Case: 21-30203 Document: 00516438413 Page: 1 Date Filed: 08/18/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2022
No. 21-30203 Lyle W. Cayce
Clerk
David Scott Vidrine; Steven P. Bozeman; Zachary
Stewart; Larry F. Witmore,
Plaintiffs—Appellants,
versus
Chad Guillot, As Interim EMS Administrator for
Department of Emergency Medical Services for the
City of Baton Rouge, Parish of East Baton Rouge; Stacy
Simmons, As Communications Chief and in her
Individual Capacity; Sharon Weston Broom, Mayor
President for the Parish of East Baton Rouge,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-538
Before Smith, Elrod, and Oldham, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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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Employees in Baton Rouge’s EMS Department allege they suffered
sex discrimination. They sued under Title VII and Louisiana law. The district
court granted summary judgment to defendants. We AFFIRM.
I.
Appellants are one current and three former male employees of the
City of Baton Rouge/Parish of East Baton Rouge Department of Emergency
Medical Services (“EMS”). They were (or are) Emergency
Communications Officers—basically, EMS dispatchers. They allege that
their supervisor, Communications Chief Stacy Simmons, subjected them to
sex discrimination and created a hostile work environment.
Appellants point to six specific instances of alleged discrimination
recounted by the district court. First, they allege that on one occasion,
Simmons stated “there are too many men in communications.” Next, they
allege five incidents where male employees were disciplined and female
employees who engaged in similar conduct were not. Appellees contest all of
these allegations.
Beyond these specific incidents, appellants provide a string of record
citations they say show regular harassment and unequal treatment. For
example, they point to allegations that women were allowed to take longer
breaks than men for lunch or to run personal errands, that Simmons did not
speak to male employees, and that Simmons said “I don’t like men” some
number of times between 2003 and 2017.
Appellants Bozeman, Witmore, and Stewart all resigned from EMS
following some form of discipline against them. Bozeman was suspended
following an argument with a colleague. He was scheduled to return to work
on October 9, 2017, following his suspension and counseling. He resigned
three days before his scheduled return.
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Witmore was suspended for viewing sexually offensive material at
work. When he returned from his suspension, he was assigned to work with
a female colleague and refused to do so. After he was instructed he must work
with her, he had a panic attack and took leave under the Family and Medical
Leave Act. Then he resigned when that leave was exhausted.
Stewart faced termination for sexual harassment and inappropriate
conduct. After a disciplinary process, Stewart signed an agreement with EMS
whereby his proposed termination was reduced to a 30-day suspension. In
that agreement, Stewart “waived, compromised, released and otherwise
discharged EMS from any suit, claim or cause of action specifically included
but not limited to any claim of wrongful termination or violations of 42
U.S.C. § 1983 or Title VII of the Civil Rights Act, resulting from, created by,
or relating to” his employment with EMS. When he later resigned, there was
no pending discipline against him.
Appellant Vidrine is still employed at EMS and alleges he “continues
to suffer retaliation for his part in bringing suit against EMS and Simmons.”
The four dispatchers brought claims of sex discrimination under the
Louisiana Employment Discrimination Law (“LEDL”), La. Rev. Stat.
Ann. §§ 23:301, et seq., and Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq. The district court granted summary judgment to
defendants. Plaintiffs timely appealed. Our review is de novo. Playa Vista
Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 (5th Cir. 2021).
II.
Appellants raise three issues on appeal. The first two are inadequately
briefed and therefore forfeited. The third fails.
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A.
First, appellants argue the district court erred in analyzing their claims
under both Title VII and LEDL under federal precedents.
Appellants have forfeited this argument by failing to adequately brief
it on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021);
Fed. R. App. P. 28(a)(8)(A). A party inadequately briefs an argument
when it fails to “offer any supporting argument or citation to authority” or
to “identify relevant legal standards and any relevant Fifth Circuit cases.”
JTB Tools & Oilfiled Servs., L.L.C. v. United States, 831 F.3d 597, 601 (5th
Cir. 2016) (quotation omitted). The same is true when a party fails to explain
how the district court’s analysis went awry. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Here, the district court analyzed plaintiffs’ Title VII and LEDL claims
together. Consistent with our precedent, the district court concluded that
“the outcome of Plaintiffs’ claims will be the same under the federal and state
statutes.” See McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir.
2007) (noting LEDL “is substantively similar to Title VII” and it is
appropriate to analyze both “only under the applicable federal precedents”).
