LeMaire v. Louisiana Department of Transportation & Development

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 27, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk

No. 05-31134

))))))))))))))))))))))))))

RENE LEMAIRE

Plaintiff–Appellant

v.

STATE OF LOUISIANA, THROUGH THE LOUISIANA DEPARTMENT
OF TRANSPORTATION AND DEVELOPMENT

Defendant–Appellee

Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:05-CV-0775

Before BARKSDALE, DeMOSS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

This is an appeal from a district court’s order granting

summary judgment on an employee’s claims of sexual harassment and

retaliation under Title VII. For the reasons that follow, we

AFFIRM IN PART and REVERSE IN PART the district court’s decision

and REMAND for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

Plaintiff-Appellant Rene LeMaire (“LeMaire”) began working

as a Bridge Operator 2 for Defendant-Appellee State of Louisiana,

Department of Transportation and Development (“LaDOTD”) in March
2001. His job consisted of operating power-driven drawbridges

and performing or overseeing preventative maintenance on the

drawbridges. Milton Endres (“Endres”) was the Bridge Operator

Foreman, and Rodney Jones (“Jones”) was an Engineering

Technician. Both held supervisory roles over LeMaire.

In November 2001, LeMaire and his friend Mitzi Doiron

(“Doiron”), who was dropping him off at work, ran into Endres.

Doiron had known Endres for years, and they began to talk.

According to Doiron, Endres told them that he had been molested

as a child, that he had molested Doiron’s ex-husband when he was

a child, and that Doiron’s ex-husband had not always been opposed

to the molestation. Endres further elaborated on his sex life

with his wife, how he enjoyed being close to other men, and his

gay friends, who had also been molested. Doiron and LeMaire

asked Endres to stop talking about these issues and tried to

change the topic of conversation, but to no avail.

Doiron further states in her affidavit that LeMaire told her

in February 2002 that Endres told him about being with gay men

who were having sex at Mardi Gras. LeMaire was very upset about

having to listen to Endres’ sexually oriented comments.

On June 15, 2002, LeMaire claims he was subjected to

derogatory comments by Endres. Endres also allegedly told

LeMaire that he (Endres) would make it impossible for LeMaire to

transfer, so the only way LeMaire could get away would be to

quit. Endres then ordered LeMaire to spray herbicide on a large

2
area of the bank and lawn. Believing this order was in

retaliation for having objected to Endres’ sexually explicit

stories, LeMaire left the job site to report the conduct to

Jones.

LeMaire told Jones, who was Endres’ supervisor, about the

harassment and retaliation and that he intended to quit. Jones

persuaded LeMaire to stay on and to file a grievance alleging

“unfair/unjust treatment” instead of a formal complaint of sexual

harassment. On June 18, 2002, LeMaire received a letter from

Jones concluding that, after investigation, there was no

“conclusive evidence” of misconduct by Endres and that Endres had

been told to act in a professional and courteous manner. On June

28, 2002, LeMaire was suspended for two days without pay by Terri

Robison, District Maintenance Engineer, for refusing to spray

herbicide as directed by Endres and for leaving the station

without authorization. The letter, however, states that the

incident occurred on April 15, 2002, even though affidavits from

both parties put the event on June 15, 2002.

Endres claims that, on July 19, 2002, he found LeMaire

asleep in the swing bridge house. LeMaire asserts that he was

not asleep and was sitting up and working when Endres burst in on

him. Several co-employees of LeMaire stated that LeMaire told

them he was concerned that Endres had caught him sleeping on the

job. LeMaire denies admitting to his co-employees that he was

sleeping.

3
 On July 25, 2002, Rhonda Boudreaux, an LaDOTD employee,

reported that one of the bridges was unmanned. LeMaire admits

that the bridge was his responsibility and that he had

accidentally overslept by four hours. By the time he got in, a

replacement had filled his spot, and Endres told LeMaire to mow

the grass around the bridge instead. LeMaire refused. He

asserts that it was raining so hard that day that mowing would

have been impossible.

LeMaire was suspended for thirty days with pay beginning

August 5, 2002, pending an investigation into his conduct. On

August 6, 2002, LeMaire received a letter from Terri Hammack

(“Hammack”)1 informing him that Hammack was recommending him for

termination. The grounds for termination included sleeping on

the job on July 19, being late on July 25, and refusing to mow

the grass on July 25. The letter also noted LeMaire’s prior two-

day suspension for insubordination and leaving without

authorization. A meeting was set for August 13, 2002, to give

LeMaire an opportunity to respond to these allegations.

