* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-20695

Summary Calendar

_______________

BONITA OUTLAND,

Plaintiff-Appellant,

VERSUS

WILLIAM J. HENDERSON,

Postmaster General,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-590)

_________________________

May 4, 1999

Before SMITH, WIENER, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Plaintiff Bonita Outland, proceeding pro se, appeals a summary

judgment in favor of defendant the Postmaster General (“Postal

Service”). Outland, a postal worker, alleged that the Postal

Service had (1) discriminated against her because of her race and

sex and (2) retaliated against her because of prior grievances and

complaints she had filed with the Equal Employment Opportunity

Commission (“EEOC”). Finding no error, we affirm. 
2

I.

Outland began work for the Postal Service in 1981 as a

distribution clerk. Between 1984 and 1994, she was disciplined

eleven timesSSincluding several suspensions and three notices of

removalSSfor performance problems. In 1994, she was transferred to

the Special Delivery Unit. 

In April 1995, Outland refused two direct orders to take box

mail to the box section; she eventually left the workplace with the

box mail undelivered. The Postal Service initiated disciplinary

proceedings. The Postal Service discovered that Outland’s file

reflected a thirty-one-day suspension within the previous two

years. Because this constituted a “live” suspension, the Postal

Service issued a notice of termination, pursuant to provisions in

the collective bargaining agreement.

Outland, through her union, appealed, whereupon an arbitrator

found that she had been terminated for “just cause” but lessened

the severity of the punishment in view of her years of service and

directed that she be returned to her job but without back-pay.

II.

Outland sued in February 1997, alleging violations of her

constitutional rights under § 1983 and § 1988, race and sex

discrimination, and retaliation. The Postal Service moved for

partial dismissal. Because Outland had amended her complaint and

deleted many of her constitutional and discrimination claims

(except for one arising out of the April 1995, incident), the
 

1 The parties refer to this incident as EEO Complaint No. 4-G-770-1550-95.

 

2 The Postal Service invites us to dismiss this appeal because Outland has

failed to comply with FED. R. APP. P. 28. While we agree that Outland’s brief is

confusing, often incoherent, and fails to comply with rules requiring a party to

state the issues presented, we are reluctant to dismiss a pro se appellant.

Moreover, we have the discretion to consider a non-compliant brief. See Grant

v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Because we do not think Outland’s

noncompliance prejudices the Postal Service, we will exercise this discretion to

allow her appeal to go forward. See Price v. Digital Equip. Corp, 846 F.2d 1026,

1028 (5th Cir. 1988) (permitting pro se plaintiff to proceed with a title VII

claim because no prejudice to appellee from appellant’s deficient brief). 

3

district court addressed only the claims for punitive damages,

false imprisonment, assault and battery, and continuing violation

of 42 U.S.C. § 2000e-16. 

The court dismissed the punitive damages claims because the

Postal Service, as a federal entity, cannot be held liable

therefor. It dismissed the tort claims under FED. R.

CIV. P. 12(b)(6) because the federal government is immune from the

types of tort liability alleged. Finally, it dismissed the

continuing violation claim for failing to meet the legal standards

explained in Berry v. Board of Supervisors, 715 F.2d 971, 979 (5th

Cir. 1983). The court then granted the Postal Service's motion

for summary judgment on the remaining claims, arising out of the

April 1995, incident.1

III.

Outland appeals2 the (1) dismissal of her continuing violation

claim; (2) denial of her motions to compel discovery; and (3) the

finding that she had raised no genuine issue of material fact to

survive summary judgment on her remaining discrimination claims. 

We review a summary judgment de novo, employing the same
 

3 See McDonnell v. Estelle, 666 F.2d 246 (5th Cir. 1982).

 

4 See Landry v. Air Line Pilots Ass’n Int’l, 892 F.2d 1238, 1270 & n.114

(5th Cir. 1990).

4

standards as did the district court. See Urbano v. Continental

Airlines, Inc., 138 F.3d 204, 205 (5th Cir.), cert. denied,

119 S. Ct. 509 (1998). Summary judgment is appropriate when,

viewing the evidence in the light most favorable to the nonmoving

party, the record reflects that there is no genuine issue of

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

matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24

(1986); see also FED. R. CIV. P. 56(c). An issue is genuine if the

evidence is sufficient for a reasonable jury to return a verdict

for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff.” Id. at 258. We review a dismissal pursuant to FED. R.

CIV. P. 12(b)(6) de novo,

3 but we review a denial of a motion to

compel discovery for abuse of discretion.4

A.

Outland argues that the court erred in dismissing her theory

that discrimination occurred as a continuing violation rather than

as a series of discrete acts. As discrete acts, most of her claims

are barred by the ninety-day limitations period of 42 U.S.C.

