     Case: 16-60597   Document: 00514141993    Page: 1   Date Filed: 09/05/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                             United States Court of Appeals

                                No. 16-60597
                                                                      Fifth Circuit

                                                                    FILED
                                                            September 5, 2017

BERNICE MALCOLM,                                               Lyle W. Cayce
                                                                    Clerk
             Plaintiff–Appellant,

v.

VICKSBURG WARREN SCHOOL DISTRICT BOARD OF TRUSTEES;
BRYAN PRATT, individually and in his official capacity; JAMES STIRGUS,
JR., individually and in their official capacities as members of the Board of
Trustees, Vicksburg Warren School District; JOE LOVIZA, individually and
in their official capacities as members of the Board of Trustees, Vicksburg
Warren School District; ALONZO STEVENS, individually and in their
official capacities as members of the Board of Trustees, Vicksburg Warren
School District; SALLY BULLARD, individually and in their official
capacities as members of the Board of Trustees, Vicksburg Warren School
District; DOCTOR ELIZABETH DURAN SWINFORD, individually and in
her official capacity as Superintendent of Schools; PAULA JOHNSON,
individually and in her official capacity as Assistant Superintendent;
CHARLES "BUBBA" HANKS, individually and in his official capacity as
Administrative Assistant to the Superintendent of Schools; DOCTOR JOHN
E. WALLS, JR., individually and in his official capacity as Administrative
Assistant to the Superintendent of Schools; EDDIE L. SPANN, individually
and in his official capacity as Director of Special Education; HEIDI R.
CHAUSSE, individually and in her official capacity as Assistant Director of
Special Education; CHAD SHEALY, individually and in his official capacity
as superintendent of schools-Vicksburg Warren School District; VICKSBURG
WARREN SCHOOL DISTRICT,

             Defendants–Appellees.
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                                      No. 16-60597


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CV-853


Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Bernice Malcolm sued the Vicksburg Warren School District (the
District), its Board of Trustees (the Board), and individuals associated with the
District and the Board in their individual and official capacities, alleging
various civil rights violations and asserting breach of contract claims. The
district court granted summary judgment in favor of the defendants, dismissed
Malcolm’s claims, and declined to reconsider its judgment. We affirm.
                                             I
       Malcolm and the District entered into an employment contract on
February 6, 2012, and the contract was renewed for the 2012-2013 school year.
In October of 2012, Malcolm’s supervisor, Eddie Spann, told Malcolm: “Don’t
come in here trying to force yourself on me” when she came to his office to
speak about a student. Malcolm contacted Paula Johnson, Spann’s supervisor,
and informed her of Spann’s comment. Though Malcolm asserts she did not
consider the comment to be sexual harassment, the District conducted an
investigation.     Malcolm subsequently raised additional complaints about
Spann concerning what she felt was unfair and unprofessional behavior
towards her. Malcolm was placed on paid administrative leave on January 18,
2013, to allow her to document any additional concerns, and shortly thereafter



       * 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.

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                                  No. 16-60597
her supervisor was changed from Spann to Heidi Chausse. Chausse informed
Malcolm on February 4, 2013, that her contract would not be renewed for the
next school year. The following day, Malcolm received a memo from the district
superintendent stating that Malcolm was not entitled to a hearing before the
school board regarding her non-renewal. Chausse later informed Malcolm that
“required documentation” for absences on a total of twelve days in 2012 was
missing.
      Malcolm, a fifty-four-year-old African-American woman, then filed a
complaint with the Equal Opportunity Employment Commission (EEOC)
alleging discrimination based on race, age, and retaliation premised on her
participation in the investigation of sexual harassment by Spann. Malcolm
subsequently resigned and the Board accepted her resignation on April 28,
2013. Malcolm filed a second complaint with EEOC on June 4, 2013, alleging
discrimination based on race, age, sex, and retaliation. The EEOC issued right
to sue letters with regard to both EEOC complaints, writing to Malcolm that
there was “insufficient evidence to establish a violation.”
      Malcolm’s position was later filled by a younger, white female. Malcolm
instituted this suit.
      The defendants moved for summary judgment. The District adduced
evidence that it terminated Malcolm because she failed to “comply with the
District’s policy on leave” and because she “exhibited issues with taking
instruction from management.” It pointed to the letter informing Malcolm of
the inadequate documentation for the twelve missed days in the fall of 2012,
as well as an email from Malcolm to Spann and another colleague that
suggested    Malcolm     should   take   over   some   of     the   colleague’s   job
responsibilities. A follow-up letter from the colleague indicated the colleague
objected to Malcolm’s suggestion and felt that Malcolm’s email was “unethical.”


