UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

______________________________

No. 96-50030 ______________________________

CATHERINE DICKASON,

Plaintiff-Appellee,

versus

YSLETA INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-93-CV-339) _________________________________________________________________

February 21, 1997 Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:*

At issue is whether, inter alia, Catherine Dickason’s EEOC

charge was timely filed. Because none of the conduct found to be

discriminatory occurred within 300 days of that charge, it was not

timely; and therefore, this action is time-barred. We REVERSE and

RENDER.

I.

Dickason began her employment with the Ysleta Independent

School District (YISD) in 1983. In 1986, she began teaching and

coaching at its Del Valle High School. Dickason was accused in

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1991 by several players and her assistant coach, Sally Fierro, of

mistreating and abusing her players; encouraging them to steal

equipment from other schools; having a non-YISD employee massage

them before games; and administering prescription pain-killers to

a player, in order that the player could participate in a game.

When the Principal received these reports, he notified the

central office, as was YISD policy, and was told to conduct an

investigation, also in accordance with YISD policy. The

investigation included interviewing some of Dickason’s players. On

25 June 1991, one of them, Sandra Sepulveda, gave a written

statement corroborating reports of Dickason’s dispensing

prescription pain-killers to her players, and of Dickason’s having

a friend give a massage to Sepulveda. Similarly, on 17 July, Traci

Kirtley gave a statement that Dickason was abusing the players,

encouraging them to steal equipment, and had pushed Kirtley around

after a game.

After the initial investigation, Dickason was notified on 21

August 1991 that she was suspended with pay pending further

investigation. That 24 September, she was notified that a bottle

of prescription pain-killers had been found in her desk, and that

the possession of prescription medication was added to the charges

against her.

Dickason met with the YISD Superintendent, Dr. Mauro Reyna, on

1 October 1991 and was given an opportunity to respond to the

charges. Dickason received official notice on 10 January 1992 of

- 2 - the five charges against her, of her proposed termination, and of

her right to a due process hearing.

As a result of the ensuing and protracted due process hearing,

Dickason later claimed further discrimination in the form of

onerous conditions of suspension and review of her case, claiming

that YISD conducted a lengthy investigation in which Dickason was

not allowed on the school grounds and therefore could not retrieve

any of the materials which might help her defense; it changed the

charges against her on more than one occasion, and the same charge

disappeared then reappeared just before the hearing, again making

it difficult to prepare a defense; and the hearing process lasted

for six months before ending in settlement on 10 August 1992. The

delay was due to numerous recesses, continuances, etc., in order

for the school board to add witnesses and members to the review

board.

In settling the dispute, Dickason and YISD agreed that the

charges would be dropped, and Dickason would be “voluntarily

assigned” for the 1992-93 school year at another high school as an

instructor in the Dropout Recovery program and as a coach. (The

agreement provided, however, that “[n]othing herein precludes ...

Dickason’s filing suit on any claim.”) After, and pursuant to,

this agreement (and at least until trial in November 1995),

Dickason was the Program Coordinator of the Dropout Recovery

program. But, she declined many coaching positions during school

year 1992-93.

- 3 - On 16 February 1993, Dickason filed her first charge with the

EEOC, claiming that her suspension on 21 August 1991 had caused her

damage; that the assignment with the Dropout Recovery program paid

less than her pre-suspension assignments as a teacher and coach;

and that she “was told that [her] suspension was because of

immorality”, but that she believed it was based instead on

discrimination because of her gender. That July, she filed her

second charge, claiming that she had learned approximately ten days

earlier that she had been denied a promotion to the position of

volleyball coach at another YISD high school; that she had not been

told why; and that she believed the reason for not being selected

was retaliation because of her first (February 1993) EEOC charge.

Shortly after filing her second EEOC charge (for claimed

retaliation), Dickason filed an action in district court against

YISD and her above-referenced assistant coach, Fierro, claiming

violation of Title VII and Title IX of the Civil Rights Act of

1964, and of

.

Defendants were granted summary judgment on the § 1983 claim

in early November 1995, just before trial began; the claim against

Fierro was dropped on the first day of trial. And, when Dickason

completed her case-in-chief, YISD was granted judgment as a matter

of law on the retaliation claim under Title VII and Title IX.

