     Case: 17-30793      Document: 00514443408         Page: 1    Date Filed: 04/24/2018




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

                                                                                FILED
                                    No. 17-30793                            April 24, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
EIAD ODEH,

              Plaintiff - Appellant

v.

CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE,

              Defendant - Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-793


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       After Baton Rouge officials decided to reorganize the City-Parish’s
Department of Public Works, Eiad Odeh was transferred to a new position with
Emergency Management Services (EMS). Unhappy with the transfer, Odeh
resigned his position with the City-Parish. Soon thereafter he filed this lawsuit
asserting a variety of claims. The district court granted the defendant’s motion
for summary judgment. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30793
                                       I.
      Odeh had worked for the City-Parish for a few years when he was
promoted to Special Assistant to the Director of Public Works in 2005. But the
City-Parish later decided to split Public Works into six departments, which
eliminated both the Director and Special Assistant positions. So in 2013 the
City-Parish transferred Odeh to a technical position with EMS, in which he
would oversee databases and perform IT tasks. In that new position, Odeh
received the same pay and benefits. At the start of the 2014 budget cycle, the
City-Parish requested that Odeh “officially apply” for this position, so it could
pay him out of EMS’s budget. Odeh refused. He instead requested a transition
back to his position in Public Works—a position that no longer existed. By the
middle of that year, Odeh took leave under the Family and Medical Leave Act.
He never returned to work. Odeh resigned in October 2014.
      In the lawsuit he then filed, Odeh alleged numerous instances of
discrimination throughout his tenure. For example, he said the City-Parish
passed him over for a promotion to information systems director and failed to
consult him about the Public Works reorganization. He also cited several
occasions when coworkers made derogatory comments about Odeh being of
Middle Eastern descent. And the City-Parish reprimanded Odeh for adding a
layer of security to another employee’s computer without authorization from
his superiors. But there is no indication that the reprimand was accompanied
by any change in Odeh’s employment status; in fact, the City-Parish issued the
reprimand around the same time it requested that Odeh formally apply to his
new position with EMS.
      Apart from that alleged discrimination, Odeh also contends that the
City-Parish has, since 2015, used a traffic signs and signals database that he
created during his employment. It does so, he emphasizes, without his consent
and without compensating him.
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                                        No. 17-30793
       Odeh filed suit in December 2014, asserting discrimination, harassment,
defamation, and whistleblower claims under state law. After the City-Parish
removed the case to federal court, Odeh amended his complaint to include
federal section 1983 claims. 1          The district court granted the City-Parish’s
motions for summary judgment and dismissed Odeh’s claims. 2
                                               II.
       We first address whether the district court erred in granting the motion
for summary judgment on Odeh’s misappropriation of intellectual property,
copyright infringement, and conversion claims asserted under section 1983. 3
These claims involve Odeh’s allegations that the defendant copied the source



       1  Although Odeh did not seek remand, the district court lacked jurisdiction at the time
of removal because he had alleged only state law violations. Even though jurisdiction is
ordinarily evaluated at the time of removal, such a defect may be cured when federal
jurisdiction is established by the time final judgement is entered. Caterpillar, Inc. v. Lewis,
519 U.S. 61, 73 (1996); see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 584 (2004)
(Ginsburg, J., dissenting); see also Camsoft Data Sys., Inc. v. S. Electronic Supply, Inc., 756
F.3d 327, 336–38 (applying Caterpillar when jurisdiction is cured by the addition of a federal
claim). We therefore have jurisdiction.
        2 Odeh does not appeal the dismissal of his defamation or invasion-of-privacy claims.

He also does not sufficiently challenge the dismissal of his whistleblower claims on appeal.
Even though he asserted that “he was ultimately retaliated against after discovering and
reporting violations of law which were being committed by the City/Parish,” Odeh did not
further develop that challenge in the argument section of his opening brief. An appellant’s
argument must contain “contentions and the reasons for them, with citations to the
authorities and parts of the record on which appellant relies.” Fed. R. App. P. 28(a)(8)(A); see
United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005) (“Our cases make it clear that an
argument not raised in appellant’s original brief as required by [Rule 28] is waived.”). Even
if Odeh did not forfeit that challenge, his whistleblower claims would be unavailing. As the
district court noted, Odeh failed to present evidence that the City-Parish committed actual
legal violations, that he reported those violations, or that he suffered reprisals for doing so.
        3 Odeh argues that his amended complaint contained misappropriation, copyright,

