Paul D. BROOKS; Erick Guillory; Ricky Ruffin; Samuel W. Johnson; Ellis E. Byrd; Michael Spencer; Jonathan E. Greenway; Wayne E. Johnson, Plaintiffs-Appellants v. FIRESTONE POLYMERS, L.L.C., also known as Firestone; Bridgestone Americas Holding, Incorporated, Defendants-Appellees.
No. 15-40162
United States Court of Appeals, Fifth Circuit
March 2, 2016
640 Fed. Appx. 393
The judgment of the district court is AFFIRMED.
Paul D. BROOKS; Erick Guillory; Ricky Ruffin; Samuel W. Johnson; Ellis E. Byrd; Michael Spencer; Jonathan E. Greenway *; Wayne E. Johnson, Plaintiffs-Appellants
v.
FIRESTONE POLYMERS, L.L.C., also known as Firestone; Bridgestone Ameriсas Holding, Incorporated, Defendants-Appellees.
No. 15-40162.
United States Court of Appeals, Fifth Circuit.
March 2, 2016.
* Various documents in the record spell this plaintiff‘s name as “Greenaway.” However, our caption and the district court‘s caption spell it “Greenway.”
Michael David Mitchell, Ogletree Deakins, P.C., Hоuston, TX, for Defendants-Appellees.
Before CLEMENT and HAYNES, Circuit Judges, and GARCIA MARMOLEJO, District Judge.**
** District Judge of the Southern District of Texas, sitting by designation.
PER CURIAM:1
Plaintiffs in this case, African-American employees or former employees of Firestone Polymers, L.L.C. (“Firestone“), appeal the dismissal of their claims against Firestone for employment discrimination, brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII“),
I.
We review the grant of summary judgment de novo. United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
II.
Plaintiffs challenge the district court‘s grant of summary judgment because they claim the district court erred by: (1) concluding that Plaintiffs’ failure to train claims did not involve adverse employment actions as required to plead a prima facie case for employment discrimination; (2) concluding that Plaintiffs did not meet their burden to highlight specific evidence supporting their denial of overtime claims; and (3) failing to consider Plaintiffs’ aggregate experiences in dismissing Plaintiffs’ hostile work environmеnt claims.3 Although Plaintiffs do not challenge the district court‘s conclusion that many of Plaintiffs’ claims are time-barred, they contend that the district court should have granted their motion for reconsideration, in which they attempted to submit additional evidence regarding when Plaintiffs’ claims were submitted to the Equal Employment Opportunity Commission (“EEOC“).4
A. Plaintiffs’ Failure to Train Claims
Employment discrimination based upon race is unlawful under Title VII and Section 1981.5 To survive summary judgment, each Plaintiff in this case had to make a prima facie showing that he: (1) is a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) that similarly situated employees outside the protectеd class were treated more favorably. See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Here, the controversy as to the failure to train claims centers on the third prong, for which we
In similar cases involving only tangential evidence of a potential effect on compensation, we have held that a failure to train does not constitute an ultimate employment decision or an adverse employment action. See, e.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406-07 (5th Cir.1999) (holding a denial of training was not an adverse employment action covered by Title VII and affirming dismissal of the claim on summary judgment); Hollimon v. Potter, 365 Fed.Appx. 546, 549 (5th Cir. 2010) (similar); Roberson v. GameStop/Babbage‘s, 152 Fed.Appx. 356, 361 (5th Cir.2005) (similar).6 Plaintiffs argue that a failure to train may constitute an adverse emрloyment action and that these cases are distinguishable on their facts.
Plaintiffs have failed to show that the denial of training in this case constituted an ultimate employment decision or its factual equivalent. Plaintiffs argue that the record shows their lack of training relative to non-African-American employees affected their compensation by decreasing their opportunity to earn overtime. We have found such evidence insufficient because it only shows a potential, tangential effect on increased compensation. See, e.g., Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995) (affirming the dismissal of a plaintiff‘s denial-of-training claims, finding it insufficient that the denial “arguably might have [had] some tangential effect upon [an] ultimate decision[]“), abrogated in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Shackelford, 190 F.3d at 406-07 (noting the plaintiff “produce[d] no significant evidence that a denial of such training [related mostly to her back-up duties] would ‘tend to affect’ her employment status or benefits” (emphasis added)).
Plaintiffs have also failed to specify facts that make the crucial link bеtween each Plaintiff in this case and reduced overtime—and therefore reduced compensation—due to the lack of training, as compared to non-African-American counterparts. Cf. Roberson, 152 Fed.Appx. at 361 (“[I]f the alleged potential demotion itself did not rise to the level of an ad-verse employment action, a refusal to providе training that allegedly led to the potential demotion could not either.“). We affirm the district court‘s dismissal of Plaintiffs’ failure to train claims. See CQ, Inc., 565 F.3d at 273.
B. Plaintiffs’ Claims for Denial of Overtime
The district court granted summary judgment on the overtime claims because it determined that Plaintiffs failed to produce evidence “that specific overtime positions were available that they wеre qualified for, that they were denied those positions, and that others outside the class who were similarly situated were treated more favorably.” We have no precedential authority in our circuit establishing whether a denial of overtime constitutes an adverse employment action.7 We need not
Without relevant citations to the record,8 Plaintiffs state in a conclusory fashion that employment records and summary charts show that non-African-American employees received greater training than Plaintiffs, leading to better overtime and employment opportunities. Plaintiffs do not cite evidence that Plaintiffs were qualified for specific overtime opportunities or evidence that similarly situated, non-African-American individuals were treated differently.9 Again relying on generalities, Plaintiffs did not compare each Plaintiff with an individual who received more training. Plaintiffs therefore failed to raise a fact issue as to whether these individuals were truly similarly situated with respect to any denial of training or overtime as compared to Plaintiffs. See id.; cf. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363-64 (5th Cir.2013) (closely analyzing various characteristics of two emрloyees before concluding they were similarly situated); Shackelford, 190 F.3d at 405-06 (similar).
