UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELISABETH S. BROCKIE,

Plaintiff,

VS.

AMERIPATH, INC.,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:06-CV-0185-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the plaintiff Elisabeth S. Brockie (“Brockie”)

for reconsideration of the court’s memorandum opinion and order of April 23, 2007

which granted summary judgment in favor of the defendant Ameripath, Inc.

(“Ameripath”). Brockie also seeks leave to supplement the summary judgment

record. For the reasons stated below, both motions are denied.

The Federal Rules “do not recognize a ‘motion for reconsideration’ in haec

verba.” Lavespere v. Niagra Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.

1990), cert. denied, 510 U.S. 859 (1993). Courts in the Fifth Circuit treat so-called

motions to reconsider either as motions to alter or amend under Rule 59 or as

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 1 of 12 PageID 1522
- 2 -

motions for relief from judgment under Rule 60. Id. If the motion is served within

ten days of the rendition of the judgment, it falls under Rule 59(e); if the motion is

served after that time, it falls under Rule 60(b). Id.; Harcon Barge Company, Inc. v. D

& G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (en banc), cert. denied, 479 U.S.

930 (1986). In this case, because the motion was filed within ten days of the court’s

order, the court will treat the motion under Rule 59(e). 

“A motion to alter or amend the judgment under Rule 59(e) must clearly

establish either a manifest error of law or fact or must present newly discovered

evidence and cannot be used to raise arguments which could, and should, have been

made before the judgment issued.” Schiller v. Physicians Resource Group Inc., 342 F.3d

563, 567 (5th Cir. 2003) (internal quotations omitted). “Relief under Rule 59(e) is

also appropriate when there has been an intervening change in the controlling law.” 

Brockie urges reconsideration of the April 23 memorandum opinion and order

because it “contains a factual mistake central to its grant of summary judgment in

favor of Ameripath.” Plaintiff’s Motion for Reconsideration and Motion to

Supplement the Summary Judgment Record (“Motion for Reconsideration”) at 1. 

This factual mistake, according to Brockie, is shown by the deposition testimony of

Virginia Petty, as outlined in Brockie’s motion.

The problem with Brockie’s argument regarding mistake, however, is that

Petty’s testimony was not part of the summary judgment record at the time the court

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 2 of 12 PageID 1523
- 3 -

ruled, a fact tacitly acknowledged by Brockie’s additional motion to supplement the

summary judgment record.

Once Ameripath, as the movant for summary judgment, made the showing

required by Rule 56(c), F.R. CIV. P., Brockie was required to “‘designate’ the specific

facts in the record that create genuine issues precluding summary judgment.” Jones v.

Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996). See also Ragas v.

Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998) (opponent of

motion for summary judgment “is required to identify specific evidence in the record

and to articulate the precise manner in which that evidence supports his or her

claim”); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.) (same), cert. denied, 513 U.S.

871 (1994). The court “had no obligation to consider evidence that [Brockie] did

not bring forth in opposition to the summary judgment motion[].” Doddy v. Oxy

USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996).

Brockie argues that although the Petty deposition was not taken until after her

response to Ameripath’s motion for summary judgment was filed, Motion for

Reconsideration at 5, the testimony was nevertheless before the court in connection

with Ameripath’s motion to strike Petty’s summary judgment affidavit. Id. This

argument ignores two critical points central to the decision of summary judgment

motions. First, Brockie admits, as she must, that she did not “designate” or “identify”

this evidence, in her response, as creating a genuine issue of material fact. Motion for

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 3 of 12 PageID 1524
- 4 -

Reconsideration at 1 n.1 (“Because Plaintiff’s response deadline had passed, she was

not permitted to submit argument that would have pointed the Court to this

evidence.”) (emphasis in original) and 5-6 (“Brockie was unable to provide argument

[regarding this evidence] in response to the motion for summary judgment”). She

nevertheless contends that the Petty deposition testimony “was properly part of . . .

the summary judgment evidence.” Motion for Reconsideration at 8. Apparently her

contention is that because the testimony of Ms. Petty was in the record, the court, on

its own, was supposed to locate -- without any “designation” or “identification” from

Brockie -- this specific excerpt of testimony. 

