     Case: 19-20294   Document: 00515446891     Page: 1   Date Filed: 06/09/2020




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

                                                                       FILED
                                 No. 19-20294                       June 9, 2020
                                                                  Lyle W. Cayce
CARLA WEST,                                                            Clerk


             Plaintiff - Appellant

v.

CITY OF HOUSTON, TEXAS,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, HO, and OLDHAM, Circuit Judges.
PER CURIAM:
      Carla West appeals an adverse summary judgment entered on her
claims against her employer, the City of Houston, for discrimination and
creating a hostile work environment in violation of Title VII of the Civil Rights
Act of 1964. We affirm.
                                       I.
      West, an African American woman, began her tenure with the Houston
Fire Department in 1994 when she enrolled in Houston’s Fire Academy. She
failed the Academy’s graduation test, which she now alleges was administered
in a discriminatory manner, and was fired.        The Department eventually
rehired West. And two years after failing the Academy’s graduation exam, she
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                                No. 19-20294
passed and joined the Department as a firefighter. While working for the
Department, West trained to become a paramedic.           After completing her
training, the Department promoted West to the role of engineer/operator
paramedic at Station 9.
      At Station 9, West took issue with her fellow firefighters’ behavior. Her
colleagues would tell jokes to one another that she found inappropriate,
including jokes about “men’s testicles.”       They passed gas, burped, and
occasionally grabbed their private parts at the dinner table. They brought
adult magazines to the station and left them in common spaces. They also
posted inappropriate pictures on the station walls, including some racially
derogatory photographs.     West also twice complained about seeing her
coworkers sleeping at the station in their underwear. And in one instance, one
of West’s subordinates threw a medical bag at her.        In response to these
behaviors, West isolated herself from her coworkers.
      In addition to finding fault in her coworkers and subordinates, West
alleged that her station superiors denied her overtime opportunities because
of her race and sex.
      Two types of overtime decisions are made at the station level: holdover
and ride-up.   Holdover overtime occurs when a captain “holds over” an
employee from the outgoing shift to fill an unanticipated vacancy on the
incoming shift. This type of overtime is not meant to last an entire shift.
Instead, it merely serves as a stopgap to fill an unexpectedly vacant position
until a volunteer overtime employee assigned by the Department can arrive.
The second type of station-level overtime is ride-up overtime, which occurs
when an individual ranked directly beneath an absent employee fills that
vacant position.




