                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                         F I L E D
                                                                                           June 16, 2004
                                                     In the
                                                                                     Charles R. Fulbruge III
                           United States Court of Appeals                                    Clerk
                                         for the Fifth Circuit
                                               _______________

                                                 m 03-20792
                                               Summary Calendar
                                               _______________



                                               RUTH A. SMITH,

                                                                  Plaintiff-Appellant,

                                                    VERSUS

           THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,

                                                                  Defendant-Appellee.


                                       _________________________

                               Appeal from the United States District Court
                                   for the Southern District of Texas
                                           m H-01-CV-1475
                                    _________________________




Before SMITH, DEMOSS, and STEWART,                           Plaintiff Ruth Smith appeals the denial of
  Circuit Judges.                                         her motion to reopen following entry of sum-
                                                          mary judgment for defendant University of
JERRY E. SMITH, Circuit Judge:*                           Texas Health Science Center at Houston
                                                          (“UTHSCH”). Finding no error, we affirm.

                                                                               I.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-         Since March 1999, Smith, who is black, has
termined that this opinion should not be published and    been employed by UTHSCH as a medicare
is not precedent except under the limited
                                                          officer. In May 2000, she was assigned to the
circumstances set forth in 5TH CIR. R. 47.5.4.
newly created Multi-Specialty Invoice Follow-        “Niggers don’t have no rights.” Smith asked
Up Group as a Coordinator or team leader.            McCullen to call Berezowsky, but McCullen
The group was supervised by Mary McCullen,           refused. Smith asked that Dena Thurman, the
a white woman, who reported to Ryan Bien, a          Human Resources Manager, be called, but
white man. Bien reported to Ira Berezowsky,          McCullen stated that Thurman was not there.
the Director of Physicians’ Business Services.       Several other employees were summoned into
Smith’s performance ratings were consistently        McClellan’s office to witness the events.
“Distinguished” or “Satisfactory.”
                                                        Smith then contacted Human Resources
   On July 19, 2000, McCullen sent a memo-           about the problems she had had with McCul-
randum to her coordinators stating that arriv-       len. On October 2, 2000, Bien asked Smith to
ing late or leaving early would be a “written        give him the opportunity to resolve the situa-
up” process. On September 29, 2000, Smith            tion without going to Berezowsky. On Octo-
observed Rhonda Alfara, a black female em-           ber 9, Smith advised Bien that she would re-
ployee, talking about personal matters on the        solve the case for an apology, a transfer, and
telephone. Smith attempted to notify Alfara’s        a third party present for all dealings with Mc-
coordinator, but that coordinator was not in         Cullen. Bien said that he could not ask Mc-
the office. Instead, Smith notified McCullen,        Cullen to apologize, and he began an investi-
who talked to Alfaro. Alfaro then left for           gation on October 11. Berezowski states that
lunch but resumed talking on the phone when          Bien conducted a thorough investigation and
whe returned. Smith later saw McCullen and           could find no support or corroboration for
said, “The quiet was good while it lasted.”          Smith’s allegation against McCullen.
McCullen told Smith, “You know you have
the right to go over and ask any employee to            Smith contends that on October 3, she re-
get to work.”                                        quested that Bien promote her to one of the
                                                     two positions available for Analysts. Smith
   Later, McCullen announced to Smith and            cites her deposition as evidence of her request.
other employees that everyone could leave fif-       Her deposition, however, was taken on
teen minutes early, because the department           March 12, 2002, and thus could not evidence
had collected over $5 million for the month.         a request for a promotion that is alleged to
Smith stated, “Why are they talking about            have occurred almost six months thereafter.
leaving early? They need to be made to spend         Instead, the district court concluded that the
the night to earn their check that they get on       evidence indicated that had Smith requested a
Friday.” McCullen stated, “This is why I’m           promotion during the time that UTHSCH was
supervisor and Ruth is not.”                         investigating her complaint.

   McCullen called Smith into her office.               The Analyst position requested at that time
Smith alleges that McCullen immediately start-       was one for which Smith was not qualified, in
ed threatening and chastising Smith, shouting,       that it required computer skills that she did not
“You better not do this no more. You better          possess. Furthermore, although Smith made
not do that.” Smith said that she was only           oral requests for a promotion, she never made
expressing an opinion and that she had the           a formal application for that promotion or for
right to do so. McCullen replied by saying,          other positions through Human Resources.