Dickason’s discrimination claim under Title VII against YISD,

however, went to the jury, which found that her sex was a

motivating factor in the decision to suspend her. It awarded

$7,820 for loss of future earnings and $392,180 for pain,

- 4 - suffering, and mental anguish (award reduced to $300,000 pursuant

to the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3)(D)).

II.

Among other challenges to the judgment, YISD contends that the

EEOC charge in issue (for discrimination) was not timely filed.

(As noted, the first charge was for discrimination; the second,

filed five months later, for retaliation. And as discussed, only

the discrimination claim, based on the first charge, was allowed to

go to the jury. Timeliness, premised on the second charge

(retaliation), is not claimed by Dickason; nor would it be a valid

basis for timeliness. Again, the retaliation claim was dismissed

when Dickason completed her case-in-chief.)

In Texas, a charge must be filed with the EEOC within 300 days

of the complained-of action.

(e)-5(d);

. This period is longer than the normal 180 days, because

Texas has opted to be a “deferral” State, which allows it to expand

the period in this way. If there is no actionable conduct within

the 300 day period preceding the filing of the charge, and no

grounds for finding a “continuing violation” within that period,

then the charge, and the action which arises from it, must both

fail. See Delaware State College v. Ricks,

(1980).

A.

A sub-issue is whether YISD waived this timely filing defense

by failing to raise it in its answer. “[F]iling a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite

to suit in federal court, but a requirement that, like a statute of

- 5 - limitations, is subject to waiver, estoppel, and equitable

tolling”. Zipes v. Trans World Airlines, Inc.,

(1982). Waiver may occur where the defendant fails to raise the

timeliness issue in its answer. FED. R. CIV. P. 8(c). On the other

hand, “[w]here the matter is raised in the trial court in a manner

that does not result in unfair surprise, ... technical failure to

comply precisely with Rule 8(c) is not fatal”. Allied Chemical

Corp. v. Mackay,

(5th Cir. 1983)(citing, Jones

v. Miles,

(5th Cir. 1981)).

Therefore, YISD did not waive the timeliness issue if it was

raised at trial such that Dickason was not unfairly surprised.

Restated, YISD must have raised the issue at a “‘pragmatically

sufficient time’ and [Dickason] was not prejudiced in [her] ability

to respond” to the issue. Lucas v. United States,

(5th Cir. 1986). An issue may be raised at the “pragmatically

sufficient time” in either of two ways: (1) by both parties’

introducing, without objection, evidence at trial concerning the

issue; and (2) where the issue is a legal one, not requiring

extensive factual analysis, so that the reviewing court may easily

address the issue without reopening trial proceedings.

.

Dickason consistently grossly misstated the date of her filing

the first EEOC charge. In her original and first amended

complaints, and in the pretrial order, Dickason claimed that she

had filed it on 27 October 1992. (We note that this date is 290

days after the 10 January 1992 notice to Dickason of the YISD

charges against her, and would put her just inside the requisite

- 6 - 300 days from the last complained of activity.) Dickason also

listed this erroneous date in her pretrial list of contested issues

of fact. She also listed whether she filed within 300 days of the

last act of discrimination as a contested issue. It is little

wonder, then, as discussed infra, that YISD offered evidence on

this issue at trial, and that Dickason did not object to its

admission. Moreover, Dickason was cross-examined about the

timeliness issue, and her attorney questioned her about her reasons

for waiting to file.

In sum, there was notice of the defense, and an opportunity to

present evidence on the issue. Again, when YISD presented the

timeliness evidence, Dickason never objected that it was

irrelevant, as it would have been had the parties not been trying

the timeliness issue.

Also, YISD raised the issue in a post-trial motion for

judgment, and Dickason did not object on the basis of waiver. (Nor

did she do so in her brief here.) Although the trial court stated

summarily in ruling on this motion that it did “not reach the

timeliness issue”, we can state with certainty, based on the

motion, and the evidence at trial on which it relied, that Dickason

was on notice before and during trial that the timeliness of her

first EEOC charge (for discrimination, the only issue submitted to

the jury) was at issue. Further, the application of the timely

filing requirement is not a detailed factual issue which requires

the development of further evidence. Instead, the issue will

depend on what events, according to the jury, constituted

- 7 - violations of Title VII, and when those events occurred in relation

to Dickason’s first EEOC charge filing date. We have in the

record, therefore, all that is required to examine the timeliness

issue.

