                        IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT


                                            No. 99-50013
                                          Summary Calendar



WANDA J. PRICE; ET AL,
                                                                                             Plaintiffs,

BETTY S. STEFKA,
                                                                                   Plaintiff-Appellant,

                                                versus

MCLENNAN COUNTY, TX,

                                                                                 Defendant-Appellee.


                             Appeal from the United States District Court
                          for the Western District of Texas (Waco Division)
                                      USDC No. W-98-CV-271


                                             July 8, 1999

Before WIENER, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

          Plaintiff-Appellant Betty S. Stefka (“Stefka”) appeals the district court’s grant of summary

judgment in favor of McLennan County, Texas (“McLennan County”) on her complaint of

discrimination in violation of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §

2000e, et seq. (1994). For the reasons ascribed, we affirm.

                             FACTUAL AND PROCEDURAL BACKGROUND1


  *
   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 R. 47.5, the court has determined that this opinion should not be published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.
      1
     Federal Rule of Appellate Procedure 28 requires briefs submitted to this court to contain a
statement of facts. Appellant’s counsel failed to include any statement of facts thereby requiring this
court to rely on the facts as articulated by the Appellee. However, a thorough review of the record

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        In 1985, the McLennan County Sheriff’s Department (the “Sheriff’s Department”) hired

Plaintiff Wanda J. Price (“Price”) in the capacity of jailer. Two years later, the Sheriff’s Department

hired Plaintiff-Appellant Stefka in the same capacity. By 1990, the Sheriff’s Department had

sponsored and certified both in the capacity of peace officer. Persons employed in the capacity of

jailer are not required to be peace officers although such certification permits them to earn additional

income when engaged in outside security work. Four years later, Price endeavored to become a

patrol field officer, a position which, as a prerequisite, requires interested persons to obtain substitute

field officer experience. To gain experience as a substitute field officer, a person must volunteer and

secure the Sheriff’s Department’s approval to ride in a patrol car and act as backup to a patrol field

officer. This position leads to further promotions within the Sheriff’s Department.

        In 1994, when the Sheriff’s Department declined Price’s request to volunteer as a backup,

Price filed an a charge of discrimination with the United States Equal Employment Opportunity

Commission (“EEOC”) claiming that she was denied the opportunity based on her sex. On April 3,

1995, Stefka provided a statement during the EEOC investigation apparently in support of Price’s

claim. Later, on August 29, 1995, the EEOC issued it s determination finding that the Sheriff’s

Department had violated Title VII by discriminating against women in denying them the opportunity

to hold field officer positions.2

        Overall, Stefka complains that the Sheriff’s Department took retaliatory actions against her

as demonstrated by repeated denials of her requests to transfer to day positions at the jail even though

her seniority entitled her to a transfer.3 Additionally, Stefka claims that she was falsely accused of



leads us to conclude that the Appellee either declines to mention or glosses over facts which are not
favorable to its position. These inadequacies impede the appellate process and reflect poorly on the
attorneys participating in this appeal.
   2
    In the complaint, both Price and Stefka allege that the Sheriff’s Department retaliated against
them for filing charges with the EEOC. This alleged conduct forms the basis of the appeal before us.
Inasmuch as Price is not a party to this appeal, we focus on the facts pertaining to Stefka.
    3
   Based on information in the record, Stefka was passed over for a transfer to the day shift in
August 1996, and in January and October 1997.

                                                    2
violating Sheriff’s Department policies and received unusually severe punishment including revocation

of her deputization and suspension of duty without pay.

        Indeed, several incidents did lead the Sheriff’s Department to take some employment action

against Stefka. On November 2, 1996, Stefka’s former sister-in-law filed a complaint with the

Sheriff’s Department after Stefka and another jailer, Paul Caudle (“Caudle”), participated or assisted

in the division of marital assets between Stefka’s brother and his estranged wife. At the time, both

were off-duty. After an investigation, during which both Stefka and Caudle were placed on

administrative leave with pay, the Sheriff’s Department chose to no longer sponsor either Stefka or

Caudle’s peace officer credentials. Both jailers were required to turn in their peace officer credentials

on November 15, 1996.

        On December 2, 1996, Stefka was observed sleeping on-duty at the jail. Stefka explained that

she was unable to stay awake because she was taking medication which, as a side effect, made her

drowsy. The Sheriff’s Department conducted an investigation and concluded that Stefka would

receive five days leave without pay effective December 30, 1996. She was also placed on probation

for six months. Stefka complains that she was treated more harshly than other officers with similar

misconduct in retaliation for her testimony in the EEOC investigation. Her application to a field

officer po sition made during this month was also rejected; the position was awarded to a male

applicant.

