Case: 19-50173 Document: 00515968369 Page: 1 Date Filed: 08/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 6, 2021
No. 19-50173 Lyle W. Cayce
Clerk
Michael Johnson,
Plaintiff—Appellant,
versus
PRIDE Industries, Inc.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas,
USDC No. 3:18-cv-00044-FM
Before Dennis, Elrod, and Costa, Circuit Judges.
James L. Dennis, Circuit Judge:
This appeal concerns Plaintiff Michael Johnson’s claims that his
former employer, PRIDE Industries, Inc. (“PRIDE”), violated 42 U.S.C.
§ 1981 by discriminating against him based on his race and by retaliating when
he complained to his superiors about the discrimination. The district court
granted summary judgment to PRIDE and dismissed the action. While we
agree that summary judgment for the employer was proper as to most of
Johnson’s claims, we conclude that the district court erred in its ruling on
Johnson’s hostile work environment claim. Accordingly, we AFFIRM in
part, REVERSE in part, and REMAND for further proceedings consistent
with this opinion.
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I.
A.
PRIDE is a non-profit that employs individuals with disabilities in
manufacturing and service jobs. It receives government contracts through
AbilityOne, a federal program that requires that at least 75% of a contractor’s
labor work hours be performed by disabled individuals.1 PRIDE had an
AbilityOne contract to provide facilities services at Fort Bliss in El Paso,
Texas.
On March 9, 2015, PRIDE hired Johnson, an African-American, as a
general maintenance worker at Fort Bliss. In May 2016, PRIDE promoted
Johnson to the position of carpenter. Armando Morales was Johnson’s
supervisor in both positions.
Johnson introduced evidence of the following events, which we
presume to be true for summary-judgment purposes. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). While employed as a carpenter,
Johnson endured repeated race-based harassment, with his fellow PRIDE
employee Juan Palomares as the primary perpetrator. Palomares, who is
Hispanic, supervised a different section of PRIDE’s carpentry shop from the
one to which Johnson was assigned, but Johnson and Palomares “often”
interacted. Although Johnson’s summary judgment evidence does not
specify the precise dates when the harassment occurred, he testified about
several specific incidents.
For example, in one particular episode, Morales, Palomares, and Lalo
Carrasco, who worked under Palomares, were having a conversation in
1
The AbilityOne program was established under the Javits-Wagner-O’Day Act, 41
U.S.C. § 46 et seq.
2
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Morales’s office while Johnson was present. Johnson initially stood by
Morales’s desk, and when he moved to sit down near the other men,
Palomares and Lalo started speaking to one another in a mixture of Spanish
and English. The two used the term “cemento,” presumably discussing a
previous incident involving Johnson and another worker at a cement job site.
Palomares was upset about the events that had occurred at the cement job,
and he mentioned Johnson’s name before saying in Spanish “es mayate.”
The parties do not dispute that “es mayate” translates to “this n*****.”
Johnson knew Palomares was referring to him because he was the only black
employee in Pride’s carpentry shop at the time. And, though Johnson
understood only a “little bit” of Spanish, his wife had taught him what
“mayate” meant.
In a second episode, Johnson was at a table in an “eating facility” with
several other employees, including Palomares. As Johnson put it, the men
were “talking about something, and that’s when I heard them say
something—‘mayate’ or something.” The next day, one of the employees
who participated in the conversation apologized to Johnson “for everything
that Mr. Palomares was [sic] saying at the table.”
There were “other times” when Palomares used the epithet
“mayate” in Johnson’s presence, as well as other language he perceived as
demeaning. Specifically, Johnson claimed that Palomares “always”
addressed him as “mijo” or “manos,” and that he never heard Palomares
refer to anyone else by these names. “Mijo” commonly translates to “my
son,” while “manos” is Spanish for “hands.”2
2
Johnson first testified that he understood “mijo” to mean “boy.” He later
acknowledged that he knew “mijo” meant “son,” but he nevertheless found the term to
be an offensive diminutive because he was not Palomares’s son.
3
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One of Johnson’s carpentry colleagues, Raymond Yanez,
corroborated that Palomares used racially offensive language and generally
treated non-Hispanic employees worse than their Hispanic counterparts. In
an affidavit, Yanez averred that Palomares regularly used Spanish-language
racial epithets in the workplace to refer to black employees, calling them
“pinchis mayates,” which translates to “f***ing n*****s,” and “pinchis
negros,” which translates to “f***ing blacks.” Yanez noted that Palomares
specifically used these slurs in reference to Johnson. Palomares also directly
belittled Johnson in work meetings, including on one occasion when
Palomares told Johnson to “shut up” when he asked a question about a job
site.
Besides his use of insults and racial epithets, Palomares mistreated
Johnson in various ways related to his employment duties. For example,
Yanez stated that Palomares disfavored non-Hispanic employees and
Johnson in particular with respect to work assignments. Further, Palomares
hid the paperwork Johnson had submitted to be promoted to the carpentry
position. Johnson submitted the paperwork twice, but it went missing each
time. Several PRIDE employees, including Morales, later told Johnson that
they found the paperwork in Palomares’s desk.
