Stults v. Conoco Inc

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 95-10167

ROMMIE STULTS and STEPHEN WALLACE,

Plaintiffs-Appellants,

versus

CONOCO, INC. and BRAD BURMASTER,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas

February 29, 1996

Before DAVIS and PARKER, Circuit Judges, and BUNTON, District Judge.*

ROBERT M. PARKER, Circuit Judge:

Plaintiffs appeal the district court's granting of defendants'

motions for summary judgment. Finding no error, we affirm.

I. FACTS

Plaintiffs Stults and Wallace were employees of Defendant

Conoco, Inc. While employed by Conoco, plaintiffs each held the

position of store manager. Plaintiff Stults was terminated on or

around May 25, 1991 by his immediate supervisor, district manager

Connie Lutton. Plaintiff Wallace resigned from his position with

* District Judge of the Western District of Texas, sitting by designation. Conoco on or around July 14, 1992, after a meeting with his

immediate supervisor, district manager Danise Chatham. At all

relevant times, Lutton and Chatham were supervised by defendant

Brad Burmaster, former regional retail operations manager for

Conoco. Burmaster approved the decisions to terminate Stults and

Wallace.

In November 1993, the plaintiffs filed this action for age

discrimination and intentional infliction of emotional distress in

the District Court of Tarrant County, Texas.1 Defendant Conoco

removed the action to U.S. District Court on the basis of federal

question jurisdiction. Defendant Burmaster was served and made an

appearance in the action subsequently.

On November 14, 1994, Burmaster filed a motion for summary

judgment, asserting that he could not be held individually liable

under the Age Discrimination in Employment Act ("ADEA"), and that

there was no evidence of extreme and outrageous conduct or severe

distress. On January 18, 1995, the district court entered an order

granting Burmaster's motion for summary judgment in its entirety.

On December 8, 1994, Conoco filed a motion for summary

judgment, asserting that plaintiffs were terminated for non-

discriminatory reasons and that there was no evidence of pretext,

and that there was no evidence of extreme and outrageous conduct or

severe distress. On January 19, 1995, the district court entered

1. In addition to their claims under the ADEA, the plaintiffs stated claims under the Fair Labor Standards Act and the Texas Human Rights Act. Plaintiffs do not address the dismissal of these claims separately on appeal.

2 an order granting Conoco's motion for summary judgment, noting that

plaintiffs failed to file a response to Conoco's motion.

Plaintiffs timely filed this appeal.

II. DISCUSSION

We review a district court's grant of summary judgment de

novo, applying the same standard as did the district court. Neff

v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995)

,cert. denied, 64 U.S.L.W. 3450, 1995 WL 625562 (1996). Summary

judgment is appropriate if "the pleadings, depositions, answers to

interrogatories, and admissions of file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." FED. R. CIV. P. 56(c). A "dispute about a

material fact is `genuine' . .. . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). For purposes of the summary

judgment determination, all fact questions are viewed in the light

most favorable to the nonmovant. Hassan v. Lubbuck Indep. Sch.

Dist., 55 F.3d 1075, 1078 (5th Cir.), cert. denied, 116 S. Ct. 532

(1995). But only materials which were included in the pretrial

record and that would have been admissible evidence may be

considered. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Questions of law are always

reviewed de novo. Gulf States Ins. Co. v. Alamo Carriage Serv., 22

3 F.3d 88, 90 (5th Cir. 1994).

A. AGE DISCRIMINATION IN EMPLOYMENT

1. INDIVIDUAL LIABILITY UNDER THE ADEA

The district court granted summary judgment in favor of

Burmaster on plaintiffs' age discrimination claims, holding that

the ADEA provides no basis for relief against supervisory personnel

in their individual capacities. The plaintiffs contend that this

holding was in error. We disagree.

The ADEA makes it unlawful for an employer to discriminate

against an individual on the basis of age. 29 U.S.C. § 623 (a).

Under the ADEA, the term "employer" means a person "engaged in an

industry affecting commerce who has twenty or more employees for

each working day in each of twenty or more calendar weeks in the

current or preceding calendar year . .. . ."29 U.S.C. § 630 (b).

"Employer" also includes "any agent of such a person . .. . ."Id.

The plaintiffs argue that the inclusion of the employer's agents in

the definition of "employer" indicates that Congress intended to

allow claims against supervisory personnel, like Burmaster, in

their individual capacities.

The Fourth Circuit and the Ninth Circuit have already

considered and rejected this argument. Birkbeck v. Marvel Lighting

Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, 115 S. Ct. 666

(1994); Miller v. Maxwell's International Inc., 991 F.2d 583, 587-

88 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049 (1994). The

Fourth Circuit noted that "[s]uch personal liability would place a

4 heavy burden on those who routinely make personnel decisions for

enterprises employing twenty or more persons, and we do not read

the statute as imposing it. Instead, we read § 630 (b) as an

unremarkable expression of respondeat superior--that discriminatory

personnel actions taken by an employer's agent may create liability

for the employer." Birkbeck, 30 F.3d at 510. The Ninth Circuit

observed that

[t]he statutory scheme itself indicates that congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, and the ADEA limits liability to employers with twenty or more employees, in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.