LeMaire and his attorney attended the meeting on August 13,

at which time LeMaire presented an affidavit refuting the grounds

for his termination. On August 15, 2002, Hammack again wrote to

LeMaire to inform him that he would be terminated for the same

1
Although it is not explicitly stated in the record, it
appears that Terri Robison and Terri R. Hammack are the same
person.

4
reasons stated in the August 6 letter.

II. PROCEDURAL HISTORY

LeMaire filed suit against LaDOTD on October 10, 2003,

asserting claims of sexual harassment and retaliation in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2, 2000e-3 (2000), as well as assault and intentional

infliction of emotional distress under Louisiana state law.

LaDOTD filed a motion to dismiss, which was denied by the

district court. LaDOTD then filed a motion for summary judgment

on October 8, 2004. In a single page order on October 6, 2005,

the district court summarily granted LaDOTD’s motion, stating

that “written reasons” for its decision would be “filed at a

later date.” Written reasons have never been filed, and LeMaire

appealed the district court’s order on November 4, 2005. LeMaire

has appealed only his Title VII claims. As a result, we do not

consider his state law claims of assault and intentional

infliction of emotional distress.

III. JURISDICTION

Although no judgment has ever been entered in this case, we

have jurisdiction over this appeal under 28 U.S.C. § 1291.

Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, a

judgment following an order on a summary judgment motion must be

set forth in a separate document. However, if a separate

judgment is required but not entered, judgment is deemed entered

5
150 days after the order. FED. R. CIV. P. 58(b)(2)(B). In this

case, then, judgment was deemed entered 150 days after October 6,

2005, which was March 5, 2006. Although LeMaire filed his appeal

before that date, Rule 4(a)(2) of the Federal Rules of Appellate

Procedure provides that an appeal filed after a court’s order but

before the entry of judgment is treated as filed on the date of

and after the entry of judgment. Therefore, we deem final

judgment entered and LeMaire’s appeal timely filed. As a result,

we have jurisdiction over this appeal.

IV. DISCUSSION

We review a district court’s order granting summary judgment

de novo. Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460,

464 (5th Cir. 2006). Summary judgment is appropriate when, after

considering the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, “there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th

Cir. 2006). A genuine issue of material fact exists when the

evidence is such that a reasonable jury could return a verdict

for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). In considering a summary judgment motion, all

facts and evidence must be taken in the light most favorable to

the non-movant. United Fire & Cas. Co. v. Hixson Bros., Inc.,

6
453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary

judgment, the non-movant must go beyond the pleadings and come

forward with specific facts indicating a genuine issue for trial.

Piazza’s Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th

Cir. 2006).

Complicating our review of this case is the fact that the

district court gave no reasons for its decision. While findings

of fact and conclusions of law are not necessary, as our review

is de novo, we have emphasized in the past that such findings and

conclusions are “often quite helpful for appellate review.”

Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236, 241 n.6 (5th

Cir. 1993) (internal quotation marks omitted). Indeed, in this

case, such an analysis would have been beneficial as the

pleadings and arguments of the parties are less than clear.

However, because our review is not limited to the district

court’s analysis, we may affirm the district court’s decision on

any basis presented to the district court. Id. at 241. We,

therefore, turn first to LeMaire’s sexual harassment claims.

A. Sexual Harassment

LeMaire asserts that the district court erred in granting

LaDOTD’s motion for summary judgment on his sexual harassment

claims because he created a genuine issue of material fact

regarding whether Endres had sexually harassed him. As noted in

the previous section, we may only affirm an order granting

summary judgment on a basis that was presented to the district

7
court. See id. This is in keeping with our precedent that

arguments not raised before the district court are waived and

cannot be raised for the first time on appeal. See Tex.

Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th

Cir. 2005), cert. denied, 126 S. Ct. 1033 (2006). We therefore

consider LaDOTD’s motion for summary judgment.

The only argument regarding sexual harassment raised in

LaDOTD’s motion is to simply deny that Endres made the allegedly

offensive comments and include affidavits from other LaDOTD

employees stating that Endres never made inappropriate remarks to

them.2 LeMaire’s evidence on this point consists of affidavits

from himself and Doiron describing the alleged sexually harassing

comments made by Endres. With this evidence, LeMaire has clearly

created a genuine issue of material fact regarding whether or not

the allegedly harassing conversations took place. Therefore, the

district court’s decision to grant summary judgment on LeMaire’s

sexual harassment claims was erroneous, and we must reverse it.

