United States Court of Appeals
Fifth Circuit
F I L E D
In the May 30, 2003
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 02-10741
Summary Calendar
_______________
WILLIAM FRIEND; MICHELLE HUCKABY; ETHEL CARTER; GLORIACOLAS;
CHERRY POPE; PAUL SAMPLES; DIAN ROLAND; DEBORAH BEASLEY; LARRY KING;
MELODY KING; COREY HUCKABY; AND JANE JONES,
Plaintiffs-Appellants,
VERSUS
INTERIOR SYSTEMS, INC.,
ALSO KNOWN AS ISI PROFESSIONAL SERVICES, INC.,
AND
CUSHMAN & WAKEFIELD NATIONAL CORPORATION,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:00-CV-2170-P
_________________________
Before HIGGINBOTHAM, SMITH, and Alpha Road Facility employees were
CLEMENT, Circuit Judges. responsible for reporting to the USPS,
submitting postage reports based on the
JERRY E. SMITH, Circuit Judge:* postage required for the bulk mail sorted at the
facility. From the reports, the USPS
Plaintiffs William Friend, Michelle Hucka- determined the amounts due from various
by, Ethel Carter, Gloria Colas, Cherry Pope, clients and withdrew payment from the trust
Paul Samples, Dian Roland, Deborah Beasley, funds.
Larry King, Melody King, Corey Huckaby,
and Jane Jones, who are black former employ- In November 1999, ISI learned that the
ees of defendants Interior Systems, Inc. USPS was conducting a criminal investigation
(“ISI”), and Cushman & Wakefield, Inc. into the operation of the Alpha Road Facility.
(“Cushman”), appeal a summary judgment on Morton Taubman, ISI’s general counsel, was
their claims of discrimination under 42 U.S.C. informed by USPS investigators that Roger
§ 1981. Finding no error, we affirm. Ebert, the general manager of the facility, was
the target of the investigation, which
I. concerned an alleged payroll fraud scheme and
Plaintiffs were employed at different times, the possible embezzlement of funds from client
and in various capacities, by Cushman and ISI trust accounts.
at a mail sorting facility on Alpha Road in Dal-
las, Texas (“Alpha Road Facility”).2 The Ebert, a white male, was suspended from
Alpha Road Facility provided customers with his position as general manager while ISI con-
various mail sorting services. In particular, be- ducted its own internal investigation. That in-
cause the United States Postal Service vestigation uncovered evidence of additional
(“USPS”) offers a discount in postal rates to employee wrongdoing. Specifically, Taubman
customers who sort their own bulk mail, cli- concluded that Friend, Michelle Huckaby, and
ents had their mail sorted at the facility before Martha Litton, an ISI employee not party to
sending it to the USPS. To cover the costs of this suit, were either involved with Ebert’s
postage, clients were required to deposit mon- scheme, or responsible for severe
ey into a trust fund controlled by the USPS. mismanagement of the second shift. Based on
these conclusions, ISI terminated Ebert,
Litton, Friend, and Huckaby.
*
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub- The remaining plaintiffs were terminated or
lished and is not precedent except under the limited quit for various reasons not directly related to
circumstances set forth in 5TH CIR. R. 47.5.4. the Ebert affair. Five were either laid off or
2 fired in April and May 2000. Another, Jones,
From October 1997 to July 1999 they were
employed by Cushman. At that time, ISI assumed
quit voluntarily but claims she was
control of the Alpha Road Facility, and all workers constructively discharged.
at the facility became ISI employees. Cushman
eventually resumed responsibility for the operation II.
of the Alpha Road Facility in October 2000, and On appeal, plaintiffs challenge the summary
Jones, the sole plaintiff still working at the facility judgment on their claims of employment
at that time, became a Cushman employee again.
2
discrimination.3 We review a summary Plaintiffs contend that defendants engaged
judgment de novo, applying the same legal in employment discrimination in violation of
standards as did the district court and viewing § 1981(a), which provides that “[a]ll persons
all factual questions and inferences in the light within the jurisdiction of the United States
most favorable to the nonmoving party. White shall have the same right . . . to make and
v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. enforce contracts . . . as is enjoyed by white
2003). Summary judgment is appropriate if, in citizens.” The right to “make and enforce con-
light of all the evidence, there is “no genuine tracts,” in turn, includes the right to
issue of material fact, and the moving party is nondiscriminatory enjoyment of all benefits,
entitled to judgment as a matter of law.” FED. privileges, terms, and conditions of the
R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 contractual relationship. § 1981(b).
U.S. 317, 322 (1986).
III.
