     Case: 09-20410     Document: 00511048299          Page: 1    Date Filed: 03/11/2010




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

                                                  FILED
                                                                           March 11, 2010

                                     No. 09-20410                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HELEN JEFFERSON; DAPHNE GRANVILLE; THE ESTATE OF AMANDA
HERNANDEZ, Manuel Acevedo as Next Friend; AGNES ANYALEBEDHIL;
JOSIE JACOBS; PHILLIP MINAMBISSERIL; SYLVIA POTIER; RALPH
DAVIS; FAY BRUMFIELD; BERNADETTE ETOAMA,

                                                   Plaintiffs - Appellants
v.

CHRISTUS ST. JOSEPH HOSPITAL; HOSPITAL PARTNERS OF
AMERICA, INC; CHRISTUS HEALTH GULF COAST,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-1535


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Helen Jefferson, Daphne Granville, the Estate of Amanda Hernandez,
Agnes Anyalebedhil, Josie Jacobs, Phillip Minambisseril, Sylvia Potier, Ralph




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20410       Document: 00511048299          Page: 2    Date Filed: 03/11/2010

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Davis, Fay Brumfield, and Bernadette Etoama 1 appeal the district court’s grant
of summary judgment on their race, age, national origin, retaliation, and hostile
work environment claims against appellees, Christus St. Joseph Hospital
(“Christus”), Hospital Partners of America (“HPA”), and Christus Health Gulf
Coast. Appellants allege numerous grounds for reversal based on both the
circumstances and substance of the district court’s decision. Finding no merit
in these claimed errors, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       The facts of this case, viewed in the light most favorable to appellants as
the non-moving party, are as follows.             Appellants are behavioral medicine
nurses, psychiatric technicians, and therapists formerly employed by Christus.
In summary, they variously accuse Christus, and its successor HPA, of race, age,
and national origin discrimination.
       The events giving rise to this suit began in late 2005 when Christus
informed its entire staff of behavioral medicine nurses, psychiatric technicians,
and therapists that they would be required to participate in an internet-based
research survey (“the Smilex Survey”) conducted by a third party. The Smilex
Survey consisted of a pre-test, vignettes depicting frequently-observed
behavioral issues in psychiatric patients, and a post-test. During the post-test,
participants who answered questions incorrectly were provided immediate
feedback explaining why their answer was incorrect and why another answer
was the better choice. The creator of the Smilex Survey, Colin McKay, testified
in his deposition that the training program typically required thirty to forty-five




       1
         An eleventh plaintiff, Abel Abad, did not appear in the district court below or defend
his claims in response to appellees’ motion for summary judgment. Accordingly, all of Abad’s
claims of error have been waived. Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004).

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minutes to complete. 2         The opening screen of the survey also informed
participants that completion would take thirty to forty-five minutes.
       In early 2006, McKay began reviewing the completion times and scores
logged by all of the Christus employees. In the process, he discovered several
instances of employees completing what was putatively a thirty-to-forty-five
minute survey in less than four minutes and still achieving very high scores.
McKay notified Susan Willmann, the then-Administrative Director for
Behavioral Medicine, of the irregularities in the testing data. Based on the
information received from McKay, Willmann began to suspect that the
employees with the fastest completion times had cheated on the survey.
       Consequently, Willmann, in consultation with several members of
Christus’s senior staff, decided to require all individuals who completed the
survey in less than fifteen minutes to retake the survey with a proctor. Under
the retesting policy, employees were required to score within five points of their
original score and finish within three minutes of their original time. Employees
were asked to complete the exact same survey with the exact same questions.
The only differences between the original survey and the retest were that
employees were monitored by a proctor and the pre-test was omitted, thus
shortening the exercise.
       After reviewing the data, Willmann and the senior staff notified nine of
the appellants 3 , all of whom subsequently resigned or were terminated, that they
would be required to retake the survey. Four other individuals who are not
parties to this appeal were also required to retake the survey: Liz Anderson,
Bassey Etim, Walter Foston, and Keith Moffitt. Bassey Etim refused to retake


       2
         Appellants argue that McKay testified the survey could be completed in less than ten
minutes. Actually, McKay also testified that such a result was highly unlikely, at least for a
first-time test-taker.
       3
           Hernandez was the only appellant who was not required to retest.

