Ramon v. Continental Airlines Inc.
153 F. App'x 257
October 31, 2005 · Docket 04-20983
Headnotes
Generated summaries- Headnote 1
The district court struck Ramon’s affidavits because they consisted only of ultimate conclusions and legal conclusions without supporting evidentiary facts, deeming them insufficient to defeat summary judgment.
- Headnote 2
The Fifth Circuit reviews a district‑court grant of summary judgment anew, applying the standard that summary judgment is appropriate only if there is no material factual dispute and the movant should win as a matter of law.
- Headnote 3
Ramon argued that older employees who could retire were similarly situated comparators, but the court found they differed in age and retirement eligibility, which are legitimate, material differences, thus she failed to meet the comparator requirement.
- Headnote 4
The court noted that allowing an older employee to retire while terminating a younger employee does not constitute unlawful age discrimination when the employees are not similarly situated and the employer’s reason is legitimate.
- Headnote 5
The court explained the heightened standard for IIED, emphasizing that ordinary, though unpleasant, employer investigations and terminations do not satisfy the outrageous‑conduct requirement.
- Headnote 6
The court found no evidence that the security interview was beyond ordinary employment questioning; therefore, Continental’s actions were not outrageous enough to support an IIED claim.
- Headnote 7
Ramon attempted to raise an FMLA claim for the first time on appeal; the court held that because the claim was never pleaded, it is barred under federal pleading rules.
- Headnote 8
The district court struck three affidavits submitted by the plaintiff because they lacked any admissible factual matter, citing Galindo that unsupported or conclusory affidavits cannot support or defeat summary judgment.
- Headnote 9
On appeal the court applied the de novo standard for reviewing the district court’s summary‑judgment order, emphasizing that summary judgment is appropriate only if the record shows no material fact in dispute, per Honeywell.
- Headnote 10
The court found that the employees cited by the plaintiff differed in age and retirement eligibility, which are legitimate, material distinctions, so the plaintiff failed to establish a similarly situated comparator under Wyvill.
- Headnote 11
The court held that the older employee’s ability to retire did not constitute unlawful age discrimination because the two employees differed in age and retirement eligibility, and the ADEA does not prohibit favorable treatment of older workers.
- Headnote 12
The court noted that the security interview and termination, while distressing, were not beyond the bounds of decency and thus failed to meet the outrages standard articulated in Brennan and other cases.
- Headnote 13
The court explained that the employer’s interrogation of the plaintiff did not trigger Miranda obligations because the Constitution’s self‑incrimination clause is limited to state action.
- Headnote 14
The plaintiff attempted to raise an FMLA claim for the first time on appeal; the court rejected it, citing Leverette that new claims must be pleaded in the complaint.
- Headnote 15
The court pointed to the general pleading requirements of Rule 8 and to Bejil, emphasizing that a complaint must place the defendant on notice of the relief sought, otherwise the claim is barred.
- Headnote 16
The district court struck Ramon’s three affidavits because they offered no factual evidence, only conclusions. The opinion held that such affidavits are properly excluded and cannot overcome a summary‑judgment motion.
- Headnote 17
The court reiterated that summary‑judgment review is de novo, requiring the absence of any genuine factual dispute before granting judgment as a matter of law.
- Headnote 18
Ramon attempted to show that older non‑protected employees received better treatment, but the court found they were not similarly situated because of age and retirement eligibility, so no genuine issue of discrimination existed.
- Headnote 19
The court noted that allowing an older employee to retire while terminating a younger employee does not constitute unlawful age discrimination because the ADEA does not prohibit favorable treatment of older workers.
- Headnote 20
Ramon’s allegation that a two‑and‑a‑half‑hour security interview and termination were outrageous was rejected because the conduct was within the normal range of employer discipline and lacked the requisite outlandishness.
- Headnote 21
Ramon attempted to raise an FMLA claim for the first time on appeal; the court held that because it was never pled, the claim is barred under federal pleading rules.
