Fisher v. Bilfinger Industrial Srv
20-30265
| 5th Cir. | Jun 24, 2021Background
- Keonta Fisher, a Black welder, was employed by Bilfinger Industrial Services beginning September 10, 2015 and alleged racial harassment by supervisors through February 3, 2016 (when he was moved to a different crew).
- Alleged harassment included being called "boy," and an affidavit from a coworker stating a supervisor said he had "just broke two niggers up yesterday" (Fisher did not hear that statement himself).
- Fisher complained to the union and to Procter & Gamble (the client site); he alleges Daniel Long threatened to fire him for complaining and that Coutee made hostile facial gestures.
- Fisher later alleged, for the first time in his summary-judgment opposition, that his termination 3–4 months after his complaint was retaliatory; Bilfinger produced records showing write-ups and termination for tardiness/absenteeism.
- Bilfinger moved for summary judgment supported by records and declarations; the district court granted it, and the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile-work-environment under Title VII | Fisher: repeated racial slurs and demeaning conduct by supervisors created a racially hostile workplace | Bilfinger: sporadic insults and remarks (which Fisher often did not hear) were not severe or pervasive and did not affect employment terms | Court: No actionable harassment; sporadic/isolated language insufficient; summary judgment for Bilfinger |
| Retaliation — threats after complaint | Fisher: Long threatened to fire him for complaining; Coutee retaliated by making faces | Bilfinger: threats/facial expressions are not materially adverse employment actions | Court: Threats and gestures are not adverse under Title VII; claim fails |
| Retaliation — termination after complaints | Fisher: termination 3–4 months after complaint was retaliatory | Bilfinger: termination was for documented tardiness and absenteeism; proffered nondiscriminatory reason | Court: Claim waived for being raised late; even if considered, 3–4 month gap is too remote to prove causation and Fisher failed to rebut employer's reason; summary judgment for Bilfinger |
Key Cases Cited
- DePree v. Saunders, 588 F.3d 282 (5th Cir. 2009) (standard of review for summary judgment)
- Ramsey v. Henderson, 286 F.3d 264 (5th Cir. 2002) (elements of hostile-work-environment claim)
- Celestine v. Petroleos de Venezuela S.A., 266 F.3d 343 (5th Cir. 2001) (hostile-work-environment analysis)
- Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986) (hostile-work-environment framework)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (sporadic abusive language insufficient for Title VII hostile-environment)
- Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017) (prima facie elements of retaliation)
- Jenkins v. City of San Antonio Fire Dept., 784 F.3d 263 (5th Cir. 2015) (retaliation causation standard)
- Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) (what qualifies as adverse employment action)
- Pierce v. Texas Dep't of Criminal Justice, Institutional Div., 37 F.3d 1146 (5th Cir. 1994) (narrow view of adverse employment actions)
- Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (temporal proximity must be very close to establish causation)