United States Court of Appeals

Fifth Circuit

FILED

September 30, 2003

Charles R. Fulbruge III

Clerk

REVISED DECEMBER 15, 2003

 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

________________________________

No. 02-20516

________________________________

FRANK, ET AL.,

Plaintiffs-Appellees,

VERSUS

XEROX, 

Defendant-Appellant. 

________________________________

No. 02-20416

________________________________

HORN, ET AL,

Plaintiffs-Appellees,

VERSUS

XEROX, 

Defendant-Appellant. 

________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

________________________________________________

Before JONES and CLEMENT, Circuit Judges, and FELDMAN, District
*

 District Judge for the Eastern District of Louisiana,

sitting by designation.

2

Judge.*

FELDMAN, District Judge:

This appeal, which presents several issues, arises out of

Appellants’ fretful employment relationships with Xerox

Corporation. The Appellants in these related cases filed several

lawsuits against Xerox under Title VII and 42 U.S.C.§1981(2003),

alleging that because they are black Xerox denied them promotions

and pay increases and forced them to work in a racially hostile

work environment. Xerox moved for summary judgment as to each

Plaintiff. The district court granted those motions and denied

Plaintiffs’ motions for reconsideration. They appeal the

district court’s rulings. We reverse in part, affirm in part,

and remand.

I. 

Xerox, a well-known manufacturer and marketer of copying

machines, is also a provider of facilities management services,

called Xerox Business Services(XBS), to commercial customers

throughout the United States. These management services include

in-house copying, printing and mailroom services.

The focus of these lawsuits concerns Xerox’s so-called
3

Balanced Workforce Initiative(BWF). Xerox implemented the

program in the 1990's for the stated purpose of insuring that all

racial and gender groups were proportionately represented at all

levels of the company. The BWF targets were established on an

annual basis and were based on government labor force data. 

Throughout the time Xerox had the BWF in place, Xerox produced

reports listing the actual and desired racial and gender

compositions of each office. These reports indicated to the

company that blacks were over-represented and whites were underrepresented in Xerox’s Houston office in comparison to the local

population. 

In 1991, the general manager of the Houston XBS office, Doug

Durham, directed that the Houston office create its own localized

BWF reports to remedy the disproportionate racial representation. 

The reports set specific racial goals for each job and grade

level and indicated whether there were any disproportionate

representations.

Another one of Xerox’s practices that is under attack in

these employee disputes is Xerox’s use of “Minority Roundtables.” 

In 1997, to address the concerns of several of its black

employees, Xerox decided to hold “Minority Roundtables” at its

Houston office. Xerox insists that at these meetings it tried to

alleviate the misperceptions of the participants. For example,

many of the participants felt that Xerox discriminated against
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black employees in hiring, promotions and compensation. They

also voiced concerns about the lack of any blacks on Durham’s

senior management team. 

We turn now to the employees who sued.

II.

A. Carol Frank

Carol Frank joined Xerox’s Houston office in February 1985

as a Production Supervisor III. During her employment at Xerox,

Frank received several promotions and salary increases. In

September 1988, Frank was promoted to Supervisor II and she

worked in that role until 1991, when she applied to become a

Production Manager/Manager of Customer Operations(MCO). Frank

was not chosen for the position. Xerox claimed that Frank was

not qualified for the position and gave the job to Joe Olivarez,

a Hispanic male. Xerox stated that Olivarez was the most

qualified candidate for the job.

In 1997 Frank applied for the Customer First Manager

Position. After interviewing the candidates, Durham decided not

to fill the position because he believed none of the candidates

was sufficiently qualified. Frank asserts that she believed at
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the time that she had been discriminated against because of her

race. Frank also applied for another MCO position in December

1998. Again, Olivarez was chosen over her. Xerox reiterates

that he was chosen because he was the most qualified candidate.

In March 1999 Frank claims she began to suffer from 

harassing and discriminatory treatment by her supervisor, Linda

Carter. She claims Carter’s conduct caused her to resign from

her position. On March 29, 1999, Frank submitted a letter of

resignation and gave two weeks’ notice. Thereafter, she filed a

discrimination charge with the Equal Employment Opportunity

Commission(EEOC), alleging race, gender and disability

discrimination. The EEOC found no cause of action and dismissed

the charge on March 28, 2000.

B. Henrietta Williams

Henrietta Williams started working at Xerox in 1982 as a 

Production Operator II in the Houston office. During the first

seven years of her employment, she received two grade level

salary increases and was promoted to Training Administrator. 