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                                      No. 16-60597
Malcolm asserts she had no issues with the District or her co-workers prior to
reporting Spann’s comments.
       The district court granted the motion and dismissed all of Malcolm’s
claims. Malcolm filed a notice of appeal and, on the same day, moved for
reconsideration, asserting new arguments and attaching additional evidence,
including her own affidavit. The district court construed Malcolm’s motion as
a Rule 60(b)(6) motion.          It noted that the evidence in the motion for
reconsideration was available to Malcolm prior to the court’s entry of judgment
and that she had provided no excuse or explanation for her failure to include
it in her opposition to the motion for summary judgment.                        The court
determined that, even if it were to consider Malcolm’s arguments “more
substantively,” the arguments would “fall short under Rule 60(b)(6).”
Malcolm’s appeal from the district court’s grant of summary judgment and
dismissal of her claims is now before us.
                                             II
       Because Malcolm is proceeding pro se, we liberally construe her
arguments on appeal. 1 However, we also note that Malcolm has previously
filed several civil rights suits in state and federal court alleging discrimination
and has been permanently enjoined from filing pro se actions in the United
States District Court for the Western District of New York without obtaining
leave of that court to file. 2 Malcolm has unsuccessfully litigated these cases
since at least 2008 and has filed petitions for a writ of certiorari with the


       1 Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“[F]ederal courts, this one
included, have a ‘traditional disposition of leniency toward pro se litigants.’” (quoting
Spotville v. Cain, 149 F.3d. 374, 377 (5th Cir. 1998) (per curiam))).
       2 See Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist., 737 F. Supp.

2d 117, 120-21 (W.D.N.Y. 2008); see also Malcolm v. Honeoye Falls-Lima Educ. Ass’n, No. 08-
CV-6551, 2015 WL 1507830, at *1 n.2 (W.D.N.Y. Mar. 31, 2015) (listing four of Malcolm’s
discrimination and retaliation cases).

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                                         No. 16-60597
United States Supreme Court. 3              We are therefore mindful that, although
proceeding pro se, she is not operating in a setting completely foreign to her.
       We also note that the traditional leniency afforded to a pro se plaintiff
does not excuse Malcolm from her burden of opposing summary judgment
through the use of competent summary judgment evidence. 4 Malcolm’s brief
cites extensively to the evidence she presented with her motion for
reconsideration. In that motion, Malcolm submitted her own 97 paragraph
affidavit with 139 pages of accompanying exhibits, but offered no explanation
or excuse for why this evidence was not presented to the district court before
its ruling on summary judgment. As the district court noted, its “equitable
powers under [Rule 60(b)(6)] do not extend to considering evidence that could
have been presented at trial.” 5 The district court applied the same principles
to Malcolm’s failure to introduce her own affidavit and supporting exhibits
prior to judgment, and it ultimately denied the motion. On the same day she
filed the motion for reconsideration, Malcolm filed a notice of appeal from the
district court’s grant of summary judgment. However, she has not filed a notice
of appeal from the denial of her motion for reconsideration, and, even if we
construed her brief as a notice of appeal, it would be untimely. 6 The motion


       3  Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist., 136 S. Ct. 2411 (2016) (mem.)
(denying petition for writ of certiorari).
        4 Davis, 798 F.3d at 293 (“[T]his is not to say that pro se plaintiffs don’t have to submit

competent evidence to avoid summary judgment, because they do.”).
        5 Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d 767, 774 (5th Cir.