Appellants claim the district court should have “used a burden that
allowed the Plaintiffs the opportunity to be heard at trial on the State issues
that are continuing in nature.” But they do not cite any authorities suggesting
a different standard was appropriate. Nor do they explain how the district
court went wrong. This argument is forfeited.
B.
Second, appellants argue the district court should not have dismissed
Stewart’s claims as voluntarily waived. This argument is likewise
inadequately briefed.
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The district court identified the correct legal standard for waivers of
Title VII claims. The court explained that a release of Title VII claims is valid
if it is “knowing and voluntary.” Rogers v. Gen. Elec. Co., 781 F.2d 452, 454
(5th Cir. 1986). Once an employer establishes a knowing and voluntary
waiver, the district court further noted, it is the employee’s burden to
demonstrate the release was “invalid because of fraud, duress, material
mistake, or some other defense.” Williams v. Phillips Petroleum Co., 23 F.3d
930, 935 (5th Cir. 1994).
The district court correctly applied that standard. Stewart signed an
agreement that “waived, compromised, released and otherwise discharged
EMS from any suit, claim or cause of action specifically included but not
limited to any claim of wrongful termination or violations of 42 U.S.C. § 1983
or Title VII of the Civil Rights Act, resulting from, created by, or relating to”
Stewart’s employment with EMS. As the district court noted, Stewart was
represented by counsel when he negotiated this agreement, and his attorney
was the one who presented the waiver—thus suggesting that Stewart
knowingly and voluntarily signed it. Appellants “provide[d] no evidence that
Stewart was coerced into signing the Resolution, that he did so without
knowledge of its contents, that the Resolution was fraudulent, or that there
was some other legally valid reason” to disregard it. So the court found
Stewart waived his claims.
Here, appellants do not provide “even the slightest identification of
any error in [the district court’s] legal analysis.” Brinkmann, 813 F.2d at 748.
They again cite no cases and provide no reason to doubt the district court’s
reasoning. They merely assert that Stewart’s claims “should not be
dismissed” because the waiver was “not consensual.” They imply that
Stewart’s waiver was entered into without consideration or that the loss of a
month’s pay created duress. But those objections are incoherent given that
EMS gave Stewart his thirty-day suspension as a concession; he would
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otherwise have faced termination. This argument is inadequately briefed and
therefore forfeited on appeal.
C.
Finally, appellants argue the district court failed to “consider[] the
totality of circumstances” and wrongly granted summary judgment to
appellees on their Title VII claims. We disagree.
1.
Appellants ask us to reverse the grant of summary judgment on their
hostile work environment claim. To survive summary judgment on this
claim, appellants must show a genuine dispute of material fact regarding
whether they were subject to “severe or pervasive” harassment that
“create[d] an abusive working environment.” West v. City of Houston, 960
F.3d 736, 741–42. (5th Cir. 2020) (quotation omitted).
As appellants correctly note, courts must look “at all the
circumstances” to determine whether “an environment is ‘hostile’ or
‘abusive.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). To that end,
courts consider (1) the frequency of the discriminatory conduct, (2) its
severity, (3) whether it is physically threatening or humiliating, or a mere
offensive utterance, and (4) whether it unreasonably interferes with an
employee’s work performance. West, 960 F.3d at 742. “[N]o single factor is
determinative.” Id.
Here, appellants highlight six specific instances of alleged sex
discrimination. They argue these incidents were “not isolated.” But every
example they provide is a minor incident alleged to have occurred only once
over a period of many years. Where the “complained-of actions were isolated
or infrequent,” appellants “cannot show that [their] harassment was
frequent or pervasive.” West, 906 F.3d at 742; see also Faragher v. City of Boca
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Raton, 524 U.S. 775, 788 (1998) (“isolated incidents” will not suffice “unless
extremely serious”). None of these incidents were physically threatening or
humiliating, nor did any of them unreasonably interfere with appellants’
work performance.
Other than those specific incidents, appellants point to some allegedly
discriminatory conduct they say happened regularly. For example, they claim
that female employees were allowed to take slightly longer breaks. And they
allege that male employees were disciplined when female employees who
engaged in the same conduct were not. Even assuming the truth of these
allegations, and that they happened as frequently as appellants say they did,
they are insufficient to demonstrate a hostile working environment. See
Harris, 510 U.S. at 21–22 (“Conduct that is not severe or pervasive enough
to create an objectively hostile or abusive work environment—an
environment that a reasonable person would find hostile or abusive—is
beyond Title VII’s purview.”).
