TAIWO AYORINDE v. TEAM INDUSTRIAL SERVICES INCORPORATED
No. 24-50185
United States Court of Appeals for the Fifth Circuit
November 8, 2024
Lyle W. Cayce, Clerk
Plaintiff—Appellant,
versus
Team Industrial Services Incorporated,
Defendant—Appellee.
Aрpeal from the United States District Court for the Western District of Texas
USDC No. 7:23-CV-12
Before Elrod, Chief Judge, and Dennis and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Appellant Taiwo Ayorinde sued his former employer, Appellee Team Industrial Services Incorporated (“Team“), asserting numerous employment discrimination claims. The parties cross-moved for summary judgment. The district court granted Team‘s motion, dеnied Ayorinde‘s motion, and entered judgment for Team on all counts. Ayorinde now appeals. Because summary judgment for Team is warranted on all counts, we AFFIRM.
Team initially employed Ayorinde from 2016 to 2018, at which time Team terminated Ayorinde. Although Team had designated Ayorinde as ineligible for rehire due to “job abandonment,” Kevin Jarrett, a Team District Manager, received approval to rehire Ayorinde in April 2022 as a Level II Technician at an hourly rate of $32.
According to Team‘s records, Ayorinde‘s supervisor Israel Ortega expressed concerns about the quality of Ayorinde‘s welds, his failure of a necessary practical exam, his compliance with safety protocols, and his professionalism. Ortega reportеdly spoke with Ayorinde about his concerns and told Ayorinde that he would be demoted to an assistant role for a one-month training period, during which time his pay would be cut from $32 per hour to $24 per hour.
In early August 2022, Ayorinde took approved bereavement leave to travel to Africa for his father‘s funeral. Ayorinde asserts that he was unaware of the pay cut and only discovered that his pay rate had been reduced while he was on leave. Ayorinde raised the issue of his decreased pay with Jarrett, who later learned that Ortega had not received the required approval from Team‘s human resources department to cut Ayorinde‘s pay. Consequently, Team reinstated Ayorinde‘s original pay rate and, on August 19, 2022, pаid Ayorinde what he was owed from prior pay periods.
Nonetheless, Ayorinde resigned from Team shortly thereafter. In a resignation letter dated August 20, 2022, Ayorinde asserted that he was leaving Team due to a hostile work environment and discrimination, as evidenced by the pay cut, a supervisor‘s delay in readministering his practical exam, and Ortega‘s failure to schedule Ayоrinde for any work after his return from Africa. One month later, Ayorinde filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission and the
In late November 2022, the EEOC issued a Determination and Notice of Rights with respect to Ayorinde‘s charge, allowing Ayorinde to file suit within 90 days. Ayorinde timely filed a complaint against Team in federal district court, asserting five causes of action: (1) race discrimination in violation of
In December 2023, Ayorinde moved for partial summary judgment as to liability, and Team cross-moved for summary judgment on all claims shortly thereafter. The district court granted Team‘s motion, denied Ayorinde‘s motion, and entered judgment for Team on all claims. Ayorinde timely appealed.
II
We review grants of summary judgment de novo. Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir. 2021). Summary judgment is approрriate where “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.”
III
Ayorinde‘s arguments on appeal challenge only the district court‘s grant of summary judgment to Team.1 We address each of Ayorinde‘s arguments in turn.
A
Ayorinde first challenges summary judgment as to his Equal Pay Act claim. “To establish a prima facie case under the Equal Pay Act, [a plaintiff] must show that ‘(1) her employer is subject to the Act; (2) she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and (3) she was paid less than the employee of the opposite sex providing the basis of comparison.‘” Badgerow v. REJ Props., Inc., 974 F.3d 610, 617 (5th Cir. 2020) (quoting Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993)). Here, the district court found that Ayorinde‘s Equal Pay Act claim fails as a matter of law because he has not alleged sex discrimination.
On appeal, Ayorinde argues only that he was not required to file an EEOC charge before filing an Equal Pay Act claim in federal court and that the California Equal Pay Act prohibits pay discrimination on the basis of race, as well as sex. These arguments are not responsive to the fundamental issue
B
Ayorinde also challenges the district court‘s disposition of his claims under Title VII and § 1981. “Because claims brought pursuant to Title VII and § 1981 are governed by the same evidentiary framework, such that the analyses under both statutes are substantively the same, we analyze [Ayorinde‘s] Title VII and § 1981 claims together.” Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per curiam) (internal quotation marks and citation omitted). We address his race discrimination, retaliation, constructive discharge, and hostile work environment arguments in turn.
