* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that t his opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 31, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-20983

(Summary Calendar)

____________

CYNTHIA A RAMON

Plaintiff - Appellant,

v.

CONTINENTAL AIRLINES INC

Defendant - Appellee.

Appeal from the United States District Court

For the Southern District of Texas

USDC No. 4:03-CV-1056

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Cynthi a A. Ramon (“Ramon”) appeals the district court’s summary judgment in favor of

Continental Airlines, Inc. (“Continental”) on various employment discrimination claims. Ramon, a

48-year-old American-born Hispanic fem ale, worked for Continental for twenty-three years as a2

check-in agent in the Reservations Department. After being alerted to bookings in violation of

company policies, Continental commenced an investigation. Three members of Conti nental ’s Security

Department interviewed Ramon for two and one-half hours. Ramon admit t ed t o having violated

company policies by asking fellow employees David Cooper and Richard Arbaney to secure favors

for her friends and family. Continental determined that it suffered $43,329 in lost revenue as a result

of Ramon’s actions. Continent al terminated Ramon and Cooper, but permitted Arbaney to retire

because of his age.

Ramon filed this suit alleging claims of national origin and sex discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq

., age discrimination in violation

of the Age Discrim

inat io n in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and intentional

infliction of emotional distress. The district court granted summary judgment for Continental, and

Ramon timely appealed pro se.

Ramon init ially contends that the district court erred in striking three affidavits she submitted

in opposition to Continental’s motion for summary judgment. We review the district court’s ruling

on the admissibilit

y of evidence for an abuse of discretion. U nited States v. Lopez-Moreno

, 420 F.3d

420, 434-35 (5th Cir. 2005). Ramon submitted the affidavits of her coworkers Melissa Smith, Lisa

Perez, and Barbara Buck, which were all nearly identical. They each state that based on the affiants’

“opportunity to observe Continental Airlines [sic] actions

. . . Co nt inental Airlines terminated

[Ramon] on account of her” age, national origin, and sex, that Ramon’s termination was “pretextual,”

and that Continental permitted “certain employees outside Cynthia A. Ramon’s protected categories

. . . to resign voluntarily with significant benefits, under the same or virtually similar circumstances.”

The district court excluded each of these affidavits because they contained “no more than conclusory3

allegations and legal conclusions.”

“Unsupported allegations or affidavits setting forth ultimate or conclusory facts and

conclusions of law are insuf ficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp

., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotati ons omitted).

Because the affidavits submitted by Ramon contained nothing but legal conclusions, the district court

was well within its discretion in striking them.

On the merits, Ramon argues that the district court erred in granting summary judgment for

Continental on each of her claims for relief. We review a grant of summary judgment d e novo

.

Honeywell Int’l, Inc. v. Phillips Petroleum Co.

, 415 F.3d 429, 434 (5th Cir. 2005). We affirm only

when there is no issue of material fact and the movant is entitled to judgment as a matter of law. I d.

Title VII prohibits an employer from terminating an employee based on her national origin,

42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits similar treatment on account of the employee’s

age. 29 U.S.C. § 623(a)(1). Ramon claims that Continental provided preferential treatment to three

other employees: Richard Arbaney (a 62-year-old white male), Elsa Lakey (a 56-y ear-old white

female), and Jo Anna Couch (a 57-year-old white female). Ramon contends that Arbaney and Lakey

were given preferential treatment because they were allowed to remain on the job for up to six

months, thereby permitting them to become eligible for voluntary retirement. She further contends

that Couch was not fired at all. Ramo n, however, was not allowed to retire or remain on the job.

Ramon argues that this circumstantial evidence satisfies her init ial burden on summary judgment

under McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). To satisfy that burden, she must

proffer evidence that a similarly situated employee from outside the protected class was not subjected

to the adverse employme nt action. Abarca v. Metro. Transit Auth

. , 404 F.3d 938, 941 (5th Cir.2 Discrimination in favor of older members of the ADEA protected class is not a violation of

the statute. Gen. Dynamic Land Sys., Inc., v. Cline , 540 U.S. 581 (2004).

4 2005).