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the survey. The record is silent as to whether Walter Foston was terminated
when he failed to duplicate or improve his score. Keith Moffitt, the one white
employee required to retake the survey, finished the proctored survey within
three minutes and five points of his original score as required. Liz Anderson, a
black employee, appears to have finished outside the appropriate time window
in her retest, but her score improved by six points, and she was not terminated.
As set out in the following table, however, none of the appellants were able to
meet the retesting standard or improve their performance:

        Appellant              First Score / Time          Second Score / Time

 Agnes Anyalebedhil          86 / 6.2 minutes              65 / 24.4 minutes

 Faye Brumfield              92 / 5.3 minutes              56 / 73 minutes
                             90 / 9.2 minutes

 Ralph Davis                 86 / 6.1 minutes              73 / 43.4 minutes

 Bernadette Etoama           77 / 8.2 minutes              64 / 25 minutes
                             79 / 2.9 minutes

 Daphne Granville            82 / 12.9 minutes             74 / 15.4 minutes

 Josie Jacobs                87 / 4.9 minutes              69 / 68.7 minutes

 Helen Jefferson             86 / 4.0 minutes              72 / 74.2 minutes

 Philip Minambisseril        75 / 5.0 minutes              71 / 20.1 minutes

 Sylvia Potier               78 / 13.8 minutes             58 / 43.4 minutes

      After the retesting was completed, Willman met individually with each of
the appellants. Anyalebedhil, Brumfield, Davis, Jacobs, Minambisseril, and
Potier admitted to Willmann that they received assistance navigating the survey
or answering questions during their first attempt. Willmann discovered that
Hernandez, who was not required to retest because her first completion time was
sufficient, was the individual who had assisted all of the plaintiffs except Jacobs.
Christus subsequently fired Anyalebedhil, Davis, Etoama, Granville, Hernandez,


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Jefferson, and Minambisseril between March 20 and April 7, 2006, for violating
Christus’s Code of Conduct. Brumfield, Jacobs, and Potier voluntarily resigned
after retaking the survey.
      Appellants individually filed charges of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging a variety of claims.
The EEOC issued right-to-sue letters to all of the appellants. Appellants filed
suit alleging racial discrimination under the Texas Civil and Human Rights Act
(“TCHRA”) in state court. The appellants amended their petition twice to add
additional defendants and include claims under 42 U.S.C. §§ 1981 and 1983
before appellees removed the case to federal court.     Thereafter, appellants
amended their complaint yet again – this time to include claims of retaliation,
national origin discrimination, and defamation under Title VII and the Age
Discrimination in Employment Act (“ADEA”) as well as to drop their § 1983
claims.
      The appellees moved for summary judgment on February 23, 2009.
Appellants responded in piecemeal fashion with two different filings labeled
“Response to Motion for Summary Judgment” on March 13 and March 16 as well
as more than 600 pages of exhibits. Appellees filed their reply on March 31. On
April 20 and without leave of court, appellants filed a 41-page sur-reply and an
additional 80 pages of exhibits. On May 18, 2009, the district court ruled that
appellants’ sur-reply and the included exhibits were not properly before the
court and granted summary judgment. Appellants timely appealed.
                       II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo. N. Am. Specialty Ins.
Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008). Summary
judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED. R.

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C IV. P. 56(c). A genuine issue of material fact exists when the evidence is such
that a reasonable jury could return a verdict for the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). When reviewing a grant of
summary judgment, the court should view all facts and evidence in the light
most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros.,
453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment, the
non-movant who bears the burden of proof at trial must go beyond the pleadings
and come forward with specific facts indicating a genuine issue for trial.
Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). We
may “affirm a grant of summary judgment on any grounds supported by the
record and presented to the [district] court.” Hernandez v. Velasquez, 522 F.3d
556, 560 (5th Cir. 2008).
       We review the district court’s determinations of the admissibility or
competency of summary judgment evidence only for abuse of discretion.
McIntosh v. Partridge, 540 F.3d 315, 320, 322 (5th Cir. 2008) (reviewing a
district court’s decision to consider contested items as competent summary
judgment evidence for abuse of discretion).
                                     III. DISCUSSION
       Appellants raise what can be reduced, in the aggregate, to two errors on
appeal: 1) whether the district court abused its discretion when it sustained
appellees’ objections to appellants’ sur-reply and sur-reply exhibits and refused
to strike the EEOC’s determination letter 4 ; and 2) whether the district court

