                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                             September 1, 2004
                      FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-30706



     AUDREY T. CELESTINE; ET AL,

                                          Plaintiffs,

     AUDREY T. CELESTINE; WILTON GUILLORY;
     ANGEL ANN LEBLANC; EDWINA M. HARRIS;
     PATRICIA A. PITRE; ET AL,

                                          Plaintiffs-Appellants,

          versus

     PETROLEOS DE VENEZUELA S A; ET AL,

                                          Defendants,

     CITGO PETROLEUM CORP.,

                                          Defendant-Appellee.




          Appeal from the United States District Court
              for the Western District of Louisiana
                            95-CV-2196


Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:*

     Plaintiffs-appellants Audrey Celestine, et al., appeal the

district court’s grant of summary judgment in favor of defendants-


     *
     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this opinion should not be published and is not precedent except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.
appellees,        CTIGO   Petroleum   Corporation       (CITGO),     denying       the

appellants’ Motion for Relief from Judgment under Rule 60(b)(6).

We affirm.

                          Facts and Proceedings Below

       On May 21, 1993, a group of two hundred and six African-

American plaintiffs who then or previously worked at the CITGO

Petroleum Corporation’s (CITGO) Lake Charles, Louisiana plant,

filed suit against CITGO, alleging Title VII claims for hostile

work       environment    racial   harassment,    as     well   as    for    racial

discrimination in hiring, promotion and training. These plaintiffs

filed a motion for class certification, estimating the existence of

more       than   1,000   potential   class   members    who    either      then   or

previously worked at the Lake Charles plant, or had unsuccessfully

applied for employment there. The district court referred the case

to a magistrate judge for consideration of the class certification

issue.

       After a hearing, the magistrate judge informed the parties

that he was considering recommending a sua sponte grant of summary

judgment in favor of CITGO on the hostile work environment claims.

Forty-four plaintiffs (the Celestine plaintiffs)1 came forward with

summary judgment evidence assertedly supporting their positions

that there existed a hostile work environment. After examining the



       1
      Thirty-six of the forty-four Celestine plaintiffs
constitute the appellants in this appeal.

                                        2
evidence, the magistrate judge recommended that summary judgment be

granted to CITGO on the hostile work environment claims of all the

named    plaintiffs    (other      than       the    below    referenced    Proctor

plaintiffs).    On July 12, 1996, the district court, in accord with

the magistrate judge’s recommendation, entered summary judgment

dismissing the plaintiffs’ hostile work environment claims.                       The

magistrate judge also recommended denial of class certification,

and the district court agreed.

     On December 15, 1995, thirteen other plaintiffs (the Proctor

plaintiffs)    filed    suit     against      CITGO,    and   their   claims     were

transferred    and     consolidated        with      those    of   the     Celestine

plaintiffs.    However, they were excluded from the district court’s

July 12, 1996 order granting summary judgment on the hostile work

environment claims as they had not yet had a chance to submit

evidence regarding their claims.              On October 3, 1996, the Proctor

plaintiffs    were    put   on   notice       that   the   magistrate    judge    was

considering a sua sponte motion for summary judgment with respect

to their hostile work environment claims, and on November 4, 1996,

two of the thirteen Protctor plaintiffs submitted declarations in

support thereof.2

     On May 15, 1998, this Court affirmed the district court’s

denial of class certification, Allison v. Citgo Petroleum Corp.,

     2
      The two Proctor plaintiffs who submitted declarations in
support of their hostile work environment claims were Harvey
Hawkins and Georgiana Ardoin.

                                          3
151 F.3d 402, 426 (5th Cir. 1998), and on October 2, 1998 denied

appellants’   motion   for   rehearing   en   banc   as   to   the   class

certification issue.     The Celestine   plaintiffs’ case proceeded as

a series of individual claims. CITGO filed two motions for summary

judgment against the Celestine plaintiffs, and on January 11, 2000,

the district court granted those motions for summary judgment,

ruling that the continuing violation doctrine was inapplicable, and

granting summary judgment on each failure to promote and hire

discrimination claim.3    The plaintiffs appealed both the July 1996

grant of summary judgment as to their hostile work environment

claims, and the January 2000 grant of summary judgment as to their

failure to promote and train claims.          This court affirmed both

grants of summary judgment on September 18, 2001.          Celestine v.



