IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-31121
Summary Calendar
_____________________
JAMES E GRANT, JR,
Plaintiff-Appellant,
v.
U O P, INCORPORATED,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-1240)
_________________________________________________________________
July 23, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
James Grant appeals the district court’s grant of summary
judgment in favor of UOP, Inc. Finding no error, we affirm.
I. BACKGROUND
A. Statement of Facts
Grant, an African-American male, began working at Universal
*
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this opinion should not be published and is not precedent except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.
1
Oil Products (“UOP”) in the labor department in June 1992.
Claude Clary was Grant’s supervisor from September 1992 until
March 3, 1994.
Grant claims that in a conversation with Clary in September
1992, Clary referred to two other black employees as “cotton
field niggers.” Clary also referred to Grant as “boy” and “kid”
on several occasions and told white co-workers that he could
“dress Grant up” but that he could not “take him to town.”
Clary assigned tasks to Grant that Grant felt were onerous.
For example, Clary required Grant to use a gasoline trimmer to
cut grass around a pond for approximately two weeks. On a
different occasion, Clary required Grant to use a swing blade to
cut weeds, instead of an automated weed trimmer. Grant alleges
that Clary stated that he would “break” Grant before he retired
and make him into a “good hand” yet. Also, Grant and a white co-
worker were required to spend several days digging a ditch with
shovels to find a leak. Grant thought a backhoe was the more
appropriate tool for the job.
Throughout the time period that Clary supervised Grant,
Grant thought that Clary was very critical of his work. However,
Grant does not complain of any conduct occurring between December
1993 and March 1995.
On April 11, 1995, Grant made a written complaint to Vernon
Chance, the Plant Manager, regarding three alleged instances of
racial discrimination that had occurred in the prior two weeks.
2
Grant’s allegations are as follows: First, on March 30, 1995,
Larry Bell, a co-worker with no supervisory authority over Grant,
told Grant that “niggers can’t weld” and used the phrase “nigger,
please” in Grant’s presence. Second, on April 3, 1995, Jimmy Don
Blaine, also a co-worker of Grant’s, told Grant that Grant’s
opponent in a recent karate match was probably thinking to
himself that “this damn nigger is gonna whip my ass.” Third, on
April 11, 1995, Clary, who was no longer Grant’s supervisor at
the time, explained to Grant what he viewed as the difference
between a nigger and a black man.
Chance and Harlan Phelps, UOP’s Human Resources Manager,
investigated the alleged incidents. Following their
investigation and discussion with the individuals involved, they
placed a written warning notice in Bell’s file and orally warned
Bell, Blaine, and Clary that the use of racial slurs was a
serious offense and that any future incident would be grounds for
dismissal. There were no further complaints against the three
men.
On April 18, 1995, Grant was suspended for three days
pursuant to UOP’s policy regarding excessive absenteeism. Grant
had received both an oral and a written warning prior to his
suspension advising him that his absenteeism rate -- at the times
of the warnings as high as 17.8% and 15.9% respectively -- was
unacceptable and would result in a disciplinary layoff if it
continued.
3
On May 16, 1995, Phelps was made aware of additional claims
by Grant against Clary, based on earlier statements made by Clary
-- such as the reference to “cotton field niggers” -- and work
assignments from Clary that Grant deemed onerous. On May 19,
1995, Clary was suspended until his forced retirement on May 31,
1995.
B. Procedural History
Grant filed claims with the Louisiana Human Rights
Commission and the Equal Employment Opportunity Commission on
April 18, 1995, and April 20, 1995, respectively. On July 7,
1995, Grant filed suit against UOP and Clary alleging racial
discrimination in violation of 42 U.S.C. § 1981 and Title VII of
the Civil Rights Act of 1964. Grant also asserted state law
claims for discrimination and intentional infliction of emotional
distress.
Grant alleged that he had been subjected to a hostile
environment because of the racial remarks and harassment by Clary
and other employees at UOP. Grant further claimed that he and
other black employees had been subjected to disparate treatment
based on their race. Grant also asserted a claim for retaliation
based on UOP’s placing him on disciplinary leave for excessive
absences within days of his complaint of discrimination.
Both UOP and Clary filed motions for summary judgment on the
ground that there was no genuine issue as to any material fact.