Such a contention, however, demonstrates the second fallacy in Brockie’s

argument. This court has no duty “to sift through the record in search of evidence to

support a party’s opposition to summary judgment.” Doddy, 101 F.3d at 463; Jones,

82 F.3d at 1338. Brockie is also wrong in asserting that merely because the Petty

testimony was on file, it was part of the summary judgment record. See Nissho-Iwai

American Corporation v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (“The petition for

rehearing asserts that the second Kline deposition was of record at the time the

district court granted partial summary judgment, [but] Kline still failed to designate,

or in any way refer to, the deposition as the source of factual support for her response

to Nissho’s motion. Thus, the deposition was never made part of the competent

summary judgment record before the district court.”).

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 4 of 12 PageID 1525
- 5 -

Even if the court were to consider the deposition testimony of Petty at this late

date, it is still insufficient to show a genuine issue of material fact for trial. In the

prior memorandum opinion, the court stated:

[W]hen a plaintiff is able to offer direct evidence in

support of a Title VII claim, the defendant must produce

evidence to show that the adverse employment decision

would have occurred even in the absence of the unlawful

purpose. See Fierros v. Texas Department of Health, 274 F.3d

187, 192 (5th Cir. 2001). Direct evidence in the context

of Title VII includes “any statement or written document

showing a discriminatory motive on its face.” See id. at

195 (quoting Portis v. First National Bank, 34 F.3d 325, 329

(5th Cir. 1994)). Direct evidence is “evidence which, if

believed, proves the fact without inference or

presumption.” [Davis v. Moore Wallace, Inc., 217 Fed. App’x

313, 315 (5th Cir. 2007)] (quoting Brown v. East Mississippi

Electric Power Association, 989 F.2d 858, 861 (5th Cir.

1993)). . . .

Not all comments made in the workplace are sufficient to provide evidence of

discrimination. See Krystek v. University of Southern Mississippi, 164 F.3d 251, 256

(5th Cir. 1999). For a comment to constitute evidence of discrimination, the

comment must be “1) related [to the protected class of persons of which the plaintiff

is a member]; 2) proximate in time to the terminations; 3) made by an individual

with authority over the employment decision at issue; and 4) related to the

employment decision at issue.” Id. (quoting Brown v. CSC Logic, Inc., 82 F.3d 651,

655 (5th Cir. 1996) (alteration in original)); see also Wallace v. Methodist Hospital

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 5 of 12 PageID 1526
1 To the extent that Brockie takes issue with the court’s statement that

Hebert’s streetwalker comment was “probably offensive,” Brockie misses the mark. 

(continued...)

- 6 -

System, 271 F.3d 212, 222 (5th Cir. 2001), cert. denied, 535 U.S. 1078 (2002);

Brockie, 2007 WL 1187984, at *7-8.

Applying this standard to the statement by Hebert, the court held: 

While the facts in evidence indicate that Brockie has

satisfied the third element (Hebert was in a position of

authority over the employment decision at issue), Brockie

advances no evidence in support of the other three elements. First,

it is not clear on the face of the statement that Hebert’s

alleged “streetwalker” comment was related to the

protected class of which Brockie is a member. Even if it is

assumed that the comment meets the first element of the

four-part test, however, Brockie has furnished no

information as to the proximity in time between Hebert’s

utterance and the employment decision and she has

provided no argument that the comment was related to

Hebert’s decision to fire Brockie. 

The court concludes that the statement by Hebert, albeit

crude and probably offensive, does not rise to the level of

direct evidence contemplated by the case law. To say that

the “streetwalker” comment, spoken in jest or otherwise,

“proves the fact without inference or presumption” that

Ameripath fired Brockie on the basis of her gender is

erroneous. Compare [Plaintiff’s Brief in Opposition to

Defendant’s Brief in Support of Its Motion for Summary

Judgment at 35] (“Dr. Brockie has the reputation of being

a streetwalker”) with [Vance v. Union Planters Corp., 209

F.3d 438, 442 (5th Cir. 2000), cert. denied, 537 U.S. 815

(2002)] (finding the statement by the employer that he

wanted a “mature man” for the position to be gender

related).

Brockie, 2007 WL 1187984, at *8-9 (emphasis added).1

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 6 of 12 PageID 1527
1

(...continued)

See Motion for Reconsideration at 2 n.3. She stated, “By finding the ‘statement’ was

‘probably offensive,’ instead of describing the statements (plural) as patently offensive

and reprehensible, on these central facts the Court failed to view the evidence in the

light most favorable to the non-movant and, instead, viewed the evidence in an

unrealistic light most favorable to AmeriPath [sic].” Id. Whether the court found the

statement to be “offensive” or “probably offensive” is irrelevant to the underlying

motion for summary judgment because the offensiveness of the comment is not an

issue in a case of employment discrimination. See Read v. BT Alex Brown Inc., 72 Fed.