As discussed, the record reveals that Dickason was well aware

that her late filing was an issue. She alleged, incorrectly, in

her first amended complaint that she had filed her first EEOC

charge on 27 October 1992. (Her original complaint listed the same

erroneous date.) Despite the fact that the date she claimed to

have filed her first EEOC charge would have made the discrimination

claim timely, she complained also, from the early stages of the

litigation, of continuing violations even though she admits that

the procedure she claims constituted a continuing violation, the

due process hearing, resulted in her reinstatement with YISD.

As also noted, Dickason was cross-examined about the timing of

the first EEOC charge without objection. She even offered her own

testimony on the subject, stating she filed the first EEOC charge

so late because she “wasn’t sure what I was going to do. The

charges had finally been dropped and everything”. And as further

noted, Dickason never contended that the timely filing issue was

not raised in YISD’s answer, and on appeal did not even claim a

possible waiver of the timeliness issue, even though YISD raised

the issue in its post-trial motion for judgment (to which she did

not respond that the issue was waived).

Moreover, YISD’s motion for judgment at the close of

Dickason’s case-in-chief contended that many of the asserted bases

- 8 - for Dickason’s discrimination claim were not mentioned in, or

reasonably related to, her first EEOC charge, and therefore were

not cognizable in district court. This, of course, bears on the

timeliness issue, as discussed infra. (The motion also maintained

that Dickason had not made a prima facie showing of retaliation.

As noted, judgment was granted to YISD on the retaliation claim.)

Indeed, it was not until the district court later framed the

possible discrimination bases for the jury interrogatory, as

discussed infra, that the timeliness issue at hand was solidified.

For the jury charge, the court refused to include the due process

hearing, which fell easily within the limitations period, as a

possible basis for discrimination. This jury charge ruling

provided the springboard for the timeliness issue presented in

YISD’s post-verdict motion for judgment. True, this point should

have been advanced earlier in the trial; but, we are not totally

unsympathetic to YISD’s plight during trial as Dickason’s claims

and sub-claims kept shifting and disappearing.

Finally, we note again that Dickason did not raise the waiver

issue in her brief here, and did not object at trial to YISD

questioning her about timely filing. Had she objected at trial,

when YISD was putting on evidence regarding the issue, YISD could

have amended its answer to include the affirmative defense of an

untimely filing. As she did not object then (or even in her brief

on appeal), and based on the record, she has waived, for purposes

of appeal, contesting the belated express assertion by YISD of the

timely filing issue. See Hamilton v. Komatsu Dresser Industries,

- 9 - Inc.,

, 603 n.1 (7th Cir.) cert. denied,

(1992).

In addition, Dickason tried the issue by consent. That occurs

when both parties recognize that the issue entered the case at

trial; when evidence was entered regarding the issue without

objection; and when a finding of trial by consent would not

prejudice the opposing party. E.g., United States v. Shanbaum,

(5th Cir. 1994); Haught v. Maceluch,

(5th Cir. 1982). As discussed, both sides knew timeliness

was at issue, as Dickason was examined both on direct and cross on

the issue; this evidence was admitted without objection (in a trial

replete with objections); and this ruling does not prejudice

Dickason, as it merely allows us to examine the timeliness of her

first EEOC charge, an issue she raised and about which she

submitted evidence, and which Title VII instructs us to examine.

In other words, we will not find prejudice to a party under these

circumstances; here the party complaining of failure to raise a

Rule 8(c) defense listed the possible defense pretrial as a

contested issue.

B.

In order to examine the timeliness of Dickason’s first EEOC

charge, we must “identify precisely the ‘unlawful employment

practice’ of which [s]he complains”. Delaware State College,

. Dickason’s first charge was filed on 16 February

1993, more than 500 days after her 21 August 1991 suspension. It

was filed more than 300 days after her 24 September 1991

- 10 - notification that the YISD charges would include the unauthorized

possession of prescription pain-killers. It was filed more than

300 days after her 1 October 1991 meeting with the Superintendent.

