IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20312

Summary Calendar

WILLIAM R. NOACK,

Plaintiff-Appellant,

v.

YMCA, OF THE GREATER HOUSTON AREA,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CV-3247

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

This appeal arises from the district court’s grant of summary judgment in

favor of the YMCA of Greater Houston on all of William Noack’s claims for

employment discrimination and failure to pay overtime, brought under Title VII

of the Civil Rights Act of 1964, the Fair Labor Standards Act (FLSA), and state

law. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

March 16, 2011

Lyle W. Cayce

Clerk

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.

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I. FACTUAL AND PROCEDURAL BACKGROUND

Noack claims that the YMCA began discriminating against him shortly

after he was hired as a part-time childcare employee in March 1999. Many of

those alleged acts of discrimination occurred before 2007, which is a significant

date for reasons set forth in greater detail below. First, he claims that in the

summer of 2000, he was mockingly presented with a gag “Bee Charmer” award

for having reported a beehive at the base of a tree located approximately twelve

feet from a main hiking trial used by children at a YMCA day camp. Second, he

says that in 2000, he was improperly disciplined for taking a young girl to the

bathroom in contravention of the YMCA’s policies. In lieu of termination for his

misconduct, Noack was transferred to a new facility. Third, also in 2000, he

says he was refused promotion to a “site director” position at a specific location

he desired because he was a male, although he was in fact promoted to site

director at a different YMCA facility (and later to multi-site director). Fourth,

in 2005 he was given a gag “Mr. Handy Man” award, allegedly evidencing that

he was relegated to menial labor. Fifth, he was reprimanded for sending

personal e-mails on work time, although others engaging in the same conduct

were not.

In December 2000, Noack submitted a complaint to the Equal Opportunity

Employment Commission (EEOC) and to the Texas Commission on Human

Rights alleging that his transfer to a new facility after the restroom incident and

the YMCA’s refusal to transfer him as a site director to his chosen site were

evidence of sex discrimination. Noack later withdrew that complaint before any

action was taken by either the EEOC or the Texas authorities.

Noack also alleges that the YMCA’s discriminatory actions continued

throughout 2007 and afterward. In August of that year, Noack complained to

his supervisor, Debbie Egger, about his work load and inability to work paid

overtime. She reminded him about the YMCA’s budget constraints and its policy

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against employees working overtime. Despite that conversation, Noack worked

two hours of unauthorized overtime the next week. When Egger was made

aware of the situation, she sent him home because he had completed the

maximum number of workable hours that week. The next week, Egger gave

Noack a written reprimand regarding the incident. Noack asserts that this

reprimand was retaliation for having requested payment for the number of

overtime hours he had worked.

Shortly after receiving the written reprimand, Noack wrote Egger an email alleging that the YMCA engaged in discriminatory hiring practices. In

that e-mail, Noack alleged that she had instructed him not to hire too many

African-American people and to keep African-American employees separated

from each other. Noack now contends that Egger made a similar statement

regarding hiring men. Egger replied by expressing her support for hiring a

diverse staff that would reflect the diverse community that the YMCA served.

Approximately a month after receiving the written reprimand, Noack met

with human resources (HR) personnel to express several more complaints. In

this meeting, Noack complained about both the overtime policy and the YMCA’s

alleged discriminatory hiring practices. He also complained about being

transferred to a different facility in 2000 after the incident in which he took the

young girl to the restroom. None of these issues were resolved in the meeting.

Approximately two weeks after his meeting with HR, Noack tendered his

resignation. His resignation e-mail stated that he was leaving voluntarily “to go

on and do other things.” That same day, an HR employee met with Noack and

asked him to provide an estimate of the amount of unpaid overtime he had

worked in the last three years. Noack estimated the unauthorized overtime at

138 hours. The YMCA paid him for the requested amount despite the fact that

Noack did not have any documentation to indicate the number of hours that he

worked or the tasks that he completed. Noack also makes various other claims

of discriminatory activity for which he does not specify a date. For example, he

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claims that he was once asked to change a flat tire and that on at least one

occasion, an e-mail that was offensive to men was circulated around the office.

Subsequently, Noack filed this lawsuit, contending that the YMCA

violated Title VII by discriminating against him based on his sex. He also claims

under the same statute that the YMCA systematically discriminated on gender

and racial grounds, affecting his employment by hindering him from hiring male

or black employees. That discrimination, Noack claims, led to a hostile work

environment and to his constructive discharge. In addition, he alleges that the

YMCA illegally retaliated against him pursuant to the FLSA after his request

for overtime pay. Finally, he alleges that the YMCA intentionally inflicted

emotional distress.

