Emрloyees at a terminal for a trucking company brought claims of race discrimi
FACTUAL AND PROCEDURAL BACKGROUND
Rubin Hernandez, John Ketterer, and Abram Trevino (“Plaintiffs”) were employed at Yellow Transportation’s Dallas terminal. The evidence reveals a workplace that could be quite mean-spirited, crude, and insulting. The issue for us to decide is whether federal rights were violated.
We give an evidentiary overview at this point, relying on the facts admitted in the district court. Hernandez, who is Mexican-American, workеd as a shuttle driver and hostler from 1993 until 2007. He brought claims of discrimination, retaliation, and hostile work environment. As to the discrimination claim, Hernandez had a disagreement with a coworker, threatened him, and was fired for violating workplace policy regarding such conduct. The coworker, who was not a passive victim in the altercation, exchanging derogatory remarks with Hernandez, received a lesser penalty.
To support the hostile work environment claim, Hernandez alleges he either personally experienced or witnessed race-based and non-race-based harassment while employed at Yellow Transportation. The retaliation claim seeks to connect his termination with earlier formal claims and informal complaints about discrimination.
Ketterer, who is Caucasian, has been employed as a dock worker since 1990. He claims there was a hostile work environment. He also says he suffered retaliation based in part on twice being fired and later reinstated after serving a suspension. He alleges to have engaged in protected activity by picketing against Yellow Transportation’s treatment of minorities.
Ketterer’s hostile work environment claim also rests upon race-based and non-race-based harassment he either witnessed or personally suffered as a result of his associatiоn with minority employees. He contends his protected status results from his association with black and Hispanic employees.
Trevino, who is Mexiean-Ameriean, has worked as a dock worker since 1984. He brought only a claim of hostile work environment. He also claims to have experienced or witnessed race-based and non-race-based harassment while employed at Yellow Transportation.
Plaintiffs are members of the local chapter of the International Brotherhood of Teamsters. A collective bargaining agreement governs the terms of their employment. Plaintiffs filed charges with and received right-to-sue letters from the Equal Employment Oppоrtunity Commission (“EEOC”) and the Texas Commission on Human Rights.
They filed suit in the U.S. District Court for the Northern District of Texas, claiming race discrimination, retaliation, and hostile work environment. Plaintiffs’ claims were brought under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Texas Commission on Human Rights Act, Tex. Labor Code Ann. §§ 21.001-21.556. The relevant claims under each of these statutes are analyzed under the same standard. Jones v. Robinson Prop. Group, L.P.,
Yellow Transportation was granted summary judgment on all claims brought by these Plaintiffs. Other plaintiffs remained
Chief District Judge Fitzwatеr’s opinion granting judgment is thorough and well-reasoned. Arrieta v. Yellow Tramp., Inc., No. 3:05-CV-2271,
DISCUSSION
We review a district court’s grant of summary judgment de novo and apply the same standards as the district court. Adams v. Travelers Indem. Co. of Conn.,
Plaintiffs group their arguments of error around four of the dismissals by the district court: (A) Hernandez and Trevino’s hostile work environment claims, (B) Ketterer’s hostile work environment claim, (C) Ketterer’s retaliation claim, and (D) Hernandez’s retaliation and race discrimination claims. In response, Yellow Transportation argues that Plaintiffs at times highlight facts from the voluminous summary judgment record that were not identified for the district court and therefore were not considered in ruling on summary judgment.
The argument that new material cannot be presented on appeal is a legally valid one, though we need to determine whether factually it is applicable here. A district court’s decision on summary judgment is largely controlled by what the parties presented. If somewhere in a record there is some evidence that might show a dispute of material fact, the district court needs to be pointed to that evidence as opposed to having to engage in an extensive search. Fed.R.Civ.P. 56(c); Jones v. Sheehan, Young & Culp, P.C.,
A. Hernandez and Trevino’s Hostile Work Environment Claims
Hernandez and Trevino allege that as to their hostile work environment claims, the district court improperly refused to consider all the evidence of harassment, including harassment suffered by other Hispanics and African-Amеricans, and instances of non-race-based harassment.
Besides only being required to examine the evidence pointed out to him in the extensive record, the district judge also said he would consider admissible evidence only, thereby rejecting hearsay. That limitation also is correct. It is a
We start by examining what the evidence had to support. To establish a claim of hostile work environment under Title VII, a plaintiff must prove:
(1) [he] belongs to a protected group;
(2) [he] was subjected to unwelcome harassment; (3) the harassment complаined of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
Ramsey v. Henderson,
Harassment affects a “term, condition, or privilege of employment” if it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. (quotation marks and citations omitted). Workplace conduct “is not measured in isolation.” Id. (quotation marks and citation omitted). In order to deem a work environment sufficiently hostile, “all of the circumstances must be taken into consideration.” Id. This includes “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quotation marks and citations omitted). To be actionable, the work environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton,
Both Hernandez and Trevino refer to numerous events of harassment, some directed at them and others at coworkers. The district court held there were only four incidents of harassment, two each against Hernandez and Trevino, that were severe enough to affect their employment at Yellow Transportation. We examine those first and then consider whether other relevant events were identified before the district court.