       4
          We do not address the appellants’ claims of error regarding the affidavits of Keith
Moffitt and Kathy Hennigan. In their opening brief, appellants allege in their “Statement
Regarding Oral Argument” and “Statement of the Issues” that the district court erred in
excluding both affidavits. Yet appellants provide no argument or authority supporting their
claim in the body of their brief. Instead, they repeatedly assert in conclusory fashion that the
district court erred and cite to the portion of the record containing the affidavits. A party must
“provide[] . . . argument or authority in support of [their] position. . . . [F]ailure to provide any
legal or factual analysis of an issue on appeal waives that issue.” Douglas W. ex rel. Jason
D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998). Appellants have thus

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erred in granting summary judgment on all of the appellants’ discrimination
claims. We address each claimed error in turn.
A. Claims of Errors as to the District Court’s Evidentiary Rulings
       Appellants complain that the district court erred in its decision to exclude
their sur-reply and sur-reply exhibits. Appellants also claim the district court
erred when it disregarded, but declined to strike, an EEOC determination letter
proffered by the appellees.
       We conclude that the district court’s decision to disregard appellants’ sur-
reply and sur-reply exhibits on the basis of appellants’ failure to comply with
that court’s published procedures was not an abuse of discretion. F ED . R. C IV.
P. 83(b). Similarly, we find no abuse of discretion in the district court’s decision
to disregard rather than strike the EEOC determination letter dated October 25,
2007.5
B. The District Court’s Grant of Summary Judgment
       Appellants allege in their complaint that they were all subjected to
intentional discrimination and retaliation on the basis of their respective races,
ages, and national origins.         Appellants also contend on appeal that their
complaint alleged claims of disparate impact discrimination and hostile work
environment.6      The district court granted summary judgment as to all of
appellants’ claims on the grounds that appellants: 1) failed to properly exhaust;
2) failed to plead certain claims prior to filing the sur-reply; 3) failed to make out


waived any error as to the district court’s exclusion of the Moffitt and Hennigan affidavits.
Accordingly, they are not before us in this appeal in any form.
       5
         The district court expressly held that: “Although the Court declines to strike the
EEOC determination letter, it similarly declines to consider it in ruling on the pending motion
for summary judgment.” Jefferson v. Christus St. Joseph Hosp., No. 4:08-CV-1535, slip op. at
16 n.10 (S.D. Tex. May 18, 2009).
       6
         Appellants make no arguments in their appellate briefing pertaining to their
defamation claims. Accordingly, any claim of error as to these claims has been waived.
Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996).

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a prima facie case; and/or 4) failed to demonstrate pretext in the appellees’
proffered reasons for taking adverse employment actions. We conclude that
appellants either failed to exhaust, failed to plead, or failed to make out a prima
facie case as to all of their claims. Accordingly, we affirm the district court’s
well-reasoned opinion without reaching appellees’ proffered justification or
appellants’ attempts to show pretext or mixed motives.7
       1. Appellants’ Discrimination Claims
               a. Administrative Exhaustion
       As the district court correctly noted, a plaintiff must first exhaust his or
her administrative remedies for claims brought under the ADEA, the TCHRA,
and Title VII before filing suit.8 Foster v. Nat’l Bank of Bossier City, 857 F.2d
1058, 1060 (5th Cir. 1988) (ADEA); Jones v. Grinnell Corp., 235 F.3d 972, 975
(5th Cir. 2001) (TCHRA); McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir.
2008) (Title VII).       To properly exhaust, a private employee must file an
administrative charge with the EEOC. Pacheco v. Mineta, 448 F.3d 783, 788 n.6
(2006). In assessing whether a charge properly exhausts a particular claim, we
“construe[] an EEOC complaint broadly,” but we will only find a claim was
exhausted if it could have been “reasonably . . . expected to grow out of the
charge of discrimination.” McClain, 519 F.3d at 273 (quotation omitted).
       Appellants uniformly allege race, age, and national origin discrimination
as well as retaliation in the Third Amended Complaint. Nonetheless, their
individual EEOC charges only identified certain claims as to each of them as



       7
        We also pretermit the question of whether HPA constituted an “employer” or could
otherwise be subjected to successor liability under the applicable statutes.
       8
          In addressing their race and retaliation claims, appellants mix their discussion of
their Title VII and TCHRA race and retaliation claims with their discussion of their 42 U.S.C.
§ 1981 race and retaliation claims. Our holding as to exhaustion, like that of the district court,
only applies to those claims subject to an exhaustion requirement and does not reach
appellants’ various § 1981 claims.