        On November 20, 1996, Stefka filed a charge of discrimination with the EEOC complaining

that the Sheriff’s Department was discriminating against her based on her sex and in retaliation for

her participation in Price’s 1994 charge to the EEOC. She received a notice of her right to sue on

May 26, 1998 and filed her complaint in the district court on August 20, 1998. The district court

entered its order granting summary judgment in favor of McLennan County on December 4, 1998.

Stefka raises essentially two arguments in her timely appeal. First, she contends that the district court

erred in denying her motion to extend discovery. Second, Stefka argues that the district court

improperly granted McLennan County’s motion for summary judgment.


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                                               DISCUSSION

          A. Motion for a Continuance

          Stefka first argues that the district court erred in denying her motion for a continuance to

allow completion of discovery and the filing of supplemental summary judgment evidence. We

review the district court’s decision to preclude further discovery prior to granting summary judgment

for abuse of discretion. See Liquid Drill Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930

(5th Cir. 1995); Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d 1474, 1487 (5th Cir.

1995). As we explained in Liquid Drill, “a party must specifically explain both why it is currently

unable to present evidence creating a genuine issue of fact and how a continuance would enable the

party to present such evidence.” Id. at 930.          The trial judge exercises broad discretion when

adjudicating a motion for a continuance.4 See id.

          On September 8, 1998 McLennan County filed its motion to dismiss or, in the alternative, for

summary judgment. Three days later, the district court entered its scheduling order indicating that

dispositive motions were to be filed and discovery completed by January 11, 1999. Nevertheless, the

effect of McLennan County’s immediate motion for summary judgment provided notice to Stefka

that she must actively discover and present to the court the evidence necessary to resist a grant of

summary judgment. She failed to do so and chose to file a motion for a continuance on October 26,

1998. Although Stefka argues that she needed more time to complete discovery and file supplemental

summary judgment evidence, this case does not present facts which are particularly difficult to

investigate. Inasmuch as the district court did not rule on the motion for summary judgment until

December 4, 1998, we find that Stefka had adequate time to conduct discovery and present evidence

   4
       Federal Rule of Civil Procedure 56(f) provides:

          Should it appear from the affidavits of a party opposing the motion that the party cannot for
          reasons stated present by affidavit facts essential to justify the party’s opposition, the court
          may refuse application for judgment or may order a continuance to permit affidavits to be
          obtained or depositions to be taken of discovery to be had or may make such other order as
          is just.

FED. R. CIV. P. 56(f).

                                                     4
opposing summary judgment.

       Moreover, we are unable to find that the district court abused its discretion because Stefka’s

motion for a continuance is substantively inadequate. Therein, Stefka failed to detail the specific

evidence she was seeking; the relevance of the evidence; and the reasons she was unable to present

it. See Exxon Corp., 40 F.3d at 1487. Instead, it appears that Stefka endeavored to do too little too

late. At most, the affidavit in support of the motion explains that the sought information was within

the exclusive control of McLennan County. This assertion is not sufficient because in an adversarial

proceeding, the sought information is often within the exclusive control of the party opponent.

Instead, Stefka was required to state reasons which precluded, undermined, or impeded her efforts

to discover the evidence. See Keebler Co. v. Murray Bakery Products, 86 F.2d 1386, 1389 (Fed. Cir.

1989). Finding no abuse of discretion, we affirm the district court’s decision to deny the motion to

continue.

       B. Motion for Summary Judgment

       Next, Stefka challenges the district court’s grant of summary judgment for McLennan County.

Stefka’s arguments collapse into two categories: (1) the district court’s finding that she had not

exhausted her administrative remedies; and (2) the district court’s finding that the basis for her

retaliation claims were not adverse employment actions. We will consider each in turn.

       We review a grant of summary judgment de novo, applying the same criteria as the district

court. See Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961 (5th Cir.1999).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party must first demonstrate that there

are no genuine issues of material fact. See 477 U.S. at 248. Once the moving party makes this

showing, the nonmovant must come forward with summary judgment evidence sufficient to establish

the existence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) ("The nonmovant must come


                                                 5
forward with evidence establishing each of the challenged elements of its case for which the

nonmovant will bear the burden of proof at trial.").