- Headnote 22
Ramon argued that older coworkers who could retire were similarly situated. The court held the comparators differed in age and retirement eligibility, so they were not similarly situated, defeating her initial burden.
- Headnote 23
Continental allowed a 62‑year‑old employee to retire while terminating the 48‑year‑old plaintiff. The court found the employees were not similarly situated and noted that ADEA does not forbid favorable treatment of older workers.
- Headnote 24
Ramon’s two‑and‑a‑half‑hour security interview and termination were distressing but not extreme; the court noted no medical treatment and that the questioning was ordinary, so the conduct was not outrageous.
- Headnote 25
Applying the de novo standard under Honeywell, the court affirmed the district court’s summary judgment because the record showed no factual dispute requiring a trial.
- Headnote 26
Ramon’s affidavits were excluded because they offered only ultimate conclusions that she was terminated because of age, national origin, and sex, and lacked any factual support.
- Headnote 27
Ramon attempted to raise an FMLA claim for the first time on appeal; the court held the claim was barred because federal pleading rules require inclusion in the complaint.
- Headnote 28
Ramon contended Continental should have given Miranda warnings; the court rejected this, noting that Miranda does not apply to private‑company questioning.
- Headnote 29
The district court struck Ramon's affidavits because they offered only ultimate conclusions about the employer's motive and lacked evidentiary facts, citing Galindo.
- Headnote 30
The Fifth Circuit affirmed the district court’s summary‑judgment ruling, applying the de novo standard articulated in Honeywell International v. Phillips Petroleum.
- Headnote 31
Ramon could not show that Arbaney, Lakey, or Couch were similarly situated because they were older and nearer retirement, so the court found no genuine issue of discrimination, citing Wyvill.
- Headnote 32
The court held that allowing an older employee to retire while terminating a younger employee was based on legitimate business reasons, not age discrimination, referencing General Dynamic Land Sys. v. Cline.
- Headnote 33
Ramon’s two‑and‑a‑half‑hour interview and termination, though distressing, were found to be within the scope of normal employment actions and thus not outrageous, applying Brennan v. Mercedes Benz USA.
- Headnote 34
Ramon’s FMLA claim was never alleged in the original complaint; the Fifth Circuit held that such a claim cannot be introduced on appeal, citing Leverette and Bejil.
- Headnote 35
The court noted that Continental, a private airline, was not required to inform Ramon of her Fifth Amendment rights during the interview, referencing United States v. Borchardt.
- Headnote 36
Ramon argued that three non‑protected employees received more favorable treatment than she did. The court found the comparators differed in age and retirement eligibility, which are legitimate, material differences, so her Title VII claim failed at the pleading stage.
- Headnote 37
Ramon submitted affidavits that merely alleged that Continental terminated her for prohibited reasons. The district court struck them as conclusory, and the appellate court affirmed that such affidavits are properly excluded.
- Headnote 38
The court examined the district court’s summary‑judgment rulings de novo, applying the standard that summary judgment is appropriate only in the absence of a genuine factual dispute.
- Headnote 39
Continental allowed a 62‑year‑old employee to retire while terminating the younger Ramon. The court held that the ADEA forbids discrimination against older workers, not favorable treatment of them.
- Headnote 40
Ramon alleged that the security interview and termination were outrageous. The court found the conduct was within the realm of ordinary employment actions and therefore not actionable as IIED.
- Headnote 41
Ramon attempted to add an FMLA claim on appeal without having pleaded it in the district court. The court applied the pleading rule and dismissed the claim as procedurally barred.
- Headnote 42
The district court struck Ramon’s affidavits because they contained merely conclusory allegations and legal conclusions, which the court found to be insufficient under the Galindo standard.
- Headnote 43
The Fifth Circuit affirmed the district court’s summary‑judgment ruling after a de novo review, applying the standard that summary judgment is proper only when there is no genuine issue of material fact.
- Headnote 44
Ramon could not show that Arbaney, Lakey, or Couch were similarly situated to her, because age and retirement eligibility differed, so her evidence failed to create a genuine issue of discrimination.