Williams claims that after Doug Durham transferred to the Houston

office from New York, she was forced out of her Training

Administrator position and replaced by Sharon Talty, a white

female, and she was demoted to Production Supervisor. Xerox

responds that in 1998 Williams attempted to resign, but that
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Durham and another manager persuaded her to stay. In 1999,

Williams officially resigned. Williams asserts that she resigned

because of the racially discriminatory working conditions,

constant harassment, lack of employment opportunities and denial

of pay raises. Xerox maintains that Williams never asserted

discrimination or intolerable working conditions when she left,

and that she had not actually applied for a promotion in her last

three years at the company. 

C. Sibyl Arterberry

Sibyl Arterberry began her career at Xerox in 1991 as a

Production Operator IV. By 1995 she had been promoted several

times, and by 1997 she was a Lead Account Associate for one of

Xerox’s accounts. Arterberry claims that she was denied pay

increases because of her race. Xerox asserts that she was not

eligible for a pay increase in her Account Associate position

because she had reached the highest grade level for her position. 

Xerox adds that it tried to transfer her into another position

which would allow her to receive a higher salary, but she

refused. Arterberry was later transferred to another account and

did get a pay increase. Arterberry was still working for Xerox

when the company was sued.

D. Iris Debose
7

Iris Debose came to work at Xerox in 1985. For the first

five years of her employment she worked as an Associate Customer 

Services Support Representative. After that time, her title was

changed to Administrative Secretary, although she performed the

same duties. Debose claims that she received outstanding reviews

of her performance until 1991 when Doug Durham transferred to the

Houston office. She says after his arrival, she was denied

promotions to positions which were eventually given to white

females with inferior qualifications. She also claims that she

was harassed and denied promotions, equal pay and equal pay

raises because she participated in the Minority Roundtables. 

Debose resigned from Xerox in 1999.

E. Cynthia Walker

Cynthia Walker was hired in September 1985 as a Production

Operator in the Houston office. By 1990 she had received several

promotions including a promotion to Customer Support

Representative, a position she held until September 1997. From

1990 until 1997, Walker received annual merit increases and was

promoted to higher pay grade levels. In addition, during that

same time period, Walker applied for three different positions. 

Two of the positions had been eliminated before they were filled

and the third position was not awarded to her, Xerox claimed,

because she was not qualified. In 1997 Walker was transferred to
8

a Support Analyst position and received a five percent pay raise. 

In 1998 she was transferred to a lateral position. In April

2000, after several organizational changes at the Houston office,

Walker resigned citing lack of opportunities. Apparently, she

believed that she should have been offered positions that were

given to two of her non-black co-workers. 

F. Derrey Horn

Horn began work at Xerox in May 1984 as an entry level

Production Operator IV. However, over the years Horn quickly

moved up in the company. In 2002 Xerox received an anonymous

complaint that some of the female employees had been sexually

harassed by Horn. After an investigation, Xerox determined that

the complaints were legitimate and terminated his employment.

Horn did not file a discrimination charge with the EEOC. 

Instead, he joined in this lawsuit with the other five

plaintiffs.

III.

We review summary judgment de novo. Walker v. Thompson, 214

F.3d 615, 624 (5th Cir. 2000). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and
9

admissions on 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 judgment as a matter of law.”

Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 106 S.Ct.

2548, 2552 (1986). "If the moving party meets the initial burden

of showing there is no genuine issue of material fact, the burden

shifts to the nonmoving party to produce evidence or designate

specific facts showing the existence of a genuine issue for trial."

Allen v. Rapides Parish Sch.Bd., 204 F.3d 619, 621 (5th Cir.

2000)(internal quotations and citations omitted). Doubts are to be

resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party. See Burch v.

City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).

A. Disparate Impact Claims

Williams, Arterberry, Debose, Walker and Horn all asserted

disparate impact claims against Xerox. The district court granted

summary judgment in favor of Xerox on all of these issues.

To establish a disparate impact claim, the claimants must

prove as part of their prima facie case that Xerox maintains a

facially-neutral policy or practice that caused a disparate impact

on its black employees. See 42 U.S.C. §2000e-2(k)(1)(A)(i)(2003);

Gonzales v. City of New Braunfels, 176 F.3d 834, 839 n.26 (5th Cir.

1999). To do this, the claimants must engage in a “systematic
10

analysis” of the policy or practice. Munoz v. Orr, 200 F.3d 291,

299(5th Cir. 1999). In doing so, they “must, of necessity, rely

heavily on statistical proof.” Id. at 300. 