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                                       No. 19-20294
         West claims that she rarely received those overtime opportunities
despite asking for them. Instead, she insists that her station supervisors
would select her white, male colleagues for overtime.
         West transferred from Station 9 in 2010, but prior to her transfer, she
filed a discrimination charge with the Equal Employment Opportunity
Commission alleging that she was subjected to a hostile work environment and
discriminated against due to her race and sex. The EEOC issued a right-to-
sue letter on those charges, and West filed this action in federal court. The
district court, after receiving a report and recommendation from the
magistrate judge, adopted the report and granted summary judgment to the
city.
                                            II.
         This court reviews grants of summary judgment de novo. Petzold v.
Rostollan, 946 F.3d 242, 247 (5th Cir. 2019).                   Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). While we review the evidence in the light most favorable to
the      nonmoving       party,   “conclusional   allegations    and   unsubstantiated
assertions may not be relied on as evidence by the nonmoving party.” Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
                                            A.
         Title VII protects employees against race and sex discrimination in the
workplace. 42 U.S.C. § 2000e-2(a). To demonstrate a prima facie case of
employment discrimination, West must show that she (1) belongs to “a
protected class”; (2) “was qualified for the position”; (3) experienced “an adverse
employment action”; and (4) was “similarly situated” to other employees who
were not members of her protected class and who “were treated more
favorably.” Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).
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                                 No. 19-20294
      As the district court found, West cannot establish a genuine dispute of
material fact regarding the fourth prong. We have defined “similarly situated”
narrowly, requiring the employees’ situations to be “nearly identical.” Wheeler
v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005) (quoting Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)). Employees are similarly
situated when they (1) “held the same job or responsibilities,” (2) “shared the
same supervisor or had their employment status determined by the same
person,” and (3) “have essentially comparable violation histories.” Lee v. Kan.
City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (footnotes omitted).
      West identifies three individuals as potential comparators: Robert Allen,
Robert Haynes, and Michael Chandler. Each is a white male working the same
shift and at the same station as she did between 2007 and 2010. West argues
that she was treated less favorably than those men when station-level
supervisors assigned holdover and ride-up overtime.
      First, regarding her holdover overtime, West’s proffered evidence fails to
show that her station-level supervisors treated her less favorably than her
white, male comparators. In fact, it shows that West received more favorable
treatment than Allen and Chandler. During the period in question, West’s
supervisor held her over three times for a total of 3.25 hours. Allen and
Chandler were both held over only once, and worked 1.0 and 1.5 overtime
hours, respectively.
      Then there is Haynes. Haynes and West received an equal number of
holdover opportunities—three. But Haynes received 16.75 hours of holdover
overtime, while West received only 3.25 hours. West insists that the difference
in hours shows that she received less favorable treatment.            But that
misconstrues the nature of holdover overtime. Station-level supervisors use
holdover overtime to fill unexpected, last-minute absences until a replacement
arrives.   They have no discretion to decide the length of the overtime
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                                    No. 19-20294
assignment.     Rather, the hours depend entirely on when the volunteer
replacement arrives.      Because station-level supervisors cannot control the
number of hours worked on a holdover assignment, West cannot use a
discrepancy in such hours to demonstrate that she received less favorable
treatment than Haynes.
       Regarding ride-up overtime, West’s allegations fail because neither
Allen, Haynes, nor Chandler (1) “held the same job or responsibilities” or (2)
“shared the same supervisor” as West. Lee, 574 F.3d at 260 (footnotes omitted).
       Allen,   Haynes,     and     Chandler        worked      as   fire   suppression
engineer/operators. They were responsible for driving the pumper truck or
ambulance at Station 9. As an engineer/operator paramedic, West drove the
“squad unit”—a smaller emergency medical vehicle. And as a paramedic, West
had    to   possess    certain    medical        knowledge   that    fire   suppression
engineer/operators did not.         Those differences make fire suppression
engineer/operators and engineer/operator paramedics too different to be valid
comparators. See Morris v. Town of Independence, 827 F.3d 396, 402 (5th Cir.
2016) (noting that a difference in “job functions” was a factor in determining
that plaintiff was not similarly situated to her proffered comparator).
       Furthermore, West and her comparators had different supervisors
deciding whether they would receive ride-up overtime work. The proffered
comparators’ direct supervisor was the shift captain. West’s direct supervisor
was the EMS captain. “Employees with different supervisors . . . generally will
not be deemed similarly situated.” Lee, 574 F.3d at 259.
       Accordingly, West failed to raise a genuine dispute of material fact
regarding the fourth element of her discrimination claim.
                                            B.
       Title VII also makes it unlawful for employers to require “people to work
in a discriminatorily hostile or abusive environment.” Gardner v. CLC of
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                                     No. 19-20294
Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “A hostile work environment claim
is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)). To survive summary
judgment on a hostile work environment claim based on race or sex
discrimination, a plaintiff must show that (1) she is a member of a protected
class; (2) she suffered unwelcomed harassment; (3) the harassment was based
on her membership in a protected class; (4) the harassment “affected a term,
condition, or privilege of employment”; and (5) “the employer knew or should
have known” about the harassment and “failed to take prompt remedial
action.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
      We agree with the district court that West failed to show a genuine
dispute of material fact regarding the fourth prong of her hostile work
environment claim—that the harassment affected a term, condition, or
privilege of employment. 1
      “To affect a term, condition, or privilege of employment, the harassment
must be sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Aryain v. Wal-Mart
Stores Tex. LP, 534 F.3d 473, 479 (5th Cir. 2008) (cleaned up). The alleged
conduct must be objectively and subjectively hostile or abusive. Harris, 510
U.S. at 21–22.      The totality of the employment circumstances determines