Appellants fault the district court for “looking at the facts alleged in a
piecemeal manner.” But it was appropriate for the district court to evaluate
the frequency of the alleged discriminatory conduct. And the court properly
determined that, even taking all the allegations as true, the conduct described
could not support a claim for harassment because it was “relatively
infrequent” and “not severe or pervasive.”
Appellants failed to show a genuine dispute of material fact regarding
whether they were subject to severe or pervasive harassment. Accordingly,
the district court did not err in granting summary judgment on the hostile
work environment claim.
2.
Appellants also ask us to reverse the grant of summary judgment on
their disparate treatment and retaliation claims.
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To succeed on these claims, appellants must first establish a prima
facie case of discrimination. For disparate treatment, appellants must show
(1) they were members of a protected class; (2) they were qualified for their
positions; (3) they suffered an adverse employment action, and (4) that
others similarly situated were treated more favorably. Willis v. Coca Cola
Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). For retaliation, they must
establish (1) they participated in an activity protected by Title VII; (2) EMS
took an adverse employment action; and (3) there is a causal connection
between the protected activity and the adverse employment action. McCoy,
492 F.3d at 557. If appellants can establish a prima facie case, then the burden
shifts to EMS “to articulate some legitimate, nondiscriminatory or
nonretaliatory reason” for its action. Id.
Our analysis starts and ends with appellants’ alleged “adverse
employment action.” Appellants cannot establish such an action for either
their disparate-treatment claims or their retaliation claims. That means they
cannot establish a prima facie case, and therefore, the district court did not
err in dismissing their claims.
In the disparate-treatment context, an “adverse employment action”
is an “ultimate employment decision[] such as hiring, granting leave,
discharging, promoting, or compensating.” McCoy, 492 F.3d at 559
(quotation omitted). That includes a constructive discharge, which occurs
when “an employer discriminates against an employee to the point such that
his working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign.” Green v. Brennan,
578 U.S. 547, 555 (2016) (quotation omitted).
The three dispatchers who resigned from EMS argue they were
constructively discharged. As already discussed, they have not alleged
conduct that amounts to severe and pervasive harassment. And constructive
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discharge requires showing a greater degree of harassment than is required to
establish a hostile work environment. See Matherne v. Ruba Mgmt., 624 F.
App’x 835, 841 (5th Cir. 2015) (citing Benningfield v. City of Houston, 157 F.3d
369, 378 (5th Cir. 1998)). Appellants cannot make that showing here. Because
there was no constructive discharge, there was no adverse employment
action, and they cannot establish a prima facie case of disparate treatment.
In the retaliation context, an “adverse employment action” is “any
action that might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” McCoy, 492 F.3d at 559 (citing
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). In their
briefs before this court, appellants claim Vidrine “suffer[s] retaliation for his
part in bringing suit,” but they have not identified any action that would have
dissuaded a reasonable employee from suit. Even taking all of Vidrine’s
allegations as true, none rises to that level. So again, appellants’ prima facie
case fails.
The district court did not err in granting summary judgment on
appellants’ disparate treatment and retaliation claims.
AFFIRMED.
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Jennifer Walker Elrod, Circuit Judge, concurring in part and
dissenting in part: 1
The majority holds that summary judgment was proper because
appellant-employees failed to show a genuine dispute of material fact
regarding whether they were subjected to severe or pervasive harassment
based on their sex in violation of Title VII. Ante at 6–8. Because I believe
that there was a genuine dispute of material fact regarding the claims of all
four employees, I would hold that summary judgment was improper.
Accordingly, I respectfully dissent from Section II.C.1. of the majority’s
opinion.
I.
For a hostile workplace claim to succeed under Title VII,
discriminatory behavior must so thoroughly permeate the work environment
that it is “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (emphasis added) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). 2
Whether there was such a work environment depends on the totality
of the circumstances. Id. at 23. We consider four factors: (1) how often
1
I concur in parts II.A., II.B., and II.C.2. of the majority’s opinion regarding,
respectively, the employees’ claims that the district court: (1) failed to use “a burden that
allowed the Plaintiffs the opportunity to be heard at trial on the State issues that are
continuing in nature”; (2) should not have dismissed of one of the employee’s claims as
voluntarily waived; and (3) improperly granted summary judgment on the employees’
disparate treatment and retaliation claims.
2
To violate Title VII, the offending employee need not engage in conduct that is
severe and pervasive. Rather, as we have emphasized, either “severe or pervasive”
discriminatory conduct is sufficient. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 483 (5th
Cir. 2002); see also E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 453 (5th Cir.