                1. Exhaustion of Administrative Remedies

        It is well settled that the filing of an administrative complaint is a jurisdictional prerequisite

to an action under Title VII. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Generally,

allegations that are not in an administrative charge cannot be raised in a subsequent complaint filed

in district court. See id. However, such allegations may be brought where they are similar to or grew

out of the claims brought before the EEOC. See Nat’l Ass’n of Gov’t Employees v. City of Pub.

Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994).

        In her November 26, 1996 charge of discrimination, Stefka indicated that she was

discriminated against based on sex and in retaliation for participating in an earlier case. She lists her

placement on administrative leave and the revocation of her deputization as the personal harm she

experienced. Neither of these two actions relate to any sex-based discrimination. Indeed, Stefka

failed to articulate any basis for her sex discrimination claim or discuss the personal harm she

experienced.5

        Having failed to amplify her claim before the EEOC, we must determine whether the facts

giving rise to her sex discrimination claim are similar to the allegations contained in the charge or

grew out of those allegations during the pendency of this case.             We find that the Sheriff’s

Department’s denial of the patrol field officer position in December 1996 does not grow out of the

allegations brought in her EEOC charge of discrimination. The EEOC had concluded its investigation

of the denial of patrol field officer positions to women and issued its determination on August 29,

1995. Consequently, it was incumbent upon Stefka to bring the basis of her sex discrimination claim

to the attention of the EEOC. By failing to do so, she has not exhausted her administrative remedies

  5
   The event giving rise to her sex discrimination claim, the denial of the field patrol officer position,
did not occur until December 16, 1996, nearly three weeks after she filed her charge of
discrimination.

                                                    6
on this claim.6 Accordingly, we affirm the district court.

               2. Adverse Employment Action

       Relief under Title VII is appropriate only where there is an ultimate employment decision

including hiring, discharging, promoting, compensating, or granting leave.            See Webb v.

Cardiotohoracic Associates of North America, P.A., 139 F.3d 532, 540 (5th Cir. 1998). Title VII is

not designed to address every decision made by an employer that arguably might have some tangential

effect. See id. Courts have resisted adopting an expansive definition of “adverse employment action”

thereby removing such events as disciplinary filings, supervisor reprimands, poor performance by an

employee, or anything which may jeopardize future employment from the sphere o f actionable

conduct. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997).

       Stefka considers the following conduct adverse employment actions: (1) the decision not to

assign her to a day shift; (2) her placement on administrative leave without pay; and (3) the

revocation of her peace officer credentials. We disagree. None of these actions rise to the level of

an ultimate employment action.

       First, nothing in the record indicates that being assigned to a day shift amounts to a

promotion. It is a convenience which can hasten promotion within the Sheriff’s Department.

However, it is not a prerequisite to advancing within the Sheriff’s Department. In like manner, we

cannot say that Stefka’s placement on administrative leave without pay was an adverse employment

action. After an investigation, the Sheriff’s Department found that she was derelict in her duties and

determined an appropriate response. Nevertheless, Stefka complains that she was penalized more

harshly than other persons found sleeping on the job. While this may be true, we are not inclined to

view her infraction as an isolated incident bearing upon her appreciation, or lack thereof, for her

position and its incumbent responsibilities.

       Indeed, one month prior to being found sleeping on the job, Stefka abused her position as a


   6
    Having failed to exhaust her administrative remedies on this issue, we need not further consider
the facts or information relating to her denial of the patrol field officer position.

                                                  7
peace officer by intervening in a private civil matter on behalf of her brother. The sponsorship of the

Sheriff’s Department was gratuitous since jailers, the capacity in which Stefka was hired, are not

required to maintain peace officer credentials. Under this circumstance, we cannot say that the

Sheriff’s Department was required to maintain its sponsorship after Stefka acted in contravention to

its policies. Stefka’s claim of retaliation is further undermined by the fact that the Sheriff’s

Department imposed the same penalty on Caudle who did not participate in the EEOC investigation

which forms the basis of Stefka’s retaliation claim.

        Again, we affirm the district court.

        C. McLennan County’s Motion to Dismiss

        For the sake of completion, we address McLennan County’s alternative argument that the

district court should have granted its motion to dismiss. As we explained in Jackson v. City of

Atlanta, 73 F.3d 60, 62 (5th Cir. 1996), denials of motions to dismiss in the Title VII context are non-

final orders from which no appeal is allowed.

                                               CONCLUSION

        For the reasons stated herein, we affirm.




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