§ 2000e-16(c). We examine three factors when determining whether
5

there is a continuing violation. First, we look for a similarity

in the types of discriminatory acts. Second, we view the frequency

of the alleged discriminatory acts. Third, we analyze whether the

act has the degree of permanence that “should trigger an employee’s

awareness of and duty to assert his or her rights.” Berry,

715 F.2d at 981. 

The district court properly applied Berry in deciding whether

Outland presented a valid continuing violation. The court

correctly found that the alleged acts are so varied that there is

“no common thread.” Additionally, Outland admits that most of her

complaints stem directly from violations of work rules. The

district court correctly held that these allegations do not

establish a pattern of discriminatory or retaliatory conduct. 

Finally, and most importantly, Outland’s numerous EEOC filings

show she was definitely aware of her rights and legal remedies.

Therefore, she had a duty to assert her claims within the ninetyday statutory period. All of these factors weigh against Outland

and persuade us that the district court correctly dismissed her

continuing violation claim.

B.

Outland alleges that the court abused its discretion by

denying her motion to compel discovery and, specifically, her

motion to compel all “complaints, grievances, EEO actions, and

resolution of each complaint, if any, filed against” certain

supervisors. The defendants objected to providing information
 

5 See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485

(5th Cir. 1990) (affirming denial of protective discovery order under abuse-ofdiscretion standard).

 

6 The Postal Service notes that it did provide almost 7000 pages of

documentation in response to Outland’s discovery requests.

6

about D.R. Beasley and James Richardson, because neither had served

in any supervisory authority over Outland. The district court

agreed.

As the Postal Service points out, the district court enjoys

broad discretion in controlling discovery, especially in

determining whether it is burdensome or oppressive.5 Outland has

not explained why information Beasley's and Richardson's records as

supervisors would be relevant to her case.6

C.

Outland further challenges the finding that she has failed to

make a prima facie case of racial or sex discrimination. She

reiterates her argument that (1) she did not disobey a direct order

from her supervisor during the April 1995 incident, and (2) she

suffered treatment harsher than treatment of her male, non-black

co-workers. 

To make a prima facie claim, Outland must prove that she

(1) is a member of a protected class; (2) is qualified and

performing her job adequately; (3) was subjected to an adverse

employment action; and (4) received less favorable treatment in

similar situations than did those outside her protected class. See

Meinecke v. H&R Block, 66 F.3d 77, 83 (5th Cir. 1995). The Postal
7

Service concedes the first and third elements. 

As the district court held, however, Outland did not raise a

genuine issue of material fact as to why her refusal to obey a

direct order meets the second prima facie element of adequate job

performance. Her only support comes from a self-described civil

service expert, whose unreliable affidavit was properly excluded

under FED. R. EVID. 702 and because Outland did not properly

designate her expert within the time allowed by the docket control

order. Therefore, Outland has not shown adequate job performance

and has therefore failed to make out a prima facie case on the

second element. 

We also agree with the district court that Outland has failed

to raise a genuine issue of material fact about how she was treated

differently from similarly situated co-workers not in her protected

group. The summary judgment evidence on this question, consisting

entirely of the affidavit of Outland’s white, male co-worker Royce

Galbreath, fails to show that she was treated differently. 

As the district court pointed out, while Galbreath describes

a disagreement between Outland’s supervisor and two male, non-black

employees, there is no indication that these employees were

similarly situated. According to Galbreath's affidavit, neither of

them had directly disobeyed their supervisor’s order, and there is

no indication that they had previous disciplinary records.

Therefore, as the court found, Outland has failed to support the

fourth element. We therefore affirm the dismissal of the race and

sex discrimination claims and do not reach the affirmative defenses
 

7 See Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.), cert.

denied, 118 S. Ct. 366 (1997) (holding that close timing between a protected

activity and an adverse action is required to make a prima facie case of

retaliation).

8

of a legitimate, non-discriminatory reason for Outland’s

termination.

D.

Outland challenges the finding that she did not present a

prima facie case of discriminatory retaliation. The district court

held that she failed to raise a genuine issue of material fact on

why her grievances filed with the EEOC caused the alleged

retaliatory actions. Without such a causal link, Outland cannot

make out a prima facie case. See Long v. Eastfield College,

88 F.3d 300, 304 (5th Cir. 1996). 

Almost all of Outland’s EEOC complaints were filed after the

April 1995 incident and cannot be evidence of a causal connection

of her termination. The EEOC complaint closest in proximity to

that incident, and occurring before the incident, was not in close

proximity to the alleged retaliatory action. Outland filed an EEOC

complaint in February 1994, more than a year before her April

termination. The court correctly held that this EEOC grievance is

not close enough temporally to allow Outland to make a prima facie

case.7 

AFFIRMED.