     Case: 16-11299      Document: 00514258358         Page: 1    Date Filed: 12/04/2017




                       REVISED DECEMBER 4, 2017

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

                                      No. 16-11299
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          December 1, 2017

KRISTIN PHILLIPS,                                                           Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellant

v.

CARIS LIFE SCIENCES, INCORPORATED; MIRACA LIFE SCIENCES,
INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-3042


Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Kristin Phillips (“Phillips”) brought suit against
Caris Life Sciences, Inc., and Miraca Life Sciences, Inc. (hereinafter “Caris”),
alleging a hostile work environment, sex discrimination, and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Caris moved


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11299    Document: 00514258358        Page: 2   Date Filed: 12/04/2017



                                    No. 16-11299
for summary judgment on Phillips’s claims, which the district court granted.
Phillips timely appealed. For the reasons that follow, we AFFIRM.
                               I.      BACKGROUND
      Phillips was employed with Caris as a sales director from March 2010
until her termination on November 7, 2011. Over the course of her employment
with Caris, Phillips complained that she was sexually harassed by David
Heddon (“Heddon”), a former co-worker. Specifically, in March 2010, shortly
after she began working for Caris, Phillips alleges that Heddon licked her neck
and ear while they shared a taxi cab. Several months later, on November 10,
2010, Phillips alleges that Heddon propositioned her while the two had drinks
in Heddon’s hotel room. In February 2011, Phillips alleges she became aware
that Heddon was spreading rumors about a sexual relationship between
Phillips and another co-worker.
      Phillips alleges that she complained to her supervisor, Scott Grybeck
(“Grybeck”), shortly after becoming aware of the rumors Heddon was allegedly
spreading. In response to Phillips’s complaint, Grybeck sent an email to his
sales team, admonishing them for spreading rumors and warning that any
additional reports of similar behavior would result in disciplinary action in the
form of a write-up. Grybeck also subsequently arranged a lunch meeting
between himself, Heddon and Phillips to “clear the air,” after which Heddon
apologized to Phillips and took responsibility for his action; Heddon did not
make additional sexual advances towards or comments about Phillips.
      Meanwhile, Phillips’s sales productivity had begun to decline, and she
consistently failed to complete required administrative tasks in a timely
manner. Consequently, Caris placed Phillips on a performance improvement
plan (“PIP”) to remediate her drop in sales and failure to timely complete
necessary administrative tasks. Feeling that her placement on the PIP was
retaliation for her sexual harassment complaints, Phillips filed a charge of
                                         2
     Case: 16-11299       Document: 00514258358         Page: 3    Date Filed: 12/04/2017



                                      No. 16-11299
discrimination with the EEOC on September 6, 2011. In her charge, Phillips
alleged that she had been the victim of sexual harassment, which she reported
to her supervisor, but was not investigated “until over three months later.” She
claimed that because she had complained, she “was retaliated against and put
on a [PIP],” and that “the stress created by this discrimination” forced her to
take a medical leave of absence. Principally, she alleged that she believed she
had “been sexually harassed and . . . subjected to a hostile work environment.”
Because of work performance issues, Phillips was fired in November 2011.
       On March 20, 2013, following her termination but while her EEOC
investigation was still pending, Phillips’s former counsel sent an email to the
EEOC, informing it that “[Phillips] was in fact the victim of sexual harassment
and to add insult to injury, she was subsequently terminated for making these
complaints of sexual harassment and hostile work environment.” Notably,
Phillips did not formally supplement or amend her original charge of
discrimination.
       On August 25, 2014, after receiving her right-to-sue-letter, 1 Phillips sued
Caris, alleging only sex discrimination based on her termination, a hostile
work environment based on Heddon’s sexual harassment, and retaliation
based on a reduction of her sales territory in violation of Title VII. After
extensive discovery, the district court granted Caris’s motion for summary
judgment, holding that (1) the March and November 2010 incidents of sexual
harassment were not severe or pervasive enough to have altered the terms of
Phillips’s employment; (2) Phillips failed to exhaust the necessary
administrative remedies related to her sex discrimination claim; and (3)