Appellants point to the BWF reports and to evidence of the

statistical data that Durham used from 1994 to 1999 to reduce the

percentage of black employees in Houston. While Xerox asserts that

the Plaintiffs’ statistical evidence is inaccurate, incomplete and

has not been analyzed, we find that the evidence creates a material

issue of fact as to disparity and, therefore, summary judgment was

inappropriate. 

B. Salary Disparity Claims

Arterberry, Debose, Williams, Walker and Horn all asserted

salary disparity claims against Xerox. In reviewing the record,

we find that the district court failed to address these claims. 

Thus, we remand this issue to the district court for further

proceedings. 

C. Adverse Employment Action Claims

Frank, Debose, Williams, Arterberry and Walker all asserted

claims for several adverse employment actions that took place

throughout the 1990s. The district court found that most of

these claims were time-barred. Appellants assert that the
11

district court erred in determining that the claims were timebarred; they urge that the continuing violations doctrine applies

to their claims. 

i. Timeliness of Claims

A claimant must file a Title VII discrimination claim with

the EEOC within 300 days of the challenged discrimination. See

42 U.S.C. ~2000e-5(e)(1)(2003); Byers v. Dallas Morning News, 209

F.3d 419, 424 (5th Cir. 2000). Only two of the employees, Carol

Frank and Cynthia Walker, filed discrimination charges with the

EEOC. The others can only pursue Title VII claims if they can

"piggyback" onto a timely filed claim by either Frank or Walker. 

See Allen v. United States Steel Co., 665 F.2d 689, 695 (5th Cir.

1982). Frank filed her claim on November 15, 1999, and Walker

filed her claim on June 19, 2000. Thus, the district court

correctly determined that the date for determining timeliness was

300 days prior to the filing of the first filed charge, or

January 19, 1999. See Celestine v. Petroleos de Venezuela, S.A.,

266 F.3d 343, 351 (5th Cir. 2001). Any bad conduct that occurred

prior to that date would be time-barred. See id. Similarly, one

must file a discrimination claim under §1981 within two years of

the adverse employment action. See Byers, 209 F.3d at 424. This

lawsuit was filed on June 29, 2000. Thus, claims for any adverse

employment actions under §1981 that occurred prior to June 29,

1998 are time-barred.
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ii. Continuing Violations Doctrine

Appellants argue that the district court erred in finding

that the continuing violations doctrine does not apply to their

claims. They say that the continuing violations doctrine applies

because: 1) the various adverse employment actions constituted an

organized scheme to discriminate rather than discrete

occurrences; and 2) that their claims show a "pattern-orpractice" of discrimination which allows them to be considered

continuing violations. We affirm the district court’s ruling

that the continuing violations doctrine does not apply here. 

Under the continuing violations doctrine, a plaintiff may

complain of otherwise time-barred discriminatory acts if it can

be shown that the discrimination manifested itself over time,

rather than in a series of discrete acts. See Huckabay v. Moore,

142 F.3d 233, 238-39 (5th Cir. 1998). However, in Huckabay, we

also confirmed the rule that discrete actions, such as those

asserted by Appellants, are not entitled to the shelter of the

continuing violation doctrine. Id. at 239-40. Appellants

complain of separate and varied acts and decisions that occurred

at different times and discretely applied in different ways to

different employees. And, beyond speculation, we cannot say that

the record confirms an organized or continuing effort to

discriminate. The pattern-or-practice argument also fails. See

Celestine, 266 F.3d at 355-56 (pattern-or-practice method of
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proof not available in private, non-class action lawsuits). In

addition, one is expected to act as soon as the facts of

discrimination are or should be apparent to a reasonably prudent

person similarly situated. See Messer v. Meno, 130 F.3d 130,

134-35(5th Cir. 1997).

D. The Remaining Adverse Employment Action Claims

After correctly determining that most of Appellants’ claims

were time-barred and not saved by the continuing violation doctrine,

the district court then dismissed their remaining claims for failure

to satisfy their burden of proof in establishing discrimination.

We reverse the district court on this issue. 

In addressing the remaining claims, the district court applied

the burden-shifting framework set out in McDonnell Douglas Corp. v.

Green, 93 S.Ct. 1817, 1824-26 (1973). McDonnell Douglas instructs

that the plaintiff must first establish a prima facie case of

discrimination. Id. Once the plaintiff presents a prima facie

case, the defendant must then articulate a legitimate,

nondiscriminatory reason for the questioned employment action. Id.

If the defendant is able to do so, the burden shifts back to the

plaintiff to produce evidence that the defendant's articulated

reason is merely a pretext for discrimination. Id. 