                                                 2
Smith also claims that she requested a transfer         McCullen’s alleged statement to her. She also
to another hospital operated by the University          claimed that Bien “poked fun” at her regarding
of Texas, but she never made a formal request           her complaint and personal appearance and
for this transfer.                                      that Bien and Berezowsky failed properly to
                                                        resolve her grievance, although the district
   At Smith’s request, she was transferred to           court determined that UTHSCH had produced
another supervisor and reported directly to Bi-         uncontradicted evidence that Smith had with-
en. She contends that this was a demotion, be-          drawn her grievance twice and that there was
cause, although she retained her title as Medi-         no paperwork or evidence that she had for-
caid Coordinator, she no longer supervised              mally reinstated her grievance.
anyone. After two months of reporting to
Bien, Smith requested and received twelve                  Relying on claims of lack of smiles and
weeks’ paid medical leave as a result of the            greetings in the hallway and on Bien’s commu-
stress she alleges she experienced on account           nicating with her by e-mail, Smith asserts that
of the September 29 incident.                           various co-workers ceased speaking with her
                                                        while the grievance was pending. She also
   Smith returned to work on March 5, 2001.             complains of an alleged unfair write-up that
She continued to report to Bien until a reorga-         resulted in her being placed on probation, but
nization caused her to be assigned to a new             she acknowledges that she was never placed
supervisor, Jane Hughes. Smith states that she          on probation.
has a good working relationship with Hughes,
has no complaint about her change in position,              After discovery, UTHSCH moved for sum-
and still is employed at UTHSCH.                        mary judgment pursuant to FED. R. CIV. P. 56.
                                                        Smith filed no response in the time allowed. In
    Smith claims that McCullen encouraged               a memorandum and order, the district court
other employees to lodge grievances against             gave a thorough analysis of the merits of
her, and she provides unsworn statements and            Smith’s claims, concluding that she had failed
letters of other employees to the effect that she       to raise a genuine issue of material fact on her
was helpful and had trained them well. Smith            title VII, race discrimination, hostile environ-
also avers that she has not received merit rais-        ment, retaliation, and constructive discharge
es, promotions, or transfers since September            claims and that her i.i.e.d. claim was barred by
2000. The record reflects, however, that she            sovereign immunity. Accordingly, the court
received a merit raise in February 2001, and            entered summary judgment.
her salary increased after she filed her charge
of discrimination.                                         Smith filed a “Motion to Reopen,” alleging
                                                        that her lawyer had failed to respond on her
                       II.                              behalf and had misled her into believing that
    Smith sued, making claims under title VII           the response had been filed. The district court
for (1) race discrimination, (2) racial harass-         construed this as a motion under FED. R. CIV.
ment, (3) retaliation, and (4) constructive             P. 59(e) to alter or amend the judgment. The
discharge, and under Texas common law for               court granted the motion to the extent that it
intentional infliction of emotional distress            permitted Smith to file a response to the mo-
(“i.i.e.d.”). The basis for her complaints were         tion for summary judgment. After considering


                                                    3
Smith’s response, the court once again pro-              eration for the position.
vided a thorough analysis of her claims and de-
nied the Motion to Reopen. Smith appeals pro                The court then addressed Smith’s conten-
se.                                                      tion that she had been denied a transfer. The
                                                         court determined that Smith had not formally
                       III.                              applied for the transfer and that there was no
   We review for abuse of discretion a deci-             evidence that the denial of such a transfer
sion to reconsider a summary judgment in light           would have been a change in job duties, condi-
of new materials. We review de novo a deci-              tions, or benefits of employment such that its
sion that summary judgment was appropriate.              denial constituted an adverse employment
Ford Motor Credit Co. v. Bright, 34 F.3d 322,            decision. The court ruled that neither of
324 (5th Cir. 1994); Fields v. City of South             Smith’s alleged employment decisions consti-
Houston, Tex., 922 F.2d 1183 (5th Cir. 1991).            tuted an “adverse employment decision” ac-
A motion under rule 59(e) “is not the proper             tionable under title VII.
vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or                Assuming arguendo that one of these deci-
raised before the entry of judgment.” Templet            sions had been an adverse employment action,
v. HydroChem Inc., 2004 U.S. App. LEXIS                  the court noted that Smith had attempted to
7627, at *12 (5th Cir. Apr. 20, 2004) (citing            support her claim for discrimination under title
Simon v. United States, 891 F.2d 1154, 1159              VII by direct evidence in the form of her own
(5th Cir. 1990)).                                        testimony that McCullen made the alleged
                                                         offensive racial comment. Assuming, for
                       A.                                purposes of summary judgment, that McCullen
                       1.                                did make that statement, the district court
   The district court held that Smith had failed         found that the comment was governed by this
to meet the requirements of a claim for dis-             court’s “stray remark” doctrine.
crimination under title VII because she had not
shown an adverse employment action. As the                  For a comment in the workplace to provide
court noted, only “ultimate employment deci-             evidence of discrimination, it must, inter alia,
sions” are actionable under title VII. See               be “made by an individual with authority over
Bennett v. Total Minatome Corp., 138 F.3d                the employment decision at issue.” Patel v.
1053, 1060 n.10 (5th Cir. 1998) (citing Mat-             Midland Mem. Hosp. & Med. Ctr., 298 F.3d
tern v. Eastman Kodak Co., 104 F3d 702, 707              333, 343 (5th Cir. 2002), cert. denied, 537
(5th Cir. 1997).                                         U.S. 1108 (2003). The district court held that
                                                         Smith had not presented evidence that McCul-
   The court first addressed Smith’s claim that          len had authority over the decisions of which
she had been denied a promotion, deciding that           Smith complains or that McCullen’s comment
she had admitted that she had never formally             was related to either decision.
applied for the promotion in question and that
she did not possess the computer skills re-                 In her appellate brief, Smith does no more
quired for the job she allegedly sought. There-          than assert that she was denied a promotion
fore, Smith had failed to show that she was              and a transfer for which she was qualified, and
qualified for or actually put herself into consid-       does not address the issue of whether either