Sometimes equipment that Johnson needed for jobs would similarly
go missing from the warehouse. Palomares was responsible for picking up all
of the materials needed for job sites and delivering them to the warehouse.
Although the warehouse staff would tell Johnson that Palomares had
completed the delivery, Johnson was on several occasions unable to find
materials necessary for his specific work, including roof coating and paint.
Johnson believes that Palomares took the items in an attempt to interfere with
Johnson’s work.
4
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Beyond his mistreatment by Palomares, several other workplace
incidents occurred that Johnson viewed as harassing. For instance, another
unnamed colleague once called him “n*****.” He also once found a screw
drilled into his truck’s tire while the vehicle was parked at PRIDE’s lot.3
During Johnson’s employment with PRIDE, he made multiple
complaints to his supervisor, Morales; Rhonda Davenport, who served as
Johnson’s “vocational rehabilitation counselor;” and another PRIDE
manager, Sonia Bonham, regarding Palomares’s harassing behavior,
including his use of “mayate” as well as “mijo” and “manos.” Morales told
Johnson that he would speak to Palomares. Bonham told Johnson that she,
too, had been harassed by Palomares and “that things like this would happen;
you’ve just got to be tough and keep going.” Palomares continued to refer to
Johnson as “mijo” and “manos” after he complained.
Beginning in February 2017, Johnson was involved in a number of
additional workplace incidents that culminated in his resignation. First, the
keys to his work truck and a bottle of medicine and batteries for a drill that
were stored inside his truck went missing; they eventually turned up on an
unnamed supervisor’s desk. Later that month, Johnson found a magazine
clip loaded with “dummy rounds” on the bumper of his truck. He reported
the incident to his supervisor.4
PRIDE also formally disciplined Johnson in February 2017 after he
angrily confronted Palomares at PRIDE’s worksite. As documented by
PRIDE, Johnson approached Palomares in the presence of other employees
3
Johnson acknowledged that other vehicles on the premises were also vandalized
with screws in their tires, and he stated that he did not know who was responsible.
4
Both of these incidents were memorialized in notes that Johnson wrote at the time
of the events.
5
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and yelled at him to “leave [him] the [f***] alone” and to “stop the mind
games.” Johnson was written up and directed by management to “follow
instructions and remain respectful to all employees . . . and management.”
Around that time, Johnson also applied and interviewed for a supervisory
carpentry position. PRIDE ultimately selected Gary Koenermann, a
Hispanic individual, for the position. Unlike Johnson, Koenermann had prior
supervisor and management experience, both within and outside of PRIDE.
At the end of February 2017, Johnson filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC). In a
response letter to the EEOC, PRIDE’s Human Resources Director, Kathryn
Strawder, acknowledged that, on March 25, 2016, before Johnson was
promoted to the carpentry position, he reported that Palomares had been
harassing him. Specifically, Johnson complained that Palomares called him
“mijo” and was involved in his missing promotion application paperwork.
Strawder stated that PRIDE interviewed Palomares who admitted to using
the word “mijo” but contended he did not use it in a derogatory way. PRIDE
ultimately “did not find that any harassment had occurred.” Later, in an
affidavit, Strawder stated that Johnson made several complaints of workplace
harassment to PRIDE during the course of his employment, and that PRIDE
investigated and “addressed as appropriate” each complaint.
The EEOC issued a right to sue letter in September 2017. 5 That same
month, PRIDE called Johnson in for a meeting to discuss problems with his
attendance. During the meeting, Johnson said coming into work was “too
stressful,” declared that he was resigning, and walked out. He signed a
resignation letter—purportedly drafted by PRIDE—that stated he felt
5
Although EEOC opted not to prosecute Johnson’s case, it filed an amicus brief
with this court in support of Johnson’s appeal.
6
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“there were several incidents that occurred during his time with PRIDE . . .
that affected his mental health,” including “confrontations and/or conflicts
with his supervisor and or other coworkers . . . that have caused him stress
and anxiety.” Per the letter, Johnson resigned “so he can focus on receiving
the treatment he needs.”
B.
In December 2017, following his resignation, Johnson filed this suit in
Texas state court, alleging that PRIDE violated federal and state employment
discrimination laws by maintaining a hostile work environment and taking
adverse employment actions against him for discriminatory and retaliatory
reasons, including by failing to promote him and constructively discharging
him. PRIDE removed the matter to federal court, and the district court
subsequently granted PRIDE’s motion for summary judgment. The court
held that (1) Johnson’s hostile work environment claim failed because he did
not show that the harassment was severe or pervasive; (2) Johnson’s failure
to promote claim was unavailing because he did not carry his burden to show
that PRIDE promoted other candidates with equal or fewer qualifications in
his place; (3) Johnson could pursue his constructive discharge claim even
though he had not exhausted his administrative remedies; but (4) Johnson’s
inability to establish a hostile work environment necessarily precluded him
from meeting the higher bar of showing constructive discharge; and (5)
Johnson’s retaliation claim failed because he could not establish a nexus
between protected activity and any adverse employment action, including his
alleged constructive discharge. Johnson timely appealed.6
6 Johnson’s pro se notice of appeal also cited the district court’s denial of his
motion to amend or alter as an order he was appealing. This court appointed pro bono
appellate counsel for Johnson, and appellate counsel’s brief expressly abandons appeal of
this order.
