     Case: 15-40162         Document: 00513403940          Page: 1     Date Filed: 03/02/2016




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

                                                                              FILED
                                                                           March 2, 2016
                                         No. 15-40162
                                                                           Lyle W. Cayce
                                                                                Clerk
PAUL D. BROOKS; ERICK GUILLORY; RICKY RUFFIN; SAMUEL W.
JOHNSON; ELLIS E. BYRD; MICHAEL SPENCER; JONATHAN E.
GREENWAY 1; WAYNE E. JOHNSON,

                 Plaintiffs – Appellants

v.

FIRESTONE POLYMERS, L.L.C., also known as Firestone; BRIDGESTONE
AMERICAS HOLDING, INCORPORATED,

                 Defendants – Appellees




                      Appeal from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 1:12-CV-325


Before CLEMENT and HAYNES,                            Circuit    Judges,      and         GARCIA
MARMOLEJO, District Judge.*
PER CURIAM:**




       1Various documents in the record spell this plaintiff’s name as “Greenaway.”
However, our caption and the district court’s caption spell it “Greenway.”
       *   District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40162
       Plaintiffs in this case, African-American employees or former employees
of Firestone Polymers, L.L.C. (“Firestone”), appeal the dismissal of their claims
against Firestone for employment discrimination, brought pursuant to Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000h-6;
42 U.S.C. § 1981; the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12112(a); the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5(e);
and Executive Order No. 11246. 2 Plaintiffs allege that while employed by
Firestone, racial discrimination resulted in, among other things, the denial of
training and overtime opportunities for Plaintiffs and that abusive conditions
created a hostile work environment. The district court dismissed these claims
on Firestone’s motions for summary judgment and entered final judgment
against Plaintiffs, which they timely appealed. For the following reasons, we
AFFIRM.
                                             I.
       We review the grant of summary judgment de novo. United States v.
Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011). Summary judgment is
appropriate when “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).
Where the nonmoving party would have the burden of proof at trial, the
nonmoving party “must identify specific facts within the record that
demonstrate the existence of a genuine issue of material fact.” CQ, Inc. v. TXU
Mining Co., 565 F.3d 268, 273 (5th Cir. 2009). The nonmoving party must




       2  The Plaintiffs in this case include Paul D. Brooks, Erick Guillory, Ricky Ruffin,
Samuel W. Johnson, Ellis E. Byrd, Michael Spencer, Jonathan E. Greenway, and Wayne E.
Johnson. We will refer to them collectively as “Plaintiffs.” The original complaint included
Bridgestone Americas, Inc., as a defendant, but the district court dismissed Bridgestone from
the case, and the employees do not seek review of this order. See Hughes v. Johnson, 191
F.3d 607, 613 (5th Cir. 1999).
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                                       No. 15-40162
“articulate the precise manner in which the submitted or identified evidence
supports his or her claim” to survive summary judgment. Id. (citation omitted).
                                              II.
       Plaintiffs challenge the district court’s grant of summary judgment
because they claim the district court erred by: (1) concluding that Plaintiffs’
failure to train claims did not involve adverse employment actions as required
to plead a prima facie case for employment discrimination; (2) concluding that
Plaintiffs did not meet their burden to highlight specific evidence supporting
their denial of overtime claims; and (3) failing to consider Plaintiffs’ aggregate
experiences in dismissing Plaintiffs’ hostile work environment claims. 3
Although Plaintiffs do not challenge the district court’s conclusion that many
of Plaintiffs’ claims are time-barred, they contend that the district court should
have granted their motion for reconsideration, in which they attempted to
submit additional evidence regarding when Plaintiffs’ claims were submitted
to the Equal Employment Opportunity Commission (“EEOC”). 4


