                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                  In the                                   December 1, 2004
                         United States Court of Appeals                                Charles R. Fulbruge III
                                       for the Fifth Circuit                                   Clerk
                                            _______________

                                              m 04-30409
                                            Summary Calendar
                                            _______________




                                          ALMA C. STEWART,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                           DEPARTMENT OF HEALTH AND HOSPITALS,

                                                               Defendant-Appellee.



                                     _________________________

                             Appeal from the United States District Court
                                for the Middle District of Louisiana
                                      m 3:02-CV-1117-C-M2
                                  _________________________




Before DAVIS, SMITH, and DENNIS,                          Alma Stewart sued the Louisiana Depart-
  Circuit Judges.                                      ment of Health and Hospitals (“DHH”), alleg-
                                                       ing race and sex discrimination, the mainte-
PER CURIAM:*                                           nance of a hostile work environment, and con-
                                                       structive discharge under title VII of the Civil
                                                       Rights Act of 1964, 42 U.S.C. § 2000e et seq.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
                                                           *
and is not precedent except under the limited cir-        (...continued)
                                     (continued...)    cumstances set forth in 5TH CIR. R. 47.5.4.
The district court granted DHH’s motion for             junior employee.
summary judgment, and Stewart appeals, con-
tending that there are genuine issues of mate-              Still hoping to return to Washington, Stew-
rial fact. We affirm, albeit for reasons that are       art retained counsel to help negotiate a further
in some respects different from those relied on         period of leave. These negotiations yielded an
by the district court.                                  agreement by which she would take adminis-
                                                        trative leave from October 15, 2001, to
                         I.                             May 11, 2002, at which time she would resign.
   Stewart began her career with DHH in                 She accepted that proposal and did resign.
1975, first as a registered nurse, and eventually
moved up through the ranks of the depart-                                      II.
ment’s civil service employees, finally in 1996            In granting summary judgment, the district
being named deputy assistant secretary in the           court did not issue a written opinion, but in-
Office for Citizens with Developmental Dis-             stead orally explained its reasoning at the mo-
abilities (“OCDD”). At pay grade GS-28,                 tion hearing, finding that even if Stewart could
Stewart was the highest ranking black female            demonstrate a prima facie case of discrimina-
civil service employee at DHH. Within a few             tion under title VII, DHH had put forth legiti-
years, Kendrick Hodge, a white male, was                mate non-discriminatory reasons for its ac-
made a “co-deputy” with Stewart.                        tions. The court did not find that there was
                                                        any evidence refuting these explanations, so
   In February 2001, Stewart was transferred            Stewart could not demonstrate any discrimina-
from OCDD to a position that she alleges was            tory purpose. The court further held that
not comparable to, and was inferior to, her             Stewart could not maintain her hostile work
former position; Hodge remained in his posi-            environment claim in that she had failed to es-
tion at OCDD. Stewart claims she was uncer-             tablish that she was subjected to any unwel-
tain as to the nature and responsibilities of her       come harassment, let alone that such harass-
new position and as to whom she was to re-              ment was based on her race or sex. Lastly, the
port to. Stewart claims that this transfer,             court concluded that Steward had resigned
among other acts and practices, is an adverse           voluntarily and that the circumstances did not
employment action with discriminatory pur-              support her allegation of constructive dis-
pose.                                                   charge.

    Stewart further alleges that she was denied                               III.
the opportunity to take leave from her position                                A.
in Louisiana to work temporarily at the Dis-                We review a summary judgment de novo
trict of Columbia Administration on Mental              and are bound by the same standards that
Retardation and Developmental Disabilities;             guide the district court. See Chaplin v. Na-
she was granted one month’s leave instead of            tionsCredit Corp., 307 F.3d 368 (5th Cir.
the six that she requested. After she was un-           2002). Summary judgment is appropriate
able to extend the leave, Stewart returned to           where “‘the pleadings, depositions, answers to
Louisiana, where she was given a list of tasks          interrogatories, and admissions on file, to-
that she claims were beneath her level of ex-           gether with the affidavits, if any,’ when viewed
pertise and were more appropriate for a more            in the light most favorable to the non-movant,


                                                    2
‘show that there is no genuine issue as to any              mary judgment on the merits.
material fact.’” TIG Ins. Co. v. Sedgwick
James, 276 F.3d 754, 759 (5th Cir. 2002)                        Normally, we would evaluate the district
(quoting Anderson v. Liberty Lobby, Inc., 477               court’s assessment of the case based on this
U.S. 242, 249-50 (1986)). Once the moving                   methodology. The parties are very much in
party has demonstrated that the non-moving                  dispute as to whether Stewart has demon-
party has no evidence such that a reasonable                strated at least a genuine issue of fact with re-
jury could support a verdict in its favor, the              spect to the veracity of DHH’s explanations.
non-moving party must put forth specific facts              It turns out, however, that we can decide this
that demonstrate a genuine factual issue for                case on a much easier ground: the fact that
trial. Id.                                                  this action is time-barred, as we will explain.