7
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II.
We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. EEOC v. WC&M Enters.,
Inc., 496 F.3d 393, 397 (5th Cir. 2007). Summary judgment is only
appropriate where the “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In considering a motion for summary
judgment, the court must view all facts and evidence in the light most
favorable to the non-moving party and draw all reasonable factual inferences
in the non-movant’s favor. WC&M Enters., Inc.,
496 F.3d at 397.
III.
Johnson contends that he has presented sufficient evidence to raise a
genuine issue of material fact as to whether his employer discriminated
against him in violation of 42 U.S.C. § 1981. That statute guarantees to “[a]ll
persons within the jurisdiction of the United States . . . the same right . . . to
make and enforce contracts . . . as is enjoyed by white citizens.”
42 U.S.C.
§ 1981(a). It defines the phrase “make and enforce contracts” to include
“the making, performance, modification, and termination of contracts, and
the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.”
Id. § 1981(b). Johnson asserts that the district
court erred in dismissing the following four claims under § 1981: (1) hostile
work environment; (2) failure to promote; (3) constructive discharge; and
(4) retaliation. We consider “racial discrimination and retaliation claims
based on Title VII and
42 U.S.C.
§ 1981[] under the same rubric of analysis.” Johnson v. Halstead,
916 F.3d
410, 420 (5th Cir. 2019) (quoting Raggs v. Miss. Power & Light Co.,
278 F.3d
463, 468 (5th Cir. 2002)). We review Johnson’s argument as to each claim
in turn.
8
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A.
First, Johnson argues that he raises a genuine issue of fact as to his
hostile work environment claim. We agree. A hostile work environment
exists when the “workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive work
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (cleaned
up). To establish a claim of hostile work environment, a plaintiff must prove
he (1) belongs to a protected group; (2) was subjected to unwelcome
harassment; (3) the harassment complained of was based on his membership
in the protected group; (4) the harassment complained of affected a term,
condition, or privilege of employment; and (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 first
three elements of the claim are easily established; Johnson is black and his
evidence makes clear he was harassed based on his race. The dispute here
centers on the fourth element.
Harassment is sufficiently “severe or pervasive enough” to create a
hostile work environment when it is “objectively hostile or abusive”—
meaning “an environment that a reasonable person would find hostile or
abusive”—and is subjectively perceived by the victim as abusive. Harris, 510
at 21. The Supreme Court has “emphasized . . . that the objective severity
of harassment should be judged from the perspective of a reasonable person
in the plaintiff’s position.” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998). The objective inquiry, moreover, requires that the court
consider “all the circumstances,” including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
9
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interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
“[N]o single factor is required.”
Id.
In evaluating whether the harassment here was sufficiently severe or
pervasive to alter the conditions of Johnson’s employment, we first review
the most obvious—and obviously offensive—evidence of racial harassment:
the use of racist slurs in Johnson’s presence. Johnson testified about two
specific instances in which Palomares—a supervisor in the same carpentry
shop as Johnson, though not Johnson’s supervisor7—used the word
“mayate” in his presence. During both instances, Johnson was the only black
person present, and thus the reasonable inference can be drawn that the slur
was directed at Johnson. And because Johnson knew from his wife that the
term was the Mexican-Spanish equivalent of “n*****,” he subjectively
perceived the slurs as severely harassing. Johnson also testified that another
colleague once called him “n*****.”
In addition, Johnson’s co-employee, Yanez, described a work
environment in which Palomares regularly used racial invective, referring to
black employees, including Johnson, as “pinchis mayates”—meaning
“f***ing n*****s”—and “pinchis negros”—“f***ing blacks.” The district
court recognized that “mayate” “has the same taboo status as the n-word.”
7
The Supreme Court has “h[e]ld that an employee is a ‘supervisor’” for Title VII
(and thus § 1981) purposes “if he or she is empowered by the employer to take tangible
employment actions against the victim.” Vance v. Ball State Univ., 570 U.S. 421, 424
(2013). Johnson does not argue that this standard is met with respect to Palomares, and we
therefore assume that Palomares’s status vis-à-vis Johnson is one of a co-employee rather
than that a supervisor for purposes of § 1981.
10
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Neither party disputes this understanding of the term, and so we accept it for
the purposes of this appeal.8
The magnitude of the offensiveness of being referred to as “mayate”
or “n*****” by a fellow employee cannot be understated—particularly when
used by a fellow employee who outranked Johnson in the carpentry shop in
which the two labored. Our court has observed that the term “n*****” is
“[t]he most noxious racial epithet in the contemporary American lexicon.”
Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th Cir. 2015) (quoting
Montiero v. Tempe Union High Sch. Dist.,
158 F.3d 1022, 1034 (9th Cir. 1998));
see also McGinest v. GTE Serv. Corp.,
360 F.3d 1103, 1116 (9th Cir. 2004) (“It
is beyond question that the use of the word ‘[n*****]’ is highly offensive and
demeaning, evoking a history of racial violence, brutality, and subordination.
This word is ‘perhaps the most offensive and inflammatory racial slur in
English, . . . a word expressive of racial hatred and bigotry.’” (quoting
Swinton v. Potomac Corp.,
270 F.3d 794, 817 (9th Cir. 2001)). Far from “a
8
A variety of authorities on Mexican Spanish confirm this meaning. See, e.g.,
Harry Polkinhorn et al., El Libro De Caló 41 (Rev. Ed. 1986) (noting the
standard meaning of “mayate” as a type of beetle, defining the nonstandard meaning as
“black person” and stating that when the term is “used with pinchi, [it is] equivalent to
[n*****]; pinchi mayate; [g*d** n*****])”); Tomás Almaguer, Race, Racialization,
and Latino Populations in the United States, Racial Formation in the TwentyFirst Century 143, 155-56 (Daniel Martinez HoSang et al. eds., 2012),
http://www.jstor.com/stable/10.1525/j.ctt1pn6cq.13 (last visited Aug. 2, 2021) (noting
that “mayate” is “clearly the most commonly used racial epithet invoked by ethnic
Mexicans and is always used in a disparaging way” and that its reference to a black Mexican
dung beetle “foreground[s] the blackness of [this] insect[] while also providing a sweeping,
dehumanizing move in the racialization process”). “In this circuit, we have previously
acknowledged that ‘mayate’ is Spanish slang for dark skinned people and means dung
beatle.” Rhines v. Salinas Const. Techs., Ltd., 574 F. App’x 362, 365 (5th Cir. 2014) (quoting
Spears v. Patterson UTI Drilling Co.,
337 F. App’x 416, 420 n.3 (5th Cir. 2009)).
11
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mere offensive utterance,” this slur is inherently and deeply “humiliating.”
Harris, 510 U.S. at 23.
Pride argues that the occasions in which epithets were used were too
isolated to give rise to a hostile work environment. The Supreme Court has
recognized that actionable hostile work environment claims generally involve
repeated conduct and that “a single act of harassment may not be actionable
on its own.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
For instance, the “mere utterance of an epithet which engenders offensive
feelings in an employee does not sufficiently affect the conditions of
employment” such as to be actionable. Harris,
510 U.S. at 21. Neither will
“simple teasing [or] offhand comments” alone be actionable. Faragher v.
City of Boca Raton,
524 U.S. 775, 788 (1998) (citation omitted).
Here, of course, we are not dealing with a single incident of
harassment. Johnson testified about two specific uses of deeply degrading
racial epithets by Palomares and one involving another, unnamed coworker,
and Yanez’s affidavit indicates there were other occasions in which similarly
vile language was employed outside of Johnson’s presence. But these
epithets—egregious as they are—are not the only record evidence of
harassment, so we need not decide if they alone could suffice to constitute a
hostile work environment. See Dediol v. Best Chevrolet, Inc., 655 F.3d 435,
442 (5th Cir. 2011) (observing that “the required level of severity of
seriousness varies inversely with the pervasiveness or frequency of the
conduct”). Indeed, viewing the all of the evidence in the light most favorable
to Johnson, we do not think the harassment here is properly characterized as
isolated.9
9
We note that even “isolated incidents” of harassment, if “extremely serious,”
can create a hostile work environment. Id. This must be so because the standard for
12
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For instance, a jury could find that Palomares’s racial hectoring
extended beyond the use of “n*****” and “mayate” to other demeaning
terms. According to Johnson, Palomares repeatedly referred to him as either
“mijo” or “manos”—in violation of PRIDE’s policy mandating that
employees be referred to solely by their given names—but never used those
actionable harassment is phrased in the disjunctive: the harassment must be severe or
pervasive. Accordingly, this court has recognized that, “[u]nder the totality of the
circumstances test, a single incident of harassment, if sufficiently severe, could give rise to
a viable” hostile work environment claim. WC&M Enters., Inc., 496 F.3d at 400; see also
Hudson v. Cleco Corp.,
539 F. App’x 615, 620 (5th Cir. 2013) (recognizing that the display
of a “hangman’s noose” at an African-American employee’s workplace could be the type
of “‘extremely serious’ isolated event” that constitutes actionable harassment (quoting
Faragher,
524 U.S. at 788)); Worth v. Tyer,
276 F.3d 249, 268 (7th Cir. 2001) (“[W]e have
often recognized that even one act of harassment will suffice [to create a hostile work
environment] if it is egregious.”); Lockard v. Pizza Hut, Inc.,
162 F.3d 1062, 1072 (10th Cir.
1998) (holding that a single incident of physically threatening and humiliating conduct was
sufficient to create a hostile work environment for a sexual harassment claim).