App’x 112, 120 (5th Cir. 2003) (“Mere stray remarks, however distasteful, do not

demonstrate discriminatory animus.”). Rather, Brockie needed to show that the

comment constituted direct evidence of discriminatory animus on the part of

Ameripath.

2 To be clear, the court did not find, in the prior memorandum opinion,

that the comment was related to Brockie’s membership in a protected class. See

Brockie, 2007 WL 1187984, at *9 (“To say that the “streetwalker” comment, spoken

in jest or otherwise, “proves the fact without inference or presumption” that

Ameripath fired Brockie on the basis of her gender is erroneous.”).

- 7 -

The court, in an effort to conserve judicial resources, chose not to give in depth

treatment to the first element of the Krystek test in its prior memorandum opinion

and instead focused on the second element, the proof of which was glaringly absent

from Brockie’s response to the motion for summary judgment. Now, the court must

return to its analysis of the first element from Krystek and determine whether the

streetwalker comment “related [to the protected class of persons of which the plaintiff

is a member]”. 164 F.3d at 256. The court finds that the comment was not related

to Brockie’s membership in the protected class of women.2

Brockie’s own motion for reconsideration supports this conclusion. In

footnote 3 of the motion for reconsideration, Brockie quotes WEBSTER’S NEW

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 7 of 12 PageID 1528
- 8 -

WORLD DICTIONARY OF THE AMERICAN LANGUAGE, COLLEGE EDITION 1964) for the

definition of the terms “streetwalker.” According to Brockie, a streetwalker is “a

person who walks in the streets; especially a prostitute who seeks trade along the

streets.” Motion for Reconsideration at 2 n.3 (emphasis added). The court found

other contemporary recitations of the definition of the term “streetwalker” to be

similarly ambiguous with regard to gender. See Merriam-Webster Online,

http://www.m-w.com/dictionary/streetwalker (last visited July 13, 2007) (streetwalker:

“prostitute; especially: one who solicits in the streets”) (emphasis added);

Merriam-Webster Online, http://mw1.merriam-webster.com/dictionary/prostitute (last

visited July 13, 2007) (prostitute: “1 a: a woman who engages in promiscuous sexual

intercourse especially for money”; “b: a male who engages in sexual and especially

homosexual practices for money”) (emphasis added); Cambridge Dictionaries Online,

http://dictionary.cambridge.org/define.asp?key=78760&dict=CALD (last visited

July 13, 2007) (streetwalker: “a prostitute who looks for customers outside in public

places); Cambridge Dictionaries Online,

http://dictionary.cambridge.org/define.asp?key=63590&dict=CALD (last visited

July 13, 2007) (prostitute: “a person who has sex with someone for money”)

(emphasis added). By the plaintiff’s own definition (and supported by the more

contemporary definitions), the word “streetwalker” is unrelated to her membership

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 8 of 12 PageID 1529
3 Of course, the evidence in the case shows that this inference is

unwarranted because Ameripath replaced Brockie with a woman. See Brockie, 2007

WL 1187984, at *10.

- 9 -

in a protected class. That is, referring to Brockie as a streetwalker is unrelated to her

gender, as the term is equally applicable to men and women.

Moreover, Hebert’s comment about Brockie does not “prove[ ] the fact

without inference or presumption.” See Davis, 217 Fed. App’x at 315. The only way

Hebert’s statement could be probative of discriminatory animus against women is if

his statement means: all streetwalkers are women; Brockie is a woman; I do not want

a streetwalker to be employed by Ameripath; therefore Brockie (as a woman) must be

fired.3

 Against the backdrop of decisions from other courts within the Fifth Circuit,

Hebert’s comment falls woefully short of being a statement that proves the issue

without inference. Compare Vance, 209 F.3d at 442 (statement that the bank

“wanted to hire a ‘mature man’ is certainly related to sex . . . . Therefore, the

comment qualifies as direct and material evidence of sex discrimination.”); Haun v.

Ideal Industries, Inc., 81 F.3d 541, 546 (5th Cir. 1996) (statement that company’s

president did not want to hire older workers constituted direct evidence of age

discrimination); Portis v. First National Bank, 34 F.3d 325, 329 (5th Cir. 1994)

(statement by supervisor that a female subordinate “would never be worth as much as

a man to the bank” was direct evidence of discrimination); Johnson v. Saks Fifth Avenue

Texas, LP, Civ. A. No. H-05-1237, 2007 WL 781946, at *22 (S.D. Tex. Mar. 9,

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 9 of 12 PageID 1530
- 10 -

2007) (comments by supervisor referring to African Americans as “niggers” and using

the phrase “black bitch” to describe one African American woman sufficiently related

to the African American plaintiff’s status as a member of a protected class); Pruitt v.