The undisputed evidence in this case reveals that neither Arbaney, La key, nor Couch was

similarly situated to Ramon. Ramon was younger and not as close to being eligible for retirement as

were Arbaney and Lakey, and there is no evidence that Continental uncovered any wrongdoing by

Cou ch. These differences between Ramon’s situation and that of her comparators justified the

differential treatment, 2 and Ramon cannot demonstrate that she was “similarly situated” to them. S ee

Wyvill v. United Cos. Life Ins. Co.

, 212 F.3d 296, 305 (5th Cir. 2000) (affirming summary judgment

where “the striking differences between the two men’s situations more than account for the different

treatment they received”); see also Nelson v. Gen. Elec. Co.

, 2 Fed. Appx. 425 (6th Cir . 2001)

(unpublished) (holding that younger employee not similarly situated to older employee who

committed similar infr act io n and was allowed to remain on job for a few extra months and obtain

retirement eligibility); Thomas v. Hilts , No. 224690, 2002 WL 234757, at *4 (Mich. App. Feb. 15,

2002) (unpublished) (holding that plaint iff who was not of retirement age and comparator who was

of retirement age were not similarly situated where comparator was allowed to voluntarily retire while

plaintiff was terminated).

Ramon next contends that the conduct of Continental’s Security Department in investigating

her malfeasance amounted to the intentional inflict ion of emotional distress. To succeed on her claim,

Ramon must prove that Continental engaged in conduct “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 society.” Brennan v. Mercedes Benz USA , 388 F.3d 133, 136 (5th Cir.5

2004). Ramon argues that the interview was distressing, Continental did not provide her wit h

warnings consistent with Miranda v. Arizona , 384 U.S. 436 (1966), and that she suffered financial

difficulty as a result of losing her job.

Ramon has failed t o proffer evidence that Continental’s conduct in questioning her or its

decision to terminate her was sufficiently outrageous to remove this case from the realm of ordinary

employment disputes. The only evidence in t he record that the conversation was anything but

amicable is Ramon’s deposition testimony, “[T]hey were threatening me with prosecution and stating

that we will help you keep your job if you can just state that these are the things that we see from the

evidence that has happened.” She further testified that she was “under extreme emotional duress,”

in a “delicate situation,” and that Continental had no right to question her about the matter at all.

There is no evidence, however, that Ramon required medical or psychiatric care as a result of her

questioning, that any Continental employee yelled at her or touch ed her, or that the m ethod of

questioning used by Continental was out of the ordinary. Contrary to Ramon’s contention,

Continental was not required to provide warnings regarding her right against self-incrimination;

Miranda ’s requirements do not apply to questioning by a private citizen. U nited States v. Borchardt

,

809 F.2d 1115, 1118 (5th Cir. 1987). Although we recognize that Ramon’s termination was

unpleasant, Continental’s conduct does not “exceed all possible bounds of decency.” S ee Randall’s

Food Mkts., Inc. v. Johnson

, 891 S.W.2d 640, 644 (Tex. 1995) (investigation of employee’s alleged

theft was not outrageous where employer questioned employee in severe tone and did not explain the

facts); Wornick Co. v. Casas

, 856 S.W.2d 732, 735-36 (Tex. 1993) (firing employee with no notice

in a manner that could be expected to cause humiliation not outrageous).

Ramon raises in this court for the first time a claim under the Family and Medical Leave Act6

(“FMLA”), 29 U.S. C. § 2612. She neither pled an FMLA claim in her complaint nor argued in

support of such a claim in the district court. A plaint iff may not raise a claim for relief for the first

time in a brief on appeal. S ee Leverette v. Louisville Ladder Co.

, 183 F.3d 339, 341 (5th Cir. 1999)

(holding that court will not consider issue raised for first time on appeal). Rather, the claim must be

pled in the complaint

. See F ED

. R. C IV

. P. 8 (describing general rule of pleading); Bejil v. Ethicon,

Inc

., 269 F.3d 477, 481 (5th Cir. 2001) (stating that complaint must plac e defendant on noti ce of

claims for relief).

For the foregoing reasons, we AFFIRM the judgment of the district court.