Hernandez was called a racially derogatory term on one occasion and once viewed a poster or letter also referring derogatorily to Mexicans. Trevino once heard Mexicans referred to in a derogatory manner оver a company radio and had seen a discriminatory posting or drawing. The district court found these incidents were “plainly offensive to a Hispanic person,” but they could not support a hostile work environment claim because they were so few and occurred over more than a decade of employment. If in fact only two incidents such as these occurred over a ten-year period, this would not create a fact issue that the harassment was “sufficiently severe or pervasive” such that “an abusive working environment” had been shown. See Ramsey,
The district court rejected much of Hernandez and Trevino’s evidence. Whether that rejection was proper is the key appellate issue on these claims. In the district court’s memorandum opinion, the irrelevance of one key incident was explained. Hernandez had been threatened with a knife by a coworker, Ron Green, but there was no evidence that the event had anything to do with race. Hernandez agreed
Other evidence was rejected by the district court because even if it reflected hostility towards one of the plaintiffs, there was no evidence that the actions were based on race. A wide range of behaviors can make a workplace uncivil, but these plaintiffs must show as one of the factors for their Title VII claim that the events were based on race. Id.
Also rejected was proof of events that these plaintiffs had not personally experienced or that were directed to persons of a different racial background. The district court reasoned this way:
To establish a hostile work environment claim, however, a plaintiff must personally experience racial harassment. The court will therefore consider the harassment that a reasonable jury could find that plaintiffs experienced. See, e.g., Septimus v. Univ. of Houston,
Arrieta,
In Septimus, the plaintiff claimed she was subjected to a hostile work environment based on her sex, relying in part on evidence regarding treatment of other women. Septimus,
Hernandez and Trevino argue that the district court’s conclusions resulted in the ignoring of substantial evidence of harassment. They refer us to one of our decisions in which we recognized the relevance of evidence of discrimination against othеr individuals in the plaintiffs protected class. Shattuek v. Kinetic Concepts, Inc.,
Another decision of this court from the same year held that under a state discrimination in employment statute involving workers with disabilities, evidence of the same sort of discrimination against workers other than the plaintiff was admissible. Kelly v. Boeing Petroleum Servs., Inc.,
We have held in the context of sex discrimination that harassment of women other than the plaintiff is relevant to a hostile work environment claim. Wattman v. Int’l Paper Co.,
These precedents show that we have allowed evidence of similar forms of discrimination or harassment against others to be used by a plaintiff to prove the intent of certain actions against her. E.g., Kelly,
A related but distinguishable .issue is whether evidence of harassment towards black employees can help support claims of a hostile work environment towards Hispanic employees. We have addressed evidence of cross-category discrimination as being potentially relevant only when there is a sufficient correlation between the kind of discrimination claimed by a plaintiff and that directed at others. See Kelly,
The district court held that the examples of harassment towards black employees could not support the claim that there was a hostile work environment for Hispanic employees. Whether that conclusion is always correct we need not decide. It does appear, though, that if the evidence of the workplace environment for the employees of a plaintiffs race does not show frequent, severe, and pervasive hostility, then evidence of hostility towards a different racial group is not much support for the plaintiffs claim. There at least needs to be evidence that the hostility towards a racial group different than that of a plaintiff is in some fashion probative of the claim of hostility towards the plaintiffs category' of workers.
Hernandez and Trevino had evidence of specific incidences of workplace hostility towards black employees. Nonetheless, such incidents were neither “physically threatening or humiliating” towards Hernandez and Trevino, nor did the harassment “unreasonably interfere[ ] with [their] work performance.” Id. We agree with the district court that the evidence that was offered of a hostile environment for black employees did not transform what was an otherwise insufficient case of a hostile work environment experienced by these two Hispanic employees into one that could survive summary judgment.
We affirm the district court’s grant of summary judgment as to Hernandez and Trevino’s claims of hostile work environment.
B. Ketterer’s Hostile Work Environment Claim
Ketterer appeals the district court’s grant of summary judgment on his hostile work environment claim. Ketterer, who is Caucasian, argues that he is a member of a protected class due to his association with African-Americans and Hispanics. He claims harassment based upon that association was sufficiently severe or pervasive as to affect his employment.