1995); United States v. 329.73 Acres of Land, More or Less, 695 F.2d 922, 926 (5th Cir. 1983)
(“This clause of the Rule provides ‘a grand reservoir of equitable power to do justice in a
particular case,’ but that well is not tapped by a request to present evidence that could have
been discovered and presented at trial through the exercise of due diligence.” (quoting Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981)) (citations omitted)).
        6 FED. R. APP. P. 3(c)(1)(B) (requiring a notice of appeal to “designate the judgment,

order, or part thereof being appealed”); FED. R. APP. P. 4(a)(4)(B)(ii) (“A party intending to
challenge an order disposing of [a Rule (60)(b) motion], . . . must file a notice of appeal, or an
amended notice of appeal . . . within the time prescribed by this Rule measured from the

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                                       No. 16-60597
for reconsideration was denied on November 22, 2016, and Malcolm’s brief was
filed February 13, 2017, well outside the 30-day window. 7 We therefore lack
jurisdiction to consider the district court’s denial of Malcolm’s motion for
reconsideration.
       Turning to the appeal presently before us—that of the district court’s
grant of summary judgment and corresponding dismissal of Malcolm’s
claims—we will not consider either the arguments or additional evidence
submitted with the motion for reconsideration because, “[a]lthough on
summary judgment the record is reviewed de novo, this court . . . will not
consider evidence or arguments that were not presented to the district court
for its consideration in ruling on the motion.” 8
       We construe Malcolm’s briefing on appeal to contest the district court’s
dismissal of the following: (1) Title VII claims for race and sex discrimination
and retaliation; (2) claims under the ADEA for age discrimination; (3) a breach
of contract claim; and (4) a claimed violation of Mississippi’s Education
Employment Procedures Law. To the extent Malcolm is appealing on grounds
other than those we have been able to identify, these grounds are waived for




entry of the order disposing of the last such remaining motion.”); Williams v. Chater, 87 F.3d
702, 705 (5th Cir. 1996) (noting that “we have previously recognized that where a Rule 60(b)
motion is filed after the notice of appeal from the underlying judgment, a separate notice of
appeal is required in order to preserve the denial of the Rule 60(b) motion for appellate
review” and that without “a separate notice of appeal, we are without jurisdiction to review
the trial court’s disposition of a Rule 60(b) motion”).
        7 See Taylor v. Johnson, 257 F.3d 470, 474-75 (5th Cir. 2001) (explaining that a

separate notice of appeal from a denial of Rule 60(b) motion is generally required, and while
a brief may serve as its “functional equivalent,” it must still be timely filed and comport with
the requirements of Federal Rule of Appellate Procedure 3).
        8 Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013)

(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992)) (alteration in
original).

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                                       No. 16-60597
inadequate briefing. 9 We review each of these claims de novo, interpreting all
facts and resolving all reasonable inferences in favor of Malcolm, the
nonmovant. 10      “Summary judgment is appropriate only when the record
reveals ‘no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.’” 11
                                             III
       We consider Malcolm’s claims under Title VII and the ADEA together.
As an initial matter, we affirm the district court’s dismissal of these claims
against all individual defendants. “Individuals are not liable under Title VII
in either their individual or official capacities.” 12             Likewise, “the ADEA
‘provides no basis for individual liability for supervisory employees.’” 13 The
district court correctly dismissed these claims against the individual
defendants and we address the merits only as to the institutional defendants.
       Claims of employment discrimination or retaliation under Title VII and
the ADEA premised on circumstantial evidence are analyzed using the
framework set forth in McDonnell Douglas Corp. v. Green. 14 For each, the
plaintiff is required to establish a prima facie case of discrimination or
retaliation. 15 If the plaintiff is able to do so, the burden shifts to the defendant


       9  See Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014) (explaining that a party
waives a claim when he “fails to identify a theory as a proposed basis for deciding the claim,
and does not explain, in any perceptible manner, why the facts would allow a reasonable jury
to decide in his favor”).
        10 See EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016).
        11 Id. (quoting FED. R. CIV. P. 56(a)); McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007).
        12 Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003).
        13 Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001) (quoting Stults v.

Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996)).
        14 411 U.S. 792, 802 (1973).
        15 Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (requiring a Title VII

plaintiff claiming discrimination to show that she: “(1) is a member of a protected class;
(2) was qualified for the position; (3) was subject to an adverse employment action; and

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                                       No. 16-60597
“to articulate a legitimate, non-discriminatory reason for the adverse
employment action.” 16 The defendant need only “raise[] a genuine issue of fact
as to whether it discriminated”—it “need not persuade the court that it was
actually motivated by the proffered reasons.” 17 If a defendant meets this
standard, the burden shifts back to the plaintiff to demonstrate that the
proffered reason is a mere pretext for the discrimination or retaliation. 18
“Although intermediate evidentiary burdens shift back and forth under this
framework, ‘[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.’” 19
       Even if Malcolm could meet her burden to establish a prima facie case of
discrimination or retaliation for each of her Title VII and retaliation claims
(which we do not resolve here), her claims fail as a matter of law because she
has not created a genuine dispute of material fact as to whether the District’s




(4) was replaced by someone outside the protected class, or, in the case of disparate
treatment, shows that other similarly situated employees were treated more favorably”);
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (requiring a plaintiff
claiming age discrimination under the ADEA to show that: “(1) he was discharged; (2) he was
qualified for the position; (3) he was within the protected class at the time of discharge; and
(4) he was either i) replaced by someone outside the protected class, ii) replaced by someone
younger, or iii) otherwise discharged because of his age” (quoting Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 309 (5th Cir. 2004))); Zamora v. City of Houston, 798 F.3d 326, 331 (5th
Cir. 2015) (requiring a plaintiff claiming retaliation under Title VII to show that: “(1) the
employee engaged in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal connection exists between that
protected activity and the adverse employment action.” (quoting Thomas v. Tex. Dep’t of
Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000))).
        16 Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017); Machinchick,

398 F.3d at 350; McCoy, 492 F.3d at 557.
        17 Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
        18 Alkhawaldeh, 851 F.3d at 426; Machinchick, 398 F.3d at 350; McCoy, 492 F.3d at

557.
        19 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) (quoting

Burdine, 450 U.S. at 253).

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                                       No. 16-60597
proffered reasons for her dismissal were pretextual. The District “articulate[d]
a legitimate, non-discriminatory reason” 20 for her non-renewal, citing
Malcolm’s non-compliance with the District’s leave policy and her “issues with
taking instruction from management.” In support, the District provided a
letter documenting twelve absences in 2012 for which Malcolm had not
submitted required documentation, as well as the email in which Malcolm
suggested she should take over a co-worker’s duties and the co-worker’s
response indicating she felt Malcolm was trying to replace her. The burden
shifted to Malcolm to show the proffered reasons were mere pretext. 21
       Malcolm points to no evidence other than her own “unsubstantiated
assertions,” 22 to show the District’s reasons for not renewing her contract were
pretextual. “[P]retext cannot be established by mere ‘conclusory statements’
of a plaintiff who feels [s]he has been discriminated against.” 23 Malcolm has
not pointed to any competent summary judgment evidence to rebut the
District’s justification for her non-renewal.              Because Malcolm bears the
“ultimate burden” of proof to show discrimination at trial, 24 and she has failed
to “demonstrat[e] by competent summary judgment proof that there is an issue


       20  Alkhawaldeh, 851 F.3d at 426.
       21  See Burdine, 450 U.S. at 255.
        22 See Grimes v. Tex. Dept. of Mental Health and Mental Retardation, 102 F.3d 137,