- Headnote 45
The court held that allowing an older employee to retire while terminating a younger employee is permissible when the employees are not similarly situated and the decision is based on legitimate business considerations.
- Headnote 46
The court found that Continental’s two‑and‑a‑half‑hour security interview and subsequent termination, though unpleasant, were not outrageous enough to constitute IIED.
- Headnote 47
Ramon’s FMLA claim was not included in her complaint, and the court held that such a claim is barred under the federal pleading rules and controlling Fifth Circuit precedent.
- Headnote 48
Ramon argued that three non‑protected employees received better treatment, but the court found they were older or nearer retirement—a legitimate difference—so they were not similarly situated. Accordingly, her Title VII disparate‑treatment claim could not survive summary judgment.
- Headnote 49
Ramon’s affidavits merely alleged that Continental terminated her for prohibited reasons without supporting facts. The district court struck them as conclusory, and the Fifth Circuit affirmed that such affidavits are improper under Galindo.
- Headnote 50
Applying the Honeywell standard, the court found that the evidence presented no factual dispute regarding the comparators’ similarity, so the district court’s summary‑judgment ruling was proper.
- Headnote 51
Ramon’s two‑and‑a‑half‑hour security interview and termination were found to be unpleasant but not outrageous, and therefore insufficient for IIED liability.
- Headnote 52
Ramon attempted to introduce an FMLA claim for the first time on appeal; the court held that under Leverette, Fed. R. Civ. P. 8 and Bejil, such a claim is barred.
- Headnote 53
The court noted that permitting an older employee to retire while terminating a younger employee, when the employees are not similarly situated, does not constitute unlawful age discrimination.
- Headnote 54
Ramon argued that older employees who were allowed to stay on the job were comparators, but the court found they were not similarly situated because of age and retirement eligibility differences.
- Headnote 55
The court held that allowing the 62‑year‑old Arbaney to retire while terminating the 48‑year‑old Ramon did not constitute unlawful age discrimination because the employees were not similarly situated.
- Headnote 56
The court found that Continental’s two‑and‑a‑half‑hour interview and termination, though unpleasant, did not rise to the level of outrageous conduct required for liability.
- Headnote 57
The Fifth Circuit affirmed the district court’s summary‑judgment rulings because the record contained no genuine factual disputes.
- Headnote 58
Ramon’s affidavits were excluded because they contained only legal conclusions and no factual support.
- Headnote 59
The court dismissed Ramon’s FMLA claim because it was never pleaded in her complaint or in the district‑court proceedings.
- Headnote 60
The court noted that Continental, as a private employer, was not obligated to provide Miranda warnings during its interview of Ramon.
- Headnote 61
Ramon submitted affidavits from coworkers asserting that her termination was pretextual. The district court struck them because they lacked factual content, relying on Galindo’s rule against conclusory affidavits.
- Headnote 62
The Fifth Circuit examined the district court’s summary‑judgment rulings and applied the de novo standard, emphasizing that summary judgment is appropriate only if the record shows no factual disputes.
- Headnote 63
Ramon argued that older employees who were allowed to stay on the job were similarly situated. The court found the employees differed in age and retirement eligibility, so they were not proper comparators.
- Headnote 64
Continental permitted a 62‑year‑old employee to retire while terminating the younger plaintiff. The court held that because the older employee was not a similarly situated comparator and received favorable treatment, no ADEA violation occurred.
- Headnote 65
Ramon claimed that a two‑and‑a‑half‑hour security interview and termination were outrageous. The court found the interview was merely unpleasant and did not rise to the level required for IIED.
- Headnote 66
Ramon attempted to raise an FMLA claim for the first time on appeal. The court held the claim was procedurally barred because it had never been pleaded.
- Headnote 67
The district court struck Ramon’s affidavits because they offered no more than conclusory allegations; the court correctly applied Galindo, which holds that unauthenticated, conclusory affidavits cannot support a genuine‑issue defense.