Miller, 991 F.2d at 587.

Rejecting a similar argument, this court recently held that an

individual supervisor who does not otherwise qualify as an employer

cannot be held liable for a violation of Title VII. Grant v. Lone

Star Co., 21 F.3d 649, 651-53 (5th Cir.), cert. denied, 115 S. Ct. 574 (1994). In doing so, we cited for support the Ninth Circuit's

reasoning in Miller. 21 F.3d at 652. The statutory scheme of

Title VII at issue in Grant is virtually identical to the statutory

scheme of the ADEA at issue here. Both acts limit liability to

employers with more than a minimum number of employees, and both

define "employer" to include agents of the employer. The

plaintiffs have directed us to no salient distinction between the

ADEA and its closest statutory kin, and we have found none.

5 Therefore, we find that this Court's reasoning in Grant applies

with equal force in the present context and hold that the ADEA

provides no basis for individual liability for supervisory

employees.

2. ADEA CLAIMS AGAINST CONOCO, INC.

The district court granted summary judgment in favor of Conoco

on all of plaintiffs' claims, noting that plaintiffs had not filed

a response to Conoco's Motion for Summary Judgment at the time the

motion was granted. The party moving for summary judgment bears

"the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of `the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,' which it believes

demonstrate the absence of a genuine issue of material fact."

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)), cert. denied, 113 S. Ct. 98

(1992). However, the movant does not need to negate the elements

of claims on which the nonmoving parties would bear the burden of

proof at trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994) (en banc); Skotak, 953 F.2d at 913.

The movant's burden is "only [to] point out the absence of

evidence supporting the nonmoving party's case." Skotak, 953 F.2d at 913 (quoting Latimer v. Smithkline & French Laboratories, 919 F.2d 301, 303 (5th Cir. 1990)). "If the moving party fails to meet

6 this initial burden, the motion must be denied, regardless of the

nonmovant's response. If the movant does, however, meet this

burden, the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial."

Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995);

Little, 37 F.3d at 1075. To meet this burden, the nonmovant must

"identify specific evidence in the record, and articulate the

`precise manner' in which that evidence support[s] [its] claim[s]."

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 115 S. Ct. 195 (1994). As to material facts on which the nonmovant

"will bear the burden of proof at trial, the nonmovant must come

forward with evidence which would be sufficient to enable it to

survive a motion for directed verdict at trial." Skotak, 953 F.2d at 913."If the nonmoving party fails to meet this burden, the

motion for summary judgment must be granted." Tubacex, 45 F.3d at 954; Little, 37 F.3d at 1076.

Reviewing the summary judgment determination de novo, as we

do, we must first ask whether Conoco met its burden of

demonstrating the absence of a genuine issue of material fact. In

its motion for summary judgment, Conoco assumed that the plaintiffs

had shown the elements of a prima facie case.2 Instead of

2. To establish a prima facie case in an ADEA case, a plaintiff generally must demonstrate that he or she (1) was discharged; (2) was qualified for the position; (3) was within the protected age class--over 40--at the time of discharge; and (4) was replaced by a younger person, or a person outside the protected age class, or otherwise was discharged because of his or her age." Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 114 S. Ct. 467 (1993); Elliott v. Group Medical & Surg. Serv., 714 F.2d 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215

7 attacking the elements of the prima facie case, Conoco presented

evidence of nondiscriminatory reasons for the plaintiffs'

terminations. Conoco argued that its summary judgment evidence

demonstrated legitimate reasons for its employment actions, and

that Stults and Wallace had not produced any evidence of pretext or

discriminatory animus.

In a discrimination case, the plaintiff's prima facie case

creates a rebuttable presumption of discrimination that shifts the

burden of production to the defendant to articulate a legitimate,

nondiscriminatory reason for the questioned employment action.

Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505 (5th

Cir. 1988). With its motion for summary judgment, Conoco submitted

evaluations and termination reports regarding both Stults and

Wallace that supported its claim that the plaintiffs were

terminated for performance deficiencies. In addition, Conoco

submitted portions of relevant depositions that demonstrated the

lack of evidence that its nondiscriminatory reasons were mere

pretext or that its employment actions were actually motivated by

age discrimination. Given this showing, we must agree with the

district court that Conoco adequately demonstrated the absence of

a material fact issue on the plaintiffs' age discrimination claims.

When the employer articulates a legitimate nondiscriminatory

reason, and produces competent summary judgment evidence in

support, as Conoco did in this case, the presumption created by the

prima facie case disappears and "the burden reverts to the

(1984).

8 plaintiff to prove that the employer's reason[] [is] pretextual."

Moore, 990 F.2d at 815 (quoting Normand v. Research Inst. of Am.,

Inc., 927 F.2d 857, 859 (5th Cir. 1991)). "The trier of fact may

not disregard the defendant's explanation without countervailing

evidence that it was not the real reason for the discharge."

Guthrie v. TIFCO Industries, 941 F.2d 374, 377 (5th Cir. 1991),

cert. denied, 503 U.S. 908 (1992).