     3
      According to the appellants, the majority of the Celestine
plaintiffs still have promotion and training claims pending for
trial in the district court, and those claims have been
consolidated with the Proctor plaintiff’s promotion and training
claims. However, it appears that this Court, in the Celestine
case, affirmed summary judgment as to both the hostile work
environment and promotion and training claims. Regardless, as
will be addressed in the text below, National R.R. Passenger
Corp. v. Morgan, 122 S.Ct. 206 (2002), on which appellants rely
for their change in the law claim, did not change the law in this
Circuit as it applies to discrete claims. This Court did not and
still does not apply the continuing violation doctrine to
discrete incidents such as training, hiring or promotion.
Therefore, to the extent that appellants might assert that what
they claim is the less demanding Morgan standard would apply to
their remaining training, hiring or promotion claims, no
exceptional circumstances would be created because Morgan did not
change the Celestine evidentiary standard regarding such discrete
incidents.

                                   4
Petroleos De Venezuella SA, 266 F.3d 343 (5th Cir. 2001).4

     On June 10, 2002, the United States Supreme Court rendered its

decision in National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061

(2002).   On December 22, 2002, more than six months after the

opinion in Morgan had been issued, appellants filed a Motion for

Relief from Final Judgment under Rule 60(b)(6) claiming Morgan had

changed the decisional law on which their appeal had been decided.

On June 12, 2003, the district court issued a sua sponte summary

judgment ruling as to the hostile work environment claims of the

Proctor plaintiff (only one Proctor plaintiff, Hawkins, remained at

that time),5 and in a separate ruling entered on June 12, 2003, the

district court denied the Motion for Relief from Judgment under

Rule 60(b)(6).   This appeal of the denial of the Motion for Relief

from Judgment followed.

     The appellants claim that the district court should have

granted them relief under Rule 60(b)(6) because the Supreme Court’s

ruling in Morgan changed the decisional law upon which Celestine

was based, and therefore created an “extraordinary circumstance” in

that a different evidentiary standard would be applied to the two

different groups of plaintiffs in this lawsuit; the pre-Morgan



     4
      Throughout this opinion, we refer to the Celestine v.
Petroleos De Venezuella SA case as Celestine.
     5
      Because only one Proctor plaintiff remains, we refer to
him in the singular.

                                 5
standard to the Celestine plaintiffs, and the assertedly less

demanding    post-Morgan   standard       to   the   sole   remaining   Proctor

plaintiff.     We hold that the district court did not abuse its

discretion in denying Rule 60(b) relief.

                               Discussion

1.   Standard of Review

     A district court’s denial of relief from final judgment under

Rule 60(b) will only be reversed if the district court abused its

discretion.    Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157,

159 (5th Cir. 1990) cert. denied, 498 U.S. 829 (1990).                  We are

limited to a review of whether the denial of the 60(b)(6) motion

was an abuse of discretion; we cannot review the underlying merits

of the case.    Id.

2.   Rule 60(b) and changes in decisional law

     Under Federal Rule of Civil Procedure 60(b), a court may

provide relief from a final judgment for six alternative reasons:

     “(1) mistake, inadvertence, surprise, or excusable
     neglect; (2) newly discovered evidence which by due
     diligence could not have been discovered in time to move
     for a new trial under Rule 59(b); (3) fraud (whether
     heretofore   denominated   intrinsic    or   extrinsic),
     misrepresentation, or other misconduct of an adverse
     party; (4) the judgment is void; (5) the judgment has
     been satisfied, released, or discharged, or a prior
     judgment upon which it is based has been reversed or
     otherwise vacated, or it is no longer equitable that the
     judgment should have prospective application; or (6) any
     other reason justifying relief from the operation of the
     judgment.” Fed. R. Civ. P. 60(b).

