Case: 20-30265 Document: 00516090051 Page: 1 Date Filed: 11/11/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 11, 2021
No. 20-30265 Lyle W. Cayce
Summary Calendar Clerk
Keonta Fisher,
Plaintiff—Appellant,
versus
Bilfinger Industrial Services Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-154
Before Higginbotham, Jones, and Costa, Circuit Judges.
PER CURIAM: *
Appellant Keonta Fisher moved for panel rehearing of our opinion
issued on June 24, 2021. We GRANT the motion for panel rehearing,
*
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not be published and is not precedent except under the limited circumstances set forth in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.
Case: 20-30265 Document: 00516090051 Page: 2 Date Filed: 11/11/2021
No. 20-30265
VACATE our original opinion in this appeal, and substitute in its place the
following opinion.
Appellant Keonta Fisher contends that he was subject to racial
discrimination by his bosses, Tommy Coutee and Kendall Martin, and
suffered retaliation from Daniel Long when he was employed as a welder by
the Appellee, Bilfinger Industrial Services. Fisher claims he was harassed
from when he was hired on September 10, 2015 to February 3, 2016, when he
was assigned to a different crew. He also claims two instances of retaliation:
first, when he was threatened with firing after he complained about
harassment, and second, when he was terminated. Bilfinger moved for
summary judgment, supported by employment records, exhibits, and
declarations. The district court granted the motion.
This court reviews the district court’s grant of summary judgment de
novo, applying the same standards as the district court. DePree v. Saunders,
588 F.3d 282, 286 (5th Cir. 2009). Summary judgment is appropriate if no
genuine dispute of material fact exists, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
An employer’s creation of a hostile work environment is prohibited
discrimination under Title VII. To succeed on the claim, the plaintiff must
show: (1) he was a member of a protected class; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on race; (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 remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)
(citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.
2
Case: 20-30265 Document: 00516090051 Page: 3 Date Filed: 11/11/2021
No. 20-30265
2001); Jones v. Flagship Int'l, 793 F.2d 714, 719–720 (5th Cir. 1986)). While
it is not disputed that Fisher is a member of a protected class, he cannot show
that he was subjected to actionable racial harassment. First, Fisher provided
the affidavit of Waylon Williams, which states that Fisher’s boss, Coutee,
told Williams that he “just broke two n[] up yesterday.” While this appalling
statement is race-based, it does not support Fisher’s claim because Fisher did
not hear it. Fisher also avers that Coutee repeatedly called him and the other
black employee “boy.” However, “sporadic use of abusive language” is
outside of Title VII’s purview. Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)). Further, even if Fisher can establish a material fact issue of
harassment, he has not shown that it was so serious or pervasive as to affect
a term, condition, or privilege of employment even after he was transferred
to a different crew.
Fisher also lodges two retaliation complaints. First, he asserts that
Long threatened to fire him if he complained to Procter and Gamble (the
company whose site Fisher was working at) about the harassment, and that
Coutee “retaliated” against him by making faces at him. Title VII makes it
“an unlawful employment practice for an employer to discriminate against
any of his employees…because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
establish a prima facie case of retaliation, Fisher must establish: "(1) he
engaged in conduct protected by Title VII; (2) he suffered a materially
adverse action; and (3) a causal connection exists between the protected
activity and the adverse action.” Cabral v. Brennan, 853 F.3d 763, 766-67
3
Case: 20-30265 Document: 00516090051 Page: 4 Date Filed: 11/11/2021
No. 20-30265
(5th Cir. 2017) (quoting Jenkins v. City of San Antonio Fire Dept., 784 F.3d
263, 269 (5th Cir. 2015).
Here, Fisher cannot establish a prima facie case of retaliation because
he cannot meet the first element. His complaint to the union about his boss
was not an activity protected by Title VII.
Protected activity includes opposition to any practice rendered
unlawful by Title VII (the “opposition clause”) and participation in a Title
VII processes such as filing a charge with the EEOC (the “participation
clause”). Douglas v. DynMcDermott Petroleum Ops. Co., 144 F.3d 364, 372
(5th Cir. 1998). To satisfy the opposition clause, Fisher would need to show
that he had a “reasonable belief that the employer was engaged in unlawful
employment practices.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
348 (5th Cir. 2007) (internal citation omitted). This claim rises and falls with
the hostile work environment claim. Id. Since Fisher could not have
reasonably believed the “boy” comment itself created a hostile work
environment in violation of Title VII, his complaint to the union does not
satisfy the opposition charge. He cannot succeed under the participation
clause either, because he sent the email to the union on February 3, 2016,
several days before the EEOC charge was filed. Further, Coutee’s making
faces at Fisher amounts to a frivolous claim that does not implicate Title VII.
Second, Fisher alleged for the first time in his opposition to summary
judgment that he was retaliated against when he was fired three to four
months after his complaints about Coutee. Bilfinger responded that Fisher
was written up and then ultimately fired for tardiness and absenteeism while
working for a different crew. In his depositions, Fisher did not deny that he
4
Case: 20-30265 Document: 00516090051 Page: 5 Date Filed: 11/11/2021
No. 20-30265
had been disciplined for attendance problems. As the district court noted,
Fisher waived this claim by raising it too late. But even if he has not waived
this ground of retaliation, the three- to four-month gap between his EEOC
complaint and his termination dooms his claim. Where the only evidence in
support of a causal connection between his protected conduct and the alleged
retaliation is temporal proximity, the interval must be “very close,” and a
three-to-four month gap does not suffice. Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273–274 (2001) (per curium) (citing O'Neal v. Ferguson Constr.
Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Richmond v. ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir. 1997) (3 month period insufficient); Hughes v.
Derwinski, 967 F.2d 1168, 1174–1175 (7th Cir. 1992) (4 month period
insufficient)). Further, Fisher has not offered evidence to raise doubt about
Bilfinger’s non-discriminatory reason for his termination: Fisher’s tardiness
and absenteeism. Fisher therefore cannot establish a material fact issue
concerning this claim for retaliation.
Having carefully reviewed this appeal in light of the briefs, the district
court’s opinion, and pertinent portions of the record, we find no reversible
error and AFFIRM the judgment.
5