   Case: 10-61004       Document: 00511578539         Page: 1     Date Filed: 08/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 22, 2011
                                     No. 10-61004
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




NORMAN G. GOBERT,

                                                  Plaintiff-Appellant,

versus

SAITECH, INCORPORATED; COMPUTER SCIENCES CORPORATION,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:09-CV-673




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Norman Gobert appeals a summary judgment in favor of Saitech, Inc.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 10-61004

(“Saitech”), on Title VII and ADEA hostile-work-environment and disparate-
treatment claims, and a Title VII retaliation claim.1 We affirm.


                                           I.
      Gobert is a black, 48-year-old IT support specialist who worked for Saitech
since March 2006. Around July 2008, Saitech sent him to work on-site at the
NASA Shared Service Center (“NSSC”) under the supervision of CSC. As part
of his duties, he was responsible for ensuring that all secure NSSC documents
were processed on a daily basis.
      In October and November 2008, according to CSC’s IT director, Rachel
Raines, Gobert failed to monitor the processing of NSSC documents for more than
a week, so Gaines demanded in a letter to Saitech that he be immediately
removed from NSSC facilities because his actions “indicated a complete unwill-
ingness to comply with legitimate management direction and caused unaccepta-
ble disruptions in the flow of documents.” Gaines further explained that Gobert’s
actions caused “serious damage” to NSSC’s performance and “resulted in serious
client concerns.” She stated in her affidavit that Gobert had been reminded of his
document processing duties “on multiple occasions.”
      Saitech says that because it had no other contracts on which to staff
Gobert, it immediately terminated his employment. Gobert alleges that those
reasons were pretexts and that he was terminated because of his race and age.


                                          II.
      Assuming arguendo that Gobert made out a prima facie case of disparate
treatment based on race and age, a plaintiff must produce substantial evidence


      1
        The district court also granted summary judgment to Computer Sciences Corporation
(“CSC”), the company that supervised Gobert, because it was not his employer. Gobert does
not appeal that decision.

                                           2
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                                       No. 10-61004

that the defendant’s nondiscriminatory reason for a termination is merely a pre-
text for illegal discrimination.2 As evidence of pretext, Gobert points to (1) his
favorable performance review about a month before the termination, as well as
previous positive reviews and an earlier promotion, (2) a white co-worker’s
alleged comment to other co-workers that they should “be careful what you say
in front of [Gobert] because [he] is black,” and (3) CSC’s approval of cell phones
for some white IT employees but not for Gobert.
      That is not “substantial” evidence of pretext sufficient to overcome sum-
mary judgment. The performance reviews and the promotion do not speak to
Gobert’s actions immediately preceding his termination—the actions that Saitech
says caused his termination. Indeed, Gobert does not point to any evidence
disputing that he failed to monitor the processing of documents for over a week.
Morever, the fact that he previously received positive performance reviews by the
same supervisors who fired him suggests, if anything, a lack of racial or age-
based animus.
      As for the isolated comment by the co-worker, Gobert does not in any way
connect it to his supervisors, let alone to their actions in terminating him. And
he admits that his supervisors did not make inappropriate comments.
      As for the cell phones, there is conflicting evidence about whether they
were available only to supervisorsSSwhich Gobert was notSSor also to some lower-
ranking employees. But even assuming the latter, Gobert admitted that the
employees with company cell phones had different job duties, and he has provided
no evidence that they were similarly situated to him. Accordingly, the district
court properly granted summary judgment on the disparate-treatment claims.



       2
         See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (holding that,
to avoid a judgment as a matter of law, “‘the plaintiff must produce substantial evidence of
pretext’” (quoting Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402-03 (5th Cir.
2001))).

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                                       No. 10-61004

                                             III.
      With respect to the hostile-work-environment claims,3 Gobert alleges on
appeal only that Raines, embarrassed him a couple of times at meetings (without
referencing his race or age) and assigned him a lousy office. Such conduct is nei-
ther sufficiently severe or pervasive as to constitute harassment,4 nor has Gobert
provided any evidence that it was based on race or age, see Ramsey v. Henderson,
286 F.3d 264, 268 (5th Cir. 2002).


                                             IV.
      With respect to Gobert’s retaliation claim, assuming arguendo that he
engaged in protected activity, he has not provided any evidence of a causal link
between that activity and his eventual termination. See Turner, 476 F.3d at 348.
That claim fails as well.
      AFFIRMED.




       3
         We assume arguendo that a hostile work environment claim is available under the
ADEA. See Mitchell v. Snow, 326 F. App’x 852, 854 n.2 (5th Cir. 2009) (“We have never held
that the ADEA contemplates hostile work environment claims.” (citing McNealy v. Emerson
Elec. Co., 121 F. App’x 29, 34 n.1 (5th Cir. 2005))).
       4
         See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347-48 (5th Cir. 2007)
(“Although discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe
or pervasive to support evidence of a Title VII violation, simple teasing, offhand comments,
and isolated incidents, (unless extremely serious) will not amount to discriminatory charges
that can survive summary judgment.” (internal quotation marks, brackets, and citations omit-
ted)).

                                              4