Dallas Independent School District, No. 3:04-CV-0554-D, 2006 WL 1359909, at *4

(N.D. Tex. May 16, 2006) (Fitzwater, J.) (statement by supervisor that “a woman

can’t be over a man” sufficiently related to female employee’s membership in a

protected class); Penman v. Snow, No. 1:04-CV-37LG-RHW, 2006 WL 1195336, at

*3 (S.D. Miss. May 4, 2006) (statement that “‘because of [plaintiff’s] color, [he]

would have trouble dealing with the people out there collecting money for the IRS”

was related to the protected class of which the plaintiff was a member), with Boyd v.

Guidant Sales Corporation, No. 3:05-CV-1822-M, 2007 WL 415328, at *4-5 (N.D.

Tex. Feb 7, 2007) (Lynn, J.) (deposition testimony that director “began targeting

certain individuals all over the age of forty for unfavorable employment actions. [The

Area Director] said they were making too much money and we could ‘hire younger

people who were cheaper’” insufficient to constitute direct evidence of

discrimination); Jones v. Heritage Properties, Inc., No. 2:05-CV-162-P-B, 2007 WL

187799, at *5-6 (N.D. Miss. Jan. 22, 2007) (statement by co-owner of apartment

complex about African American employee-plaintiff that co-owner “did not like

having [the plaintiff] be the first face that a person sees upon coming through the

door of the [apartment] office” was not “direct and unambiguous” and “would require

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 10 of 12 PageID 1531
- 11 -

inferences and presumptions on the jury’s part to conclude that the comment referred

to the plaintiff’s race.”); Harris v. Park Cities Volkswagen, 3:03-CV-0328-BD, 2004 WL

76382, at *3 (N.D. Tex. Jan. 13, 2004) (Kaplan, Magistrate J.) (statement to African

American applicant that “you look like you will intimidate my managers” and

statement to other African American applicant that he was not “the type of person

the company was looking to hire” were not related to the applicant’s race); Taylor v.

United Parcel Service of America, Inc., No. 3:02-CV-2536-G, 2003 WL 23119145, at *4

n.2, 8 (N.D. Tex. Dec. 31, 2003) (Fish, C.J.) (comment by supervisor calling African

American employee “boy” not related to employee’s race); Phillips v. Credit Lyonnais,

No. 3:00-CV-1638-G, 2002 WL 1575412, at *8-9 (N.D. Tex. July 16, 2002) (Fish,

C.J.) (statement by supervisor that he “needed someone who would be there” not

related to employee’s status as a pregnant woman); Wallace v. Methodist Hospital

System, 85 F. Supp. 2d 699, 712-13 (S.D. Tex. 2000) (statement during performance

review that company “did not know how to categorize [plaintiff] because [plaintiff]

was gone three months last year, and . . . would be gone three months again this year”

related to her absence from work, not her pregnancies, and thus not direct evidence of

discrimination), aff’d, 271 F.3d 212 (5th Cir. 2001), cert. denied, 535 U.S. 1078

(2002). 

The comment by Hebert was not related to the plaintiff’s position as a member

of a protected class. It is only through inference that the statement becomes related

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 11 of 12 PageID 1532
4 Because the comment does not demonstrate a discriminatory animus, it

is similarly insufficient to serve as evidence or pretext in a circumstantial evidence

case. See Phillips v. TXU Corporation, 194 Fed. App’x 221, 227-28 (5th Cir. 2006). 

Furthermore, as would be the situation in this case, under a circumstantial evidence

theory of discrimination, a stray remark alone is insufficient to demonstrate pretext. 

See Palasota v. Haggar Clothing Company, 342 F.3d 569, 577 (5th Cir. 2003), cert.

denied, 540 U.S. 1184 (2004).

- 12 -

to her gender. Accordingly, the comment is insufficient to constitute direct evidence

of discrimination under the Krystek four-part test.4

Accordingly, Brockie’s motion for reconsideration is DENIED.

SO ORDERED.

July 23, 2007.

 

 Case 3:06-cv-00185-G Document 84 Filed 07/23/07 Page 12 of 12 PageID 1533