                                                     4
was an “adverse employment action” within              environment. Once again, aside from a recita-
the meaning of Fifth Circuit law. Nor does she         tion of her alleged facts and reiteration that she
assert that McCullen had authority over the            has suffered harassment, Smith’s brief does not
decisions. Notwithstanding the likelihood that         address the issue of whether the behavior was
Smith has waived these issues on appeal, we            actionable under title VII. We find no error.
have reviewed the record and the opinion of
the district court and find no error.                                        3.
                                                           Smith contends that after she complained of
                       2.                              McCullen’s comments and filed a grievance,
   Smith claimed that she was subjected to a           UTHSCH engaged in unlawful retaliation. As
racially hostile work environment and was har-         we noted above, only ultimate employment
assed on the basis of her race. The district           decisions are actionable under title VII. Smith
court noted that to prevail on a hostile work          alleges that she was ostracized by her co-
environment claim, a plaintiff must show that          workers, that Bien and McCullen criticized
conduct that was so “severe or pervasive” as           and poked fun at her, that Bien and
to create an environment that a reasonable per-        Berezowsky did not resolve her grievance, that
son would find hostile or abusive. See Weller          Smith was unfairly “written up” and placed on
v. Citation Oil & Gas Corp., 84 F.3d 191, 194          probation, and that her past accomplishments
(5th Cir. 1996). The court decided that the            had been diminished through lowered perfor-
only racially charged conduct for which Smith          mance ratings.
had submitted evidence was McCullen’s al-
leged offensive statement.                                The district court held that none of these
                                                       was an ultimate employment decision sufficient
   The court held that although this single            to give rise to a cause of action. The court
comment, if made, would have been offensive            also noted that, as discussed above, the denial
(and we certainly agree), it could not by itself       of a transfer to an identical position and a
constitute “severe” or “pervasive” conduct.            promotion for which Smith did not apply and
Thus, Smith could not meet her burden to               was not qualified could not give rise to a cause
show conduct that was actionable under a title         of action under title VII.
VII hostile environment theory. The district
court also noted that Smith’s other alleged in-           Smith also claimed that McCullen coerced
stances of mistreatment, including that her co-        another employee into filing a false complaint
workers did not smile at her in the hallway,           against her. The court ruled that this conten-
that Bien and Berezowsky failed to resolve her         tion was without any evidentiary support.
grievance, and that Bien or others “poked fun
at her” were not supported by the evidence,                Finally, the court concluded that although
were too vague and speculative to support a            the transfer of Smith to a position in which she
claim, and were innocuous if they actually             did not supervise other employees could be an
occurred.                                              adverse employment action sufficient to estab-
                                                       lish a prima facie case of discrimination, Smith
    The court concluded that the conduct Smith         had provided no evidence to show that
alleged did not constitute abusive behavior by         UTHSCH’s proffered reasons of high employ-
UTHSCH and did not create a hostile work               ee turnover and poor employee relations were


                                                   5
pretextual. Once again, Smith’s briefing is in-
adequate on this point. We find no error.

                      4.
   The district court held that Smith’s claim
for constructive discharge was without merit
because (1) Smith did not describe conditions
such that a reasonable person would have felt
compelled to resign, and (2) she is still em-
ployed at UTHSCH and currently has no com-
plaints. Smith has not addressed this issue on
appeal, so it is waived. Even absent waiver,
there is no error.

                        B.
   The district court dismissed Smith’s claim
for i.i.e.d. for want of subject matter jurisdic-
tion, holding that the claim was barred by the
state’s sovereign immunity under the Eleventh
Amendment. Alternately, the court held that
the claim failed on the merits.

   Smith does not address this issue in her
opening brief on appeal. In her reply brief, she
provides a discussion of intentional infliction
of emotional distress but does not address
sovereign immunity except to assert that
UTHSCH did not raise sovereign immunity as
a defense. Because we do not consider issues
raised for the first time in a reply brief, United
States v. Avants, 2004 U.S. App. LEXIS
7519, at *34 (5th Cir. Apr. 19, 2004), the
matter is waived. “Although we liberally
construe the briefs of pro se appellants, we
also require that arguments must be briefed to
be preserved.” Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (quoting Price v.
Digital Equip. Corp., 846 F.2d 1026, 1028
(5th Cir. 1988) (citations omitted).

   AFFIRMED.




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