                       B.                                                           C.
   Stewart must establish a prima facie case                   Although DHH argued the time bar in the
that she (1) was a member of the protected                  district court, the court did not address that is-
class; (2) was qualified for her job; (3) suffered          sue in its oral explanation. “We may affirm for
an adverse employment action; and (4) was                   any reason supported by the record, even if
replaced by someone outside the protected                   not relied upon by the district court.” LLEH,
class. According to McDonnell Douglas                       Inc. v. Wichita County, Tex., 289 F.3d 358,
Corp. v. Green, 411 U.S. 792, 802-03 (1973),                364 (5th Cir. 2002)
once this prima facie case is made, DHH must
demonstrate a legitimate nondiscriminatory                      DHH points out that a charge of discrimi-
reason for its action.                                      nation under title VII must be filed within 300
                                                            days after its occurrence. 42 U.S.C. § 2000e-
   At that point, the burden returns to Stewart             5(e)(1). Stewart was transferred on Febru-
to show that the offered explanation is mere                ary 19, 2001, yet did not file her EEOC com-
pretext and that there was intentional discrimi-            plaint until April 3, 2002SSwell outside the
nation. Id. Further, demonstrating the falsity              statutorily mandated period. The other ad-
of a proffered non-discriminatory explanation               verse employment actions of which Stewart
may suffice to satisfy the plaintiff’s burden.1             complains occurred before June 7, 2001, in-
Accordingly, if Stewart can show genuine is-                cluding her claims of inadequate working con-
sues of material fact as to whether she can es-             ditions and her being placed in a less presti-
tablish a prima facie case and a genuine issue              gious role with unclear responsibilities, and
of fact as to the veracity of DHH’s non-dis-                therefore were not complained of timely.
criminatory explanation, she will survive sum-
                                                               Stewart in no way refutes this argument. In
                                                            her reply brief, she essentially abandons her
   1
       See Reeves v. Sanderson Plumbing Prods.,
                                                            claims based on these discrete acts and argues
Inc., 530 U.S. 133, 148, (2000) (“Thus, a plain-            that these allegedly adverse actions may be
tiff’s prima facie case, combined with sufficient ev-       considered in evaluating her claim based on a
idence to find that the employer’s asserted jus-            hostile work environment. Citing Nat’l R.R.
tification is false, may permit the trier of fact to        Passenger Corp. v. Morgan, 536 U.S. 101,
conclude that the employer unlawfully discrimin-            105 (2002), Stewart argues that we may con-
ated.”).