       1 Phillips received her right to sue letter on May 30, 2014, nearly two years and nine
months after she submitted her EEOC charge. In her letter, the EEOC determined that,
“based upon its investigation, [it] was unable to conclude that the information obtained
establishe[d] violations of the statutes.”
                                             3
    Case: 16-11299     Document: 00514258358      Page: 4   Date Filed: 12/04/2017



                                  No. 16-11299
Phillips failed to exhaust the necessary administrative remedies related to her
retaliation claim based on her reduction in sales territory and failed to properly
plead her retaliation claim based on her placement on a PIP. Specifically,
although Phillips alleged her termination constituted sex discrimination and
retaliation in her complaint, she did not make that allegation in her EEOC
charge. Additionally, although she alleged retaliation based on placement on a
PIP in her EEOC charge, she did not make that claim in her complaint.
Inversely, although she alleged her reduction in sales territory was retaliation
in her complaint, she did not raise the allegation in her EEOC charge.
                                 II.   DISCUSSION
      On appeal, Phillips raises a host of objections to the district court’s
summary judgment dismissal of her sex discrimination, hostile work
environment, and retaliation claims. We review each issue of error de novo.
Roberson v. Alltel Info. Servs., 373 F.3d 647, 650 (5th Cir. 2004).
      This court will affirm a district court’s grant of summary judgment “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuinely disputed fact is only material when the evidence would permit a
reasonable jury to return a verdict in favor of the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion
for summary judgment, the district court, as well as this court, must construe
the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in her favor. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150–51 (2000).
      Here, the district court dismissed most of Phillips’s claims because of
procedural defects. Alternatively, the district court noted Phillips’s inability to
prevail on the merits of her individual claims and further supported its
dismissal on those grounds. Because we find Phillips failed to administratively
                                        4
    Case: 16-11299     Document: 00514258358      Page: 5   Date Filed: 12/04/2017



                                  No. 16-11299
exhaust some of her claims and failed to properly plead others, we will not
address whether Phillips’s substantive arguments may survive summary
judgment.
      A. Hostile Work Environment
      On appeal, Phillips does not specifically challenge the district court’s
findings regarding her hostile work environment claim. That is, although
Phillips’s opening brief makes the conclusory statement that “[t]he harassment
was severe and pervasive enough to alter the conditions of the [sic] Phillips’[s]
employment and create an abusive work environment[,]” Phillips does not
provide contentions, facts, legal citations, arguments, or analysis to allow the
court to conclude that she is entitled to relief on this issue. See Fed. R. App. P.
28(a)(8)(A) (requiring the argument section of an appellant’s brief to contain
“appellant’s contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies”); Procter & Gamble Co. v. Amway
Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (noting that “[f]ailure to adequately
brief an issue on appeal constitutes waiver of that argument.”). Because
Phillips failed to adequately brief her hostile work environment claim with
sufficient specificity on appeal, she has effectively abandoned the claim. Id.
      B. Sex Discrimination
      Phillips next alleges that her employment was terminated because she
is a female, and argues that the district court erroneously determined her sex
discrimination claim failed on administrative exhaustion grounds and,
alternatively, on the merits.
      This court reviews de novo a district court’s determination of whether
the exhaustion requirement applies or is satisfied. Pacheco v. Mineta, 448 F.3d
783, 788 (5th Cir. 2006). “A Title VII suit may extend as far as, but not further
than, the scope of the EEOC investigation which could reasonably grow out of
the administrative charge.” Simmons-Myers v. Caesars Entm’t Corp., 515 F.
                                        5
    Case: 16-11299     Document: 00514258358      Page: 6    Date Filed: 12/04/2017