Sister circuits have concluded that even the limited use of severe racial epithets
can rise to the level of a hostile work environment. In Boyer-Liberto v. Fontainebleau Corp.,
the Fourth Circuit, sitting en banc, held that a supervisor’s use of the racial epithet “porch
monkey” on two occasions, without more, constituted a hostile work environment. 786
F.3d at 270, 280 (4th Cir. 2015). The Fourth Circuit reasoned that “this [w]as the type of
case contemplated in Faragher [v. City of Boca Raton] where the harassment, though
perhaps ‘isolated,’ can properly be deemed to be ‘extremely serious.’” Id. at 280-81
(quoting 524 U.S. at 788)); see also Ayissi-Etoh v. Fannie Mae,
712 F.3d 572, 580 (D.C. Cir.
2013) (Kavanaugh, J., concurring) (“[I]n my view, being called the n-word by a supervisor
. . . suffices by itself to establish a racially hostile work environment.”). Similarly, the
Seventh Circuit has held that two instances of a supervisor’s use of the n-word in an
employee’s presence combined with an additional racially offensive remark were sufficient
to establish a viable hostile work environment claim. Rodgers v. Western-Southern Life Ins.
Co.,
12 F.3d 668 (7th Cir. 1993) (observing that “[p]erhaps no single act can more quickly
alter the conditions of employment and create an abusive working environment than the
use of an unambiguously racial epithet such as ‘[n-word]’ by a supervisor in the presence
of his subordinates” (internal quotation marks and citation omitted)). Because this case
does not concern isolated incidents of harassment, we do not decide whether the isolated
use of the most odious epithet by Palomares, without more, could constitute actionable
harassment.
13
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terms in addressing the other, non-black employees. The district court
concluded that neither “mijo” or “manos” are “inherently offensive or
derogatory.” While neither of these terms are intrinsically offensive—
indeed, the district court observed that “mijo” is generally used as a term of
endearment—or necessarily related to race, we are mindful that the context
in which a word is used is key to determining whether it is offensive or
connected with race. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006)
(noting that factors like “inflection” and “tone of voice” can be crucial in
determining whether a word is deployed in a racially invidious manner). In
American English, there is a long and sordid history of people using
diminutives like “boy” to refer to adult black men in a racially invidious
manner. See, e.g.,
id. at 456 (explaining that evidence that a supervisor
referred to individual black employees as “boy” could constitute evidence of
racial discrimination); Bailey v. USF Holland, Inc.,
526 F.3d 880, 885–86 (6th
Cir. 2008). And, as stated, we also have a duty to make all reasonable
inferences in Johnson’s favor. Anderson,
477 U.S. at 255. Accordingly, we
conclude that Johnson has established a genuine issue of material fact as to
whether Palomares used “mijo” or “manos” in an objectively offensive
manner. After all, Palomares allegedly used the vilest of racial epithets in
Johnson’s presence. The interactions between the two are inescapably
colored by those epithets, and even seemingly innocuous “nicknames” like
“mijo” or “manos” can take on a racially insulting, bullying, or belittling cast
when viewed within the full breadth of the relationship between Palomares
and Johnson. Whether “mijo” and “manos” were actually used in an
objectively offensive racial manner is an issue for the factfinder.
Besides racist epithets, Johnson adduced further evidence of
mistreatment by Palomares that a jury could perceive as racial harassment.
Specifically, Johnson testified that Palomares hid paperwork he submitted in
connection with his application for a promotion at PRIDE. As Johnson
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stated, he twice applied to be promoted to the position of carpenter only to
have his paperwork go missing. That paperwork was, according to Johnson,
ultimately discovered in Palomares’s desk.10 In addition, the affidavit from
Yanez, Johnson’s co-employee, states that Palomares gave Johnson less
desirable work assignments.11 Considering both the alleged interference with
Johnson’s efforts to obtain a promotion and the less favorable work
assignments in the context of Palomares’s verbal harassment, it could be
inferred that these actions were likewise motivated by racial animus. Cf.
WC&M Enters., Inc., 496 F.3d at 400-01 (explaining that “in the context of”
more obvious evidence of religious discrimination, a factfinder could
conclude that a harasser’s act of banging on the glass partition to a
colleague’s office, though not overtly tied to religious animus, “was also
motivated by” religious prejudice).12
10
Johnson testified that his supervisor, Morales, and Bonham, another PRIDE
supervisor, informed him that the paper was found in Palomares’s desk. PRIDE contends
this testimony is inadmissible hearsay. That is incorrect. Morales and Bonham’s
statements regarding where Johnson’s missing promotion application materials were found
fall within the hearsay exemption under Federal Rule of Evidence 801 for
statements by an opposing party’s “employee on a matter within the scope of” the
employment relationship. Fed. R. Evid. 801(2)(D).
11
Although Yanez’s affidavit implies that Palomares had authority to assign tasks
to Johnson, as noted above, Johnson does not argue that Palomares was empowered by
PRIDE “to take tangible employment actions against” him—which is the authority that
distinguishes a supervisor from a co-employee under Title VII and § 1981, see Vance, 570
U.S. at 424. Indeed, Johnson specifically asserts that the framework for claims of nonsupervisory harassment applies.