1
A plaintiff “may prove a claim of intentional discrimination or retaliation either by direct or circumstantial evidence.” McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007), abrogated on other grounds by Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023). Where, as here, the plaintiff offers no direct evidence of intentional race discrimination,2 we
To make out a prima facie case of race discrimination at the first step of McDonnell Douglas, a plaintiff must demonstrate that he: “(1) is a member оf a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group.” McCoy, 492 F.3d at 556 (citation omitted); see also Hamilton, 79 F.4th at 506 (defining “adverse emplоyment action” for Title VII purposes). Here, the district court concluded that Ayorinde has failed to establish a prima facie case for his race discrimination claim because he has provided “no evidence identifying someone, or anyone, similarly situated who was treated more favorably because of race.”
On appeal, Ayorinde аsserts in a conclusory fashion that the fourth element is met because “the adverse action occurred under circumstances giving rise to an inference of discrimination.” But Ayorinde identifies no evidence to support the conclusion that he was treated less favorably than any
2
“The antiretaliation provision of Title VII prohibits an employer from discriminating against an employee or job applicant because that individual opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 576-77 (5th Cir. 2020), as revised (Aug. 14, 2020) (cleaned up) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (in turn quoting
In his briefing before this court, Ayorinde asserts that he “had an altercation” with his supervisor when Ayorinde “requested his test be uploaded and his record updated” and that “the [s]upervisor never liked how the interaction went” and сonsequently “retaliated by not updating [Ayorinde‘s] records on [Team‘s] website” and by cutting Ayorinde‘s
3
Ayorinde also argues that the district court erred in granting summary judgment to Team on his constructive discharge claim. The district court concluded that summary judgment for Team was warranted because Ayorinde failed to exhaust his administrative remedies on this issue. Before seeking relief under Title VII in federal court, plaintiffs must timely “exhaust their administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.” Davis v. Fort Bend Cnty., 893 F.3d 300, 303 (5th Cir. 2018), aff‘d, 587 U.S. 541 (2019). “To determine whether a Title VII claim has been exhausted, we construe the EEOC charge in its broadest reasonable sensе and ask whether the claim can reasonably be expected to grow out of the charge of discrimination.” Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 167 (5th Cir. 2018) (internal quotation marks and citation omitted). Although “the magic words ‘constructive discharge‘” need not appear in the EEOC charge, a plaintiff alleging constructive discharge must have “include[d] allegations ‘like or related to’ her constructive disсharge claim.” Id. (citation omitted).
4
Lastly, Ayorinde argues that he has established a prima facie hostile work environment claim based on “racial harassment.” To establish a prima facie case for a race-based hostile work environment claim, a plaintiff must show: “(1) [he] belongs to a protected group; (2) [he] was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, cоndition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.” Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 433 (5th Cir. 2023) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “Harassment generally takes the form of ‘discriminatory intimidation, ridicule, and insult’ that rises to the level of ‘hostile or abusive.‘” Clark v. City of Alexandria, 116 F.4th 472, 479
Although Ayorinde asserts on appeal that he has made the requisite showing to sustain a race-based hostile work environment claim, it is not clear that this argument was squarely presented to the district court. The argument does not appear in Ayorinde‘s motion for summary judgment, and Ayorinde‘s brief in opposition to Team‘s motion for summary judgment did not respond to Team‘s argument that Ayorinde failed to administratively exhaust this issue. Further, although the phrase “hostile working environment” appears in the allegations supporting Ayorinde‘s Title VII and § 1981 counts, his complaint provides no factual allegations of “racial harassment” distinct from his race discrimination and retaliation claims.
Regardless, considering this issue de novo, we agree with Team that Ayorinde failed to administratively exhaust his race-based hostile work environment claim.3 See Davenport, 891 F.3d at 167. Nowhere in either
C
Finally, although Ayorinde generally argues that the district court erred in granting summary judgment to Team on all claims, he has neglected to brief any specific challenge to the district court‘s analysis of his claims under the Lilly Ledbetter Fair Pay Act and the Age Discrimination in Employment Act. It is well established that an “appellant abandons all issues not raised and argued in its initial brief on appeal” and that a “party who inadequately briefs an issue is considered to have abandoned the claim.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
Ayorinde refers to the Lilly Ledbetter Fair Pay Act only twice in his briefing before this court, and in both instances, the Act is only mentioned in a list of Ayorinde‘s asserted causes of action. Similarly, Ayorinde refers to
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For the foregoing reasons, the judgment of the district court is AFFIRMED.
STEPHEN A. HIGGINSON
UNITED STATES CIRCUIT JUDGE