- Headnote 68
The Fifth Circuit reviews a district‑court grant of summary judgment without deference, applying the Honeywell standard that summary judgment is appropriate only if the record contains no material factual dispute.
- Headnote 69
Ramon’s comparators differed in age and retirement eligibility, which the court found were legitimate, material differences, so she could not establish that they were similarly situated, per Wyvill.
- Headnote 70
Allowing the 62‑year‑old Arbaney to retire while terminating the younger Ramon was based on legitimate business considerations; such favoring of an older employee does not constitute ADEA discrimination.
- Headnote 71
The court applied the Brennan standard and held that Continental’s two‑and‑a‑half‑hour interview and termination, though distressing, were not outrageous, referencing prior decisions that ordinary employer conduct is insufficient.
- Headnote 72
Continental, as a private airline, was not obligated to provide Miranda warnings during its security interview, consistent with United States v. Borchardt.
- Headnote 73
Ramon’s FMLA claim was not part of the complaint; under Leverette and Bejil, new claims must be pled initially and may not be introduced on appeal.
Opinion
Cynthia A. Ramon (“Ramon”) appeals the district court’s summary judgment in favor of Continental Airlines, Inc. (“Continental”) on various employment discrimination claims. Ramon, a 48-year-old American-born Hispanic female, worked for Continental for twenty-three years as a check-in agent in the Reservations Department. After being alerted to bookings in violation of company policies, Continental commenced an investigation. Three members of Continental’s Security Department interviewed Ramon for two and one-half hours. Ramon admitted to having violated company policies by asking fellow employees David Cooper and Richard Arbaney to secure favors for her friends and family. Continental determined that it suffered $43,329 in lost revenue as a result of Ramon’s actions. Continental terminated Ramon and Cooper, but permitted Arbaney to retire because of his age.
Ramon filed this suit alleging claims of national origin and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and intentional infliction of emotional distress. The district court granted summary judgment for Continental, and Ramon timely appealed pro se.
Ramon initially contends that the district court erred in striking three affidavits she submitted in opposition to Continental’s motion for summary judgment. We review the district court’s ruling on the admissibility of evidence for an abuse of discretion. United States v. Lopez-Moreno, 420 F.3d 420, 434-35 (5th Cir.2005). Ramon submitted the affidavits of her coworkers Melissa Smith, Lisa Perez, and Barbara Buck, which were all nearly identical. They each state that based on the affiants’ “opportunity to observe Continental Airlines [sic] actions ... Continental Airlines terminated [Ramon] on account of her” age, national origin, and sex, that Ramon’s termination was “pretextual,” and that Continental permitted “certain employees outside Cynthia A. Ramon’s protected categories ... to resign voluntarily with significant benefits, under the same or virtually similar circumstances.” The district court excluded each of these affidavits because they contained “no more than eonclusory allegations and legal conclusions.”
“Unsupported allegations or affidavits setting forth ultimate or eonclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotations omitted). Because the affidavits submitted by Ramon contained nothing but legal conclusions, the district court was well within its discretion in striking them.
On the merits, Ramon argues that the district court erred in granting summary judgment for Continental on each of her claims for relief. We review a grant of summary judgment de novo. Honeywell Int’l, Inc. v. Phillips Petroleum Co., 415 F.3d 429, 434 (5th Cir.2005). We affirm only when there is no issue of material fact and the movant is entitled to judgment as a matter of law. Id.
Title VII prohibits an employer from terminating an employee based on her national origin, 42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits similar treatment on account of the employee’s age. 29 U.S.C. § 623(a)(1). Ramon claims that Continental provided preferential treatment to three other employees: Richard Arbaney (a 62-year-old white male), Elsa Lakey (a 56-year-old white female), and Jo Anna Couch (a 57-year-old white female). Ramon contends that Arbaney and Lakey were given preferential treatment because they were allowed to remain on the job for up to six months, thereby permitting them to become eligible for voluntary retirement. She further contends that Couch was not fired at all. Ramon, however, was not allowed to retire or remain on the job. Ramon argues that this circumstantial evidence satisfies her initial burden on summary judgment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To satisfy that burden, she must proffer evidence that a similarly situated employee from outside the protected class was not subjected to the adverse employment action. Abarca v. Metro. Transit Auth., Transit Auth. 404 F.3d 938, 941 (5th Cir.2005).