This court views Rule 60(b)(6) as “a residual or catchall provision


                                      6
. . .     to accomplish justice under exceptional circumstances.”

Edwin H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir.

1993).   The United States Supreme Court has held that for relief

from judgment under Rule 60(b)(6) to be granted, “extraordinary

circumstances” must be present.            Ackerman v. United States, 71

S.Ct. 209 (1950).

     Generally, we have held that a change in decisional law after

entry    of   judgment   does   not       constitute   the   “extraordinary

circumstance” that is required in order to grant relief under Rule

60(b)(6).     See Bailey, 894 F.2d at 160; see also Picco v. Global

Marine Drilling Co., 900 F.2d 846, 851 (5th Cir. 1990) (holding

that it was an abuse of discretion for the district court to grant

relief under Rule 60(b)(6) where the Supreme Court had changed the

applicable rule of law).    However, the appellants point to Batts v.

Tow-Motor Forklift Co., 66 F.3d 743 (5th Cir. 1995), wherein this

Court found that, though a change in decisional law “will not

normally constitute an extraordinary circumstance, and cannot alone

be grounds for relief from a final judgment pursuant to Rule

60(b)(6),” it went on to state, in dicta and in a footnote,

     “[w]e do not hold that a change in decisional law can
     never be an extraordinary circumstance. Courts may find
     a special circumstance warranting relief . . . . where
     the subsequent court decision is closely related to the
     case in question, such as where the Supreme Court
     resolves a conflict between another circuit ruling and
     that case. See, e.g., Ritter v. Smith, 811 F.2d 1398,
     1402-03 (11th Cir. 1987) . . . . [Additionally,] where
     two cases arising out of the same transaction result in
     conflicting judgments, relief has been found to be

                                      7
       warranted. See Pierce v. Cook & Co., 518 F.2d 720, 723
       (10th Cir. 1975).” Batts, 66 F.3d at 748 n.6.6

       Both parties agree that this Court will not find extraordinary

circumstances to exist merely because of a change in decisional

law.       However, the appellants do not claim that they should be

granted relief from judgment because of the Morgan decision itself.

Rather,      the   appellants   aver   that   because   Morgan   changed   the

decisional law upon which the Celestine plaintiffs’ hostile work

environment claims were decided, an exceptional circumstance has

been created:        The evidentiary standard applied to the Proctor

plaintiff’s hostile work environment claim will be different from

that which was applied to the other group of plaintiffs (the

Celestine plaintiffs) in the same lawsuit.

3.   Morgan and the hostile work environment

       In Morgan, an African-American plaintiff brought a Title VII



       6
      Appellants assert that they are supported by the “same
transaction” line of cases following Pierce, 518 F.2d at 720,
which hold that post-judgment relief can be granted when a change
in decisional law generates divergent judgments for litigants
involved in the same transaction. However, unlike Pierce, where
the same vehicular accident produced divergent results in federal
and state courts, the Celestine plaintiffs’ claims do not arise
out of the same transaction as the plaintiffs in Morgan.
Moreover, though the Celestine and Proctor plaintiffs both filed
suit complaining of matters while employed at the same CITGO
plant, each individual plaintiff experienced different incidents
of harassment, and worked under different supervisors at
different times. These plaintiffs were not part of a class
action; rather, they had consolidated, individual claims.
Therefore, any attempted analogy of the case sub judice and the
Pierce “same transaction” line of cases is without merit.

                                        8
action for racial discrimination and retaliation against his former

employer.    Typically,   a   claimant   must   file   a   Title   VII

discrimination claim with the EEOC within 180 (or 300) days of the

challenged discrimination.    See 42 U.S.C. § 2000e-5(e)(1)(2003).