The dissent in this case would affirm the district court

because (1) there was no evidence that the harassment was because

2
LaDOTD’s motion also pointed out that LaDOTD had a
workplace harassment policy; however, that is irrelevant to the
issues actually presented on summary judgment. Had LaDOTD raised
an Ellerth/Faragher defense, such evidence might prove helpful,
but since LaDOTD never filed an answer in this case, it has
raised no affirmative defenses. See Wyatt v. Hunt Plywood Co.,
297 F.3d 405, 409 (5th Cir. 2002) (describing Ellerth/Faragher
defense as requiring evidence that employer exercised reasonable
care to prevent and correct sexual harassment and that employee
unreasonably failed to take advantage of those measures).

8
of LeMaire’s sex under the same-sex harassment standard; and (2)

there was no evidence that the harassment was severe and

pervasive enough to constitute a hostile working environment.

LaDOTD’s motion for summary judgment, however, never raised those

issues. Our precedent is clear that “[s]imply filing a summary

judgment motion does not immediately compel the party opposing

the motion to come forward with evidence demonstrating material

issues of fact as to every element of its case.” Russ v. Int’l

Paper Co., 943 F.2d 589, 591 (5th Cir. 1991) (per curiam).

Here, LaDOTD did not mention “same-sex harassment” or

“hostile work environment” in its motion for summary judgment.

Instead, it filed a bare-bones motion that failed to cite to any

legal precedent or standards regarding sexual harassment. This

is insufficient to put LeMaire on notice that he needed to

produce evidence on those issues. While the dissent assumes that

LeMaire has no further evidence to support those elements of his

claim, we cannot do so because LeMaire was never under an

obligation to produce such evidence. Therefore, we must reverse

this portion of the district court’s decision.3

B. Retaliation

3
As a result of the above discussion, we make no comment
about whether the alleged comments meet the threshold of same-sex
harassment required by Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75 (1998), or whether they created a hostile work
environment as described by Meritor Savings Bank FSB v. Vinson,
477 U.S. 57 (1986). Those issues were never raised in the
briefing before the district court, addressed in the opinion of
the district court, or briefed before this court.

9
 We next address LeMaire’s retaliation claim. Pursuant to

Title VII, an employer may not discriminate against an employee

because the employee has “opposed any practice made an unlawful

employment practice . . . or because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII. 42

U.S.C. § 2000e-3. Retaliation claims under Title VII are

governed by the familiar three-step McDonnell Douglas test.

Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005);

see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973). Under that test, an employee bringing a retaliation

claim must first produce evidence of a prima facie case of

retaliation. Septimus, 399 F.3d ay 608. To establish a prima

facie case of retaliation, an employee must demonstrate that (1)

he engaged in an activity that Title VII protects; (2) he was

subjected to an adverse employment action; and (3) a causal

connection exists between the protected activity and the adverse

employment action. Harvill v. Westward Commc’ns, L.L.C., 433

F.3d 428, 439 (5th Cir. 2005). If the employee establishes a

prima facie case, the burden shifts to the employer to state a

legitimate, non-retaliatory reason for its decision. Baker v.

Am. Airlines, Inc., 430 F.3d 750, 754-55 (5th Cir. 2005). After

the employer states its reason, the burden shifts back to the

employee to demonstrate that the employer’s reason is actually a

pretext for retaliation. Id. at 755.

10
 After combing through the record in this case, we have

identified four different allegations of retaliation raised by

LeMaire: (1) Endres’ order to spray herbicide on June 15, 2002;

(2) other acts of retaliation referenced generally by LeMaire,

but not specifically identified; (3) LeMaire’s two-day suspension

without pay; and (4) LeMaire’s termination. We now consider how

these claims fare under the McDonnell Douglas burden-shifting

analysis.

1. Order to Spray Herbicide

In his affidavit in response to LaDOTD’s motion for summary

judgment, LeMaire claims that Endres ordered him to spray

herbicide on June 15, 2002, in retaliation for LeMaire’s

rejection of Endres’ sexual advances. To satisfy his prima facie

obligation, LeMaire must produce evidence that he engaged in a

protected activity. See Harvill, 433 F.3d at 439. At the time

of Endres’ order, LeMaire had not yet complained to Jones of

Endres’ conduct, so the only arguable protected activity was

LeMaire’s actual rejection of Endres’ advances. LeMaire,

however, provides no authority for the proposition that rejecting

sexual advances constitutes a protected activity for purposes of

a retaliation claim under Title VII. See Frank v. Harris County,

118 F. App’x 799, 804 (5th Cir. 2004) (unpublished) (affirming

summary judgment on retaliation claim when only protected

activity was “express rejection” of sexual advances). We,

11
therefore, affirm the district court’s order granting summary

judgment to the extent that LeMaire argues that Endres’ order to

spray herbicide was retaliatory.4

2. Other Acts of Retaliation

Throughout his complaint, affidavit, and briefing, LeMaire

makes vague references to other actions taken by Endres in

retaliation for LeMaire’s protected conduct. (See LeMaire Compl.