139 (5th Cir. 1996).
        23 EEOC v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984); see also Douglass

v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (“[C]onclusory
allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden.”); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.
1994) (noting that an employee’s “self-serving generalized testimony stating her subjective
belief that discrimination occurred . . . is simply insufficient to support a jury verdict in
plaintiff's favor”); Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991)
(“Summary judgment, to be sure, may be appropriate, ‘[e]ven in cases where elusive concepts
such as motive or intent are at issue, . . . if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.” (quoting Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)) (alteration in original)).
        24 Burdine, 450 U.S. at 256.



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                                       No. 16-60597
of material fact warranting trial” 25 on the question of pretext, summary
judgment in favor of the district was proper on each of her claims under Title
VII and the ADEA.
                                              IV
       Malcolm asserted state law claims for breach of contract and
constructive discharge against the district. In her opening brief, Malcolm
focuses solely on her allegation that, after her non-renewal, she was in a car
accident that was “staged” by co-workers, which supports her claim of
constructive discharge and, therefore, breach of contract. She states that two
individuals implied the accident was staged, citing to an audio recording of a
conversation with a co-worker and her own affidavit attesting to what a now-
deceased police officer implied in conversation.               Though she attached the
recording in her response in opposition to summary judgment, Malcolm made
no argument about the car accident to the district court, and it is unclear from
the record whether these recordings would be admissible at trial. Malcolm has
not offered any explanation as to what admissible form any of this evidence
might take at trial. 26 Malcolm’s only other arguments regarding her breach of
contract and constructive discharge claims appear for the first time in her reply
brief and are therefore waived. 27 She has failed to adduce any evidence that
would show “conditions so intolerable that the employee reasonably felt
compelled to resign.” 28 The District was entitled to summary judgment as to
her claims for breach of contract and constructive discharge.


       25  Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995) (per curiam)).
        26 See Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017).
        27 United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (“Arguments raised

for the first time in a reply brief, even by pro se litigants . . . , are waived.”).
        28 See Cothern v. Vickers, 759 So. 2d 1241, 1246 (Miss. 2000) (quoting Bulloch v. City

of Pascagoula, 574 So. 2d 637, 640 (Miss. 1990)).

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                                      No. 16-60597
                                             V
       Malcolm asserts the District was required to afford her a hearing and an
explanation of reasons for her non-renewal under the Mississippi Education
Employment Procedures Law. 29 Her brief includes only a heading pertaining
to this claim. Because she is proceeding pro se, we consider the claim in light
of facts presented elsewhere in her briefing. The Mississippi statute provides
a right to a hearing for employees who have “completed a continuous period of
two (2) years of employment in a Mississippi public school district and one (1)
full year of employment with the school district of current employment” 30 and
does not apply until that employee “complete[s]” the relevant employment
period. 31
       Before becoming an employee of the District, Malcolm had been
employed for at least one year by another Mississippi public school district.
Her contract with the District is dated February 6, 2012, indicating that her
employment commenced on that date, and she was given a notice of non-
renewal on February 4, 2013. This is evidence that she had not completed one
full year of employment with the District when she received the non-renewal
notice.      Malcolm contends in this court that her employment actually
commenced on February 3, 2012, because “her district email account, as well
as other district accounts were set up for her” on that date. However, she did
not raise this in her response to the motion for summary judgment in the
district court and does not point to any evidence of this assertion that was
properly before the district court when it rendered judgment. The district court
properly granted summary judgment based on the record before it at the time
it rendered its decision.


       29 See MISS. CODE ANN. § 37-9-105.
       30 MISS. CODE ANN. § 37-9-103(1)(b).
       31 Hodgins v. Phila. Pub. Sch. Dist., 966 So. 2d 1279, 1283 (Miss. Ct. App. 2007).

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                                No. 16-60597
                            *        *         *
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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