The YMCA filed for summary judgment on all counts. In a detailed report,

the magistrate judge recommended granting the YMCA’s summary judgment

motion. After reviewing Noack’s objections to the recommendation, the district

court adopted the magistrate judge’s memorandum and recommendation and

entered final judgment in favor of the YMCA. Noack appeals, arguing that the

district court improperly granted the YMCA’s motion for summary judgment

because the district court improperly excluded admissible evidence and wrongly

considered inadmissible evidence. In the alternative, Noack argues that the

motion for summary judgment was improperly granted because genuine issues

of material fact were in dispute. He further contends that the magistrate judge

should have recused herself sua sponte and that she erred by denying him the

appointment of counsel.

II. DISCUSSION

A. Summary Judgment Dismissal of Claims

Our review of the district court’s grant of summary judgment is de novo.

Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005). In reviewing

a grant of summary judgment, we view the evidence and inferences from the

summary judgment record in the light most favorable to the nonmoving party.

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Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005).

“Summary judgment is proper when the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We review a district court’s evidentiary

decisions under an abuse of discretion standard. Celestine v. Petroleos de

Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001).

B. Noack’s Title VII Claims

1. The Limitations Issue

The district court granted summary judgment to defendants on Noack’s

Title VII claims with respect to all allegedly discriminatory incidents which

occurred prior to February 2007. We agree. Title VII requires the plaintiff to

file his petition alleging discrimination within 180 days of the alleged unlawful

employment practice, unless the complainant has begun proceedings with a state

or local agency, in which case the limitations period is extended to 300 days. 42

U.S.C. § 2000e-5(e)(1). Complying with the filing deadline is a prerequisite to

bringing a Title VII claim. See Stewart v. Miss. Transp. Comm’n, 586 F.3d 321,

328 (5th Cir. 2009) (requiring courts to dismiss claims that do not comply with

the filing deadline, regardless of the substantive merits of the claims). Here,

because Noack submitted his charge of discrimination to the Texas Commission

on Human Rights on December 13, 2007, the relevant limitations date is 300

days prior to that, in February 2007. All five of Noack’s allegations of

discrimination that occurred before that date, as set forth above and described

in detail in the magistrate judge’s report and recommendation, are barred by

statute.

Noack, however, contends that all of those factual allegations should have

been considered because they constituted a “continuing violation.” See Pegram

v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). The continuing-violation

exception is an equitable doctrine that extends the limitations period on

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otherwise time-barred claims when the unlawful employment practice in

question “manifests itself over time, rather than as a series of discrete acts.” Id.

The district court determined that the continuing-violation exception was

not applicable to the present case. We agree. Noack presented no evidence that

the complained of acts of discrimination were sufficiently related to constitute

an unlawful employment practice. The alleged acts did not involve the same

type of harassment and were not perpetrated by the same individuals. See

Stewart, 586 F.3d at 329. Therefore, all of Noack’s claims that occurred before

February 2007 were properly time barred by the district court.

2. The Merits of Noack’s Title VII Discrimination Claims

Noack also appeals from the district court’s dismissal of his Title VII

claims on the merits. He asserts that the YMCA’s alleged prohibition against

hiring too many African-Americans and men had a disparate impact on his

ability to perform his employment duties. Moreover, Noack claims that the

YMCA discriminated against him because of his sex, based on four incidents.

Specifically, Noack claims he was discriminated against when YMCA employees,

(a) asked him to clean up the break room; (b) asked him if he could help a coworker change a flat tire; (c) sent e-mails he considered offensive and degrading

to men; and (d) paid him at a rate different from that of his female co-workers.

Under both theories, Noack claims that the YMCA’s discrimination created a

hostile work environment and rendered him subject to constructive discharge.

Whether a work environment is hostile is determined by an objectively

reasonable standard assessed by the totality of the circumstances. Alaniz v.

Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009). Relevant factors include

“frequency of the conduct, its severity, the degree to which the conduct is

physically threatening or humiliating, and the degree to which the conduct

unreasonably interferes with an employee’s work performance.” Id. Not all

forms of harassment are actionable, including “simple teasing, offhand

comments, and isolated incidents . . . .” Id.

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Noack’s brief only restates the same evidence already considered and

properly rejected by the district court. For example, Noack argues that various

e-mails and documents constitute “de facto admissions of guilt” that show the

YMCA’s policy of discrimination. Some of those documents were created by

Noack himself, such as his e-mails alleging discrimination. As such, they cannot

constitute de facto admissions of guilt by the YMCA. See Jackson v. Cal-Western

Packaging Corp., 602 F.3d 374, 379-80 (5th Cir. 2010) (stating that a mere

allegation by the plaintiff does not constitute evidence regarding the veracity of

that allegation). Other documents, such as Egger’s response to his allegations

affirming that the YMCA sought to have a diverse workforce, cannot support a

finding of discrimination. Such statements do not show discriminatory intent.