2013) (en banc) (“To affect a term, condition, or privilege of employment, the harassing
conduct ‘must be sufficiently severe or pervasive to alter the conditions of [the victim’s]
employment and create an abusive working environment.’” (alteration in original) (citation
omitted)).
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discriminatory conduct occurred; (2) how severe the conduct was; (3)
whether the conduct involved physical threats or humiliation, or was “a mere
offensive utterance”; and (4) whether the conduct unreasonably interfered
with an employee’s job performance. West v. City of Houston, 960 F.3d 736,
742 (5th Cir. 2020) (citing Harris, 510 U.S. at 23)).
Further, we employ an objectively reasonable person standard when
assessing workplace hostility. E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731
F.3d 444, 453 (5th Cir. 2013) (en banc). We must consider “[c]ommon sense,
and an appropriate sensitivity to social context” so that Title VII does not
become “a general civility code for the American workplace.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 80 (1998). The inquiry is
therefore fact intensive. Boh Bros., 731 F.3d at 460.
In Boh Bros., we held en banc that there was enough evidence for the
jury to conclude that the harassment was “sufficiently severe or pervasive.”
Id. at 461. There, one employee “hurled raw sex-based epithets uniquely at
[the victim] two-to-three times a day, almost every day, for months on end.”
Id. The offending employee also exposed his genitals to the victim about ten
times (often while smiling and waving), once suggested that he would put his
penis in the victim’s mouth, and would “approach [the victim] from behind
and ‘hump’ him two to three times per week” for months. Id. at 449–50,
459.
We reached the same conclusion in Farpella-Crosby v. Horizon Health
Care, in which the offending employee questioned the victim’s sexual
activities or made comments that were “offensive” or “egregious” two or
three times per week. 97 F.3d 803, 806 (5th Cir. 1996). The comments were
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“so frequent that [the victim] could not possibly remember each instance.”
Id. at 805. 3
Conversely, we have held that allegations of workplace discrimination
were not “sufficiently severe or pervasive” to survive summary judgment
when the victim alleged a sole “offensive joke concerning condoms.” Long v.
Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996).
II.
Given the abundance of evidence provided by the employees, there is
a genuine dispute of fact whether Appellee’s conduct amounted to a hostile
workplace. Looking to the four factors from West—frequency, severity,
physical threat or humiliation, and interference with work performance—the
employees allege sufficient facts to raise a genuine dispute about a hostile
workplace.
Although the timeline of this case is marked by discrete incidents over
a period of years (like supervisor Stacy Simmons allegedly saying that she
“does not like men”), the employees allege many ongoing discriminatory
3
We have made similar decisions in cases of workplace discrimination based on
race. See, e.g., Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 400–04 (5th Cir. 2021) (holding
that there was a fact issue because employees referred to the victim by racial epithets twice,
addressed the victim using arguably offensive terms, there were other occasions when
similarly offensive language was used when the victim was not present, and the victim’s
efforts at work were sabotaged on more than one occasion); E.E.O.C. v. WC&M Enters.,
Inc., 496 F.3d 393, 400–01 (5th Cir. 2007) (holding that there was a fact issue regarding
whether harassment was “severe or pervasive” when the victim was called racial epithets
“on a regular basis for a period of approximately one year” (often several times per day),
and when employees “mocked [the victim’s] diet and prayer rituals,” made several
comments indicating that he was a terrorist, and “frequently banged on the glass partition
of [his] office[] in order to startle him”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.
2000) (holding that there was a fact issue stemming from offensive racial remarks toward
the victim that began when she was hired and continued regularly for three years until she
resigned).
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behaviors. And, at this stage, we must accept those allegations as true. For
example, male employees were supposedly routinely denied leave during the
workday, but female employees were allegedly rarely, if ever, denied leave to
handle personal business, even if it was for social activities like church
functions or shopping. Female employees were allegedly often permitted to
take leave without using their predetermined leave hours. In addition to
leave, female employees allegedly were frequently permitted to take longer
breaks and lunches. Female employees allegedly were permitted to take
additional smoke breaks without using leave. And when a male employee was
dispatched to pick up lunch for the group, he was given 30 minutes. But
female employees were allegedly regularly given 60 to 90 minutes. Although
all employees received the same number of breaks per day on paper, female
employees allegedly were often given priority on when to take those breaks.
Moreover, the employees allege routine disparities in punishment
between male and female employees for the same infraction. Granted, these
were often minor—Larry Whitmore claims that he was reprimanded for
changing the font settings on his computer and for being five minutes late to
a shift when female employees were not—but that makes them no less
pervasive. There was also apparently a double standard for watching videos
and movies during down time on a shift.
