IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
ENTERGY OPERATION, INC.; DON HINTZ,
Appeal from the United States District Court for the Southern District of Mississippi
USDC No. 5:99-CV-61-BN
October 31, 2000
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
Plaintiff-Appellant Bessie Washington appeals from the
district court's grant of summary judgment in favor of
Defendants-Appellees, Entergy Operation, Inc. and Don Hintz,
Chief Executive Officer of Entergy Operation, Inc. For the
following reasons, we AFFIRM.
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 1990, Bessie Washington, an African-American
female, was hired by Entergy Operations, Inc. (EOI). She was
transferred to Entergy Service, Inc. (ESI) in May 1995.
Washington received annual merit pay increases at both EOI and
ESI until a negative performance appraisal at ESI in 1997. On
March 12, 1999, she filed suit against EOI and Don Hintz, in his
individual capacity and in his capacity as CEO of EOI, claiming
unlawful discrimination on the basis of race.
Washington alleged three causes of action in her complaint:
failure to promote due to race, payment of disparate wages due to
race, and creation of a racially discriminatory working
environment. On January 7, 2000, Defendants filed a Motion for
Summary Judgment. In response, Washington requested a voluntary
dismissal of the promotion and working environment claims,
pursuant to Rule 41 of the Federal Rules of Civil Procedure. The
district court, on March 2, 2000, granted Washington's Rule 41
motion on those two claims and also awarded Defendants summary
judgment on the remaining disparate wages claim.1
On March 21, 2000, Washington filed her Motion to Amend and
to Make Additional Findings of Fact and Conclusions of Law and to
Amend Opinion and Judgment ("Rule 52 and 59(e) Motion"). On
In the same opinion, the district court also denied
Washington's motion to strike the affidavit of Ronald Husbands,
one of Washington's supervisors. Washington is not appealing
this portion of the district court's decision.
[End Page 2]
March 29, 2000, Washington filed a timely notice of appeal of the
March 2 decision granting Defendants summary judgment. The
district court, on April 11, 2000, denied the Rule 52 and 59(e)
Motion. Washington did not amend her Notice of Appeal to include
this decision; she asks us to review only the March 2 decision.
II. STANDARD OF REVIEW
This court reviews a district court's grant of summary
judgment de novo, applying the same standards as the district
court. See Burch v. City of Nacogdoches, 174 F.3d 615
, 618 (5th
Cir. 1999). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317
(1986). "If the moving party meets the initial burden of showing
there is no genuine issue of material fact, the burden shifts to
the nonmoving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial." Allen
v. Rapides Parish Sch. Bd., 204 F.3d 619
, 621 (5th Cir. 2000)
(internal quotations and citation omitted). Doubts are to be
resolved in favor of the nonmoving party, and any reasonable
inferences are to be drawn in favor of that party. See Burch,
174 F.3d at 619.
[End Page 3]
The district court granted Defendants' summary judgment
motion on the ground that Washington had sued the wrong parties.
Before proceeding to ascertain whether summary judgment was
proper, we address a threshold issue that impacts the evidence we
may consider in making that determination.
A. The Agency Argument Has Been Waived
On appeal, Washington primarily utilizes an agency theory to
argue that Defendants are the appropriate parties to this action.
In essence, she claims that Defendants and ESI were acting as co-
agents. Because this theory was raised for the first time in the
Rule 52 and 59(e) Motion, and not during the summary judgment
proceedings, Defendants assert that the agency argument was not
properly presented to the district court. As such, Defendants
contend that consideration of this argument on appeal is
precluded. In response, Washington states that she is not
appealing from the denial of the Rule 52 and 59(e) Motion, but
only from the grant of summary judgment to Defendants.2
"It is a bedrock principle of appellate review that claims
raised for the first time on appeal will not be considered."
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Ctrs.,
Inc., 200 F.3d 307
, 316-17 (5th Cir. 2000); see also Hormel v.
Washington does not put forth any arguments that she has
preserved the use of the agency theory. She appears simply to
continue to use the theory in support of her contention that
Defendants are proper parties in this case.