However, under the “continuing violations doctrine,” a plaintiff

may complain of otherwise time-barred discriminatory acts if it can

be shown that the discrimination manifested itself over time.      See

Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998).           The

district court in Morgan granted partial summary judgment for the

employer, but the Ninth Circuit Court of Appeals reversed and

remanded.   The Ninth Circuit held that a plaintiff may sue on

claims that would typically be time barred so long as they either

are “sufficiently related” to incidents that fall within the

statutory period or are part of a “systematic policy or practice of

discrimination that took place, at least in part, within the

limitations period.”   Morgan, 122 S.Ct. at 2068.

     The Supreme Court affirmed in part and reversed in part.      They

determined that, contrary to the Ninth Circuit’s holding,7 Title

VII precludes recovery for discrete acts of discrimination or

retaliation that occur outside the statutory time period, such as

hiring and training or promotion claims.        However, the Court


     7
      Though not in line with the Ninth Circuit, the Supreme
Court’s determination in Morgan relating to “discrete acts” was
in line with Fifth Circuit precedent. See, e.g., Huckabay, 142
F.3d at 239-40 (holding that discrete actions are not entitled to
the shelter of the continuing violation doctrine).

                                 9
affirmed the portion of the Ninth Circuit’s decision as to the

hostile work environment claims.     The Court stated, “[p]rovided

that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be

considered by a court for the purposes of determining liability .

. . . so long as each act is part of the whole.”   Id. at 2074.

     The appellants and appellees both agree that Morgan requires

a two-part test for determining the evidentiary scope of a hostile

work environment claim:    “A court’s task is to determine [1]

whether the acts about which an employee complains are part of the

same actionable hostile work environment practice, and if so, [2]

whether any act falls within the statutory time period.”   122 S.Ct.

at 2076.   However, Morgan also established that with respect to

claims involving discrete acts, such as hiring, promotion and

training, only incidents that take place within the 180 (or 300)

day filing period are actionable. The appellees claim that this is

the only change presented by Morgan, and that after the case,

hostile work environment claims remain subject to the continuing

violation doctrine.




4. The district court did not abuse its discretion by denying the
appellants’ Motion for Relief from Judgment under Rule 60(b)(6).

     In Celestine, which was decided before Morgan, we upheld the

district court’s grant of summary judgment as to the Celestine


                                10
plaintiffs’ hostile work environment and failure to promote and

train claims.     The district court correctly concluded that the

relevant time period for that lawsuit was April 29, 1992, to May

24, 1994.   In order to introduce evidence of incidents related to

a hostile work environment that occurred prior to this designated

temporal scope,    we   required   the     plaintiffs     to   prove   that    an

“organized scheme led to and included the present violation.”

Plaintiffs were also required to show              that the “same type of

discriminatory    acts”   occurred        both   inside   and    outside      the

limitations period “such that a valid connection exist[ed] between

them.”   266 F.3d at 352.

     Arguably, our decision in Celestine required something more

than the standard enunciated in Morgan to the extent that Celestine

required proof of an organized scheme.           Otherwise, the evidentiary

standard that was applied in Celestine clearly remains good law

even after Morgan, requiring that all the incidents presented in a

hostile work environment claim be related and “part of the whole,”

or same, claim.   Morgan, 122 S.Ct. at 2075.8


     8
      We also note that Morgan plainly did not change the law in
this Circuit with respect to discrete acts. As we stated in
Celestine, “The district court was entirely correct in refusing
to apply the continuing violation theory to the appellants’
racial discrimination for failure to promote and train claims.
This court’s decision in Huckabay makes clear that a one-time
employment event, including the failure to hire, promote, or
train . . . is ‘the sort of discrete and salient event that
should put the employee on notice that a cause of action has
accrued. . . . [These] discrete adverse actions, although
racially motivated, cannot be lumped together with the day-to-day

                                     11
      The Celestine plaintiffs assert that this Court in Celestine

disallowed “evidence of approximately 80 incidents of alleged

racial discrimination that occurred prior to the time period

designated by the district court for this lawsuit” which they claim

would likely have to be actionable under the Morgan standard.

