Adams v. Daimlerchrysler Services NA

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 30, 2007

No. 06-41739 Charles R. Fulbruge III

Summary Calendar Clerk

CONNIE ADAMS,

Plaintiff–Appellant,

v.

DAIMLERCHRYSLER SERVICES NA LLC,

Defendant–Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

No. 4:05-CV-00103

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

This is an appeal from a grant of summary judgment to DaimlerChrysler

Services (Chrysler). We affirm.

I

Connie Adams was an at-will employee of Chrysler from 2001 to 2005.

During her employment, she applied for a variety of internal promotions, but

other employees were promoted instead of her. Because of her tardiness and

*

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.

No. 06-41739

incomplete assignments, Adams was given performance improvement

assignments and warnings that her employment was at risk. Adams complained

to her supervisors that she was being discriminated against because of her race

(African-American) and age (over 40). On July 15, 2004, she filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC),

which investigated and was unable to verify any illegal discrimination. On

November 11, 2004, the EEOC issued a right-to-sue letter. Adams filed this suit

in state court on February 16, 2005, and Chrysler timely removed to federal

court. Adams continued to work for Chrysler. Chrysler continued to monitor

Adams’s performance and to issue warnings to her that if her work completion

and timeliness did not improve she would be terminated. Adams took disability

leave from April 28, 2005 through July 22, 2005. She also requested additional

paid leave under the Family and Medical Leave Act (FMLA), but Chrysler

denied this request because it does not offer paid FMLA leave. When she

returned from leave on July 22, 2005, Chrysler terminated her employment.

Adams amended her complaint. She claimed that Chrysler violated 42

U.S.C. § 2000e (Title VII), 29 U.S.C. § 623(d) (the ADEA), and Texas Labor Code

§ 21.055 (the TCHRA) by promoting four women—Lori Pearson, Wendy

Connerly, Jennie Fogg, and Kim Smith—into positions for which Adams had

applied (the failure-to-promote claims). She also claimed that Chrysler violated

Title VII, the ADEA, and the TCHRA by discharging her for complaining about

discrimination (the retaliatory termination claim). Finally, she claimed that

Chrysler violated the FMLA by discharging her in retaliation for taking FMLA

leave. During litigation before the district court, Adams and Chrysler reached

a settlement agreement, but Adams revoked this agreement on August 7, 2006.

Shortly before that settlement agreement, Adams’s attorney filed a motion to

withdraw from representation; shortly after Adams’s revocation of the

settlement, the district court granted the motion. Following discovery, Chrysler

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moved for summary judgment, and the motion was granted on November 3,

2006. Adams, pro se since her counsel’s withdrawal, timely appealed.

We liberally construe briefs of pro se litigants. We have been able to

discern six assignments of error. Adams argues (i) that the magistrate judge

should have recused himself from the case; (ii) that the court punished Adams

for validly revoking the earlier settlement agreement; (iii) that the court ignored

certain evidence related to the FMLA claim; (iv) that the court erred in holding

that certain claims were time-barred; (v) that the court erred in its analysis of

the retaliatory termination claim; and (vi) that the court ignored certain

evidence related to the discriminatory failure-to-promote claims.

II

In Adams’s first argument, she claims for the first time on appeal that the

federal magistrate, to which the case was submitted, should have recused

himself in accordance with 28 U.S.C. § 455 because of an alleged prior affiliation

with Chrysler. Adams claims that on July 17, 2006, prior to a motion hearing,

the magistrate judge stated that he had a “past involvement with

DaimlerChrysler as an attorney.” Adams acknowledges that this statement

appears nowhere in the record.

Delay in raising disqualification objections is greatly disfavored, and we

consider it “egregious delay” when a party “knows the facts purportedly showing

an appearance of impropriety but waits until after an adverse decision has been

made by the judge before raising the issue of recusal.”1 In this case, there is

absolutely no evidence in the record that the magistrate has had any prior

relationship with Chrysler or that there is or was any reason to question his

impartiality. Adams had more than enough time to complain of the conflict

between the alleged statement in July, 2006 and the court’s decision on

1

United States v. Sanford, 157 F.3d 987, 989 (5th Cir. 1998).

3

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Chrysler’s summary judgment motion in November, 2006. Without facts and

without a complaint at trial, we find no merit to Adams’s argument.

Adams next argues that the court improperly punished her for revoking

a settlement agreement. Adams participated in a settlement conference with

Chrysler on July 21, 2006, and the parties reached a settlement agreement.