4
The district court granted these motions on October 4, 1996.
Grant timely appealed the grant of summary judgment in favor of
UOP.1
II. DISCUSSION
We review the granting of summary judgment de novo, applying
the same criteria used by the district court. Norman v. Apache
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). Summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c).
On appeal, Grant argues that he has presented genuine issues
of fact as to whether there was a racially hostile environment,
whether UOP took prompt remedial action, and whether he was
disciplined in retaliation for making a complaint of racial
discrimination.
A. Hostile Environment Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful
“for an employer . . . to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
1
Grant does not appeal the district court’s ruling to the
extent that it dismisses Clary from personal liability.
5
2(a)(1). Courts have interpreted the language of Title VII to
provide a cause of action to a person who is subjected to a
discriminatorily hostile work environment. Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The Court in Harris
determined that Title VII is violated when “the workplace is
permeated with ‘discriminatory intimidation, ridicule, and
insult,’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment.’” Id. (quoting Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986))(internal citations omitted).
In order to establish a claim against an employer for a
hostile work environment, an employee is required to show that
(1) he belongs to a protected group, (2) he was subject to
harassment, (3) the harassment was based on the protected
characteristic, (4) the harassment affected a term, condition, or
privilege of employment, and (5) the employer knew or should have
known of the harassment and failed to take prompt remedial
action. Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir.
1986), cert. denied, 479 U.S. 1065 (1987).
Even assuming arguendo that the incidents identified by
Grant establish a valid hostile environment claim, UOP can not be
held liable because it took prompt remedial action that was
reasonably calculated to end the harassment. Garcia v. Elf
Atochem N.A., 28 F.3d 446, 451 (5th Cir. 1994). When Phelps
6
received Grant’s letter on April 11, 1995, he immediately
investigated the complaints and interviewed the three men whose
statements had offended Grant.2
When confronted about the incident in question, Bell denied
saying “niggers can’t weld,” but admitted saying “nigger,
please.” Phelps informed Bell that the use of the term “nigger”
was a serious offense at UOP and that any future incident would
be grounds for dismissal. Bell apologized to Grant, and a
written warning notice was placed in Bell’s personnel file.
There were no further complaints against Bell.
UOP management interviewed the employees present when
Blaine’s statement about Grant’s karate opponent was allegedly
made. All of the people present denied hearing the statement.
Phelps then called both Grant and Blaine into his office. Grant
insisted that Blaine did make the statement at issue, and Blaine
denied it. Based on the evidence before him, Phelps felt that
Blaine had not made the statement. Phelps nevertheless warned
Blaine that it was against company policy to make racial slurs
and that any future incident would be grounds for dismissal.
Phelps then reported the actions he had taken to Vernon Chance,
the Plant Manager. There were no further complaints against
2
Grant argues for the first time on appeal that he complained
about the racial harassment he was experiencing to his superior,
Jay Davis, before the April 11 letter. Arguments raised for the
first time on appeal will not be considered by this court. See
James v. McCaw Cellular Communications, Inc., 988 F.2d 583, 585
(5th Cir. 1993).
7
Blaine.
Chance ordered an investigation of Clary by Phelps and also
ordered Bill Gasway to become involved because Clary was in his
department. When Gasway met with Clary, Clary expressed surprise
that his comments had offended Grant and offered to apologize,
which he did the next day. Gasway gave Clary a verbal warning.
There were no further complaints against Clary.
On May 16, 1995, UOP received a copy of the letter Grant
sent to the Louisiana Human Rights Commission from Grant’s
attorney. The letter detailed the alleged harassment and
discrimination that Grant faced from September 1992 until
December 1993. Phelps questioned Clary regarding each allegation
in the letter, and Clary denied all of them. Regardless of
Clary’s denial, Phelps and Chance decided to suspend Clary.
Clary was suspended on May 19, 1995, and was ultimately forced
into early retirement on May 30, 1995.
The remedial action taken by UOP was both prompt and
effective. Not only was it reasonably calculated to end the
harassment, but it actually did so. No further complaints were
made against Bell, Blaine, and Clary after the three men were
reprimanded. When further allegations regarding Clary came to
light a month later, UOP immediately suspended Clary, pending his
forced retirement.