12
See also Cole v. Bd. of Trustees of N. Ill. Univ., 838 F.3d 888, 896 (7th Cir. 2016)
(“[F]orms of harassment that might seem neutral in terms of race . . . can contribute to a
hostile work environment claim if other evidence supports a reasonable inference tying the
harassment to the plaintiff’s protected status.” (citing Landrau–Romero v. Banco Popular de
Puerto Rico,
212 F.3d 607, 614 (1st Cir. 2000) (“Alleged conduct that is not explicitly racial
in nature may, in appropriate circumstances, be considered along with more overtly
discriminatory conduct in assessing a Title VII harassment claim.”)).
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We think that the summary judgment record contains sufficient
evidence for a jury to conclude that harassment here was not isolated, and,
more importantly, that Johnson endured “an objectively hostile or abusive
work environment.” Harris, 510 at 21. Our decision is bolstered by evidence
suggesting that Johnson suffered psychological harm as a result of the
harassment, forcing him to take a medical leave of absence in March 2017 and
go on a reduced schedule when he returned to work in August 2017. A jury
could thus conclude that the harassment “unreasonably interfere[d]” with
Johnson’s “work performance.” Id. at 23.
To review, and taking the evidence in the light most favorable to
Johnson, Palomares used the term “mayate” on at least two occasions in
Johnson’s presence. Johnson knew this word translated to “n*****.”
Palomares also regularly used the racist epithets “pinchis mayates” and
“pinchis negros.” He assigned Johnson less favorable work tasks and
referred to Johnson—and Johnson only—as “manos” and “mijo,” terms
that could reasonably be interpreted as racially pejorative depending on
context-specific factors. In addition, Palomares twice hid paperwork that
Johnson submitted in his effort to receive a promotion. Johnson also endured
harassment perpetrated by another co-employee who once called him
“n*****” to his face.13 And the harassment Johnson suffered arguably
interfered with his ability to work at PRIDE. Under the totality of the
circumstances, a reasonable factfinder could conclude that the harassment
13
In his brief, Johnson claims that Palomares “stole” materials from the warehouse
that Johnson needed for job assignments. Johnson also argues that other workplace
episodes—namely, the alleged vandalism of his truck and the placing of a loaded magazine
clip on his truck—constitute evidence of race-based harassment. Because we hold that
Johnson has raised genuine issues of material fact regarding whether a hostile work
environment existed regardless of these additional incidents, we do not address whether
their connection to racial animus would be too speculative to withstand summary
judgment. See Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994).
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Johnson allegedly experienced at PRIDE was severe or pervasive enough to
constitute a hostile work environment.14 See id. at 400.
Although we conclude that Johnson has raised a genuine issue of
material fact as to whether the harassment he suffered was severe or
pervasive enough to alter the conditions of his employment, that is not the
end of the story. To sustain his burden and survive summary judgment,
Johnson must also make a sufficient showing that a genuine issue of fact exists
14
PRIDE contends that there is no actionable discrimination, relying chiefly on a
panel’s unpublished decision in Johnson v. TCB Constr. Co. (“TCB”), 334 F. App’x 666
(5th Cir. 2009). In that case, after a black employee asked his supervisor for a raise, the
supervisor threw the employee’s paycheck on the ground. When the employee bent down
to pick it up, the supervisor said, “[j]ust like a damn [n*****].”
Id. at 668 (internal
quotation marks omitted) (first set of alterations in original). Although that incident was
the only time the supervisor used the slur “n*****” in the employee’s presence, the
supervisor regularly used that slur outside of the employee’s presence and once referred to
the employee as “ugly” and “an old hermit.”
Id. Acknowledging that the supervisor’s
conduct was “highly objectionable,” the panel determined that the use of “n*****” in the
employee’s presence was “isolated” and did not interfere with the employee’s work
performance.
Id. at 671 (quoting Harris,
510 U.S. at 23). The panel also discounted the
supervisor’s frequent use of “n*****” because it occurred outside of the employee’s
presence.
Id. Accordingly, this court held that the supervisor’s conduct did not create an
actionable hostile work environment claim.
There are important distinctions between the present case and TCB. First,
Johnson described at least three instances in which the terms “mayate” or “n*****” were
uttered in his presence, whereas in TCB “n*****” was used in the plaintiff’s presence
only once. Accordingly, the alleged use in Johnson’s presence of the very most offensive
racial epithets was more frequent than the single, “isolated” use of “n*****” in the
presence of the employee in TCB. Faragher, 524 U.S. at 788. Moreover, Johnson testified
that he was frequently subjected to other potentially racially offensive epithets and stated
that his harasser assigned him less favorable work tasks and hid his job promotion materials.
And here, unlike in TCB, Johnson has adduced evidence that the harassment affected his
ability to do his job. See Harris,
510 U.S. at 23. More fundamentally though, we question
TCB’s reasoning and are not convinced we would reach the same result if faced with the
case today. And ultimately, because TCB is unpublished, it does not constitute a
precedential decision. 5th Cir. R. 47.5.