¶ 7(3); LeMaire Aff. ¶ 3 [stating Endres retaliated by assigning

LeMaire to “numerous unpleasant duties” outside of LeMaire’s job

description and requiring LeMaire to work multiple shifts at

different bridge locations]; Doiron Aff. at 5 [stating Endres

gave LeMaire all the “hard and dirty jobs”].) The parties failed

to conduct any discovery, so it is unclear to what specific

actions LeMaire is referring.

LaDOTD did not move for summary judgment on these other acts

of retaliation in its motion for summary judgment nor did it

reference them on appeal; therefore, LaDOTD cannot be entitled to

summary judgment on those issues.5 Further, because the district

4
LaDOTD did not move for summary judgment regarding Endres’
order that LeMaire spray herbicide on the ground that it did not
qualify as an adverse employment action. We, therefore, do not
consider whether this activity satisfies the adverse employment
action standard recently set by the Supreme Court in Burlington
Northern & Santa Fe Railway Co. v. White, __ U.S. __, 126 S. Ct.
2405 (2006).
5
The dissent is correct that LaDOTD did reference the
other acts of retaliation in its motion; however, the reference
was simply an acknowledgment that LeMaire had asserted those
claims. LaDOTD never put forward an argument in favor of summary

12
court did not issue a written opinion explaining its reasons for

granting summary judgment, we do not know if the district court

considered these claims and, if it did, why the district court

found them lacking. Given the new legal precedent, see

Burlington Northern, 126 S. Ct. at 2414-15, the lack of summary

judgment briefing, and the vagueness in the evidence, we reverse

this portion of the district court’s order and remand for further

consideration.

3. Suspension Without Pay

The next alleged act of retaliation we consider is LaDOTD’s

decision to suspend LeMaire for two days without pay for refusing

to spray herbicide as ordered by Endres and leaving the job site.

LeMaire has satisfied his prima facie case in this instance. His

report to Jones is considered a protected activity. See Green v.

Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)

(finding employee’s complaint of harassment to head of personnel

department was a protected activity). LeMaire’s suspension is an

adverse employment action, as a two-day suspension without pay

might have dissuaded a reasonable employee from making a charge

of discrimination. See Burlington N., 126 S. Ct. at 2415.

Further, the timing of the suspension--approximately two weeks

after LeMaire’s report of harassment--suggests a causal

judgment on those claims, nor did it provide a legitimate, non-
retaliatory reason why LeMaire was assigned to the allegedly
unpleasant and demeaning duties.

13
connection. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,

1092 (5th Cir. 1995) (noting that timing can be a “significant,

although not necessarily determinative, factor”). And, as

discussed below, the fact that LeMaire left his job on June 15 in

order to make a report of harassment, and was subsequently

punished for leaving the job site, is also evidence of a causal

connection.

Turning then to LaDOTD’s articulation of a legitimate, non-

retaliatory reason for the suspension, LaDOTD claims that it

suspended LeMaire because he refused to spray the herbicide as

ordered by Endres and left the job site without authorization.

This is a legitimate, non-retaliatory reason for taking an

adverse employment action. See Calero-Cerezo v. U.S. Dep’t of

Justice, 355 F.3d 6, 26 (1st Cir. 2004) (finding an employee’s

insubordinate behavior and failure to perform duties

satisfactorily a legitimate, non-retaliatory reason). It is thus

incumbent on LeMaire to show that this reason was a pretext for

retaliation.

LeMaire asserts that he left work without spraying the

herbicide as requested because he was making a report to Jones

about Endres’ sexually harassing behavior. This presents an

interesting legal question regarding whether and under what

circumstances an employee may refuse to perform his job duties in

order to engage in protected activity. We need not decide that

issue, however, because there are factual disputes concerning

14
this claim as well.

For one, the letter suspending LeMaire refers to an incident

on April 15, 2002, while the actions described by the parties

took place on June 15, 2002. Further, it is not clear whether

LeMaire did not spray the herbicide because he was making a

report to Jones about Endres or whether he simply refused to obey

Endres’ order and later decided to report Endres’ behavior.

Also, the letter from Hammack suspending LeMaire does not

indicate that Hammack interviewed anyone other than Endres in

reaching her decision. Evidence of Endres’ specific involvement

in the decision would be significant, since Endres had the

greatest motivation to retaliate against LeMaire. See Long v.

