*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this opinion should not be published and is not precedent except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.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-50652

Summary Calendar

____________________

RUKMINIE HARILALL,

Plaintiff-Appellant,

v.

UNIVERSITY HEALTH SYSTEM DEVELOPMENT CORP, formerly known as Bexar

County Hospital District, doing business as University Hospital

System, also known as University Hospital,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas 

(SA-97-CV-347)

_________________________________________________________________

February 18, 1999

Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Rukminie Harilall appeals the district 

court’s award of summary judgment to defendant-appellee

University Health System Development Corp. in this suit alleging

violations of Title VII, 42 U.S.C. 2000e to 2000e-17. We affirm.
 

1 Harilall’s pro se appellate brief also argues that she

was harassed and terminated on the basis of disability, and that

UHSDC defamed her after she left UHSDC’s employment by reporting

to a publishing clearing house that Harilall had been discharged

for violating hospital policy when, in fact, she resigned in lieu

of termination. Neither allegation appears in her complaint. We

therefore will not consider these allegations on appeal. We

further note that, although Harilall contends in her appellate

brief that she was not terminated, but resigned in lieu of

termination, this distinction is irrelevant for purposes of

determining whether her employment ended for discriminatory

reasons. 

 

2 Harilall’s district court counsel no longer represents

her. She now moves for appointment of counsel for purposes of

this appeal. We deny her motion. There is no automatic right to

the appointment of counsel in a civil case, and Harilall has not

2

I. BACKGROUND

Plaintiff-appellant Rukminie Harilall was employed by

defendant-appellee University Health System Development Corp.

(UHSDC) as a nurse. Harilall’s complaint alleges that during her

tenure with UHSDC she was harassed on the basis of her race,

color, religion, and national origin, and that UHSDC ultimately

terminated her for discriminatory reasons.1 Harilall filed suit

in the district court on March 20, 1997. On June 21, 1998, the

district court granted UHSDC’s summary judgment motion,

dismissing Harilall’s claims on the grounds that the conduct

complained of did not rise to the level of actionable harassment,

that the evidence did not demonstrate that UHSDC management had

actual or constructive knowledge of the harassment, and that

Harilall’s subjective belief that her discharge was the result of

discrimination was insufficient to overcome UHSDC’s evidence that

she had been discharged for a non-discriminatory reason. 

Harilall timely appealed and appears before this court pro se.2
shown that the appointment of counsel is warranted here. See

Salmon v. Corpus Christi Indep. Sch. Dist., 911 F.2d 1165, 1166

(5th Cir. 1990) (no automatic right to the appointment of

counsel); Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990)

(factors relevant to whether district court should appoint

counsel in Title VII case include (1) merits of claim; (2)

efforts taken by plaintiff to secure counsel; and (3) plaintiff’s

financial resources); Neal v. IAM Local Lodge 2386, 722 F.2d 247,

250 (5th Cir. 1984) (same). 

3

The summary judgment evidence before the district court

established the following incidents of alleged harassment:

On one occasion, Harilall’s supervisor, Marlene Upright, the

Clinical Nursing Director heading the unit where Harilall worked,

asked Harilall to work beyond her shift. Harilall replied that

she could not because she had to pick up her son and had a class

to attend. Harilall did not work beyond her shift and was not

disciplined for her refusal.

Approximately two days to one week later, Upright left a

message on the answering machine at Harilall’s mother’s house

stating that Harilall was needed at work and that, if she did not

report, her job would be in jeopardy. Harilall claims that other

nurses had had more time off than she but were not called into

work. Harilall went into work as requested. Upright then

informed Harilall that she wanted to see Harilall in her office. 