Mere assertions of a factual dispute, Plaintiffs contend that defendants engaged
unsupported by probative evidence, will not in racial discrimination in terminating their
prevent summary judgment.4 Rather, to employment. Claims of racial discrimination
demonstrate the existence of a genuine issue of under § 1981 are go verned by the same
fact, the nonmovant must provide specific evidentiary framework applicable to claims of
facts such that a reasonable jury might return employment discrimination brought under title
a verdict in his favor. See Anderson, 477 U.S. VII. See Raggs v. Miss. Power & Light Co.,
at 248. Consequently, “conclusory allegations, 278 F.3d 463, 468 (5th Cir. 2002) (collecting
speculation, and unsubstantiated assertions” cases). Therefore, to determine whether de-
will not suffice to defeat a motion for summary fendants are entitled to summary judgment, we
judgment. Douglass v. United Servs. Auto. must apply the McDonnell Douglas burden
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en shifting analysis. Id.
banc).
Even assuming arguendo that plaintiffs met
their burden of establishing a prima facie case,
3
Several claims of discrimination pursued in ISI advanced mult iple legitimate,
the district court were not presented in plaintiffs’ nondiscriminatory justifications for its decision
brief. Needless to say, we consider only those to terminate their employment. Accordingly,
claims raised and adequately briefed. See Melton the burden fell to plaintiffs to demonstrate that
v. Teachers Ins. & Annuity Ass’n, 114 F.3d 557, these proffered justifications were merely pre-
561 (5th Cir. 1997) (“[I]ssues not raised or argued texts for unlawful discrimination. Id. None of
in the brief are considered waived and thus will not the plaintiffs has demonstrated the existence of
be noticed or entertained by this Court on ap- a genuine issue of material fact with respect to
peal.”). Plaintiffs likewise failed to challenge the pretext.
denial of their FLSA claims and entirely omitted
any discussion of the entry of judgment against
A.
Beasley, Huckaby, Larry King, and Melody King.
We therefore deem these claims abandoned as well. ISI contends that plaintiffs Friend and
Huckaby were terminated for possible criminal
4
Anderson v. Liberty Lobby, Inc., 477 U.S. conduct in connecti on with Ebert’s
242, 248-50 (1986); Abbott v. Equity Group, Inc., embezzlement and payroll fraud and for gross
2 F.3d 613, 619 (5th Cir. 1993).
3
mismanagement of the night shift. Either of scheme. Further, plaintiffs admitted they had
these grounds constitutes a legitimate received cash payments from Ebert. These
nondiscriminatory basis for plaintiffs’ facts provided a reasonable basis for ISI’s
termination. belief that Friend and Huckaby engaged in
criminal wrongdoing.5
Friend and Huckaby contend that defen-
dantISI’s proffered justification for their termi- In any event, ISI also concluded that, even
nation, their possible involvement in Ebert’s absent criminal malfeasance, the night shift had
criminal conduct, is pretextual, because Ebert been grossly mismanaged. In addition to
did not implicate them in statements made reported violations of company policy, the
during the ISI investigation and the subsequent night shift was considerably less efficient than
criminal case. Plaintiffs contend that Ebert’s the day shift, sorting less mail despite
conflicting statements give rise to a genuine recording substantially more overtime than the
issue of fact with respect to whether they day shift and frequently calling in additional
participated in the scheme. temporary help. Friend and Huckaby present
no argument that this justification for their
This argument misses the point, however. termination was pretextual. Having shown
The question is not whether Friend and Huck- adequate nondiscriminatory reasons for the
aby participated in Ebert’s criminal conduct; decision to terminate Friend and Huckaby,
rather, t he question is whether ISI had a defendants were entitled to summary judgment
reasonable basis for believing they were
involved. Even if ISI’s belief that they
engaged in criminal misconduct was ultimately
incorrect, it may serve as a legitimate, non-
discriminatory reason for their termination “so
long as the belief [was] reasonable, not 5
Friend and Huckaby contend that the ISI in-
arbitrary, and not a likely pretext for unlawful vestigation was one-sided and discriminatory. In
discrimination.” Bauer v. Albermarle Corp., particular, they assert that ISI’s failure to investi-
169 F.3d 962, 967 (5th Cir. 1999). gate allegations that ISI Vice President William
Marcellino also participated in Ebert’s schemes
In the course of conducting an internal in- demonstrates that the investigation served merely to
vestigation, ISI uncovered several indications conceal the discriminatory motive underlying their
that plaintiffs had participated in Ebert’s post- termination. Plaintiffs provide no evidence that
age fraud and payroll fraud schemes. As night any allegations concerning Marcellino were
shift managers, Friend and Huckaby were re- credible or supported by evidence such as that
sponsible for completing and depositing postal which implicated them.
forms for pick-up by the USPS. Indeed, there
Further, the investigation which culminated in
is evidence that a high proportion of the forms plaintiffs termination resulted also in the termin-
wrongfully withheld from the USPS were ation of two white employees, Ebert and Litton.
prepared either by Friend or Huckaby. They Plaintiffs’ conclusional assertions of discrimination
were likewise responsible for verifying the ac- in the conduct of the investigation are not suf-
curacy of employee time cards and time sheets ficient, in the absence of supporting evidence, to
and thus implicated in the payroll fraud defeat summary judgment. See Douglass, 79 F.3d
at 1429.
