306 F. App'x 104
5th Cir.
2009

James CAVALIER, Plaintiff-Appellant v. CLEARLAKE REHABILITATION HOSPITAL, INC., Defendant-Appellee.

No. 08-20379

United States Court of Appeals, Fifth Circuit.

Jan. 7, 2009.

306 F. App‘x 104

within the meaning of 18 U.S.C. §§ 2251(a) and 2256(2)(A)(iii) & (v). See United States v. Crow, 164 F.3d 229, 237-38 (5th Cir.1999); see also United States v. Veazey, 491 F.3d 700, 708-09 (7th Cir.2007); United States v. Johnson, 376 F.3d 689, 692-93 (7th Cir.2004).

Davis argues that the district court erred in denying his motion to dismiss the indictment for lack of jurisdiction because § 2251(a) is unconstitutional under the Commerce Clause. Davis‘s counsel filed a motion to dismiss the indictment for lack of jurisdiction on the ground that § 2251 was unconstitutional under the Commerce Clause. On the first day of the trial, Davis‘s counsel advised the court that Davis and the Government had entered into a stipulation regarding the interstate commerce aspect of the charged offense and, therefore, Davis was withdrawing his previous motion to dismiss the indictment on Commerce Clause grounds. Because Davis raised this issue in the district court and subsequently withdrew the motion raising the issue, Davis waived this issue, and it is unreviewable. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006); United States v. Dodson, 288 F.3d 153, 160 (5th Cir.2002).

Davis argues that the 200-month sentence imposed by the district court is constitutionally excessive in violation of the Eighth Amendment. Davis‘s sentence was 20 months longer than the mandatory minimum sentence of 15 years. In comparison to the life sentence imposed in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), on a nonviolent criminal pursuant to a recidivist statute, Davis has not shown that the 200-month sentence was grossly disproportionate to the offense. See United States v. Gonzales, 121 F.3d 928, 942 (5th Cir.1997); McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.1992).

AFFIRMED.

Anthony P. Griffin, Anthony P. Griffin Inc., Galveston, TX, for Plaintiff-Appellant.

Timothy Thiel McInturf, Littler Mendelson, Houston, TX, for Defendant-Appellee.

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

James Cavalier appeals the district court‘s grant of summary judgment in favor of Clearlake Rehabilitation Hospital (“Clearlake“). Because we find that Cavalier has not produced sufficient evidence to survive summary judgment, we affirm.

Cavalier, an African-American man, is the former Director of Nursing at Clearlake. He claims to have been the victim of racial discrimination and harassment at the hands of Clearlake‘s then-Director of Quality Management, Belinda Simpson (“Simpson“), in violation of Title VII of the Civil Rights Act of 1964. Cavalier also asserts a claim of constructive discharge. Cavalier and Simpson both held supervisory positions, so that neither was subordinate to the other. Cavalier claims that Simpson harassed him in a “persistent, rude and racist” manner. Specifically, he alleges that Simpson often referred to him as “boy,” once told him that she would “beat the tar off of him,”1 bragged to others that she would get him fired, and repeatedly called him a “doofus” and a “dunce.”

Cavalier filed one written complaint about Simpson‘s behavior, and claims to have made many verbal complaints to human resources and to his direct supervisor. After Cavalier filed his written complaint, Clearlake assigned Jeff Prince (“Prince“) to investigate Cavalier‘s allegations. Prince concluded that no illegal harassment had taken place, but that Cavalier and Simpson did not have a productive working relationship. In an email, Prince advised Cavalier that Cavalier and Simpson should work together with human resources to repair their working relationship. Cavalier resigned from Clearlake one week later.

Cavalier initially filed this discrimination lawsuit in Texas state court. Clearlake removed to federal court and moved for summary judgment. The district court granted Clearlake‘s motion for summary judgment, and this appeal followed.

We review a district court‘s grant of summary judgment de novo, applying the same standards as the district court. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir.2003). Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). To avoid summary judgment, the non-moving party must show more than conclusory allegations, unsubstantiated assertions, or speculation. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002) (citing Douglass v. United Servs. Auto. Ass‘n, 79 F.3d 1415, 1429 (5th Cir.1996)).

To establish a hostile working environment claim under Title VII, Cavalier must show that: 1) he belongs to a protected class; 2) he was subjected to unwelcome harassment; 3) the harassment was race-based; 4) the harassment affected a term, condition, or privilege of his employment; and 5) Clearlake knew or should have known of the harassment and failed to take prompt remedial action. Ramsey, 286 F.3d at 268. The district court found that Cavalier had satisfied the first three prongs of the test, but was unable to produce evidence to support the fourth prong.

Under the fourth prong, the harassment “must be ‘sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.‘” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). We also consider the following circumstances: “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating (or whether it is a mere offensive utterance), and whether it unreasonably interferes with the victim‘s work performance.” Id. However, “Title VII ... is not a ‘general civility code,’ and ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.‘” Lauderdale v. Tex. Dep‘t of Criminal Justice, 512 F.3d 157, 163 (5th Cir.2007) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

Cavalier alleges twelve specific instances of objectionable behavior. Viewing the facts favorably to Cavalier, only three of these instances can reasonably be tied to Cavalier‘s race: the “beat the tar off of him” comment and two occasions when Simpson called Cavalier “boy.” The other nine alleged incidents might cause offense or indicate strife between Cavalier and Simpson, but they are not evidence of race-based harassment. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (stating that “[d]iscourtesy or rudeness, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in terms and conditions of employment“) (internal quotations omitted). Though Cavalier may believe that all twelve incidents were motivated by racial animus, subjective belief of racial motivation, without more, is not sufficient to show a hostile work environment. Since these three instances do not rise to the level of severity or pervasiveness required to show a hostile work environment, the district court correctly found that the fourth prong was not met.

However, assuming arguendo that Cavalier could meet the fourth prong, his claim also fails at the fifth prong. We have held that a supervisor‘s intervention into an employee conflict shows “immediate remedial action.” Ramsey, 286 F.3d at 270. Here, Clearlake assigned a human resources investigator to look into Cavalier‘s written complaint, and the investigator offered resources to help Cavalier and Simpson resolve their differences. Further, one factor we have found dispositive is whether the employee “reasonably took advantage of corrective opportunities provided by the employer.” Hockman v. Westward Commc‘ns, LLC, 407 F.3d 317, 329 (5th Cir.2004). Cavalier did not take advantage of any “corrective opportunities“—he quit one week after receiving Prince‘s email, without responding at all.

Cavalier also claims Simpson‘s conduct caused him to be constructively discharged. To prevail on a constructive discharge claim, the plaintiff must show that his working conditions “were so intolerable that a reasonable employee would feel compelled to resign.” Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.1997). The plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment. Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir.1992).

Here, Cavalier‘s constructive discharge claim rests on the same evidence as his hostile work environment claim. Therefore, because he has not alleged evidence sufficient to preclude summary judgment on the hostile work environment claim, he also cannot survive summary judgment on his constructive discharge claim.

For the above reasons, we AFFIRM the district court‘s order granting summary judgment.

Notes

1
There is some dispute about this statement, both as to whether it was made at all and what was actually said. Simpson and other employees who were present at the time insist that, if Simpson said this, she actually said she would “beat the tar out of” Cavalier, not “off of” him.
*
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.