Harilall stated that she became nervous at this request. In

Upright’s office, Upright explained that had she not made the

phone call, Harilall would not have come to work. Harilall then

told Upright that her father and mother had both experienced

chest pains upon hearing the message. Harilall contends that

Upright yelled at her during this discussion. 
4

On another occasion, Harilall asked Judy Rodriguez, the

assistant head nurse, for time off. Harilall had gotten someone

to cover for her, but Rodriguez wanted to use the person

elsewhere. After being pressed, Rodriguez stated that she would

have to clear the time off with Upright. Harilall eventually

received the requested time off, but believes that her request

was granted only because she inquired about the Equal Employment

Opportunity Commission. 

The next incident occurred at the nurses’ station, where

Rodriguez asked Harilall who she was married to and how many

times she had been married. Harilall stated that she felt that

the questions were inappropriate, but admitted that she walked

away without saying anything. 

The next incident occurred during a break when a co-worker

asked Harilall where she and her son came from. Harilall

responded that she had fallen out of a tree because she felt it

was none of the co-worker’s business. The co-worker responded by

asking Harilall if she wanted to get married to anyone. After

responding in the negative, the co-worker informed Harilall that

her husband could introduce Harilall to a “big, fat black man.” 

Another co-worker then asked Harilall where she came from and

Harilall again responded by stating that she had fallen out of a

tree. The co-worker stated that she believed Harilall was an

illegal alien and was going to prove it. Harilall contends that

during the incident her co-workers were all laughing. Although

Rodriguez was present during the incident, Harilall informed
5

neither Rodriguez, nor her the co-workers, that she felt that the

questions were inappropriate. Harilall never reported the

incident to Upright or anyone else in management.

 Another co-worker subsequently questioned Harilall about her

marital status and about her son’s father. Yet another co-worker

asked Harilall if she had had a “butt uplift.” Harilall felt

that these questions were inappropriate, but did not tell her coworkers, and never reported the incidents to management. 

On a separate occasion, a co-worker asked Harilall if she is

a “wetback,” and if she knew what the term meant. Harilall never

reported the incident to management. 

Harilall also testified that she felt harassed when she was

asked to provide orientation for a new employee. Harilall felt

that she did not have the experience to provide orientation

because she was the least senior employee in the unit. The new

employee followed Harilall around each day, and, at the end of

the day, Upright would ask the employee if she “ha[d] anything

for [Upright].” Harilall believed that “she was like spying on

me to see if I was doing my work right or something. I felt that

at that moment that they were looking for something to fire me.” 

Harilall stated that she became a nervous wreck because of

the above events. On another occasion, she arrived at work and

was informed that she had failed to follow the doctor’s orders on

one of her patients and that Upright wanted to see her. Harilall

stated that she felt very nervous and was crying and shaking. 

She stated that she felt like she needed to talk to someone and
6

went home. That afternoon, Harilall received a call from Upright

who told her that she could not return to work until she had a

complete psychiatric evaluation. Plaintiff complied. Upon

returning to work, she brought with her a letter from the

psychiatrist, which she delivered to Inez Kelly, the head of all

nurses. The letter stated that the psychiatrist thought that

Harilall had a personality conflict with Upright. After

delivering the letter, Harilall informed Kelly of the earlier

incident in which Upright had left a telephone message on her

mother’s answering machine stating that her job would be in

jeopardy if she did not come into work. She informed Kelly how

upset she had been by the message. Kelly responded by setting up

a meeting with Harilall, Upright, and Nancy Ray, the vicepresident of Patient Care Services. 

During the meeting, Harilall explained her side of the story

and her feelings about the incident. Upright explained that the

hospital was understaffed and that she had been desperate for

help. Ray tried to convince Harilall to learn to work with

Upright. Harilall described what Ray told her as follows:

[Upright] is not going to fire you. She said, and you have

to learn to live with her and you work with her and we are

not going to fire [Upright] and she was going to have

periodic meetings and I felt like I didn’t need that

periodic meetings because everybody on the floor was

harassing me and I needed to be removed from that situation,

but I didn’t say anything because I had already told Inez

Kelly that, that I had decided with my psychiatrist, I had

come to a conclusion that if this continue[d] that I was

going to resign . . . . 