Eastfield College, 88 F.3d 300, 307-08 (5th Cir. 1996) (assuming

on appeal that the decision-maker merely rubber-stamped a

termination recommendation made by a person with a retaliatory

motive).

As a result of the legal and factual issues presented, we

cannot say there is no genuine issue of material fact regarding

LeMaire’s claim that his two-day suspension was retaliatory.

Therefore, we reverse the order of the district court on this

point.

4. Termination

LeMaire’s final claim is that his termination was in

retaliation for his protected activity. Beginning with his prima

15
facie case, we note that LeMaire did engage in protected activity

by reporting Endres’ conduct to Jones and LeMaire did receive an

adverse employment action. There is some question as to whether

LeMaire has produced sufficient evidence of a causal connection,

but for purposes of this opinion, we will assume that he has.

LaDOTD asserts that it terminated LeMaire’s employment based

on the culmination of various infractions, including sleeping on

the job on July 19, being four hours late to work on July 25, and

refusing to mow the grass on July 25. Job performance is a

legitimate, non-retaliatory reason for termination. See Perez v.

Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002)

(concerning national origin discrimination claim).

The burden, therefore, shifts back to LeMaire to demonstrate

that LaDOTD’s legitimate reason is actually a pretext for

retaliation. Our job as a reviewing court conducting a pretext

analysis is not to engage in second-guessing of an employer’s

business decisions. See Bryant v. Compass Group USA, Inc., 413

F.3d 471, 478 (5th Cir. 2005), cert. denied, 126 S. Ct. 1027

(2006); Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001). Our

anti-discrimination laws do not require an employer to make

proper decisions, only non-retaliatory ones. See Little v.

Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) (stating that

“even an incorrect belief that an employee’s performance is

inadequate” is a legitimate reason). Therefore, LeMaire must do

more than simply argue that LaDOTD made an incorrect decision.

16
 Here, LaDOTD was presented with conflicting stories

regarding whether LeMaire was sleeping on the job on July 19.

Endres asserted LeMaire was sleeping, and four of LeMaire’s co-

employees claim LeMaire told them he was sleeping. Despite

LeMaire’s denial of these actions, we will not second-guess

LaDOTD’s decision to disbelieve LeMaire’s explanation, given the

conflicting factual accounts. Simply disputing the underlying

facts of an employer’s decision is not sufficient to create an

issue of pretext. See Sandstad v. CB Richard Ellis, Inc., 309

F.3d 893, 899 (5th Cir. 2002) (“Merely disputing [the employer’s]

assessment of [the employee’s] performance will not create an

issue of fact.”).

As for LeMaire’s conduct on July 25, he admits to being late

and not mowing the grass, but attempts to excuse his refusal to

mow based on the weather. Presumably, LeMaire presented this

information to Hammack at the August 13 meeting, and it was

considered by LaDOTD in making its decision. Again, LeMaire must

do more than just dispute the underlying facts and argue that

LaDOTD made the wrong decision in order to survive summary

judgment. See Bryant, 413 F.3d at 478 (stating that the fact

that an employer’s investigation reaches the wrong conclusion

does not establish an improper motivation).

Therefore, LeMaire has failed to create a genuine issue of

material fact regarding whether LaDOTD’s decision to terminate

him was a pretext for retaliation. Consequently, we affirm that

17
portion of the district court’s order.

C. Race Discrimination

Out of an abundance of caution, LaDOTD also moved for

summary judgment as if LeMaire had brought a race discrimination

claim, even though LeMaire’s complaint made no mention of race.

On appeal, LeMaire contends that inclusion of race discrimination

arguments in LaDOTD’s motion for summary judgment somehow tainted

the district court’s consideration of the issues. We disagree.

First, there is no evidence, other than speculation, that

the district court was somehow misled by the argument concerning

race discrimination.6 Second, LeMaire has provided this court

with no precedent for holding that an overbroad summary judgment

argument can render an entire decision faulty. And third, we

have now had the opportunity to conduct a de novo review of the

summary judgment motion, unclouded by any concern of race

discrimination; therefore, any error has been rendered harmless.

As a result, we will not reverse the district court’s judgment on

these grounds.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order as it relates to LeMaire’s retaliation claim regarding

Endres’ order to spray herbicide on June 15, 2002, and LeMaire’s

6
Of course, given the district court’s lack of written
reasons for its ruling, we recognize that such evidence may be
hard to come by.