The plaintiff at all times retains the burden of persuading

the trier of fact that impermissible discrimination motivated the

adverse employment decision. Bienkowski, 851 F.2d at 1505.

Therefore, to overcome a properly supported motion for summary

judgment, the plaintiff must produce sufficient evidence to create

a genuine issue of material fact on this ultimate question. Thus,

in the present case, Stults and Wallace bore the burden of

producing evidence that would allow a rational factfinder to make

a reasonable inference that age was a determinative reason for the

employment decision. Rhodes v. Guiberson Oil Tools, -- F.3d --,

1996 WL 37846 at *3 (5th Cir. 1996) (en banc).

On appeal, the plaintiffs contend that there was sufficient

evidence to create a genuine issue of material fact. However,

plaintiffs filed no timely response to Conoco's motion for summary

judgment. As we have noted before, "[r]ule 56 does not impose upon

the district court a duty to sift through the record in search of

evidence to support a party's opposition to summary judgment."

Forsyth, 19 F.3d at 1537 (quoting Skotak, 953 F.2d at 915 & n.7).

"Nor is it our duty to do so on appeal."Id. Because plaintiffs

9 filed no timely response, they did not meet their burden to

"designate `specific facts showing that there is a genuine issue

for trial'."Id. (quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553). Therefore, the district court's order granting summary

judgment in favor of Conoco was entirely appropriate.

In their argument to this Court, the plaintiffs rely heavily

on the affidavit of Danise Chatham to support their allegations of

discriminatory animus. However, this affidavit was not made a part

of the summary judgment record. "Although on summary judgment the

record is reviewed de novo, this court for obvious reasons, will

not consider evidence or arguments that were not presented to the

district court for its consideration in ruling on the motion."

Skotak, 953 F.2d at 915 (citing Nissho-Iwai American Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).

The plaintiffs argue that the district court abused its

discretion in refusing to allow them to make the Chatham affidavit

a part of the summary judgment record, but this contention is

without merit. The plaintiffs first offered the Chatham affidavit

with a supplementary response to Burmaster's motion for summary

judgment. The district court properly denied the plaintiffs'

request to file the supplementary response because it was not

pertinent to the basis for Burmaster's motion, i.e. the lack of

individual liability under the ADEA.

The plaintiffs also offered the Chatham affidavit with a

purported response to Conoco's motion for summary judgment after

the district court had already entered summary judgment in Conoco's

10 favor. This "response" did not become a part of the summary

judgment record because it was untimely. The plaintiffs attempt to

avoid this result by arguing that they should have been allowed

more time to respond under Rule 56(f) of the Federal Rules of Civil

Procedure.3 However, plaintiffs never made a motion for a

continuance under Rule 56(f). "To obtain a continuance of a motion

for summary judgment in order to obtain further discovery, a party

must indicate to the court by some statement, preferably in writing

(but not necessarily in the form of an affidavit), why he needs

additional discovery and how the additional discovery will create

a genuine issue of material fact." Krim v. BancTexas Group, Inc.,

989 F.2d 1435, 1442 (5th Cir. 1993). The plaintiffs gave the

district court no sufficient indication of the need for additional

discovery. Indeed, on appeal the plaintiffs make no attempt to

show that additional discovery would have allowed them to

demonstrate a genuine issue of material fact. Thus, this argument

is completely without merit.

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The district court also dismissed the plaintiffs' claims for

3. Fed. R. Civ. P. 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

11 intentional infliction of emotional distress, holding that they had

not come forward with any evidence to support a finding of

outrageous conduct or that either of them had suffered severe

emotional distress. To recover for intentional infliction of

emotional distress Stults and Wallace bore the burden of

establishing that the defendants acted intentionally or recklessly,

that the defendants' conduct was extreme and outrageous, that the

defendants' actions caused them emotional distress, and that the

emotional distress was severe. Danawala v. Houston Lighting &

Power Co., 14 F.3d 251, 256 (5th Cir. 1993) (citing Twyman v.

Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993)). "Outrageous conduct

is that which `[goes] beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized

community.'"Id. (quoting Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993) (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt.

d)).

Viewed in the light most favorable to the plaintiffs, the

summary judgment evidence with regard to Stults shows that the

discussion with Lutton occurred in an office so that Latham and

Stults could speak more privately. Burmaster did not do anything

after Stults' termination to cause him emotional distress. Stults

did not see a doctor for treatment of emotional distress. Rather,

he took aspirin. With regard to Wallace, the summary judgment

evidence shows that after he was terminated, Wallace met with

Burmaster to explain his sixteen-year work record. Burmaster sat

with a smile or smirk on his face during the meeting. Burmaster

12 promised to call Wallace, but never did. Wallace felt distressed

whenever he had to drive by a Conoco station. Wallace never saw a

doctor for treatment of emotional distress.

The plaintiffs point to no other evidence of outrageous

conduct or severe distress. On these facts, we must agree with the

district court that no reasonable jury could find that these

elements of intentional infliction of emotional distress were

established.

III. CONCLUSION

For the reasons given above, the judgment of the district

court granting defendants' motions for summary judgment and

dismissing plaintiffs' claims with prejudice is AFFIRMED.

13