Wright v. Untd Parcel Srv

Case: 20-30249 Document: 00515715372 Page: 1 Date Filed: 01/22/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
January 22, 2021
No. 20-30249 Lyle W. Cayce
Clerk

Fredricka C. Wright,

Plaintiff—Appellant,

versus

United Parcel Service, Incorporated (Ohio), incorrectly
named as United Parcel Service, Incorporated
(Delaware),

Defendant—Appellee.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CV-57

Before Haynes, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Fredricka Wright challenges the summary judgment dismissing her
age and sex discrimination claims against United Parcel Service, Inc.
(“UPS”). We affirm.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30249

I
Wright’s claims arise out of her second stint with UPS in August 2017,
when she was forty years old. 1 She was hired to work in the “preload” phase,
which includes both the loading and unloading of UPS trucks. Wright worked
as an unloader for about a month before she was fired. According to UPS,
Wright was fired for failing to maintain a satisfactory “flow rate,” a metric
measuring the number of packages preload employees handle in an hour.
Believing instead that she was fired because of her age and sex, Wright sued
UPS under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. She also claimed the UPS facility where she worked was a
hostile work environment. The district court granted UPS summary
judgment on all Wright’s claims. It concluded that Wright failed to establish
a prima facie case on either discrimination claim and, moreover, that UPS
proffered a legitimate, non-discriminatory reason for her firing (poor
performance) that Wright failed to rebut. The court also found Wright
produced no evidence of a hostile work environment. Wright appeals.
II
Summary judgment is warranted when “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The movant must “point out the absence of
evidence supporting the nonmoving party’s case.” Stults v. Conoco, Inc., 76
F.3d 651, 656 (5th Cir. 1996). If that burden is met, the nonmovant must “go
beyond the pleadings and designate specific facts showing that there is a
genuine issue for trial.” Id.

1
Wright first worked for UPS during the 2016-2017 “peak season,” which lasts
from October to January. None of her discrimination claims concerns that period.

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No. 20-30249

“We review a grant of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d
495, 501 (5th Cir. 2013). “Questions of law are decided just as they are
outside of the summary judgment context: de novo.” Transamerica Ins. Co. v.
Avenell, 66 F.3d 715, 718 (5th Cir. 1995) (per curiam).
III
A
The ADEA prohibits age-based employment discrimination against
persons, like Wright, who are at least forty years old. 29 U.S.C. §§ 623, 631.
Title VII prohibits employment discrimination based on a person’s “race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Under
both statutes, plaintiffs may prove their case either through direct or
circumstantial evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 99–100
(2003) (Title VII); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985) (ADEA); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377
(5th Cir. 2010) (“In employment discrimination cases, a plaintiff may rely on
direct or circumstantial evidence, or both.”). This appeal involves only
circumstantial evidence of discrimination. 2 When a plaintiff relies on

2
Wright claims she presented direct evidence of discrimination but includes no
record citations in her opening brief to support that assertion, as the rules require. See Fed.
R. App. P. 28(a)(8)(A); 5th Cir. R. 28.2.2. We therefore need not address this
argument. See Rutherford v. Harris Cnty., 197 F.3d 173, 193 (5th Cir. 1999) (“[W]e will not
consider an issue that is inadequately briefed.”); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir. 1994) (explaining it “is [not] our duty” to “sift through the record in search of
evidence to support a party’s opposition to summary judgment”). Even had Wright not
forfeited the argument, however, she offers no colorable examples of “direct”
discrimination in her brief. For instance, Wright claims (again, without record citation) that
she was “subjected to repeated bullying.” Direct evidence, however, is a “statement or
written document showing [the employer’s] discriminatory motive on its face.” Portis v.
First Nat’l Bank of New Albany, 34 F.3d 325, 329 (5th Cir. 1994); see also Sandstad v. CB

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circumstantial evidence, we assess her claim under the McDonnell Douglas
burden-shifting framework. See, e.g., Roberson-King v. La. Workforce Comm’n,
Off. of Workforce Dev., 904 F.3d 377, 380 (5th Cir. 2018) (Title VII);
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (ADEA). 3
Under that framework, the plaintiff must first make out a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
If she does, the employer must then proffer a legitimate, non-discriminatory
reason for the adverse employment action. Ibid. If one is presented, the
burden shifts back to the employee, who may then rebut the proffered reason
by showing it was pretextual. Id. at 804.
A plaintiff makes a prima facie case of discrimination by showing she
“(1) is a member of a protected group; (2) was qualified for the position at
issue; (3) was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside h[er] protected group or
was treated less favorably than other similarly situated employees outside the
protected group.” Morris v. Town of Indep., 827 F.3d 396, 400 (5th Cir. 2016).
The district court concluded Wright’s prima facie case failed at prong four.
Wright challenges that conclusion on appeal, arguing she was “replaced by a
younger male” and treated less favorably than two similarly situated male
workers. The record, however, confirms the district court was correct.
Wright admitted in her deposition that she did not know who was
hired to replace her after she was fired. On appeal, she argues only that, since

Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (“Direct evidence is evidence that, if
believed, proves the fact of discriminatory animus without inference or presumption.”).
None of the instances Wright mentions fall into this category.
3
While the Supreme Court “has not definitively resolved” whether the McDonnell
Douglas framework applies to ADEA claims, “we are bound by our circuit precedent” to
apply it. Jackson, 602 F.3d at 378; see also id. n.15 (collecting authority).

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her firing, “there has never been a female employee employed in unloading.”
But Wright points to nothing in the record supporting that claim. She only
cites testimony from one of her supervisors, Tyler Burns, and a coworker,
Hawan Johnson, but neither suggests that UPS stopped hiring female
unloaders after Wright was fired, much less that Wright was replaced by a
younger male. Burns was asked if a particular employee was the “only female
that currently works in pre-load” and said he did not know. Johnson, after
admitting she was “not sure” who replaced Wright, stated only that she
“believe[d]” she was the “only female” left after Wright. This speculation
does not create a genuine dispute that a male or a younger worker replaced
Wright. The district court thus correctly ruled that Wright failed to adduce
evidence that she was “replaced by someone outside h[er] protected group.”
Morris, 827 F.3d at 400.
Wright also argues UPS treated her less favorably than two male
employees, “Anthony and Rock,” who she contends had similar
performance issues but, instead of being fired, were “given lighter work
duties” and “encouraged to do better.” As the district court found, the
record fails to support this contention. Wright relies solely on the deposition
of her immediate supervisor, Edward Small. But Small never mentions
Anthony or Rock. Nor does Small suggest that some slow-performing
workers were treated better than others. When asked what he would do if a
“person” failed to maintain an adequate flow rate, Small explained that he
would “just try to encourage them because [there is] a time limit” and that if
“somebody” was “not making the flow rate” it would impede the operation.
This testimony comes nowhere close to showing that similarly situated
employees outside Wright’s protected class were treated better than she was.
Accordingly, we agree with the district court that Wright failed to make out
a prima facie case in this respect as well. Cf. Johnson v. Louisiana, 351 F.3d

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616, 624 (5th Cir. 2003) (affirming summary judgment when plaintiffs
“presented no evidence” regarding one of the four prima facie prongs).
But even assuming a prima facie case, the district court was right that
Wright’s discrimination claims would still fail because UPS showed a
legitimate basis for her firing that Wright failed to rebut. As the court found,
the record shows UPS fired Wright because “her flow rate was down” and
she “wasn’t meeting the package count.” That shifts the burden back to
Wright to show the claimed basis was “mere pretext.” Hassen v. Ruston La.
Hosp. Co., 932 F.3d 353, 356 (5th Cir. 2019). She failed to do so.
Wright argues UPS’s explanation is “unworthy of credence,” Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003), because UPS did not raise
Wright’s performance issues until after she was fired. She claims her
supervisor, Small, testified in deposition that he had no issues with her
performance, contradicting a letter he wrote a month after Wright’s firing
that noted her slow unloading rate. The record again belies Wright’s
argument. Small’s deposition testimony explicitly recognized Wright’s slow
performance: asked whether he thought Wright had done a “good job
overall,” Small said Wright’s “flow rate was down a lot” and explained that
“[i]f you’re not keeping up with your flow rate[,] everything slows down.”
This testimony is consistent with Small’s post-firing letter, which explained
that he had to counsel Wright “about her performance being on time” and
noted that “other employees [were] trying to take up slack” because
Wright’s packages were “not being unloaded in a timely manner.” We
therefore agree with the district court that, even assuming a prima facie case,