Celestine, 266 F.3d at 352.       However, there is evidence, as the

appellees aver, that many of these incidents were discrete, hiring

or   promotion   related    incidents,      and   therefore    would    not   be

actionable even under the arguably less demanding Morgan standard.

      In   Celestine,      although    we    recognized       that     in   some

circumstances, incidents occurring outside the 180 day time period

could be considered (under the continuing violation doctrine), we

affirmed the grant of summary judgment because the appellants

      “neglect the fact that they are before this Court as
      individual plaintiffs rather than as members of a class.
      Rather than describing each individual appellant’s
      hostile work environment and explaining why application
      of the continuing violation doctrine would be appropriate
      for each appellant’s claim, the appellants paint with
      wide brush strokes, making broad generalizations about
      the working conditions at CITGO over the last three
      decades. . . . [M]any of the appellants fail to identify
      any acts of alleged racial harassment at all during the
      limitations period.” 266 F.3d at 353.

Therefore, we held that the district court did not err in refusing

to consider alleged acts of harassment that occurred prior to the

limitations period.


pattern of racial harassment’ and therefore, if otherwise
untimely, cannot be saved by the continuing violation doctrine.”
266 F.3d at 352 (internal citations omitted).

                                      12
     Appellants argue that this Court has not yet had a chance to

specifically apply Morgan’s evidentiary standard to a hostile work

environment claim.         However, they claim that other circuits, as

well as district courts in the Fifth Circuit, have done so and

determined that the Morgan standard, as it relates to hostile work

environment      claims,    is   less     demanding    than     that     which    was

previously applied.         See, e.g., Crowley v. L.L. Bean, Inc., 303

F.3d 387, 406 (1st Cir. 2002) (“Morgan supplants our jurisprudence

on the continuing violations doctrine in hostile work environment

claims, making it no longer necessary to distinguish between

systematic and serial violations”); Yerby v. Univ. of Houston, 230

F.Supp.2d 753 (S.D. Tex. 2002) (denying summary judgment on a

hostile   work    environment     claim,      noting   that   if    an    act    that

contributes to the claim occurs within the filing period, the

entire time period of the hostile environment may be considered by

a court to determine liability). The appellees, on the other hand,

claim that the Fifth Circuit’s pre-Morgan decision in Celestine is

fully compatible with Morgan.

     While it may be arguable whether the standard which this Court

articulated for the hostile work environment claims in Celestine is

consistent    with    the    newly      established    Morgan      standard,      our

“organized scheme” language was not necessarily crucial to our

holding in Celestine.

     It may be that the standard to be applied to hostile work


                                         13
environment claims in related cases should be less demanding after

Morgan.9   However, this Court has not yet arrived at that decision,

and that issue is not now before us.10

5.   The Proctor Plaintiff

     Another looming problem with the appellants’ main contention,

that divergent standards will be applied, is that, though the

appellants fail to mention the fact in their brief, the Proctor

plaintiff’s hostile work environment claim has already been decided

by the district court.

     The Proctor plaintiff, Hawkins, worked for CITGO on three

occasions: once in 1984, once in 1985, and then from January 10,


     9
      Because the Supreme Court in Morgan upheld the Ninth
Circuit’s decision in relation to the hostile work environment
claim, it is unclear whether the Supreme Court believed its
enunciated standard to be a new requirement, or whether it left
the Ninth Circuit free to continue to utilize its then existing
standard, as applied to non-discrete, hostile work environment
claims. The Court never specifically disapproved of the test
applied by the Ninth Circuit, though it did insert its own
language as to the test that should be applied (i.e. “are part of
the same actionable hostile work environment practice”). The
test used by the Ninth Circuit called for the prior incidents to
be either sufficiently related to the incidents falling within
the statutory period, or be part of a systematic policy or
practice of discrimination that took place within the limitations
period. This requirement of a “systematic policy or practice”
could be interpreted as a type of “organized scheme.”
     10
       Even after the Supreme Court’s Morgan decision, this
Circuit continues to apply the continuing violation doctrine to
hostile work environment claims, and to cite Celestine as the
proper statement of applicable law. See, e.g., Felton v. Polles,
315 F.3d 470, 484 (5th Cir. 2002); Frank v. Xerox Corp., 347 F.3d
130, 136 (5th Cir. 2003).