       3 Plaintiffs do not challenge the dismissal of their claims under the ADA, the Lilly
Ledbetter Fair Pay Act, Executive Order 11246, or for discriminatory demotion and failure
to promote under Title VII and Section 1981. We will not review these claims. See Hughes,
191 F.3d at 613 & n.13. Likewise, Plaintiffs abandoned any challenge to the district court’s
dismissal of their Title VII hostile work environment claims for failure to exhaust those
claims before the Equal Employment Opportunity Commission, although their Section 1981
claims remain before us. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir.
2005) (noting that Section 1981 does not contain an exhaustion requirement).
       4  The district court did not abuse its discretion in declining to reopen its final
judgment dismissing Plaintiffs’ failure to train claims. Plaintiffs do not explain their failure
to submit relevant evidence of timeliness to the district court for these claims, although they
had the evidence when Defendants contested the timeliness of Plaintiffs’ claims. The district
court properly considered whether its judgment should be reconsidered due to previously
omitted evidence under the test in Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir.
2004), and found that the limited importance of the omitted evidence, Plaintiffs’ unexplained
tardiness in submitting it, and the likelihood of prejudice to Firestone all weighed in favor of
declining to reopen the case, see id. at 478–80. We defer to the district court’s “considerable
discretion” in making this decision, id. at 479–80, and leave in place the district court’s
unchallenged determinations that only certain claims remain for our review because many
are time-barred.
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                                      No. 15-40162
A. Plaintiffs’ Failure to Train Claims
       Employment discrimination based upon race is unlawful under Title VII
and Section 1981. 5 To survive summary judgment, each Plaintiff in this case
had to make a prima facie showing that he: (1) is a member of a protected class;
(2) was qualified for his position; (3) was subjected to an adverse employment
action; and (4) that similarly situated employees outside the protected class
were treated more favorably. See Nasti v. CIBA Specialty Chems. Corp., 492
F.3d 589, 593 (5th Cir. 2007); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Here, the controversy as to the failure to train claims
centers on the third prong, for which we require an “ultimate employment
decision” or its factual equivalent. See McCoy v. City of Shreveport, 492 F.3d
551, 560 (5th Cir. 2007); Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir.
2014).
       In similar cases involving only tangential evidence of a potential effect
on compensation, we have held that a failure to train does not constitute an
ultimate employment decision or an adverse employment action. See, e.g.,
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406–07 (5th Cir. 1999)
(holding a denial of training was not an adverse employment action covered by
Title VII and affirming dismissal of the claim on summary judgment);
Hollimon v. Potter, 365 F. App’x 546, 549 (5th Cir. 2010) (similar); Roberson v.
Game Stop/Babbage’s, 152 F. App’x 356, 361 (5th Cir. 2005) (similar). 6
Plaintiffs argue that a failure to train may constitute an adverse employment
action and that these cases are distinguishable on their facts.



       5 Analyses for employment discrimination under Title VII and Section 1981 are often
the same; therefore, absent relevant differences, we will consider these claims together. See
Jones, 427 F.3d at 992.
       6 Although Hollimon and Roberson are not “controlling precedent,” they “may be [cited
as] persuasive authority.” Ballard, 444 F.3d at 401 n.7 (citing 5TH CIR. R. 47.5.4).
                                             4
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                                  No. 15-40162
      Plaintiffs have failed to show that the denial of training in this case
constituted an ultimate employment decision or its factual equivalent.
Plaintiffs argue that the record shows their lack of training relative to non-
African-American employees affected their compensation by decreasing their
opportunity to earn overtime.      We have found such evidence insufficient
because it only shows a potential, tangential effect on increased compensation.
See, e.g., Dollis v. Rubin, 77 F.3d 777, 781–82 (5th Cir. 1995) (affirming the
dismissal of a plaintiff’s denial-of-training claims, finding it insufficient that
the denial “arguably might have [had] some tangential effect upon [an]
ultimate decision[]”), abrogated in part on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Shackelford, 190 F.3d at 406–
07 (noting the plaintiff “produce[d] no significant evidence that a denial of such
training [related mostly to her back-up duties] would ‘tend to affect’ her
employment status or benefits” (emphasis added)).
      Plaintiffs have also failed to specify facts that make the crucial link
between each Plaintiff in this case and reduced overtime—and therefore
reduced compensation—due to the lack of training, as compared to non-
African-American counterparts. Cf. Roberson, 152 F. App’x at 361 (“[I]f the
alleged potential demotion itself did not rise to the level of an adverse
employment action, a refusal to provide training that allegedly led to the
potential demotion could not either.”). We affirm the district court’s dismissal
of Plaintiffs’ failure to train claims. See CQ, Inc., 565 F.3d at 273.
B. Plaintiffs’ Claims for Denial of Overtime
      The district court granted summary judgment on the overtime claims
because it determined that Plaintiffs failed to produce evidence “that specific
overtime positions were available that they were qualified for, that they were
denied those positions, and that others outside the class who were similarly
situated were treated more favorably.” We have no precedential authority in
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                                       No. 15-40162
our circuit establishing whether a denial of overtime constitutes an adverse
employment action. 7 We need not decide that question here. Even assuming
arguendo that a denial of overtime can be an adverse employment action,
Plaintiffs fail to demonstrate issues of material fact supporting a prima facie
case of disparate treatment for the denial of overtime. See Nasti, 492 F.3d at
593.
        Without relevant citations to the record, Plaintiffs state in a conclusory
fashion that employment records and summary charts show that non-African-
American employees received greater training than Plaintiffs, leading to better
overtime and employment opportunities. Plaintiffs do not cite evidence that
Plaintiffs were qualified for specific overtime opportunities or evidence that
similarly     situated,     non-African-American          individuals      were      treated
differently. 8 Again relying on generalities, Plaintiffs did not compare each
Plaintiff with an individual who received more training. Plaintiffs therefore
failed to raise a fact issue as to whether these individuals were truly similarly
situated with respect to any denial of training or overtime as compared to
Plaintiffs. See id.; cf. Haire v. Bd. of Supervisors of La. State Univ. Agric. &
Mech. Coll., 719 F.3d 356, 363–64 (5th Cir. 2013) (closely analyzing various
characteristics of two employees before concluding they were similarly
situated); Shackelford, 190 F.3d at 405–06 (similar).