18
termination. We REVERSE the remainder of the district court’s

order and REMAND for further proceedings consistent with this

opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

19
DeMOSS, Circuit Judge, concurring in part, dissenting in part.

Because LeMaire was unable to establish a prima facie case of

sexual harassment, and because LaDOTD articulated legitimate non-

retaliatory reasons to justify its actions, I would affirm the district

court’s order granting summary judgment in its entirety.

Consequently, I concur where the majority has affirmed summary

judgment on two of LeMaire’s retaliation claims, and respectfully

dissent with regard to the rest.

I.

As the majority states, we review orders granting summary

judgment de novo, applying the same standards as the district court.

MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003). “We

may affirm a summary judgment on any ground supported by the record,

even if it is different from that relied on by the district court.” Holtzclaw

v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001). Summary

judgment is appropriate if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue of material fact and the moving party

20
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

To determine if LaDOTD is entitled to judgment “as a matter of law,”

id., we must first look to the law applicable to the claims asserted. Hood

v. Sears Roebuck and Co., 168 F.3d 231, 232 (5th Cir. 1999); see also

Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995) (“First,

we consult the applicable law to ascertain the material factual issues.”).

We do not consider the pleadings and affidavit testimony in a vacuum.

Consequently, to determine if LaDOTD is entitled to summary judgment

we must first consult the applicable law to determine the factual issues

that will be material. See Hood, 168 F.3d at 232. LeMaire complains of

sexual harassment and retaliation under Title VII. Therefore, we must

evaluate his claims in light of the applicable legal standards set forth for

Title VII claims.

The legal standard for a Title VII same-sex sexual harassment claim

is set forth in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75

(1998). The standard for a Title VII retaliation claim is set forth in

McDonnell Douglas v. Green, 411 U.S. 792 (1973), and its progeny,

Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). I

recognize that LeMaire has not adequately argued the applicability of

21
these cases below or before this Court. However, his failure to recognize

the applicable law does not absolve him from meeting the evidentiary

burden it places upon him.1

A. Sexual Harassment

LeMaire may establish a Title VII violation by proving that he was

subjected to harassment that created a hostile or abusive working

environment. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th

Cir. 2001). To prove that he was subjected to a hostile work environment

LeMaire must establish the following five elements:

(1) [LeMaire] belonged to a protected class; (2) [LeMaire] was
subject[ed] to unwelcome sexual harassment; (3) the
harassment was based on sex; (4) the harassment affected a

1

The majority does not discuss whether Endres’ comments are actionable
because “[t]hose issues were never raised in the briefing before the
district court.” Majority Op. at ____ n.3. However, LeMaire did raise Title
VII sexual harassment and retaliation claims in his complaint, and
LaDOTD moved for summary judgment because LeMaire could not meet
the applicable evidentiary burden. “We may affirm a grant of summary
judgment on any ground raised to the district court and upon which both
parties had the opportunity to present evidence.” Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 873 n.1 (5th Cir. 1999).
Because Title VII was the ground for relief raised in the district court, and
one ground raised in the summary judgment motion was LeMaire’s failure
to meet Title VII’s evidentiary burden, we can affirm. Further, both parties
have had ample opportunity to present evidence and arguments on the
applicable law.
22
 “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.2
Id. at 298.

Also, because LeMaire alleges harassment by a member of the

same sex, he has the additional burden to “prove that the conduct at

issue was not merely tinged with offensive sexual connotations, but

actually constituted discrimination because of sex.” Oncale , 523 U.S. at

81 (internal quotation marks and ellipses omitted). LeMaire can make

that showing if he can (1) demonstrate Endres made “explicit or implicit

proposals of sexual activity” and provide “credible evidence that the

harasser was homosexual”; (2) demonstrate that Endres was “motivated

by general hostility to the presence of members of the same sex in the

workplace”; or (3) “offer direct, comparative evidence about how the

alleged harasser treated members of both sexes in a mixed-sex

workplace.” La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir.

2002) (internal quotation marks omitted).

LeMaire alleges that Endres sexually harassed him by subjecting

2

This Court has held that the fifth element is not required when the alleged
harasser is a supervisor. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.
1999).
23
him to “continuous, unwelcome, open, obvious, and pervasive incidents

of sexual harassment.” The only evidence LeMaire presented concerning

harassment was contained in affidavits from himself and Mitzi Doiron.

In his self-serving affidavit LeMaire only references the alleged

sexual harassment in paragraphs two and eleven. These paragraphs

contain vague conclusory allegations that Endres made inappropriate

sexual comments in LeMaire’s presence. The affidavit does not state how

often the alleged harassment occurred or give details about any particular

encounter. Doiron’s affidavit, on the other hand, details one admittedly

inappropriate conversation she witnessed between Endres and LeMaire;

it also states that LeMaire claimed there were other such conversations.