                                 14
1994 to May, 1995.     Hawkins testified that during his 1994-1995

stint with CITGO, he continually saw racial slurs on the walls of

the outdoor bathrooms, and had certain interactions with others who

used racial slurs.     Apart from this testimony, it appears that

Hawkins’s other claims are based on hearsay; things that other

employees told him, or things that he heard about that happened

before he started working at the plant.11

     In   granting   summary   judgment   to   Hawkins’s   hostile   work

environment claims, the district court noted that decisions of

courts within this circuit have continued to apply the continuing

violation doctrine after Morgan, and also stated that Hawkins had

never filed an EEOC charge, and was instead relying on charges

filed by some of the Celestine plaintiffs.          The district court

ruled that because Hawkins established no act adverse to him within


     11
       Hawkins was not employed with CITGO until January 1994
(excluding his briefs stints in the mid 1980s). He attempted to
bring out evidence of racial harassment that occurred before he
was actually working at CITGO about which others had told him.
This is not what Morgan was about: Morgan held that incidents
occurring outside the temporal scope of the lawsuit may in some
cases be considered for the purposes of liability to the party
who suffered from them; “the statute in no way bars a plaintiff
from recovering damages for that portion of the hostile
environment that falls outside the period for filing a timely
charge. . . . [T]he timeliness requirement does not dictate the
amount of recoverable damages.” 122 S.Ct. at 2075. But it is
unlikely that the Morgan court meant that a plaintiff could
recover for harassment which occurred before he began working,
and from which he could not have suffered. The statute at issue
“only has the consequence of limiting liability because filing a
timely charge is a prerequisite to having an actionable claim.”
Id. at 2076. The district court does not appear to have excluded
any evidence of racial harassment suffered by Hawkins.

                                   15
the limitations period, he could not establish a hostile work

environment claim.      This element of the standard was in fact the

same in Celestine and Morgan.12

     Most importantly though, the district court held that “[t]he

behaviors of which Hawkins complains does not rise to the level of

racial    harassment    under   Title      VII.      While     clearly   crude,

humiliating,   and     insensitive,     they     would   be   insufficient    to

establish   racial     harassment.”        The    district    court   threw   out

Hawkins’s evidence because it was mostly hearsay, not because it

was barred on the grounds of limitations. Regardless, the district

court’s summary judgment decision was not based on the lack of an

“organized scheme,” but rather on its recognition that

     “When determining whether a workplace constitutes a
     ‘hostile work environment,’ courts closely consider the
     ‘frequency of the discriminatory conduct; its severity,
     whether it is physically threatening or humiliating, or
     a mere offensive utterance; and whether it unreasonably
     interferes with an employee’s work performance.’      The
     behaviors of which Hawkins complains does not rise to the
     level of racial harassment under Title VII.” (internal
     citations omitted).13

                                Conclusion


     12
      We recognize that the district court further states that
Hawkins also “failed to demonstrate that an organized scheme led
to and included these alleged violations.” However, that does
not appear to have been crucial to its holding.
     13
       We do not pass on the correctness of the district court’s
decision as to Hawkins. We merely note that appellants have not
shown that it clearly depends on what they claim to be a change
in the law as between Celestine and Morgan so as to constitute an
extraordinary circumstance requiring that appellants receive Rule
60(b)(6) relief.

                                      16
     For the foregoing reasons, we hold that the district court did

not abuse its discretion in denying Rule 60(b)(6) relief because no

extraordinary circumstances are present.

                            AFFIRMED.




                                17