and conversion claims independent of section 1983. The complaint is not clear on this score.
But in his opposition to summary judgment, Odeh repeatedly categorized these claims as
section 1983 violations even when the defendant tried to treat them as freestanding claims.
So he is estopped from now treating them as independent claims. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (noting that absent “extraordinary
circumstances” this court will not permit parties “to raise an issue for the first time on appeal
merely because a party believes that he might prevail if given the opportunity to try a case
again on a different theory”).
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                                  No. 17-30793
code for his company’s “Commercial Building Inspector” software and
continued to use the traffic database after he tried to withdraw permission. To
show the City-Parish is liable under section 1983, Odeh must prove that (1) an
official policy (2) promulgated by Baton Rouge (3) was the moving force behind
the violation of a federal right. Peña v. City of Rio Grande City, 879 F.3d 613,
621 (5th Cir. 2018). The section 1983 claims alleging misappropriation and
conversion fail for a reason even more fundamental than the one the district
court cited: they are rights created under state law, but section 1983 is only a
vehicle for enforcing rights “secured by the Constitution and laws” of the
United States. 42 U.S.C. § 1983; Baker v. McCollan, 443 U.S. 137, 146 (1979);
Aujla v. Hinds Cty., 61 F. App’x. 917 (5th Cir. 2003). As to the one federal right
Odeh does invoke, the one protecting against copyright infringement, the
district court correctly recognized that Odeh failed to identify the official policy
or custom that is necessary to establish section 1983 liability against a public
entity. Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978). Odeh’s section
1983 claims therefore fail.
                                        III.
      Odeh also argues that the district court erred in granting summary
judgment as to his national origin discrimination claims. Though he brought
these claims under state law, Louisiana courts look to federal Title VII caselaw
when interpreting Louisiana antidiscrimination statutes. Rayborn v. Bossier
Par. Sch. Bd., 881 F.3d 409, 415 (5th Cir. 2018) (recognizing that fact and
applying Title VII standards to plaintiff’s state law retaliation claim). To
establish a discrimination claim under Title VII, the plaintiff must have
suffered an adverse employment action. Thompson v. City of Waco, 764 F.3d
500, 503 (5th Cir. 2014). Actions that do not “affect job duties, compensation,
or benefits” are not adverse. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th
Cir. 2004) (quoting Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575
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                                       No. 17-30793
(5th Cir. 2003)). That is because they are not “ultimate employment decisions
such as hiring, granting leave, discharging, [and] promoting.” Id. (quoting
Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)).
       The reprimand and transfer were not adverse employment actions. 4 The
written reprimand amounted to little more than a notation in Odeh’s
employment record, accompanied by a warning that “[a]ny further incidents of
this nature in the future will result in a more severe disciplinary action.” This
is not an ultimate employment decision. See Thibodeaux-Woody v. Hous. Cmty.
Coll., 593 F. App’x 280, 286 (5th Cir. 2014) (“[A] written reprimand, without
evidence of consequences, does not constitute an adverse employment action.”).
As for the transfer to another position, that amounts to an adverse action only
if the change makes the employee’s job worse. Pegram, 361 F.3d at 283; see
Tyler v. Union Oil Co. of Ca., 304 F.3d 379, 394–95 (5th Cir. 2002) (finding that
plaintiff was not constructively discharged, and therefore suffered no adverse
action, because the position he was transferred to afforded the same salary,
was not a demotion, did not involve menial or degrading work, and entailed
comparable responsibilities). Odeh received the same pay and benefits at EMS
as he did at Public Works, and he served in a similar role. His view that the
reassignment resulted in a less desirable position does “not lift him over the
hurdle of summary judgment for the purpose of adverse employment action”
when a reasonable person would not view the transfer as a demotion. Pegram,
361 F.3d at 283.




       4 The district court correctly found that the other alleged incidents of discrimination
occurred before the prescription date and were not subject to Odeh’s continuing violation
argument. See La. R.S. § 23:303(D) (outlining a maximum prescription period of 18 months);
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114–15 (2002) (holding that discrete
instances of discrimination, as opposed to continuing violations, are only actionable if they
occur within the appropriate time period); Heath v. Bd. of Supervisors for S. Univ. & Agric.
& Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017) (same).
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                                      No. 17-30793
       A constructive discharge is an adverse employment action—the point of
that label being that it is akin to the paradigmatic adverse action of
termination—but Odeh has not shown that is what happened to him.                          A
constructive discharge occurs when an employer intentionally makes working
conditions so intolerable that a reasonable employee would be forced to resign.
Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008). In
assessing those working conditions, our court considers whether the plaintiff
was demoted, paid less, reassigned to menial or degrading work, subject to
employer harassment or humiliation that was calculated to encourage the
resignation, or asked to resign. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d
473, 481 (5th Cir 2008). Odeh cannot point to any of these situations that can
lead to working conditions being so intolerable that a resignation will be
treated as a termination. See Stover, 549 F.3d at 992 (finding no constructive
discharge because the evidence showed only that plaintiff encountered
difficulties in dealing with her supervisor and was disgruntled about a high-
level administrator receiving greater benefits); see also Perret v. Nationwide
Mut. Ins. Co., 770 F.3d 336, 339 (5th Cir. 2014) (expressing skepticism that a
plaintiff on medical leave for two months prior to his resignation could be
subject to working conditions so intolerable that a reasonable person would
feel compelled to resign).
       Because Odeh was not subject to an adverse employment action, we
affirm the dismissal of his discrimination claims.
                                            IV.
       Lastly, we address whether Odeh’s hostile work environment claims can
survive summary judgment. 5 To prevail on a hostile work environment claim,



       5Odeh arguably fails to raise this claim on appeal. But giving him the benefit of the
doubt as a pro se litigant, we address it here.
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                                No. 17-30793
Odeh must show, among other things, that he was subject to harassment based
on his national origin that affected a term, condition, or privilege of his
employment. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th
Cir. 2005). The conduct alleged must be objectively hostile and abusive. Id.
Odeh’s evidence does not create disputed issues as to whether the reprimand
or transfer was based on his national origin; affected a term, condition, or
privilege of his employment; or would have been offensive to a reasonable
person.    Additionally, offhand comments and isolated incidents, unless
“extremely serious,” do not suffice to alter the terms and conditions of
employment. Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 445 (5th Cir.
2017) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). This
claim fails.
                                     ***
      The judgment of the district court is AFFIRMED.




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