4
on their claims.6 was pretextual.
B. D.
Carter contends that her termination by ISI Colas, Roland, and Pope contend their lay-
was racially discriminatory. ISI, however, pre- offs were the result of racial discrimination.
sented internal memoranda establishing that Even assuming plaintiffs have made a prima
Carter was terminated for well-documented, facie showing of discrimination, ISI contends
nondiscriminatory reasons, including poor job that it decided to lay off the entire second shift
knowledge, poor leadership, poor de- because of the inefficiency of the night shift
cisionmaking, unprofessional and disruptive and a drop in business after the allegations
behavior toward other employees, refusal to concerning Ebert’s mail fraud scheme became
work mandatory overtime, and unexcused ab- public. None of the laid off plaintiffs
senteeism. Although Carter testified that these presented evidence that this nondiscriminatory
documents contained “a bunch of lies,” her justification for the termination was a pretext
testimony alone does not constitute sufficient for racial discrimination.7
evidence of pretext to defeat summary
judgment. IV.
Friend, Huckaby, Colas, and Pope argue
C. that they were fired in retaliation for their par-
Samples likewise alleges that his ticipation in a company meeting held by ISI
termination was motivated by racial President Earl Jenkins to address the Alpha
discrimination. In response, ISI provided Road employees’ complaints of racial
documentary evidence showing that Samples discrimination. Claims for retaliatory
was put on probation for leaving work without discharge under § 1981 are governed by the
permission and that he failed to appear for same rules as are retaliation claims brought
work t he very next day. ISI then sent a under title VII. Foley v. Univ. of Houston
termination letter to Samples explaining that Sys., 324 F.3d 310, 316 n.7 (5th Cir. 2003).
he was terminated for poor work performance Therefore, to assert a prima facie claim for
and nonattendance. Samples failed to retaliation under § 1981, a plaintiff must
introduce any evidence that this legitimate, establish (1) that he engaged in conduct
nondiscriminatory justification for his firing protected by the statute; (2) that his employer
6 7
Friend and Huckaby contend that summary The laid off plaintiffs’ principal evidence of
judgment is inappropriate in light of Reeves v. discriminatory intent is Colas’ unsubstantiated al-
Sanderson, 530 U.S. 133, 147-49 (2000), in which legation that Carlos Galvan, an Hispanic super-
the Court held that a showing of pretext, once visor, remarked that they were going to fire all of
made, may be powerful circumstantial evidence of the black employees if given a chance. Even if
intentional discrimination. That holding is inap- admissible, this testimony is not direct evidence
plicable here, because, as discussed above, Friend that the layoffs in question were discriminatory.
and Huckaby have failed to demonstrate pretext. Nor, taking the record as a whole, does this state-
Although the Court in Reeves also held that the ment serve as evidence that the proffered justi-
lower court had improperly disregarded certain ev- fications for the layoffs were pretextual, especially
idence favorable to the plaintiff, id. at 152-53, in light of the fact that Hispanic employees were
plaintiffs have introduced no comparable evidence. laid off as well.
5
took an adverse employment action; and (3) duct of an investigation into the
that the protected conduct and the adverse mismanagement and fraud occurring on the
employment action were causally linked. Long night shift. The closeness in timing is
v. Eastfield College, 88 F.3d 300, 304 (5th therefore explained by the fact that the meeting
Cir. 1996). and the terminations arose from the same
events and circumstances.
Even assuming plaintiffs can make a prima
facie showing of retaliation, however, V.
defendants have pro ffered legitimate, Several plaintiffs also claim they were sub-
nondiscriminatory reasons for their jected to racial harassment while employed at
termination. Therefore, “the focus shifts to the the Alpha Road Facility. To establish an ac-
ultimate question of whether the defendant[s] tionable claim of racial harassment under
unlawfully retaliated against the plaintiff.” Id. § 1981, plaintiffs must demonstrate that
at 305. Neither Colas nor Pope has offered (1) they belong to a protected class; (2) they
anything more than her own speculation as were subjected to unwelcome harassment;
evidence of a connection between their (3) t he harassment was based on race; and
attendance at the meeting and their (4) the harassment affected a term, condition,
subsequent terminations over a month later. or privilege of employment. Felton v. Polles,
315 F.3d 470, 484 (5th Cir. 2002). To affect
The retaliation claims of Friend and Hucka- a term, condition, or privilege of employment
by require additional analysis, however, be- harassment must be so severe or pervasive that
cause “this circuit has held that where there is it creates an abusive work environment. See
a close timing between an employee’s id. at 485.