This evidence does not establish a prima facie case because,

among other things, it fails to show the alleged harassment was based

on sex. See Woods 274 F.3d at 298. That element requires LeMaire to

show he was exposed to harassment that “members of the opposite sex

were not.” See Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657

(5th Cir. 2002) (approving the district court’s statement of that rule).

LeMaire has not presented any evidence that Endres made sexual

comments to him because of his gender, or evidence that Endres did not

24
make the same comments to women. The most detailed evidence of the

alleged harassment – Dioron’s affidavit – details an inappropriate

conversation that Endres had with both LeMaire and Ms. Doiron. This

evidence indicates that Endres discussed his sexual encounters in the

presence of both genders, and supports the conclusion that he did not

single out LeMaire because of his sex.

Additionally, LeMaire has not shown that the alleged harassment

affected a term, condition, or privilege of his employment. See Woods

274 F.3d at 298. “Conduct sufficient to create a hostile working

environment must be severe or pervasive.” Septimus v. Univ. of

Houston, 399 F.3d 601, 611 (5th Cir. 2005). This Court also considers “the

degree to which the conduct is physically threatening or humiliating.” Id.

The conversation alleged by LeMaire was clearly inappropriate, but he

does not allege that Endres made any physical threats. Further,

LeMaire’s conclusory allegations do not specify how often the alleged

harassment occurred.

“A recurring point in [our] opinions is that ‘simple teasing,’ offhand

comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the ‘terms and conditions of

25
employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(citations omitted). The offhand comments made during the isolated

incidents alleged by LeMaire simply do not rise to the level of actionable

sexual harassment. See id. (noting that “sporadic use of abusive

language, gender-related jokes, and occasional teasing” are not

actionable); see also Shepherd, 168 F.3d at 872, 874 (holding that

offensive comments accompanied by touching that occurred over a

period exceeding one year did not affect a term, condition, or privilege of

employment); cf. Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428,

435-36 (5th Cir. 2005) (finding an actionable hostile work environment

where the alleged harrasser kissed the plaintiff, touched her breasts and

patted her buttocks “numerous times” and made inappropriate

comments).

It is clear, as the majority points out, that some factual disputes

exist. For example, LaDOTD argues that the alleged offensive conduct

never occurred. But only disputes that can affect the outcome under the

applicable law will preclude summary judgment. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The disputed facts in this case do

not affect the outcome. Even assuming that the offensive conduct

26
occurred, that conduct does not rise to the level of actionable sexual

harassment under the legal standards discussed above. As a result, the

dispute about whether the conduct occurred is not a dispute about a

material fact. See id. Because no genuine issues of fact exist, and

because LeMaire failed to establish a prima facie case of sexual

harassment as required, I would affirm.

B. Retaliation

The majority identifies four different allegations of retaliation

asserted by LeMaire. I agree with the majority that summary judgment is

appropriate regarding LeMaire’s retaliation claims involving Endres’

order for LeMaire to spray weeds and LeMaire’s ultimate termination.

LaDOTD claims LeMaire was terminated for a number of reasons

including his sleeping while on duty, refusing to perform job duties such

as spraying weeds and mowing grass, and arriving late for work. I

believe, as the majority cogently explained, that LeMaire has failed to

show those reasons to be pretext. See, e.g., Sandstad v. CB Richard

Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).

Unlike the majority, however, I would also hold that summary

judgment is appropriate with regard to LeMaire’s remaining claims. Even

27
if we assume that LeMaire has established a prima facie case on his other

claims of retaliation, and I seriously doubt that he has, LaDOTD has

responded by submitting affidavits establishing legitimate non-retaliatory

reasons for its actions. LeMaire has not shown those reasons to be

prextext, so I would affirm.

Regarding LeMaire’s claim that he was suspended in retaliation for

reporting the alleged misconduct to a supervisor, LaDOTD responds that

it was justified in suspending LeMaire because he failed to perform

required job duties. “The failure of a subordinate to follow a direct order

of a supervisor is a legitimate nondiscriminatory reason for taking

adverse employment action.” Aldrup v. Caldera, 274 F.3d 282, 286 (5th

Cir. 2001). Under the applicable framework, the burden then shifts to

LeMaire and he can avoid summary judgment if he can demonstrate a

genuine issue of material fact “that the stated reason is actually a pretext

for retaliation.” Baker v. Am. Airlines, Inc., 430 F.3d 750, 754 (5th Cir.

2005).