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regarding the fifth element of his hostile environment claim, i.e., that PRIDE
knew or should have known about the harassment and failed to take prompt
remedial action. Ramsey, 286 F.3d at 268.
An “employer has actual knowledge of harassment that is known to
‘higher management’ or to someone who has the power to take action to
remedy the problem.” Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir.
1999) (internal citation omitted). “The plaintiff bears the burden of showing
that his employer failed to take effective action.” Skidmore v. Precision
Printing & Pkg., Inc.,
188 F.3d 606, 616 (5th Cir. 1999). In this case, Johnson
testified that he complained about Palomares’s harassment, including
Palomares’s use of racist epithets, to multiple individuals at PRIDE; in
particular, Johnson informed the following individuals that he was enduring
on-the-job harassment: Morales, his direct supervisor who was physically
present when Palomares referred to Johnson as “es mayate”; Davenport,
PRIDE’s vocational rehabilitation counselor; and Bonham, a PRIDE
manager who, according to Johnson, responded to his complaint by stating
“that things like this would happen” and that he had “to be tough and keep
going.” Moreover, Strawder, PRIDE’s Human Resources Director,
conceded that Johnson complained to PRIDE on multiple occasions about
workplace harassment. Johnson has thus established a genuine fact issue as
to whether PRIDE had actual knowledge of the harassment he endured. See
Sharp,
164 F.3d 929.
The question, then, is whether PRIDE failed to take prompt remedial
action in response to its awareness that Johnson was being harassed at the
workplace. See Ramsey, 286 F.3d at 268. This court “ha[s] held that an
employer must take prompt and appropriate remedial action, ‘reasonably
calculated’ to end the harassment” in order to avoid liability. Waltman v.
Int’l Paper Co.,
875 F.2d 468, 479 (5th Cir. 1989) (quoting Jones v. Flagship
Int’l,
793 F.2d 714, 719-20 (5th Cir. 1986)). Here, PRIDE’s letter to the
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EEOC makes clear that Johnson had complained to Human Resources
personnel at PRIDE regarding harassment by Palomares even before Johnson
began working in the carpentry shop. And Johnson testified that, after he
started his tenure in the carpentry shop, he complained repeatedly to his
direct supervisor and to another PRIDE manager about Palomares’s use of
racial invective. Despite these complaints, Johnson contends that the
harassment continued.15 E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 466
(5th Cir. 2013) (en banc) (holding that a cursory and ineffectual investigation
into a plaintiff’s complaints does not constitute prompt remedial action).
Conversely, PRIDE submitted an affidavit from Strawder, the Human
Resources employee, averring that Johnson’s complaints were investigated
and “addressed as appropriate.” But, other than interviewing Palomares
regarding his alleged harassment of Johnson before Johnson started working
in the same carpentry shop as Palomares, PRIDE does not point to any
affirmative steps it took to investigate—let alone halt—the harassment
Johnson complained of. See Waltman, 875 F.2d at 479. Thus, although
“[w]hether an employer’s response to discriminatory conduct is sufficient
will necessarily depend on the particular facts of the case,” Williams-Boldware v. Denton Cnty., Tex.,
741 F.3d 635, 640 (5th Cir. 2014). (quoting
Hirras v. Nat’l R.R. Passenger Corp.,
95 F.3d 395, 399-400 (5th Cir. 1996)),
we have no trouble concluding that Johnson has created a genuine dispute of
fact as to whether PRIDE’s response, if any, to the harassment he allegedly
endured while he was employed in the carpentry shop was prompt,
appropriate, and reasonably calculated to stop the harassment. See Waltman,
875 F.2d at 479.
15
Even though Johnson does not specify the precise dates on which he complained
to PRIDE management, it is evident from his testimony that he raised objections regarding
Palomares’s harassment on multiple occasions.
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Accordingly, we reverse the district court’s summary judgment on
Johnson’s hostile work environment claim and remand for trial.
B.
Johnson next argues that the district court erred in dismissing his
claim that PRIDE discriminated against him by failing to promote him to a
supervisory position within the carpentry shop. Under the familiar
McDonnell Douglas burden-shifting analysis, at summary judgment, a plaintiff
must first establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of
discrimination based on a failure-to-promote theory, a plaintiff must show
that (1) he is a member of a protected class; (2) he sought and was qualified
for a position for which applicants were being sought; (3) he was rejected for
the position; and (4) the employer either (a) hired a person outside of the
plaintiff’s protected class, or (b) continued to seek applicants with the
plaintiff’s qualifications. McMullin v. Miss. Dep’t of Pub. Safety,
782 F.3d 251,
258 (5th Cir. 2015). Next, if the plaintiff carries his burden to establish a
prima facie case, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the underlying employment action.
Id. And if the employer satisfies this burden, the plaintiff must then provide
adequate evidence to show the reason proffered by the employer is a mere
pretext for unlawful discrimination.
Id.