Nor does his claim that he was paid less money than certain of his female

coworkers support a Title VII action. At the threshold, Noack fails to point to

anything in the record to establish a causal connection between the differing pay

rates and his sex. Rather, as evidence of the causal link, he offers only the

conclusory allegation that: “after all, why would two new, part-time female staff

be making more than Noack (fulltime) after 5 years [considering Noack’s

excellent record, evaluations, and recognitions], unless due to bias?” (Appellant’s

Br., ¶ 118) (bracketed text and emphasis in original). No evidence found in the

record, however, suggests that the female workers in question were similarly

situated to him. See Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)

(noting that disparate treatment must be “under nearly identical

circumstances”).

On such a thin record, we cannot find that the district court erred in

deciding that none of Noack’s allegations were sufficient to rise to the level

required for a hostile-work-environment claim arising from either sex or race

discrimination. Because Noack has failed to point to any evidence in the record

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other than his own unsupported allegations, the district court properly granted

summary judgment on these claims.

1

Noack also appeals the district court’s dismissal of his constructive

discharge claim. Constructive discharge claims are assessed by the objective

standard of whether a “reasonable employee would feel compelled to resign”

under the circumstances. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985,

991 (5th Cir. 2008). The evidence “must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to prove a hostile

working environment.” Id. There is no such evidence in the record here. To the

contrary, Noack was promoted throughout the period, never had his pay

reduced, and never was relegated to menial labor inconsistent with his job

responsibilities. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th

Cir. 2008) (setting forth factors to consider in evaluating a constructive

discharge claim).

Noack also contends for the first time on appeal that the affidavits the

YMCA submitted in support of its motion for summary judgment constituted

inadmissible evidence because they had not been notarized. Unnotarized

affidavits are admissible when the veracity of the statement is sworn to under

penalty of perjury. 28 U.S.C. § 1746(2). Because the affidavits comply with the

statutory requirements, the district court’s consideration of the affidavits does

not constitute plain error. See United States v. Duffaut, 314 F.3d 203, 209 (5th

Cir. 2002).

C. FLSA Retaliation Claim

Noack also challenges the district court’s grant of summary judgment on

his FLSA retaliation claim. To establish a prima facie FLSA claim, Noack must

show, among other things, that he suffered a materially adverse employment

1 To the extent Noack purports to make a retaliation claim under Title VII, that claim

is unfounded for the same reasons as Noack’s FLSA retaliation claim fails.

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action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006).

In order to “screen out trivial conduct[,]” the court applies an objectively

reasonable standard in determining whether a materially adverse employment

action occurred. Id. at 69. In an attempt to satisfy this requirement, Noack

claims that he was given a written reprimand for working unauthorized

overtime, that he was sent home early one day after having worked his

maximum allowed hours, and that his supervisor failed to communicate with

him properly. Further allegations include being required to turn in an

evaluation form early and an alleged theft of a YMCA form from his office.

Noack, however, admitted that he did not suffer any “significant harms”: his job

was not changed, his pay was not changed, his supervisor was not changed, the

staff he supervised was not changed, and he was not removed from the multi-site

director position. He only claims that he “sometimes . . . wound up working

extra” as a result of Egger’s alleged instructions. Because Noack failed to show

any evidence that he suffered any materially adverse employment action, we

affirm the district court’s judgment as to the FLSA retaliation claim.

D. Intentional Infliction of Emotional Distress (IIED)

In Texas, IIED claims are intended as a “gap-filler,” an extra tort that is

actionable only when a just remedy is precluded due to legal inadequacies in

other underlying torts. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex.

2005). It covers only “extreme and outrageous conduct” on the part of the

defendant. Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). Extreme

and outrageous conduct is that which is “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id. at

621. Noack’s claims are based at most on minor inconveniences and petty

slights. An IIED claim simply requires more than the fact scenario that Noack

has alleged. As such, the district court’s dismissal of Noack’s claim is affirmed.

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E. Failure to Recuse and Failure to Appoint Counsel

Noack argues that the magistrate judge erred by not recusing herself sua

sponte. Because Noack never moved for recusal below, his attempt to raise the

issue on appeal now is untimely. United States v. Sanford, 157 F.3d 987, 988

(5th Cir. 1998) (rejecting a recusal claim as untimely where it was first raised

after an adverse decision by the trial judge). At most, such claims are reviewed

for plain error. United States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997)

(applying, arguendo, plain error review to an untimely recusal claim). Noack

does not point to any facts that suggest the magistrate judge erred by not

recusing herself; he only states that her rulings alone were sufficient to show

that she was biased against him. That is not sufficient to raise any questions

about the impartiality of the magistrate below, and therefore we would find no

error, plain or otherwise, here. 28 U.S.C. § 455. Noack also asserts that the

magistrate judge abused her discretion by failing to appoint counsel. See

Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir. 1990). Although Title VII

provides for the appointment of counsel, such relief is reserved to “such

circumstances as the court may deem just.” 42 U.S.C. § 2000e-5(f)(1). “The

decision whether to appoint counsel rests within the sound discretion of the trial

court.” Gonzalez, 907 F.2d at 579. We find nothing in the record here to indicate

that the Magistrate Judge’s careful consideration of Noack’s oral request for

counsel was improper.

For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

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