In order to show pretext, LeMaire must present evidence that he

would not have been suspended “but for” the fact he filed the complaint.

See Septimus, 399 F.3d at 608. He has failed to present such evidence,

28
and therefore summary judgment is appropriate. See FED. R. CIV. P. 56(e)

(“[A]n adverse party may not rest upon the mere allegations or denials of

[his] pleading, but [his] response, by affidavits or as otherwise provided

in this rule, must set forth specific facts showing that there is a genuine

issue for trial.”).

The majority is concerned with legal and factual issues that, in its

view, preclude summary judgment. Regarding the majority’s concern

whether an employee may refuse to perform job duties in order to engage

in protected activity, I find that an interesting theoretical issue, but

irrelevant to determining if LeMaire has met his burden to offer specific

facts indicating that “but for” his complaint, he would have been

suspended. See Septimus, 399 F.3d at 608. Likewise, the majority’s other

concerns do not directly relate to LeMaire’s burden to create a genuine

issue of material fact regarding pretext. I agree that it would be nice to

know, for example, if Endres was involved in the decision to suspend

LeMaire. Such evidence would be significant in finding pretext. However,

it was LeMaire’s burden to produce such evidence and he has utterly

failed to do so.

Regarding LeMaire’s vague assertions of “other” acts of retaliation,

29
even if LeMaire has asserted a prima facie case of retaliation,3 he has not

shown LaDOTD’s legitimate non-discriminatory reasons for its actions to

be pretext. The poor work performance cited by LaDOTD is a legitimate

non-discriminatory reason for discharge. Perez v. Region 20 Educ. Serv.

Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (emphasis added). It would clearly

also be a legitimate reason for the lesser penalty of assigning LeMaire to

particular less-desirable job tasks. Further, LeMaire has failed to create

a genuine issue of material fact regarding pretext.

3

Under the majority’s own reasoning LeMaire has failed to assert a prima
facie case here. In its discussion of the order to spray herbicide, the
majority found that LeMaire failed to provide authority for the proposition
that merely rejecting sexual advances constitutes a protected activity.
Majority Op. at ____. Because the order to spray herbicide occurred
before LeMaire complained to Jones (a protected activity) the majority
found that LeMaire failed to establish a prima facie case. See id.
Likewise, the “other” allegations of retaliation cited by the majority
also appear to be based on acts that occurred prior to LeMaire
complaining to Jones. See Compl. at ¶ 7(3) (alleging assignment to
unpleasant job duties after rejecting the advances, but not alleging those
assignments after complaining to Jones); LeMaire Aff. at ¶ 3 (same); see
also Doiron Aff. at 5 (recounting that Endres gave LeMaire “hard and dirty
jobs” because he was not interested in gay sex; but not claiming the
retaliation was after complaining to Jones). None of these acts are
alleged to have occurred after LeMaire complained to Jones. Following
the majority’s sound reasoning from its discussion of the order to spray
herbicide, LeMaire had not engaged in a protected activity at the time
these events occurred. Thus, I would find that LeMaire has not
established a prima facie case regarding these “other” acts of retaliation.
30
 The majority concludes that LaDOTD cannot be entitled to summary

judgment because it did not reference these “other” alleged acts of

retaliation in its motion for summary judgment. On the contrary,

LaDOTD’s motion for summary judgment references the “other” acts

alleged in LeMaire’s complaint and cited by the majority. Motion at 2. (“.

. .plaintiff alleges he was assigned unpleasant duties outside of his

described job description. . .in retaliation for rejection of defendant’s

advances.”). Further, LaDOTD requests in its motion for summary

judgment that LeMaire’s retaliation claims be dismissed because he

cannot meet his evidentiary burden. LaDOTD has clearly requested

summary judgment on this ground, and because LeMaire cannot meet his

burden to show LaDOTD’s reasons are pretext, I would grant it.

LeMaire did not establish that he was subject to discrimination

based on his sex, or that Endres’ behavior affected a term or condition of

his employment. He also failed to rebut with any evidence LaDOTD’s

legitimate non-discriminatory reasons for discharging him.

This Court has clearly established that a defendant’s motion for

summary judgment under Rule 56 is an appropriate vehicle for the district

courts to use in weeding out of the litigation process those cases where

31
the plaintiff is not fully prepared to carry his burden of establishing facts

and evidence sufficient to take his claim to a jury for resolution. In my

view, the district judge did precisely what he was supposed to do by

granting Defendant’s motion for summary judgment. And with due

respect for my colleagues who see it differently, I respectfully dissent

from the majority’s reversal of the district court’s judgment.

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