To establish a prima facie case of discrimination, a plaintiff

must show: (1)that she was a member of a protected class; (2) that
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she was qualified for the position; (3) that she was discharged; and

(4) after she was discharged, she was replaced with a person who is

not a member of the protected class. Bauer v. Albermarle Corp., 169

F.3d 962, 966 (5th Cir. 1999). Of course, the plaintiff may always

present a prima facie case by providing direct evidence of

discrimination. Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191

(5th Cir.2001). We understand that when there is sufficient direct

evidence of discriminatory motive, the McDonnell Douglas framework

does not apply. See, e.g., Price Waterhouse v. Hopkins, 490 U.S.

228 (1989). And so, our court has earlier held that when "a

plaintiff presents credible direct evidence that discriminatory

animus in part motivated or was a substantial factor in the

contested employment action, the burden of proof shifts to the

employer to establish by a preponderance of the evidence that the

same decision would have been made regardless of the forbidden

factor." Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861(5th

Cir. 1993). 

We find that the existence of the BWF program is sufficient to

constitute direct evidence of a form or practice of discrimination.

See Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d

1095, 1110 (11th Cir. 2001). "[T]he existence of an affirmative

action plan," the Eleventh Circuit has written, "when combined with

evidence that the plan was followed in an employment decision is

sufficient to constitute direct evidence of the unlawful
1

 The non-time-barred claims are the Title VII claims that occurred after January 19,

1999 and the §1981 claims that occurred after June 29, 1998.

15

discrimination unless the plan is valid." Id. at 1111; see Dallas

Fire Fighters Ass’n v. City of Dallas, Tex., 150 F.3d 438, 440-42

(5th Cir. 1998) (discussing factors that weigh on the validity of

affirmative action plans). See also Messer, 130 F.3d at 135-36.

Here, in the BWF summary reports, Xerox candidly identified explicit

racial goals for each job and grade level. The reports also stated

that blacks were over-represented and whites were under-represented

in almost every job and grade level at the Houston office. Senior

staff notes and evaluations also indicate that managers were

evaluated on how well they complied with the BWF objectives. A jury

looking at these facts could find that Xerox considered race in

fashioning its employment policies and that because Plaintiffs were

black, their employment opportunities had been limited. Because

the district court ignored the existence of the BWF program and

applied the McDonnell Douglas standard when it analyzed Plaintiffs’

non-time-barred claims,1 we reverse the district court’s dismissal

of these claims.

E. Hostile Work Environment Claims

Debose, Williams, Arterberry and Walker also asserted claims

for hostile work environment. We affirm the district court’s grant
16

of summary judgment in favor of Xerox as to these claims. We find

that no serious issues of material fact exist.

To prevail on a hostile work environment claim, the Plaintiffs

must prove that: 1) they belong to a protected group; 2) they were

subjected to unwelcome harassment; 3) the harassment complained of

was based on race; and 4) the harassment affected a term, condition,

or privilege of employment. See Celestine, 266 F.3d at 353-54. The

Plaintiffs must subjectively perceive the harassment as sufficiently

severe or pervasive, and this subjective perception must be

objectively reasonable. Harris v. Forklift Sys., Inc., 114 S.Ct.

367 (1993). The fact-finder must consider the frequency of the

discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and whether it unreasonably interferes

with an employee’s work performance. Walker v. Thompson, 214 F.3d

at 625. Here, the Appellants assert that the BWF target goals were

so intimidating, severe and pervasive, that it was objectively

reasonable for them and other black employees to believe that they

were in a racially hostile work environment that precluded them from

advancing to a higher level because of their race. 

Xerox counters that the use of the BWF reports did not and

could not objectively create a hostile work environment, and that

Appellants have not presented any evidence of how the use of the

reports actually affected them or any other employee. Xerox adds

that Appellants’ subjective belief that the company intended to use
17

the BWF reports to avoid promoting and to terminate black employees

is not objectively reasonable, and, therefore, they cannot satisfy

the severe and pervasive requirements that are essential to prove

a hostile work environment claim. We agree. Appellants have not

provided any precedent in support of their argument that the

implementation of an affirmative action plan equates to a hostile

work environment. We also would note that the record reflects no

evidence of severe or pervasive harassment.

Conclusion

To sum up the foregoing discussion, the district court’s grant

of summary judgment on the disparate impact claims is reversed and

remanded. The issue of salary disparity is remanded. The district

court’s grant of summary judgment on non-time-barred claims is

reversed and remanded. The district court’s ruling on timeliness

and the continuing violations doctrine is affirmed. The district

court’s grant of summary judgment on the hostile work environment

claims is affirmed.

This case in short, is AFFIRMED in Part, REVERSED in Part, and

Remanded for proceedings consistent herewith.