                                                        3
sider “the entire scope of a hostile work envi-         been a discriminatory motive behind the al-
ronment claim, including behavior alleged out-          leged adverse actions until she was about to
side the statutory time period,” so long as at          resign. There is no evidence that the work-
least one of the alleged acts contributing to           place environment was made intolerable be-
hostile environment occurred within the statu-          cause of race- or sex-based action, so sum-
tory time period. This argument is entirely un-         mary judgment was proper on Stewart’s hos-
helpful, however, to Stewart’s claims for               tile work environment claim.
discrete acts of discrimination, and therefore
the district court’s decision with respect to                                   E.
those claims is affirmed, and we will move on               Stewart’s final claim is based on construc-
to consider Stewart’s other theories.                   tive discharge. This claim requires evidence of
                                                        discharge as part of the plaintiff’s prima facie
                       D.                               case; without such a showing, the existence of
   To make out a claim under a hostile work             discriminatory purpose or pretext is wholly
environment theory, a plaintiff must prove that         irrelevant. Barrow v. New Orleans S.S. Ass’n,
the “workplace is permeated with discrimina-            10 F.3d 292, 297 (5th Cir. 1994). Such a
tory intimidation, ridicule, and insult, that is        claim requires evidence that the “working
sufficiently severe or pervasive to alter the           conditions [were] so intolerable that a rea-
conditions of the victim’s employment and               sonable employee would feel compelled to re-
create an abusive working environment.”                 sign.” Id. In evaluating such a charge, the
Harris v. Forklift Sys. Inc., 510 U.S. 17, 21           court will consider, inter alia, whether the
(1993) (citations and quotations omitted).              plaintiff suffered (1) demotion; (2) reduction in
Whether conduct rises to a sufficient level of          salary; (3) reduction in responsibility; (4) re-
abusiveness or hostility based on a discrimina-         assignment to work under a supervisor who is
tory intent “depends on a totality of circum-           younger and less experienced; (5) harassment;
stances, focusing on factors such as the fre-           (6) assignment to menial tasks; and (7) offers
quency of the conduct, the severity of the              to accept early retirement that would make the
conduct, the degree to which the conduct is             plaintiff worse off. Id. Stewart argues that
physically threatening or humiliating, and the          she has raised genuine issues of material fact
degree to which the conduct unreasonably in-            with respect to factors (3), (5), (6), and (7).
terferes with an employee’s work perform-
ance.” Long v. Eastfield College, 88 F.3d                  Stewart overlooks the fact that her resigna-
300, 309 (5th Cir. 1996).                               tion was carefully negotiated by her private
                                                        counsel. As the district court correctly noted,
   Stewart has not produced any evidence                this negotiation yielded her 300 hours of paid
supporting such a claim. In its oral explana-           administrative leave. Such conditions can
tion, the district court found there was an ab-         hardly be described as constituting an involun-
sence of any evidence displaying race- or sex-          tary termination that resulted from intolerable
based ridicule, intimidation, or insults, “either       working conditions. “Stated more simply,
in the form of comments, derogatory state-              [plaintiff’s] resignation must have been reason-
ments, epithets, or what have you.” Stewart             ab[ly compelled] under all the circumstances.”
conceded, in deposition, that she did not even          Id. Stewart’s resignation was perfectly rea-
begin to contemplate that there might have              sonable, not because working conditions were


                                                    4
intolerable, but because she voluntarily chose             Normally we will not disturb the district
to accept a favorable severance package.                   court’s decision absent a clear abuse of discre-
                                                           tion. See EEOC v. Tarrant Distrib. Inc., 750
   The district court noted that Stewart’s situ-           F.2d 1249, 1251 (5th Cir. 1984). Here, how-
ation was that “she’s got less work and no                 ever, it does not appear that the court ever
boss . . . . Sounds like a raise to me.” Such is           considered the defendant’s request. We con-
not the stuff of which constructive discharges             clude that it would be an abuse of discretion to
are made.2 Because Stewart’s resignation can-              award fees here, because the claim is not frivo-
not therefore be accurately characterized as               lous to the extent that fees would be justified
compelled, summary judgment is appropriate                 under the standards in the statute and caselaw.
on that claim.                                             Therefore, it is not necessary to remand for
                                                           determination of the appropriateness of fees.
                       F.
    DHH seeks attorney’s fees as a prevailing                 AFFIRMED.
party under 42 U.S.C. § 2000-5(K). DHH
also sought attorney’s fees in the district court
as part of its summary judgment motion, but
apparently that court never ruled on DHH’s
request. In its oral assignment of reasons, the
court stated with respect to the request for at-
torney’s fees, “I’ll worry about that at a later
date.” Notwithstanding that comment, the
court entered a judgment in which it dismissed
all pending motions as moot.

   Under title VII, a prevailing party may be
awarded attorney’s fees at the discretion of the
court. 42 U.S.C. § 2000e-5(k). According to
Christianburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978), prevailing defendants
may recover such fees only where the court
finds that “the plaintiff’s action was frivolous,
unreasonable, or without foundation, even
though not brought in subjective bad faith.”4


   2
     See McCann v. Litton Sys., Inc., 986 F.2d
946, 952 (5th Cir. 1993) (finding a “slight decrease
                                                              4
in pay coupled with a loss of some supervisory                 (...continued)
responsibilities” insufficient to constitute con-          (5th Cir. 2001) (“Thus, attorney’s fees for prevail-
structive discharge).                                      ing defendants are presumptively unavailable un-
                                                           less a showing is made that the underlying civil
   4
       See also Dean v. Riser, 240 F.3d 505, 508           rights suit was vexatious, frivolous, or otherwise
                                    (continued...)         without merit.”).

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