The district court found that Ketterer did not establish a prima facie case of a hostile work environment because he did not belong to a protected group, and did “not allege[ ] harassment based on his race that was sufficiently pervasive to affect his employment.” Arrieta,
This court has not ruled on the extent of association necessary between a member of one race and a member of another race against which the employer discriminates in order for the member of the former race to have an actionable hostile work environment claim.
Ketterer has not established that he had a “personal” relationship with members of a protected class. The only evidence offered before the district court on this claim is that Ketterer “associated with” minority employees. Because Ketterer did not adequately present this argument before the district court, any effort to do so now is too late. Keelan v. Majesco Software, Inc.,
The district court properly dismissed Ketterer’s claim because he failed to establish a prima facie case of a hostile work environment.
C. Ketterer’s Retaliation Claim
Ketterer argues the district court improperly held that he had not established a prima facie case of retaliation. According to Ketterer, he suffered various forms of retaliation for engaging in protected activity.
A plaintiff establishes a prima facie case of retaliation by showing (i) he engaged in a protected activity, (ii) an adverse employment action occurred, and (iii) there was a causal link between the protected activity and the adverse employment action. Taylor v. United Parcel Serv., Inc.,
The district court determined that Ketterer engaged in protected activity when he picketed against Yellow Transportation’s treatment of minorities. This finding is not in dispute. As to the next two elements of a prima facie case, the district court found that Ketterer did not suffer adverse employment actions, and that he failed to offer evidence he would not have been retaliated against “but for” his engagement in protected activity. Ketterer’s appeal focuses on these two elements of the inquiry.
An adverse employment action is one that “a reasonable employee would have found ... [to be] materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Aryain v. Wal-Mart Stores Tex. LP,
1. Harassment by coworkers
Ketterer advances various incidents of coworker harassment, including name-calling, physical intimidation, false accusations, vandalization of his belongings, verbal threats, and observing violence and illegal behavior. None of these alleged incidents, however, were perpetrated by anyone other than ordinary employees, nor was the alleged harassment committed in furtherance of Yellow Transportation’s business. See id.
Ketterer urges us to apply caselaw from other circuits expanding Title VII’s retaliation provision to protect against broader forms of coworker retaliation. We decline this invitation.
2. Increased workload
Ketterer alleges that after he began picketing, he received more work, heavier assignments, and dirtier jobs. The district court found these allegations unsupported by evidence and Ketterer had not established a causal link. Any effort to do so now is too late. See Forsyth v. Barr,
3. Reinstatement without back-pay
Ketterer contends that he was discharged after a physical altercation with a coworker and reinstated without back-pay, while his eoworker received back-pay. The district court found that Ketterer had not establish a prima facie case, but even if he had, he failed to offer evidence of “but for” causation to rebut Yellow Transportation’s legitimate, nondiscriminatory reason for its actions; that is, Ketterer’s violation of workplace policy.
Because we can affirm a district court “on any basis established by the record,” we need only look to the summary judgment evidence to confirm that, in fact, Ketterer did not demonstrate that “but for” his participation in protected activities, he would not have been reinstated without back-pay. See Long,
We note that to defeat a motion for summary judgment, a plaintiff must demonstrate “a conflict in substantial evidence on [the] ultimate issue” of “but for” causation. Id. at 308 (quotation marks and citations omitted). “Evidence is ‘substantial’ if it is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Id. (quotation marks and citation omitted). Temporal proximity, standing alone, is not enough. Strong v. Univ. Healthcare Sys., L.L.C.,
The district court properly granted summary judgment.
D. Hernandez’s Discrimination and Retaliation Claims
1. Discrimination
Hernandez alleges that he was fired becаuse of his race. He argues the district court erred in granting summary judgment on his discrimination claim by failing to consider evidence of pretext.
The discrimination claim derives from an incident between Hernandez and Green that began when, during roll call, someone yelled at Hernandez, “Go with your girlfriend Ketterer.” After exchanging derogatory remarks, Hernandez threatened Green. Green complained to management,
To survive summary judgment on a claim of employment discrimination based on circumstantial evidence, the plaintiff first must establish a prima facie case. Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.2004) (citation omitted). Once offered, the burden shifts to the employer to provide evidence of a “legitimate, nondiscriminatory reason for the” adverse employment action. Id. (citation omitted). After the employer meets this burden, “the plaintiff must show that he was the victim of intentional discrimination by showing that the employer’s proffered explanation is unworthy of credence.” Id. (quotation marks and citation omitted). The plaintiff may overcome this hurdle by showing “that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc.,
The district court assumed without deciding that a prima facie case was established, and that assumption is not a point of contention on appeal. Yellow Transportation’s explanation for terminating Hernandez — that he violated the workplace policy — is also not at issue. The dispute concerns the final step in the analysis.