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follows: national origin (Anyalebedhil, Hernandez, and Minambisseril), race
(Brumfield, Etoama, and Granville), and race and age (Davis, Jacobs, Jefferson
and Potier) either by checking the appropriate box or otherwise describing the
alleged discriminatory conduct in the narrative section of their charge.
Appellants cite nothing that suggests otherewise.
      Accordingly, we find that the appellants all have failed to exhaust their
retaliation claims under Title VII, the ADEA, and the TCHRA because they
could not be “reasonably . . . expected to grow out of the charge of
discrimination,” McClain, 519 F.3d at 273 (quotation omitted). For the same
reason, we conclude that the district court did not err in determining that the
following claims were unexhausted for the appellants listed in parentheses: race
and age (Anyalebedhil, Hernandez and Minambisseril), national origin and age
(Brumfield, Etoama, and Granville) and national origin (Davis, Jacobs, and
Jefferson).
              b. Age Discrimination under the ADEA and the TCHRA
      Only four appellants present properly exhausted age discrimination
claims: Davis, Jacobs, Jefferson, and Potier. The district court concluded after
extensive analysis that appellants’ age discrimination claims failed for two
independent reasons: 1) termination of older employees to cut costs and prevent
the vesting of pension benefits does not constitute age discrimination under the
ADEA and TCHRA as a matter of law; and 2) appellants could not make out a
prima facie case on the record before the district court. We agree with the
district court’s first ground of decision and, therefore, need not address whether
appellants could make out a prima facie case or the attendant discovery issues
advanced in the appellate briefing.
      Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), holds that an employer’s
decision to take an adverse employment action because of an employee’s
seniority or because an employee’s pension is about to vest does not, in itself,

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violate the ADEA. Applying Hazen, we have subsequently held that “the ADEA
prohibits discrimination on the basis of age, not salary or seniority.” Armendariz
v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995). The testimony cited
by appellants as grounds for reversal does not change, and in part directly
supports, the outcome dictated by Hazen and Armendariz.
      c. Race and National Origin Discrimination under Title VII, the
          TCHRA, and 42 U.S.C. § 1981
      Turning next to appellants’ race and national origin claims, the district
court concluded below that all of appellants’ claims under all of the applicable
statutes failed because 1) appellants’ could not make out a prima facie case as
to any of their claims and 2) none of the appellants’ eight attempts to
demonstrate pretext in response to appellees’ proffer of a legitimate reason for
termination had merit.       We agree with the district court’s conclusion that
appellants’ fail to make out a prima facie case as to any of their race or national
origin discrimination claims, and, again, we do not reach the question of pretext.
      To establish a prima facie case of race or national origin discrimination,
a plaintiff must show she: 1) is a member of a protected class; 2) was qualified
for the position at issue; 3) was subjected to an adverse employment action; and
4) was replaced by someone outside the protected class, or that other similarly
situated persons were treated more favorably. McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007).9 Only the fourth element – treatment of similarly
situated employees – is in dispute.
      Appellants have failed to adduce or cite any evidence in the record
demonstrating that other similarly situated employees were treated differently
by appellees.    In their briefing, appellants point to the following items as


      9
        Appellants’ assert on appeal without citation that only the first three elements
discussed in McCoy are required to make out a prima facie case. As McCoy itself
demonstrates, this argument is wholly without merit. McCoy, 492 F.3d at 556.

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summary judgment evidence satisfying the fourth element of the prima facie
case: 1) the Smilex Proctored Tests List; 2) the Smilex RSP Training System
Summary Report; 3) excerpts of Willman’s deposition testimony; and 4) Keith
Moffitt’s affidavit.10 As noted above, appellants’ have failed to appeal the district
court’s exclusion of Keith Moffitt’s affidavit.              The citations to Willman’s
deposition either do not support appellants’ argument or misrepresent her
testimony. As such, the only items of competent summary judgment evidence
advanced by appellants are the Proctored Test List and the Summary Report.
       Neither of these items, however, make out a prima facie case. First, the
Proctored Test List actually cuts against appellants in that it shows appellees’
retest policy was applied to at least one non-minority individual, Keith Moffitt.
Second, the Summary Report, as explained by the district court, does not contain
sufficient information to make out a prima facie case.                      Appellants have
repeatedly relied upon a chart created by their counsel using the Summary
Report to demonstrate appellees’ disparate treatment of white employees. Yet
the Summary Report does not include any information regarding the race or
national origin of these supposed comparators. Appellants attempt to identify
the races 11 of these comparators using the Moffitt Affidavit 12 notwithstanding