      1 West asks this court to consider as actionable the Department’s administration of
the 1994 graduation exam, which is time-barred under 42 U.S.C. § 2000e-5(e)(1), as part of
her hostile work environment claim through the continuing violation doctrine. However,
West makes no effort to demonstrate how the Department’s 1994 actions and the actions of
her coworkers thirteen years later were related and continuous, as required under the
continuing violation doctrine. See Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th
Cir. 2009). Therefore, although we consider it as “relevant background conduct,” the 1994
graduation exam is not actionable. Ramsey, 286 F.3d at 269.
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                                No. 19-20294
whether an environment is objectively hostile. Id. at 23. Although no single
factor is determinative, pertinent considerations are (1) “the frequency of the
discriminatory conduct”; (2) “its severity”; (3) “whether it is physically
threatening or humiliating, or a mere offensive utterance”; and (4) “whether it
unreasonably interferes with an employee’s work performance.” Id.
      First, West cannot show that her harassment was frequent or pervasive.
She admits that a number of the complained-of actions were isolated or
infrequent—such as when a subordinate threw a bag at her (once), when she
discovered her fellow firefighters asleep in their underwear (twice), and when
she saw her coworkers grab themselves at the dinner table (occasionally).
      Regarding the other complained-of conduct, West provides no evidence
of their frequency. The best she can do is claim that she meets this factor
because her husband said she often complained to him about the presence of
adult magazines at work. But frequently complaining about something does
not mean it happened frequently.      Without more, West cannot show the
harassment was pervasive. Compare Hockman v. Westward Commc’ns, LLC,
407 F.3d 317, 328 (5th Cir. 2004) (finding that conduct was not pervasive when
the plaintiff “did not even estimate how many times [the] conduct occurred”),
with Lauderdale v. Tex. Dept. of Criminal Justice, Institutional Div., 512 F.3d
157, 164 (5th Cir. 2007) (finding harassment pervasive when plaintiff received
unwanted phone calls “ten to fifteen times a night for almost four months”),
and Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996)
(finding harassing conduct was pervasive when it was described as occurring
“two or three times a week”).
      West also fails to meet the second and third factors: that the alleged
actions were severe, physically threatening, or humiliating. See Harris, 510
U.S. at 23. Those factors “are sufficiently demanding to ensure that Title VII
does not become a ‘general civility code.’” Faragher v. City of Boca Raton, 524
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                                 No. 19-20294
U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998)). West seeks to impose Title VII liability on her employer
because her coworkers passed gas at the dinner table; infrequently slept in
their underwear at the station; made the occasional racially insensitive joke;
and brought adult magazines to the station. That is not severe or humiliating
under the governing standards. See Faragher, 524 U.S. at 788 (“Properly
applied, [the standards for judging hostility] will filter out complaints
attacking ‘the ordinary tribulations of the workplace, such as the sporadic use
of abusive language, gender-related jokes, and occasional teasing.’”) (quoting
B. LINDEMANN & D. KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW 175
(1992)); Shepherd v. Comptroller of Pub. Accounts of the State of Tex., 168 F.3d
871, 874 (5th Cir. 1999) (finding harassment was not severe when a male
coworker made comments to a female plaintiff about her private parts and
intermittently rubbed plaintiff’s arm).
      Nor did anyone physically threaten West. The closest incident was when
a subordinate threw a bag at her. But that is the type of “isolated incident[]”
the Supreme Court has cautioned against finding actionable under Title VII.
Faragher, 524 U.S. at 788.
      Finally, West has not shown that the harassment interfered with her
work performance. She pointed to no evidence that her coworkers’ actions
“destroy[ed]” her “opportunity to succeed in the workplace.” Weller v. Citation
Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). In fact, she did not even
allege that her fellow firefighters’ actions “unreasonably interfere[d]” with her
work performance. Harris, 510 U.S. at 23.
      In short, the most West has shown is that her colleagues were sometimes
offensive and boorish. But Title VII does not impose a “general civility code”
on employers. Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 80). The


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                                No. 19-20294
district court did not err in granting summary judgment on West’s hostile work
environment claim.
                                     III.
      For the reasons discussed above, we affirm the district court’s grant of
summary judgment.




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