As the Supreme Court noted in Harris, Title VII prohibits employers
from discriminating on the basis of “compensation, terms, conditions, or
privileges of employment” because of an employee’s gender. 510 U.S. at 21
(citing 42 U.S.C. § 2000e–2(a)(1)). This includes “the entire spectrum of
disparate treatment of men and women.” Id. (quoting Los Angeles Dept. of
Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). This court has
indicated that discriminatory treatment in breaks and punishment may
contribute to a hostile workplace. In Whitlock v. Lazer Spot, Inc., we noted
that a black employee’s claim for a hostile work environment because he was
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punished for violations that white employees were not punished for failed
because of insufficient facts and only conclusory allegations. 657 F. App’x
284, 287 (5th Cir. 2016). And in Peterson v. Linear Controls, Inc., we held that
a black employee’s claim for a hostile work environment on the grounds that
only black employees were routinely denied water breaks failed only because
the conduct was not pervasive as it occurred during a ten-day period. 757 F.
App’x 370, 374 (5th Cir. 2019).
In contrast, employees here point to specific facts to support their
claim. Simmons, the supervisor, allegedly disregarded male employees as a
matter of course. Both Whitmore and David Vidrine claim that Simmons
would not, in Whitmore’s words, “talk to male employees unless it was a
necessity.” And Zachary Stewart claims that Simmons would regularly give
male employees the “cold shoulder,” making them answer more calls as she
socialized with female employees.
In any event, the discrimination faced by the employees was just as
frequent as the “weekly” or “regular” harassment that was adequately
“pervasive” in Farpella-Crosby, WC&M, and Walker. Just like in Farpella-
Crosby, the incidents were so frequent that the workers could not name every
single instance. 97 F.3d at 805.
The majority holds that the incidents alleged here are too “isolated or
infrequent” to show that harassment was “frequent or pervasive,” West, 960
F.3d at 742, and that the ongoing discrimination alleged by the employees is
“insufficient to demonstrate a hostile working environment.” Ante at 6–7.
Similarly, the district court held that the employees alleged a handful of
“minor, isolated incidents” of workplace harassment, only two of which
“span any period of time”—that Simmons would not speak to male
employees and that female employees were given longer breaks and not
always required to take leave. But these holdings do not consider the
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voluminous record of additional allegations of discrimination over a long
period of time, which are sufficient at the summary judgment phase under
our precedent.
Not only was the harassment frequent, but it was sometimes
humiliating as well. A female employee supposedly yelled and cursed at
Whitmore without consequence, and other female employees mocked
Stewart’s prosthetic leg without repercussion.
Male employees were often expected to do more work, too—and not
for more reward. Stewart claims, for example, that while male employees
were sometimes expected to answer 180–250 phone calls in 12 hours, female
employees answered only 50–70. Whitmore was supposedly reprimanded for
not answering the phone while female employees sat around doing nothing.
Vidrine made a similar claim. Female employees were often given more
opportunities for overtime, training, and promotions. Steven Bozeman
complained that his own wife, who also worked for Appellee, received
favorable treatment in the form of a promotion, easier job assignments, and
access to classes unavailable to him.
The employees’ supervisor, Simmons, also allegedly made many
remarks regarding the male employees’ ability to succeed in the workplace.
Simmons allegedly said that “there are too many men in communications,”
that “men were a liability to the communications office,” and that it was
“easier to work with females in those positions” because men lack the proper
temperament and cannot multitask as efficiently as women. Simmons also
allegedly stated that she “does not like men.” The district court and majority
hold that “[n]one of these incidents . . . unreasonably interfere[d] with the
[employees’] work performance.” Ante at 7. However, there are fact issues
on this point as well—all four employees allegedly had their “opportunity to
succeed in the workplace” hampered by Appellee’s conduct. See Weller v.
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Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996) (citation omitted).
In fact, three of the four employees quit their jobs, all citing a discriminatory
workplace in one form or another.
Taken together, and in the light most favorable to the employees,
these routine practices show that harassment was a “pervasive” element in
the workplace. All four employees experienced frequent harassment that
interfered with their work duties, and Stewart and Whitmore also
experienced harassment that was humiliating.
* * *
For these reasons, there is a genuine dispute of material fact whether
Appellee’s behavior was “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67). In
my view, we should vacate the district court’s judgment on the employees’
hostile workplace claims. Accordingly, I respectfully dissent in part.
16