The only possibly relevant events that happened within the 300 day

period before the first EEOC charge filing was the due process

hearing and settlement which resulted in Dickason’s full

reinstatement.

However, as noted, the court submitted, and the jury found,

discrimination only in the “handling of the investigation,

suspension, proposal for termination, and ... decision to remove”

Dickason as coach. She requested that her challenges to the due

process hearing be submitted to the jury as possible Title VII

discrimination; but, as noted, the district judge refused to allow

that issue to go to the jury, despite Dickason’s objections. In

short, the due process hearing, and therefore whether any actions

by YISD took place within 300 days of the first EEOC charge filing,

was not an issue overlooked by the trial court. This matter was

presented thoroughly and repeatedly.

None of the events which the jury found discriminatory

occurred within 300 days of Dickason’s first EEOC charge filing.

It would appear, then, that none of the acts which could have

constituted the violation occurred within the limitations period.

C.

There are, however, two exceptions to this Title VII time-bar.

The first is when the “original violation occurred outside the

- 11 - statute of limitations, but is closely related to other violations

that are not time-barred”. Hendrix v. City of Yazoo City, Miss.,

(5th Cir. 1990)(applying “continuing violation”

theory to Fair Labor Standards Act actions, and dismissing argument

that the standard is different for Title VII actions). The second

is when “an initial violation, outside the statute of limitations,

is repeated later; in this case, each violation begins the

limitations period anew, and recovery may be had for at least those

violations that occurred within the period of limitations”.

.

Dickason contends that her case, for which the only event

which occurred within the limitations period was her due process

hearing/reinstatement, presents a continuing violation situation.

She maintains that the due process hearing constituted Title VII

discrimination because she faced procedural hurdles that male

employees did not. However, as noted, the trial judge ruled that

this due process hearing discrimination claim not be examined by

the jury. And, Dickason does not contest this ruling. The jury

found discrimination for the events submitted to it, but

necessarily could not have found discrimination for the due process

hearing. Accordingly, we need not make a detailed analysis of

either of the theories of continuing violations; obviously, in the

absence of at least one violation occurring in the limitations

period, neither theory can apply.

The requirement that some actual violation occur during the

limitations period is stated for both parts of the Hendrix

- 12 - formulation; the first requiring close relation of violations

outside the period to violations within the period; the second

requiring repetition of violation, and stating that the new period

only begins with new violations, which must themselves be within

the period. Hendrix,

.

Furthermore, in Trevino v. Celanese, our court noted that the

“mere perpetuation of the effects of time-barred discrimination

does not constitute a violation of Title VII in the absence of

independent actionable conduct occurring within the statutory

period”.

, 403 n.7 (5th Cir. 1983)(emphasis added).

As noted, the jury was precluded from even determining if any

actionable conduct took place within the statutory period. In the

absence of such actionable conduct, Dickason cannot prove a

continuing violation. Any continuing effects of conduct which

occurred outside the prescriptive period do not save her first EEOC

charge.

Finally, the Supreme Court has stated, and our court has often

noted, that where, as here, the triggering, time-barred event is

facially neutral, and the actions taken within the limitations

period are also, as here, facially neutral, and merely give effect

to prior discrimination, they do not constitute a continuing

violation. Lorance v. A T & T Technologies, Inc.,

(1989); e.g., Russell v. Bd. Of Trustees of the Firemen, Policemen,

and Fire Alarm Operators’ Pension Fund of Dallas, Texas,

(5th Cir. 1992) cert. denied,

(1993);

Hendrix,

. This rule is tantamount to saying that,

- 13 - when the only discriminatory acts take place outside the

limitations period, there is, quite literally, no “continuing

violation”, because there is no violation within the period.

Dickason’s case falls squarely within this rule. Without a finding

that the due process hearing was discriminatory, the hearing

process could only have given effect to the discriminatory acts

which preceded it. Those acts, however, fall outside the

prescriptive period. The fact that the due process hearing could

have given them effect (although it did not -- Dickason was

reinstated as a result of the hearing) does not give rise to a

Title VII claim for the hearing itself.

III.

For the foregoing reasons, the judgment in Dickason’s favor is

REVERSED and judgment is RENDERED for the Ysleta Independent School

District.

REVERSED and RENDERED

- 14 -