After the meeting, Harilall returned to work. Harilall felt

that Upright was “hammering at [her]” because Upright asked her a
 

3 Appellant’s record excerpts contained materials that were

not submitted to the district court. Appellee filed a motion to

strike the record excerpts. This court granted the motion to

7

question. Later that day, Upright informed Harilall that a

doctor had called stating that Harilall had not called him with a

lab result. Harilall felt she was being set up and decided to

prove she was being harassed. She decided to make a copy of the

patient’s record to show she was being set up. She called the

secretary and asked her to make a copy of the chart which she

intended to take to an employee representative. After picking up

the copy, she decided it was wrong and threw it away. However,

she ended up making a second copy and taking it to the employee

representative who wadded it up and told Harilall that she was

not supposed to copy patients’ records. UHSDC contends that

Harilall was terminated for removing a copy of the patient’s

record from the hospital in violation of hospital policy. 

II. STANDARD OF REVIEW

This court reviews the district court’s grant of UHSDC’s

summary judgment motion de novo, applying the same standard as

the district court. See LaPierre v. Benson Nissan, Inc., 86 F.3d

444, 447 (5th Cir. 1996); Lavespere v. Niagara Mach. & Tool

Works, Inc., 910 F.2d 167, 177 (5th Cir. 1990). If there are no

genuine issues as to any material fact and the moving party is

entitled to judgment as a matter of law, summary judgment is

appropriate. See Fed. R. Civ. P. 56(c); LaPierre, 86 F.3d at

447. Our review is “confined to an examination of materials

before the lower court at the time the ruling was made.”3
strike the appellant’s record excerpts on October 1, 1998. On

October 12, 1998, appellant moved for reconsideration of the

October 1st order. This court denied the motion for

reconsideration on November 5, 1998. On November 10, 1998,

appellant moved for reconsideration of the court’s November 5th

order denying her motion for reconsideration. This court denied

the motion on December 17, 1998. Appellant submitted a motion

for reconsideration, received on December 23, 1998, asking for

reconsideration of the December 17th order. This motion was

returned to her without being filed. Appellant has now submitted

yet another motion for reconsideration which was received on

December 30, 1998. We refuse to consider the motion. Materials

not presented to the district court are not properly before us

and may not be introduced into the record on appeal. See Fields

v. City of South Houston, 922 F.2d 1183, 1188 (5th Cir. 1991)

(citing John v. Louisiana, 757 F.2d 698, 710 (5th Cir. 1985)). 

8

Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th

Cir. 1988). 

III. DISCUSSION

In order to prove that she was subjected to actionable

harassment, Harilall must demonstrate (1) that she belongs to a

protected class; (2) that she was subject to unwelcome

harassment; (3) that the harassment was based on an illegal

basis, i.e., her national origin, race, color, or religion; (4)

that the harassment materially affected a term, condition, or

privilege of employment, i.e., that the harassment was

sufficiently pervasive to alter the conditions of employment and

create an abusive working environment; and (5) that the employer

knew or should have known of the harassment but failed to take

prompt remedial action. See Jones v. Flagship Int’l, 793 F.2d

714, 719-20 (5th Cir. 1986); Rogers v. Equal Employment

Opportunity Comm’n, 454 F.2d 234, 236-243 (5th Cir. 1971); Ochoa

v. Texas Metal Trades Council, 989 F. Supp. 828, 831 (S.D. Tex.
9

1997). 

The district court properly granted summary judgment because

Harilall’s evidence does not satisfy the elements of actionable

harassment. Of the incidents recounted by Harilall, the vast

majority are common workplace occurrences, and Harilall has not

established they were based on her national origin, race, color,

or religion. While “wetback” and “illegal alien” are comments

related to Harilall’s national origin, these isolated remarks do

not constitute pervasive harassment actionable under Title VII. 