protected activity and an adverse employment
action, the employer must offer ‘a legitimate Plaintiffs allege that Hispanic co-workers
non-discriminatory reason that explains both made comments to the effect that Hispanics
the adverse action and the timing.’” Shackel- were superior and that the black employees
ford v. Deloitte & Touche, LLP, 190 F.3d 398, should learn to speak Spanish. Such
408 (5th Cir. 1999) (quoting Swanson v. Gen. statements, while obnoxious and offensive, do
Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. not amount to discriminatory conduct so
1997)). In the case of Friend and Huckaby, severe or pervasive that it created an abusive
the timing is extremely closeSSthey were work environment. It is not enough that
terminated on the very day of the meeting. plaintiffs found the comments offensive. See
Shepherd v. Comptroller of Accounts, 168
As discussed above, however, defendants F.3d 871, 874 (5th Cir. 1999). Teasing and
have asserted legitimate, nondiscriminatory offhand comments do not by themselves create
justifications for terminating Friend and Huck- an abusive work environment. See id.
aby. Further, the closeness in timing of the
meeting and the terminations does not give rise Jones, however, alleges additional harassing
in this case to any inference of retaliatory conduct that she contends demonstrate a
intent. The meeting was called to address the racially hostile environment. She alleges that
Alpha Road employees complaints of racial the Hispanic employees were cold and
discrimination, complaints related to the con- unfriendly to her and that she felt like an
6
outsider. Further, on three separate occasions, other employees were motivated by race.
Jones was involved in disputes with Hispanic Consequently, Jones has failed to state a claim
coworkers. Jones claims that on one occasion for racial harassment under § 1981.9
a Hispanic employee intentionally hit her with
a mail cart and that on another occasion VI.
another employee hit her head with his elbow, Plaintiffs Roland and Carter contend that
prompting her to push him in response. the terms of their employment were
Finally, Jones alleges that after she accidentally discriminatory. Roland asserts that she was
hit another employee several times, that discriminated against with respect to her work
employee, Maria Macias, responded by load and pay by virtue of the fact that she
intentionally striking her in the leg. worked on the mostly black second shift.10
She introduces no evidence to support this
After the last confrontation, her supervisor claim. Similarly, Carter claims that the
told her to take a few days off while they in- employees on the day shift were treated better
vestigated the incident. A human resources than employees on the night shift. Specifically,
manager interviewed witnesses but was unable Carter contends that employees on the day
to resolve the conflicting accounts. shift received shirts, smocks, beepers, and big
Consequently, neither Jones nor the other screen TV’s. There is no evidence supporting
employee was cited for the incident, and Jones her contention that the day shift actually
was directed to report for work. When Jones received such items, much less that these items
returned to the Alpha Road facility to collect were distributed on a racially discriminatory
some paperwork, she encountered Macias, and basis.
the two women began yelling at each other.
Jones departed shortly thereafter and did not Additionally, several plaintiffs claim that ISI
subsequently come back to work. After Jones racially discriminated against them by refusing
failed to report for five days, Cushman to grant their requests for transfers to the first
terminated her employment.
Even accepted as true, this sequence of 9
Having failed to allege the existence of harass-
events does not constitute actionable racial ha- ment sufficient to constitute a hostile work
rassment. First, the Hispanic employees’ con- environment, Jones cannot succeed on her claim
duct in excluding her from conversation can- that she was constructively discharged. Discrim-
not be characterized as having created an abu- ination alone, without aggravating factors, is not
sive work environment.8 Nor do three sufficient for a claim of constructive discharge.
separate disputes with other individual Brown v. Kinney Shoe Corp., 237 F.3d 556, 566
employees, constitute severe or pervasive (5th Cir. 2001). Indeed, constructive discharge
harassment. In any event, Jones fails to requires a greater degree of harassment than that
required by a hostile environment claim. Id.;
provide evidence that any of her disputes with
Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998).
8 10
See Faragher v. City of Boca Raton, 524 U.S. Roland also complains that she was denied a
775, 788 (1998) (“We have made it clear that promotion because she spent time training other
conduct must be extreme to amount to a change in employees, but makes no attempt to explain how
the terms and conditions of employment . . . .”). this denial was racially discriminatory.
7
shift. These claims provide no basis for a
claim of racial discrimination under § 1981,
however, because failure to transfer does not
rise to the level of an adverse employment
action. Burger v. Cent. Apartment Mgmt.,
Inc., 168 F.3d 875, 879 (5th Cir. 1999).11
AFFIRMED.
11
Because we affirm the summary judgment for
Cushman and ISI on all claims, we need not
address plaintiffs’ contention that the district court
erred in failing to hold them jointly and severally
liable.
8