Adams signed the agreement on August 3, 2006, but later claimed she did not

understand its terms. On August 7, 2006, she wrote a letter to Chrysler

revoking her agreement, contending that the Older Workers Benefit Protection

Act of 19902 (OWBPA) allowed her to revoke the settlement agreement within

seven days of signing it. Adams also wrote a letter to the court requesting a

hearing on the revocation, which the court held on August 17, 2006. At the

hearing, Chrysler conceded that the OWBPA allowed Adams to revoke her

agreement, and the court granted Adams’s request to revoke.3 Adams now

argues that her revocation prejudiced the court against her and that the court

granted summary judgment to Chrysler “because she revoked the agreement.”

There is no evidence in the record to support this contention, and it is without

merit.

III

Adams argues that the court ignored evidence related to her FMLA claim.

The court found that Adams admitted in a deposition that the only reason

Chrysler fired her was in retaliation for her EEOC complaint and later lawsuit.

The court held that this admission contradicted the entire basis of her FMLA

claim, in which she alleged that she was terminated because she took leave. We

2

Pub. L. No. 101-433, 104 Stat. 978 (1990) (amending the ADEA).

3

The validity of the revocation is not before us on appeal, and we express no opinion

as to whether the OWBPA’s revocation provisions indeed cover the settlement agreement in

this case.

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agree with the court that Adams admitted in her deposition that she was not

fired for taking FMLA leave and that this admission vitiates her FMLA claim.

Adams next argues that the court erred in holding that several of Adams’s

failure-to-promote claims were time-barred. Title VII and the ADEA require

plaintiffs to file an EEOC discrimination charge within 300 days of the

discrimination,4 while the TCHRA requires plaintiffs to file a Human Rights

discrimination charge within 180 days of the discrimination.5 Adams’s EEOC

filing of July 15, 2004 complained of failure-to-promote incidents that had

occurred from December 18, 2003 through May 17, 2004. The court dismissed

as time-barred all of the claims related to the promotion of Lori Pearson (April,

2003), and the TCHRA claims related to the promotion of Wendy Connerly

(December 18, 2003). The court did not dismiss as time-barred the Title VII and

ADEA claims related to Wendy Connerly (since the EEOC filing was within 300

days from her promotion) nor any other claims related to any other co-workers.

Because the record supports the court’s dismissal of the specific claims it

discussed, we find no merit to Adams’s assignment of error here.

Adams next argues that the court erred in granting summary judgment

to Chrysler on the retaliatory discharge claim. Adams points to evidence that

some of her co-workers and supervisors were not held to the same standards for

violations of Chrysler’s code of conduct. The court held that Adams never filed

an EEOC retaliatory discharge complaint related to her termination; her only

EEOC filling dealt with the failure-to-promote claims. Because Adams never

perfected the discharge claim by filing with EEOC, it was properly dismissed on

summary judgment. The court also explained that Chrysler’s summary

judgment motion would be granted on this claim even if it had been perfected by

4

See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2).

5

See TEX. LAB. CODE § 21.202(a) (2006).

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an EEOC filing because Adams’s termination was twelve months after her

EEOC filing, and five months after she filed this lawsuit. The court held that

this long time delay negated any inference that Adams’s complaint caused her

discharge. The court also observed that there was evidence that Adams had

received negative performance evaluations for tardiness to work and that

performance was Chrysler’s stated reason for termination, and that Adams

admitted that she did not meet Chrysler’s expectations. The court stated that

this was a legitimate, nondiscriminatory reason for the termination, citing our

holding in Mayberry v. Vought Aircraft Co.6 Summary judgment on the

retaliatory discharge claim was not error.

Adams’s final argument is that the court ignored evidence of her education

when considering the discriminatory failure-to-promote claims. She asserts that

her educational records show that she was at least as qualified as two other

candidates for promotion opportunities: Wendy Connerly and Jennie Fogg. The

court held that Adams had not established her prima facie case of discriminatory

failure-to-promote, but also explained that Adams’s claim would fail even if she

had made a prima facie showing, since she had not presented substantial

evidence that she was “clearly better qualified” than the individuals who

received the desired positions.7 We agree. Adams has not presented evidence

that she was clearly more qualified than Connerly and Fogg; if anything, the

record shows the opposite. Therefore we find no merit to Adams’s final

assignment of error.

IV

For these reasons, we AFFIRM the order of the district court.

6

See 55 F.3d 1086, 1091 (5th Cir. 1995).

7

See Celestring v. Petroleos de Venezuela, 266 F.3d 343, 357 (5th Cir. 2001).

6