claims. See Biglane, 949 So. 2d at 16 (articulating
the third element as “without right or justifiable cause on the part of the defendant (which
constitutes malice)”).

                                              6