       10
          We note that these four items were not the only parts of the record cited by
appellants. Instead, appellants included numerous citations that either failed to support the
contention advanced or misrepresented the contents of the record. Appellants also alleged new
arguments to support their disparate treatment claims in their appeal. Specifically,
appellants argue for the first time on appeal that: 1) they were passed over for promotions in
favor of white employees and 2) appellees allowed white employees, their families, and their
pets to seek shelter in Christus’s facility during Hurricane Rita but refused similar treatment
to black employees. Arguments such as these, presented for the first time on appeal, are
waived. LeMaire v. Louisiana, 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised
before the district court are waived and cannot be raised for the first time on appeal.”).
       11
         Appellants make no effort in any of their briefing to identify the national origins of
the alleged comparators or explain their failure to do so.
       12
         Appellants appear to concede in their reply brief that the Moffitt Affidavit is the only
source of the missing comparator information when they assert that: “The allegations were

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the fact that it is not before the court.13 Accordingly, appellants have failed to
demonstrate a prima facie case of race or national origin discrimination as to all
appellants.
       2. Appellants’ 42 U.S.C. § 1981 Retaliation Claims
       The district court granted summary judgment on appellants’ § 1981
retaliation claims for two reasons: 1) appellants failed to state a plausible claim
for relief as to retaliation in their Third Amended Complaint; and 2) appellants
failed to advance competent summary judgment evidence demonstrating they
had engaged in protected activity. Appellants’ address the merits of this claim
only in their reply brief. Accordingly, any claimed error as to the grant of
summary judgment on appellants’ § 1981 retaliation claims has been waived.
See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003) (holding
that appellant waived issue by failing to raise it in opening brief).
       3. Appellants’ Hostile Work Environment and Disparate Impact
            Claims
       Finally, we address appellants’ claim that the district court erred in
dismissing their hostile work environment and disparate impact claims.
Appellants’ Third Amended Complaint does not reference either a hostile work
environment claim or a disparate impact claim.                  The facts included in the
complaint do not describe a hostile work environment claim or a disparate


based also in part on the evidence in the declaration of Keith Moffitt . . . who identified the
races of the employees listed on the Smilex summary report below.” (emphasis in original).
       13
          Though appellants also claim they were afforded insufficient discovery, they failed
to move for relief under Federal Rule of Civil Procedure 56(f) and therefore have waived this
argument on appeal. United States v. Bloom, 112 F.3d 200, 205 n.17 (5th Cir. 1997) (failure
to move under Rule 56(f) waives a party’s complaint that the district court ruled after
inadequate discovery); Potter v. Delta Air Lines, 98 F.3d 881, 887 (5th Cir. 1996) (failure to
seek relief under Rule 56(f) “foreclose[s] [a party] from arguing that [it] did not have adequate
time for discovery”); see generally 11 JAM ES WM . MOORE ET AL ., MOORE ’S FEDERAL PRACTICE
§ 56.10(8)(b) (2010) (discussing the appellate consequences of failure to make a Rule 56(f)
motion).

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impact claim. Neither of these claims are discussed anywhere in appellants’ 61-
page response to appellees’ original motion of summary judgment. The first time
appellants in any way suggest they are advancing either claim appears in their
improperly filed sur-reply. As the district court correctly explained below, a
plaintiff may not rely on new claims raised for the first time in a response – let
alone a sur-reply – to a motion for summary judgment. See Cutrera v. Bd. of
Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which
is not raised in the complaint, but, rather, is raised only in response to a motion
for summary judgment is not properly before the court.”).            Additionally,
“[c]onclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant’s burden in a motion for summary
judgment,” Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quotation
omitted), much less make out a claim. Accordingly, we agree with the decision
below that the appellants’ hostile work environment and disparate impact claims
were not properly before the court.
                              IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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