The undisputed evidence in this case reveals that neither Arbaney, Lakey, nor Couch was similarly situated to Ramon. Ramon was younger and not as close to being eligible for retirement as were Arbaney and Lakey, and there is no evidence that Continental uncovered any wrongdoing by Couch. These differences between Ramon’s situation and that of her comparators justified the differential treatment, 2 and Ramon cannot demonstrate that she was “similarly situated” to them. See Wyvill v. United Cos. Life Ins.. Co., Life Ins.. 212 F.3d 296, 305 (5th Cir.2000) (affirming summary judgment where “the striking differences between the two men’s situations more than account for the different treatment they received”); see also Nelson v. Gen. Elec. Co., Elec. 2 Fed. Appx. 425 (6th Cir.2001) (unpublished) (holding that younger employee not similarly situated to older employee who committed similar infraction and was allowed to remain on job for a few extra months and obtain retirement eligibility); Thomas v. Hilts, No. 224690, 2002 WL 234757, at *4 (MichApp. Feb.15, 2002) (unpublished) (holding that plaintiff who was not of retirement age and comparator who was of retirement age were not similarly situated where comparator was allowed to voluntarily retire while plaintiff was terminated).
Ramon next contends that the conduct of Continental’s Security Department in investigating her malfeasance amounted to the intentional infliction of emotional distress. To succeed on her claim, Ramon must prove that Continental engaged in conduct “so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Brennan v. Mercedes Benz USA 388 F.3d 133, 136 (5th Cir.2004). Ramon argues that the interview was distressing, Continental did not provide her with warnings consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that she suffered financial difficulty as a result of losing her job.
Ramon has failed to proffer evidence that Continental’s conduct in questioning her or its decision to terminate her was sufficiently outrageous to remove this case from the realm of ordinary employment disputes. The only evidence in the record that the conversation was anything but amicable is Ramon’s deposition testimony, “[T]hey were threatening me with prosecution and stating that we will help you keep your job if you can just state that these are the things that we see from the evidence that has happened.” She further testified that she was “under extreme emotional duress,” in a “delicate situation,” and that Continental had no right to question her about the matter at all. There is no evidence, however, that Ramon required medical or psychiatric care as a result of her questioning, that any Continental employee yelled at her or touched her, or that the method of questioning used by Continental was out of the ordinary. Contrary to Ramon’s contention, Continental was not required to provide warnings regarding her right against self-incrimination; Miranda’s requirements do not apply to questioning by a private citizen. United States v. Borchardt, 809 F.2d 1115, 1118 (5th Cir.1987). Although we recognize that Ramon’s termination was unpleasant, Continental’s conduct does not “exceed all possible bounds of decency.” See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995) (investigation of employee’s alleged theft was not outrageous where employer questioned employee in severe tone and did not explain the facts); Wornick Co. v. Casas, 856 S.W.2d 732, 735-36 (Tex.1993) (firing employee with no notice in a manner that could be expected to cause humiliation not outrageous).
Ramon raises in this court for the first time a claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2612. She neither pled an FMLA claim in her complaint nor argued in support of such a claim in the district court. A plaintiff may not raise a claim for relief for the first time in a brief on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 341 (5th Cir.1999) (holding that court will not consider issue raised for first time on appeal). Rather, the claim must be pled in the complaint. See Fed.R.Civ.P. 8 (describing general rule of pleading); Bejil v. Ethicon, Inc., 269 F.3d 477, 481 (5th Cir. 2001) (stating that complaint must place defendant on notice of claims for relief).
For the foregoing reasons, we AFFIRM the judgment of the district court.
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.
. . Discrimination in favor of older members of the ADEA protected class is not a violation of the statute. Gen. Dynamic Land Sys., Inc., v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004).