The “‘mere utterance of an ethnic or racial epithet which

engenders offensive feelings in an employee’ does not affect the

terms[,] conditions, or privileges of employment to a

sufficiently significant degree to violate Title VII.” Jones,

793 F.2d at 720 (quoting Rogers, 454 F.2d at 238); see Faragher

v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998) (“‘[S]imple

teasing,’ offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in

the ‘terms and conditions of employment.’”) (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998,

1003 (1998)) (citation omitted). 

Moreover, Harilall has not presented evidence that UHSDC

knew or should have known of the alleged harassment but failed to

take prompt remedial action. Harilall admitted to the district

court that she did not report the vast majority of incidents to
 

4 In her pro se appellate brief, Harilall contends that she

did report the incidents to John Guest, CEO of the hospital. 

There is no evidence in the record to support this assertion.

 

5 Rodriguez’s presence during one incident in which

Harilall was referred to as an “illegal alien” and questioned as

to where she came from does not demonstrate that UHSDC had actual

knowledge of pervasive harassment being directed against Harilall

on account of her national origin, race, color, or religion.

10

management.4 While, in the meeting set up by Kelly with

Harilall, Upright, and Ray, Harilall did express her distress at

the phone message asking her to come into work left by Upright on

Harilall’s mother’s answering machine, this did not provide UHSDC

with notice that Harilall felt that she was being harassed on the

basis of her national origin, race, color, or religion. UHSDC,

therefore, did not have actual notice of her claims of

harassment. See Waltman v. International Paper Co., 875 F.2d

468, 478 (5th Cir. 1989) (actual notice established by evidence

of complaints to higher management).5 Nor was the harassment

sufficiently pervasive to provide constructive notice. See id.

(constructive notice shown where pervasive harassment exists that

gives rise to inference of knowledge or constructive knowledge). 

The district court correctly granted summary judgment to UHSDC as

to Harilall’s claim of harassment on the basis of her national

origin, race, color, or religion.

As to Harilall’s claim that she was terminated for

discriminatory reasons, Harilall must first establish a prima

facie case of discrimination. If she does so, UHSDC must

articulate a legitimate, non-discriminatory reason for her

termination. Once UHSDC has met its burden, Harilall must 
11

prove, by a preponderance of the evidence, that UHSDC’s

articulated reason is false and that the defendant intentionally

discriminated against her. See Walton v. Bisco Indus., Inc., 119

F.3d 368, 370 (5th Cir. 1997) (citing St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 510-11 (1993) and Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 252-55 (1981)); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

(establishing burden-shifting framework). 

To establish a prima facie case of discriminatory discharge

under Title VII, the employee must demonstrate (1) that she is a

member of a protected class; (2) that she was discharged; (3)

that she was qualified for the position from which she was

discharged; and (4) that she was replaced by a member of an

unprotected class. See Faruki v. Parsons S.I.P., Inc., 123 F.3d

315, 318 (5th Cir. 1997). Assuming arguendo that Harilall has

established a prima facie case of discriminatory discharge, the

district court nevertheless properly granted summary judgment to

UHSDC because UHSDC articulated a legitimate, non-discriminatory

reason for Harilall’s discharge--that she removed a copy of a

patient’s record in violation of hospital policy--and Harilall

failed to meet her burden of demonstrating that this reason was

pretextual and that UHSDC intentionally discriminated against

her. Harilall’s conclusory allegations are insufficient to rebut

UHSDC’s articulated non-discriminatory reason for her discharge. 

As the district court noted, “[i]t is more than well-settled that

an employee’s subjective belief that [s]he suffered an adverse
12

employment action as a result of discrimination, without more, is

not enough to survive a summary judgment motion, in the face of

proof showing an adequate nondiscriminatory reason.” Douglass v.

United Servs. Auto. Assoc., 79 F.3d 1415, 1430 (5th Cir. 1996). 

The district court, therefore, properly granted summary judgment

to UHSDC.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.