Grant’s argument that UOP did not take sufficiently drastic
or wide-sweeping action falls in the face of Fifth Circuit
8
precedent. Grant objects to the fact that beyond the warning
that any further incident could result in dismissal, no
disciplinary action was taken against Bell, Blaine, and Clary.
Grant also complains that UOP limited its reprimand to the three
men reported by Grant, instead of making a point of informing all
the UOP employees that racial slurs would not be tolerated.
“What is appropriate remedial action will necessarily depend
on . . . the severity and persistence of the harassment, and the
effectiveness of any initial remedial steps. Garcia, 28 F.3d at
451. The court in Garcia ruled that the reprimand of a harasser
and a warning that further harassment would result in termination
was sufficient to protect an employer from liability under Title
VII because the action was not only “prompt and reasonably
calculated to end the harassment, but the harassment actually
ended.” Id. Based on the standard articulated in Garcia, no
issue of material fact exists regarding UOP’s liability for the
alleged hostile work environment.
B. Retaliation Claim
Grant argues that there is a material fact issue as to
whether his three-day suspension for excessive absenteeism was
retaliatory. The elements of a cause of action for retaliation
are: (1) the plaintiff engaged in a protected activity, (2) the
plaintiff suffered an adverse employment decision, and (3) the
adverse decision was motivated by the protected activity such
9
that there was a causal connection between the two. Mattern v.
Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The third
element may be established by direct evidence of retaliatory
animus or by indirect evidence of disparate treatment. Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995)(age
discrimination).
Grant argues for the first time on appeal that Clary’s use
of racial slurs constitutes direct evidence of retaliatory
animus. See Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858,
861 (5th Cir. 1993)(concluding that “routine use of racial slurs
constitutes direct evidence that racial animus was a motivating
factor in the contested disciplinary decisions” where person
using slurs participated directly in disciplinary decisions). We
need not address this argument because it was raised for the
first time on appeal, but we note in passing that Brown is
inapplicable in this context because Clary did not directly
participate in the disciplinary action taken against Grant.
Thus, Grant must attempt to establish the third element of
retaliation by indirect evidence of disparate treatment.
When a plaintiff uses the indirect method of proof, the
McDonnell Douglas sequence of proof and Burdine allocation of
burdens apply. Mooney, 54 F.3d at 1216. We set forth this
evidentiary scheme in Rhodes v. Guiberson Oil Tools, 75 F.3d 989
(5th Cir. 1996)(en banc). If the plaintiff establishes a prima
facie case, the defendant must come forward with a legitimate,
10
non-discriminatory reason for the employment action taken. Id.
at 992-93. The burden then shifts back to the plaintiff to prove
that the defendant’s reason is merely a pretext for
discrimination. Id. at 993.
Grant claims that he was suspended in retaliation for filing
a written complaint. UOP contends, however, that Grant was
suspended for excessive absenteeism. At UOP, the absenteeism
rate is not calculated simply upon how many days an employee
missed work, but is calculated by dividing the scheduled hours
missed by the scheduled hours worked. An absenteeism rate above
5% is considered unacceptable. UOP has well-documented evidence
that it followed its standard progressive discipline procedure in
issuing first an oral warning in September 1994 when Grant’s
absenteeism rate was 17.8%, then a written warning in November
1994 when Grant had an absenteeism rate of 15.9%, and then
suspending Grant in April 1995 when Grant had an absenteeism rate
of 10.23%.
Grant did not object to UOP’s evidence at trial, but on
appeal he points to his deposition, in which he testified that he
“only missed five sick days that entire year.”3 Regardless of
the number of days Grant missed, Grant put on no evidence to
3
Later in his deposition, however, Grant testified that, in
addition to sick days, he missed at least ten days in the fall of
1994 to be at home with his wife, who was having a difficult
pregnancy.
11
challenge the absenteeism rates put forward by UOP.4 Grant did
not meet his burden of proof by showing that UOP’s stated reason
for the three-day suspension was pretextual. Thus, the district
court correctly granted summary judgment on the issue of
retaliation.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
4
Grant also argues that he was discriminated against because
other white employees violated the absenteeism policy with
impunity; however, Grant introduced no competent evidence to
support this theory before the trial court.
12