As to the elements of Johnson’s prima facie case, the district court
correctly recognized that it is undisputed that he has established the first and
third elements. With respect to the first element, Johnson is black and thus
a member of a protected class. Regarding the third element, Johnson has
established that he was not selected for the promotion. However, the district
court erred in determining that PRIDE conceded that Johnson satisfied the
second element of his claim. The district court stated that the parties did not
dispute that Johnson “sought and was qualified for the position.” But
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PRIDE argued in its motion for summary judgment that Johnson could not
“identify how he was qualified or what the qualifications of the selected
persons were.” On appeal, PRIDE continues to dispute that Johnson
possessed the necessary qualifications for the position. Although Johnson
did offer evidence regarding his own qualifications, he failed to adduce any
evidence of the qualifications required for the position sought. Accordingly,
Johnson did not establish that he was qualified for the position and therefore
has failed to carry his burden to establish a prima facie case on his failure-topromote claim. Cf. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 310 (5th
Cir. 2004) (plaintiffs failed to satisfy qualifications prong of prima facie case
when they “submitted no evidence that their . . . experience was
commensurate with that of” the posted requirements for the position they
sought).
C.
Johnson contends that the district court erred in granting PRIDE
summary judgment on his constructive discharge claim. This claim requires
a plaintiff, at summary judgment, to offer evidence that the employer made
the employee’s work conditions “so intolerable that a reasonable employee
would feel compelled to resign.” Stover v. Hattiesburg Pub. Sch. Dist., 549
F.3d 985, 991 (5th Cir. 2008). The evidence must demonstrate a greater
severity or pervasiveness of harassment than the minimum required to
establish a prima facie hostile work environment claim.
Id. The following
events are relevant in determining whether a reasonable employee would feel
compelled to resign:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (6)
offers of early retirement that would make the employee worse
off whether the offer were accepted or not.
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Id. (internal quotation mark and citation omitted).
As an initial matter, PRIDE argues that Johnson’s claim is barred due
to his failure to exhaust administrative remedies. However, the
administrative exhaustion doctrine that PRIDE cites is inapplicable in this
case because it pertains only to a Title VII plaintiff and not to a plaintiff, like
Johnson, who brings his claims under § 1981. See Caldwell v. Nat’l Brewing
Co., 443 F.2d 1044, 1046 (5th Cir. 1971) (holding that the “administrative
remedies under Title VII . . . can be deliberately bypassed by a § 1981
plaintiff”).
In any event, Johnson’s constructive discharge claim fails on the
merits. Johnson contends that, in addition to the harassment discussed in
relation to his hostile work environment claim, PRIDE’s alleged failure to
address his complaints of harassment, and the effect that failure had on his
diagnosed mental disabilities, constitute constructive discharge. However,
none of the factors relevant to whether a reasonable employee would feel
compelled to resign are present here. Johnson adduced no evidence that he
was demoted or suffered a reduction in salary or job duties.
Additionally, there is only a minimal temporal nexus between the
alleged harassment and Johnson’s resignation. Johnson filed his EEOC
charge on February 27, 2017—nearly seven months before he resigned in
September 2017. And he does not allege that any specific harassment or
other adverse employment actions occurred during the seven months
between these events. Further, in February 2017, PRIDE transferred
Palomares outside of the carpentry shop to which Johnson was assigned.
Thus, Johnson was not even working in the vicinity of his alleged harasser for
nearly the last seven months he was employed by PRIDE. The lack of a
temporal connection between the alleged harassment and Johnson’s
resignation undermines his contention that he was constructively discharged.
See Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755-56 (5th Cir. 1986)
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(concluding that a five-month gap between the last alleged act of harassment
and plaintiff’s resignation did not support a finding of constructive
discharge).
The district court did not err in granting summary judgment in favor
of PRIDE on Johnson’s constructive discharge claim.
D.
Johnson also challenges the rejection of his retaliation claim. The
McDonnell Douglas burden-shifting framework applies, so Johnson has the
initial burden to set forth a prima facie case of retaliation. A “prima facie
case of retaliation under either Title VII or § 1981” requires that a plaintiff
“show that: (1) he engaged in an activity protected by Title VII; (2) he was
subjected to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse employment action.” Davis,
383 F.3d at 319. PRIDE does not dispute that Johnson has created a fact issue
as to whether he engaged in protected activity by making complaints to the
Human Resources Department and sending a letter to the EEOC. Turning
to the second element of his prima facie case, Johnson contends he suffered
an adverse employment action in the form of his constructive discharge.
Because we have already concluded that Johnson was not constructively
discharged, he cannot establish that he experienced an adverse employment
action in this respect. Hence, Johnson has failed to establish his prima facie
case of retaliation. We affirm the district court’s grant of summary judgment
in favor of PRIDE on this claim.
V.
For these reasons, we affirm the district court’s grant of summary
judgment to PRIDE on all claims, with the exception that we reverse its ruling
with respect to Johnson’s hostile work environment claim. Accordingly, we
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AFFIRM in part, REVERSE in part, and REMAND for further
proceedings consistent with this opinion.
24