        7 Compare Johnson v. Manpower Prof’l Servs., Inc., 442 F. App’x 977, 982 (5th Cir.
2011) (holding that the “[d]enial of overtime pay is an adverse employment action because it
relate[d] to [the plaintiff’s] compensation” when the plaintiff’s status was changed from
“overtime non-exempt” to “overtime exempt” and he stopped receiving overtime pay), with
Hart v. Life Care Ctr. of Plano, 243 F. App’x 816, 818 (5th Cir. 2007) (holding that denying a
request for overtime did not constitute an adverse employment action).
        8 We are not obligated “to sift through the record in search of evidence” to support
Plaintiffs’ case. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
                                              6
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                                       No. 15-40162
       In sum, in response to Firestone’s motion for summary judgment on their
denial of overtime claims, 9 Plaintiffs failed to proffer sufficient evidence to
make a prima facie case that any Plaintiff suffered an adverse employment
action. Plaintiffs therefore failed to meet their burden to show a genuine issue
of material fact as to each element of their discrimination claim for denial of
overtime, and the district court properly dismissed the claim. See Malacara v.
Garber, 353 F.3d 393, 404 (5th Cir. 2003).
C. Plaintiffs’ Hostile Work Environment Claims
       The district court held that the Plaintiffs bringing hostile work
environment claims failed to make out a prima facie case that Firestone
created such an environment. Plaintiffs argue the district court erred by
analyzing each Plaintiff’s claims individually, without aggregating the harm
also alleged by other Plaintiffs as part of the totality of the circumstances.
Even assuming arguendo an obligation to do so, we conclude that Plaintiffs
have failed to establish a hostile work environment.
       To establish a hostile work environment, each Plaintiff must prove he:
       (1) belongs to a protected group; (2) was subjected to unwelcome
       harassment; (3) the harassment complained of was based on race;
       (4) the harassment complained of affected a term, condition, or
       privilege of employment; (5) the employer knew or should have
       known of the harassment in question and failed to take prompt
       remedial action.
See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
“Harassment affects a ‘term, condition, or privilege of employment’ if it is
‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’”                        Id. (quoting