[End Page 4]
Helvering, 312 U.S. 552
, 556 (1941) (stating the general rule
that an appellate court does not consider issues not raised
below); Harris County, Tex. v. Carmax Auto Superstores, Inc., 177 F.3d 306
, 326 (5th Cir. 1999) (same). Furthermore, "[t]his rule
is equally applicable in summary judgment cases." Stewart Glass,
200 F.3d at 316; see also Hansen v. Continental Ins. Co., 940 F.2d 971
, 983 n.9 (5th Cir. 1991) ("It is settled law that a
party attacking a summary judgment on appeal cannot do so on
theories not presented to the district court.").
In this case, Washington did raise the agency theory in the
district court in her Rule 52 and 59(e) Motion. However, because
that motion was filed after the district court granted Defendants
summary judgment, Washington is not immune from the application
of the rule stated above. The operative inquiry is not merely
whether the issue was raised below, but rather whether the issue
was advanced in the proper time frame. The defect in
Washington's case is that she failed to raise the argument in the
appropriate context â€" during the summary judgment proceedings.
"This court's inquiry is limited to the summary judgment
record before the trial court: the parties cannot add exhibits,
depositions, or affidavits to support their positions on appeal,
nor may the parties advance new theories or raise new issues to
secure reversal." Topalian v. Ehrman, 954 F.2d 1125
n.10 (5th Cir. 1992) (emphasis added); see also Little v. Liquid
Air Corp., 37 F.3d 1069
, 1071 n.1 (5th Cir. 1994). We thus hold
[End Page 5]
that the agency theory was not properly before the district court
because Washington did not "raise [her] argument to such a degree
that the district court [could] rule on" whether it impacted the
propriety of granting Defendants' summary judgment motion. See
Harris County, 177 F.3d at 326.3 Therefore, we do not consider
this argument on this appeal.4
B. The Wrong Defendants Were Sued
After her Rule 41 voluntary dismissal, Washington's sole
claim was that she was paid disparate wages as a result of
discrimination on the basis of race. This alleged discriminatory
act stemmed from Washington being given an unacceptable ranking
during the annual work appraisal in 1997, while an allegedly less
qualified white male was given an acceptable ranking and thus a
merit raise. Although Washington was working for ESI in 1997,5
she did not name ESI as a defendant in this suit. Washington
In addition, one cannot even make the argument that
Washington impliedly raised the agency theory because she wholly
failed to address the issue of wrong defendants in her Response
to Defendants' Motion for Summary Judgment.
Washington also does not meet the narrow exception to the
rule that issues not properly raised below are precluded from
appellate review. The exception operates to permit consideration
when the issue "concerns a pure question of law and a refusal to
consider it would result in a miscarriage of justice."
Volkswagen of America, Inc. v. Robertson, 713 F.2d 1151
(5th Cir. 1983). In this case, Washington's argument that
Defendants are related to and/or agents of her employer ESI
necessarily involves factual determinations, which are the
province of the trial court.
EOI had ceased being her employer when she was transferred
to ESI in May 1995.
[End Page 6]
sued only EOI and Hintz, individually and as CEO of EOI.
Because we determined in section III.A that we could not
consider Washington's agency arguments to support her contention
that Defendants are proper parties to this action, we find only
one other argument remaining. Washington points to her
deposition and supplemental interrogatory responses in which she
testified that Hintz adopted and approved the ranking process
that denied her a merit raise.6 There is no other information in
the summary judgment record regarding the relationship between
EOI, Hintz, and ESI. We thus find that Washington's deposition
and supplemental interrogatory responses are insufficient to
create a genuine issue that Defendants are proper parties to this
suit â€" that they were related or connected to ESI in some
fashion. See Hainze v. Richards, 207 F.3d 795
, 798 (5th Cir.
2000) ("The standard of review is not merely whether there is a
sufficient factual dispute to permit the case to go forward, but
whether a rational trier of fact could find for the non-moving
party based upon the record evidence before the court." (internal
quotations and citation omitted)).
Based on the summary judgment record before the district
court, we agree with the district court that Washington did not
While Defendants imply that such "self-serving"
allegations are not appropriate evidence, Rule 56(c) of the
Federal Rules of Civil Procedure clearly states that
"depositions" and "answers to interrogatories" are properly
considered when deciding a summary judgment motion.
[End Page 7]
carry her burden to demonstrate that a genuine issue existed
whether Defendants were proper parties to this suit.
For the above stated reasons, we AFFIRM the judgment of the
[End Page 8]