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Wright failed to rebut UPS’s legitimate, non-discriminatory reason for her
firing. 4
For either reason, the district court properly granted summary
judgment on Wright’s age and sex discrimination claims.
B
We also agree the district court properly granted summary judgment
on Wright’s hostile work environment claim.
To make out a prima facie hostile work environment claim, Wright
must establish that:
(1) she belong[ed] to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment complained of was
based on [her membership in the protected group]; (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, 286 F.3d 264, 268 (5th Cir. 2002). The district court
concluded Wright had not been subjected to any harassment severe enough
to affect a term, condition, or privilege of employment. On appeal, Wright
contests this conclusion on two grounds. First, she points to evidence that
UPS assigned her to unloading, rather than loading, “for almost the entirety
of her employment.” Second, she claims evidence shows her supervisors,

4
Wright argues at length that she “did not have an adequate opportunity to
complete discovery” and that the district court erred when it refused to extend various
discovery deadlines and grant discovery-related motions. “A district court’s rulings on
discovery motions are largely discretionary and will be reviewed only when they are
arbitrary or clearly unreasonable.” Robinson v. State Farm Fire & Cas. Co., 13 F.3d 160, 164
(5th Cir. 1994). Wright has not shown that the district court’s discovery rulings
transgressed this high threshold.

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including Small, made “derogatory” and “discriminatory” comments. Both
arguments are unavailing.
Wright’s first argument fails because being assigned to unloading,
rather than loading, is not evidence of harassment, much less harassment so
severe or pervasive that it impacted the terms, conditions, or privileges of her
employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993); see also
Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)
(“[C]onduct that sporadically wounds or offends but does not hinder” an
“employee’s performance” is not actionable under Title VII.). As the
district court found, the positions of loader and unloader are “comparable . . .
with similar essential job functions and the same pay.” Wright argues
unloading is more physically demanding than loading, but the record shows
otherwise: Small explained the positions involve the same amount of
exertion, an assessment independently corroborated by two other UPS
employees and the U.S. Department of Labor’s classification of the
positions. Furthermore, Wright herself recognized that most new employees
start in unloading before being transferred to loading, as she eventually was.
In sum, by asking Wright to spend most of her tenure in unloading, as it
typically asks of new hires, UPS did not engage in “harassment,” much less
the “severe and pervasive” harassment necessary to create a hostile work
environment. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986) (explaining “harassment” is conduct with “the purpose or effect of
unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile, or offensive working environment”).
The court also properly rejected Wright’s claim that her supervisors’
alleged comments created a hostile work environment. Like other forms of
harassment, actionable derogatory comments must be so severe or pervasive
that they render the work environment “both objectively and subjectively
offensive.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.

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2012). Isolated incidents, unless extremely serious, do not suffice. Lauderdale
v. Tex. Dep’t of Crim. Just., Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007). As
the Supreme Court has explained, “the sporadic use of abusive language,
gender-related jokes, and occasional teasing” does not satisfy the
“demanding” standard for hostile work environment claims. Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998).
The comments Wright identifies do not clear this high hurdle. For
instance, she claims (without any further elaboration) that Small
“specifically asked” about her age, made “derogatory comments about [her]
begging for her job and having to feed her children,” and made
“discriminatory comments about Wright’s makeup and performance.”
Assuming Small made these remarks, a workplace is not made legally hostile
by mere utterance of “boorish and offensive” comments. Shepherd v.
Comptroller of Pub. Accts. of Tex., 168 F.3d 871, 874 (5th Cir. 1999). Moreover,
the district court also correctly found that these alleged comments were
“isolated” and not sufficiently severe. See, e.g., Frazier v. Sabine River Auth.
La., 509 F. App’x 370, 374 (5th Cir. 2013) (even isolated utterances of a
highly offensive racial slur did not qualify as “severe”). In sum, because the
comments Wright cites were neither severe nor pervasive, the district court
properly granted summary judgment dismissing her hostile work
environment claim. 5

5
Wright also appeals the denial of her motion to disqualify UPS’s counsel and the
order imposing sanctions for filing that motion. Wright’s motion to disqualify suggested
UPS’s counsel were potential witnesses, a claim the district court rejected as “wholly
groundless.” We see no abuse of discretion in that ruling. See Thomas v. Capital Sec. Servs.,
836 F.2d 866, 872–73 (5th Cir. 1988) (en banc). As for the sanction, Wright’s opening brief
merely calls it “unfair, excessive, harsh and unwarranted.” Only in her reply brief does she
make a substantive argument that the court failed to give sufficient notice under Rule 11.
She has therefore forfeited that argument. See Conway v. United States, 647 F.3d 228, 237
n.8 (5th Cir. 2011) (“Arguments raised for the first time in a reply brief are forfeited.”).

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***
The district court’s judgment is AFFIRMED.

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