       9  The district court did not abuse its discretion in giving Firestone an opportunity to
file a second motion for summary judgment on the overtime claims in light of the confusion
over whether Plaintiffs were making claims based on the denial of overtime, standing alone.
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                                 No. 15-40162
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). We analyze the
hostility of a work environment in the totality of the circumstances, including
examining “the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Plaintiffs have largely
failed to highlight specific evidence supporting a prima facie case of a hostile
work environment and, where they have, it fails to support recovery under this
theory.
      1. Plaintiff Brooks
      Brooks claimed that on one occasion, he was asked not to use a restroom,
which he perceived as a racially discriminatory request. Brooks used the
restroom anyway, did not report the incident despite being asked about it by
management, and testified that he viewed it as settled and that it did not recur.
The district court properly concluded that these allegations do not support a
hostile work environment claim. See Butler, 161 F.3d at 269.
      2. Plaintiff Ruffin
      Ruffin complained about company video monitors showing images he
found offensive. Ruffin said he reported the incident and that the images were
removed shortly thereafter, not to reappear. Plaintiffs Spencer and Samuel
Johnson also testified to seeing these images and to their removal. The district
court properly concluded this evidence is not sufficiently severe or pervasive to
create a hostile work environment under Section 1981. Cf. Frazier v. Sabine
River Auth. La., 509 F. App’x 370, 374 (5th Cir. 2013) (concluding that
instances of alleged discriminatory conduct were isolated and neither severe
nor pervasive enough make a viable hostile work environment claim). Further,
Plaintiffs’ testimony establishes that, upon learning of the displays,
management took prompt remedial action that ended the display of the
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                                 No. 15-40162
images. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th
Cir. 2004).
      3. Plaintiff Samuel Johnson
      Plaintiff Samuel Johnson alleges a hostile work environment based on
racial slurs and “black faces” drawn in the bathroom stalls in the workplace.
He testified that the foreman waited some time before painting over the stalls.
Samuel Johnson further stated that he heard a manager say that as long as he
was in charge of a certain unit, “there would be no blacks in the control room.”
      These offensive events, while reprehensible, establish only isolated
incidents and offhand remarks, did not involve physical threats, were not
apparently directly addressed to Samuel Johnson, and do not appear to have
interfered with his work. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993). We affirm the district court’s determination that Samuel Johnson
failed to make a prima facie case of a hostile work environment based on these
allegations. See, e.g., Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d
839, 844 (8th Cir. 2002) (determining no severe or pervasive racial harassment
occurred in circumstances involving frequent drawings in the men’s restrooms,
a racist poem, and other offensive remarks).
      4. Plaintiff Wayne Johnson
      Plaintiff Wayne Johnson apparently claimed a hostile work environment
based on the American flag being flown upside down outside the Firestone
plant in 2009 to protest President Obama’s election. As the district court
noted, no evidence tied this incident to interference with Wayne Johnson’s
work. We affirm the district court’s dismissal of Wayne Johnson’s hostile work
environment claim.
      5. Plaintiff Spencer
      Spencer alleges that, on a single occasion, “he found a miniature
hangman’s noose placed inside his hard hat at work.” He testified that no one
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                                       No. 15-40162
else was with him when he found it, that he does not recall telling others about
it or showing others the noose, and that he took it home. He did not report it
to a supervisor. Spencer testified that he found the incident “pretty upsetting”
at the time. Yet, he did not testify that the noose incident or others changed
the terms or conditions of his employment. 10
       The district court determined that the noose was not prima facie
evidence of a hostile work environment because Spencer presented no evidence
of how it affected the terms and conditions of his employment, it appears to
have been an isolated incident, and there is no evidence Firestone knew or
should have known about the incident. See Harris, 510 U.S. at 23; see also
Hockman, 407 F.3d at 329.            We agree that, although reprehensible, this
conduct does not create a hostile work environment in these circumstances. 11
       6. Considering the Totality of the Circumstances
       We look to the totality of the circumstances in determining whether an
environment is hostile or abusive. See Harris, 510 U.S. at 23. Evidence about
discrimination against other members of the protected class in the same
workplace may sometimes be probative to reinforce allegations that
harassment affected a plaintiff’s terms and conditions of employment. See
generally Hernandez, 670 F.3d at 651–54. In this case, even considering the
incidents each Plaintiff experienced or knew about in the aggregate does not
“transform what was an otherwise insufficient case of a hostile work
environment . . . into one that could survive summary judgment.” Id. at 654.
       AFFIRMED.




       10 Spencer also testified that he saw the “black faces” painted on the bathroom stalls.
He said that he complained and that they were painted over.
       11  Although Scott is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard, 444 F.3d at 401 n.7 (citing 5TH CIR. R. 47.5.4).
                                             10