Hernandez argues that the following evidence establishes pretext: (a) similarly-situated employees were treated more favorably; (b) harassment by coworkers; and (c) the failure of a supervisor to respond to Hernandez’s complaint against Green. We analyze each of these allegations to determine whether Hernandez has shown an issue of material fact that Yellow Transportation’s nondiscriminatory explanation for firing Hernandez is false.
a. Similarly-situated employees treated more favorably
Hernandez provides examples of employees who violated the workplace policy but were not fired, including Caucasian employees who threatened black employees, a Caucasian employee who threatened another Caucasian employee, and employees who fought in the workplace and across the street.
Hernandez has failed to make an effort to demonstrate that any of the employment actions “were taken under nearly identical cireumstances[,]” including that Hernandez and the other employees shared the same job or responsibilities, reported to the same supervisor, had “essentially comparable violation histories[,]” and, most importantly, that the “conduct that drew the adverse employment decision [was] nearly identical.... ” Lee v. Kan. City S. Ry. Co.,
b. Harassment by coworkers
In addition to the incidents of harassment contained within his hostile work environment claim, Hernandez provides four additional examples of coworker harassment. These include allegations that he was called derogatory names by Green, that a group of Caucasians interfered with his work, that his name was written on the back of a trailer, and that Caucasian coworkers distracted him while he worked.
Hernandez does not offer evidence that the individuals responsible for his termi
c. Supervisor’s failure to respond to Hernandez’s complaint
Hernandez contends that years before he was fired, Green pulled a knife on him and said, “this is for you and your sons.” Upon complaining to management, Hernandez alleges a supervisor told him he would get in trouble if he pursued the claim. Hernandez did not present evidence linking this episode with his termination, nor has he demonstrated that race was a factor in the supervisor’s statement. A rational trier of fact would not find that race, rather than violating the workplace policy, was the actual reason for his termination. See Patel v. Midland Mem’l Hosp. and Med. Ctr.,
2. Retaliation
Hernandez challenges the district court’s grant of summary judgment on his retaliation claim. He argues that his discharge was retaliation for an array of protected activities, including picketing against Yellow Transportation’s treatment of minorities, filing an EEOC complaint, joining a lawsuit against Yellow Transportation, and complaints of unfair job assignments, coworker harassment, inequitable treatment, and failure to investigate prior complaints.
The district court assumed arguendo that Hernandez established a prima facie case of retaliation based upon his discharge. This is not in dispute. The legitimate, nondiscriminatory reason offered by Yellow Transportation — that Hernandez violated the workplace policy — is also not contested. The issue on appeal concerns the final burden, whether Hernandez would not have been fired “but for” his participation in protected activities.
As previously discussed, a plaintiff may avoid summary judgment on “but for” causation by demonstrating “a conflict in substantial evidence on this ultimate issue.” Long,
On appeal, Hernandez presents two arguments to demonstrate “but for” causation. His first argument is that his firing was in close temporal proximity to his participation in protected activities. “But for” causation, however, cannot be established by temporal proximity alone. See Strong,
Hernandez’s second argument is that he presented evidence of pretext, which in addition to temporal proximity, is sufficient to establish “but for” causation. See Shackelford,
a. Investigation into incident with Green
Hernandez’s allegations regarding the investigation into his encounter with Green were not raised in the district court as to this claim. It is too late to identify it on appeal. See Forsyth,
b. Procedures governing post-termination grievance process
Hernandez’s allegations regarding the procedures governing his post-termination grievance process are unsupported by evidence and merely speculative. See Ramsey,
c. Disparity in treatment between Green and Hernandez
Hernandez alleges that following his incident with Green, he was formally removed from service pending the grievance hearing, while Green was permitted to take vacation. In addition, Green only received a warning, whereas Hernandez was fired.
Accepting these facts as true, we find that they fаil to establish anything other than that Yellow Transportation treated Hernandez’s threats more severely than the initial verbal exchange. They do not establish “but for” causation.
d. Similarly-situated employees treated more favorably
In evaluating this claim, we follow the district court’s lead in giving considerable weight to Hernandez’s admission that he committed the acts for which he was discharged, that those acts violated the workplace policy, and the formal grievance committee upheld his discharge. Nothing Hernandez presents contradicts Yellow Transportation’s offered reason for firing him.
Hernandez has failed to establish that Yellow Transportation unlawfully retaliated against him. Summary judgment was proper.
AFFIEMED.
Notes
. After this case was argued, the Supreme Court held that a person whose employment was otherwise unaffected could bring a Title VII retaliation claim for the firing of his coworker and fiancee. Thompson v. N. Am. Stainless, LP, - U.S. -,