                                  No. 16-11299
App’x 269, 272 (5th Cir. 2013) (per curiam) (unpublished) (quotation marks
omitted) (citing Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993)).
Further, after filing a charge, claimants may amend their initial charges to
cure any “technical defects or omissions . . . or to clarify and amplify allegations
made therein.” 29 C.F.R. § 1601.12(b). Termination is a discrete event for
which a claimant must file a supplemental charge or amend the original EEOC
charge. See Simmons-Myers, 515 F. App’x at 273; Fine, 995 F.2d at 577–78.
      It is undisputed that Phillips did not file a formal supplement or
amendment to her September 26, 2011 EEOC charge following her termination
on November 7, 2011. Phillips avers that the letter submitted to the EEOC by
her former attorney, which noted that Phillips was the victim of sexual
harassment and “was subsequently terminated for making . . . complaints of
sexual harassment and hostile work environment,” constituted a supplement
to her then-pending charge. This purported supplement, she argues, brought
her sex discrimination and retaliation claims stemming from her termination
within the scope of the EEOC’s investigation. This correspondence, however,
does not include the allegation that Phillips was fired because she was a
woman, but rather because she complained about sexual harassment. Thus,
even assuming arguendo that the letter is a proper charge amendment, it does
not include Phillips’s sex discrimination claim, rendering the claim
unexhausted.
      Phillips also argues that, notwithstanding our finding on exhaustion, she
may proceed on administratively unexhausted sex discrimination and
retaliation claims stemming from her termination because of an exception to
the exhaustion requirement articulated in Gupta v. East Texas State
University, which allows a plaintiff to proceed in court on an unexhausted
retaliation claim if that claim grows out of the facts alleged in an earlier
charge. 654 F.2d 411 (5th Cir. 1981). However, this court has repeatedly held
                                         6
     Case: 16-11299        Document: 00514258358          Page: 7     Date Filed: 12/04/2017



                                        No. 16-11299
that the Gupta exception only applies when the new claim is one of retaliation;
Gupta does not apply to cases in which both retaliation and discrimination
claims are alleged. See Scott v. Univ. of Miss., 148 F.3d 493, 514 (5th Cir. 1998)
(holding that Gupta “is limited to retaliation claims”), abrogated on other
grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Simmons-Myers,
515 F. App’x at 273–74 (5th Cir. 2013) (noting that “this court has not applied
the Gupta exception to claims in which both retaliation and discrimination are
alleged”); Sapp v. Potter, 413 F. App’x 750,752–53 (5th Cir. 2011) (per curiam)
(unpublished)       (same).    Because      Phillips     brings     both    retaliation     and
discrimination claims stemming from her termination, the Gupta exception
does not apply. We therefore conclude the district court did not err in
dismissing these claims. Roberson, 373 F.3d at 650.
       C. Retaliation
       Finally, Phillips argues that the district court erroneously dismissed her
retaliation claims stemming from her placement on a PIP and her
termination. 2 Assuming arguendo these retaliation claims were properly
exhausted, Phillips’s complaint is devoid of any mention of the discrete acts
underlying her claims as potential bases for her lawsuit. Litigants may not
flout the pleading requirements set out in Federal Rule of Civil Procedure
8(a)(2), which requires that a pleading contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Phillips completely
failed to plead retaliation claims based on these events in her complaint. 3



       2 Phillips’s brief does not specifically challenge the district court’s finding regarding
her retaliation claims stemming from the alleged reduction in her sales territory.
       3 Phillips also argues, for the first time on appeal, that her retaliation claims

stemming from her placement on a PIP and her termination were tried by the consent of the
parties under Federal Rule of Civil Procedure 15(b)(2). Because this argument was not raised
before the district court, it is waived. See, e.g., Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d
864, 877 (5th Cir. 2009) (“[A]rguments not raised before the district court are waived and
cannot be raised for the first time on appeal.”).
                                               7
     Case: 16-11299   Document: 00514258358     Page: 8   Date Filed: 12/04/2017



                                 No. 16-11299
Therefore, these claims were not properly before the district court and are not
properly before this court. We conclude the district court did not err in
dismissing these claims. Roberson, 373 F.3d at 650.

                               III.   CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court
in full.




                                      8