In sum, in response to Firestone‘s motion for summary judgment on their denial of overtime claims, Plaintiffs failed to proffer sufficient evidence to make a prima facie case that any Plaintiff suffered an adverse employment action. Plaintiffs therefore failed to meet their burden to show a genuine issue of material fact as to each element of their discrimination claim for denial of overtime, and the district court properly dismissed the claim. See Malacara v. Garber, 353 F.3d 393, 404 (5th Cir.2003).
C. Plaintiffs’ Hostile Work Environment Claims
The district court held that the Plaintiffs bringing hostile work environment claims failed to make out a prima facie case that Firestone created such an environment. Plaintiffs argue the district court erred by analyzing each Plaintiff‘s claims individually, without aggregating the harm also alleged by other Plaintiffs as part of the totality of the circumstances. Even assuming arguendo an obligation to do so, we conclude that Plaintiffs have failed to establish a hostile work environment.
To establish a hostile work environment, each Plaintiff must prove he:
- belongs to a protected group;
- was subjected to unwelcome harassment;
- the harassment complained of was based on race;
- the harassment complained of affected a term, condition, or privilege of employment;
- the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.2012). “Harassment affects a ‘term, condition, or privilege of employment’ if it is ‘sufficiently severe оr pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.‘” Id. (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002)). We analyze the hostility of a work environment in the totality of the circumstances, including examining “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere of-fensive utterance; and whеther it unrea-sonably interferes with an employee‘s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Plaintiffs have largely failed to highlight specific evidence supporting a prima facie case of a hostile work environment and, where they have, it fails to support recovery under this theory.
1. Plaintiff Brooks
Brooks claimed that on one occa-sion, he was аsked not to use a restroom, which he perceived as a racially discriminatory request. Brooks used the restroom anyway, did not report the incident despite being asked about it by management, and testified that he viewed it as settled and that it did not recur. The district court properly concluded that these allegations do not suppоrt a hostile work environment claim. See Butler v. Ysleta Independent School Dist., 161 F.3d 263, 269 (5th Cir.1998).
2. Plaintiff Ruffin
Ruffin complained about company video monitors showing images he found offensive. Ruffin said he reported the incident and that the images were removed shortly thereafter, not to reappear. Plaintiffs Spencer and Samuel Johnson also testified to seeing these images and to their
3. Plaintiff Samuel Johnson
Plaintiff Samuel Johnson alleges a hostile work environment based on racial slurs and “black faces” drawn in the bathroom stalls in the workplace. He testified that the foreman waitеd some time before painting over the stalls. Samuel Johnson further stated that he heard a manager say that as long as he was in charge of a certain unit, “there would be no blacks in the control room.”
These offensive events, while reprehen-sible, establish only isolated incidents and offhand remarks, did not involve physical threats, were not apparently directly ad-dressed to Samuel Johnson, and do not appear to have interfered with his work. See Harris, 510 U.S. at 23. We affirm the district court‘s de-termination that Samuel Johnson failed to make a prima facie case of a hostile work environment based on these allegations. See, e.g., Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir. 2002) (determining no severe or pervasive racial harassment occurred in circum-stances involving frequent drawings in the
4. Plaintiff Wayne Johnson
Plaintiff Wayne Johnson apparent-ly claimed a hostile work environment based on the American flag being flown upside down outside the Firestone plant in 2009 to protest President Obama‘s elec-tion. As the district court noted, no evi-dence tied this incident to interference with Wayne Johnson‘s work. We affirm the district court‘s dismissal of Wayne Johnson‘s hostile work environment claim.
5. Plaintiff Spencer
Spencer alleges that, on a single occasion, “he found a miniature hangman‘s noose placed inside his hard hat at work.” He testified that no one else was with him when he fоund it, that he does not recall telling others about it or showing others the noose, and that he took it home. He did not report it to a supervisor. Spencer testified that he found the incident “pretty upsetting” at the time. Yet, he did not testify that the noose incident or others changed the terms or conditions of his employment.10
The district court determined that the noose was not prima facie evidence of a hostile work environment because Spencer presented no evidence of how it affected the terms and conditions of his employ-ment, it appears to have been an isolated incident, and there is no evidence Fire-stone knew or should have known аbout the incident. See Harris, 510 U.S. at 23; see also Hockman, 407 F.3d at 329. We agree that, although reprehen-sible, this conduct does not create a hostile work environment in these circum-stances.11
6. Considering the Totality of the Cir-cumstances
We look to the totality of the circum-stances in determining whether an envi-ronment is hostile or abusive. See Harris, 510 U.S. at 23. Evidence about discrimination against other mem-bers of the protectеd class in the same workplace may sometimes be probative to reinforce allegations that harassment af-fected a plaintiff‘s terms and conditions of employment. See generally Hernandez, 670 F.3d at 651-54. In this case, even considering the incidents each Plaintiff ex-perienced or knew about in the aggregate does not “transform what was аn other-wise insufficient case of a hostile work environment ... into one that could sur-vive summary judgment.” Id. at 654.
AFFIRMED.