     Case: 18-40984      Document: 00515067683         Page: 1    Date Filed: 08/07/2019




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

                                    No. 18-40984                                  FILED
                                  Summary Calendar                           August 7, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
CHRISTINA MATTHEWS,

              Plaintiff - Appellant

v.

PILGRIMS PRIDE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:17-CV-82


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Christina Matthews appeals the district court’s
summary judgment in favor of her employer, Defendant-Appellee Pilgrim’s
Pride (“Pilgrim’s”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                       I. Facts & Procedural History
      Matthews, who is Caucasian, became employed by Pilgrim’s Pride in
their Lufkin Facility in August of 2013. During the time Matthews was
employed with Pilgrim’s, two policies relevant to this litigation were in effect.
First, Pilgrim’s has a Non-Discrimination and Harassment Policy which
prohibits discrimination and harassment on the basis of sex, race, color,
religion, national origin, gender, age, veteran status, handicap, or disability.
Second, Pilgrim’s has a Code of Conduct which includes a policy prohibiting
conflicts between the personal and professional interests of employees and the
best interests of the company.
      Matthews was hired as a trimmer on the Cone Line which meant she
trimmed chicken wings and performed other duties on the production line
under the direction of her supervisor. Matthews was also trained as a backup
incentive grader when the regular incentive grader, Ariel Elizondo, went on
maternity leave in 2016. Elizondo is Hispanic. According to Pilgrim’s,
Matthews maintained her original job title, compensation, and benefits as a
trimmer on the Cone Line during the times she served as a backup incentive
grader.
      During the time period that Matthews was working as a backup
incentive grader, she had an altercation with a female Pilgrim’s employee over
a male Pilgrim’s employee who Matthews was dating. As a result of this
incident, the Human Resources department became aware that Matthews was
conducting checks as an incentive grader on the production line on which her
boyfriend worked. Pilgrim’s considered this to be a conflict of interest
prohibited by their Code of Conduct.
      Consequently, Matthews was no longer permitted to work as a backup
incentive grader, but she was allowed to continue working as a trimmer on the
Cone Line, the position for which she was hired. Then on April 25, 2016,
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                                No. 18-40984
Matthews took medical leave under the Family and Medical Leave Act
(“FMLA”). By July 2016 she had stopped communicating with Pilgrim’s
regarding her FMLA status and ultimately never returned to work.
      About a year later, in June of 2017, Matthews filed suit pro se and in
forma pauperis against Pilgrim’s in federal court alleging violations of her
rights under Title VII of the Civil Rights Act of 1964. Her primary argument
before the district court was that she was discriminated against on the basis
of her race because she was demoted from her duties as an incentive grader
and replaced by unqualified Hispanic employees. She also advanced claims of
retaliation and hostile work environment.
      Pilgrim’s moved for summary judgment on grounds that Matthews failed
to present evidence in support of her claims. Adopting the Report and
Recommendation of the magistrate judge, the district court granted summary
judgment in favor of Pilgrim’s and dismissed all of Matthews’ claims with
prejudice. The district court reasoned that the magistrate judge correctly
determined that Matthews failed to “provide any evidence indicating that
[Pilgrim’s] actions against her, while facially legitimate, were actually
pretextual.” Matthews filed this appeal.
                          II. Standard of Review
      We conduct a de novo review of a district court’s ruling on summary
judgment, applying the same standard as the district court. Robinson v. Orient
Marine Co., 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). Summary
judgment is appropriate if the record evidence shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a
matter of law. Id. at 366; Fed. R. Civ. P. 56(a). “Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to
defeat a motion for summary judgment.” See Brown v. City of Hous., 337 F.3d
539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable inferences are to be
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drawn in favor of the non-moving party.” Robinson, 505 F.3d at 366 (citation
omitted).
                                    III. Discussion
       “Title VII plaintiffs may prove a racial discrimination claim either by
direct or circumstantial evidence.” Stroy v. Gibson, 896 F.3d 693, 698 (5th Cir.
2018) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)).
The burden-shifting analysis set forth in McDonnell Douglas 1 is used for cases
with only circumstantial evidence of discrimination. Id. (citing McCoy, 492
F.3d at 556). Under McDonnell Douglas, the plaintiff must make out a prima
facie case for race discrimination by showing that she: “(1) is a member of a
protected group; (2) was qualified for the position at issue; (3) was discharged
or suffered some adverse employment action by the employer; and (4) was
replaced by someone outside [her] protected group or was treated less favorably
than other similarly situated employees outside the protected group.” Id.
(citing McCoy, 492 F.3d at 556). If the plaintiff makes this showing, the burden
shifts to the employer to set forth a legitimate, non-discriminatory reason for
its action. Id. at 698–99 (citing McCoy, 492 F.3d at 557).
       On appeal, Matthews reasserts her claims of racial discrimination,
retaliation, and hostile work environment. For the following reasons, we
conclude that her claims are meritless.
       As the district court observed, the only piece of “evidence” that Matthews
provided in support of her Title VII claims against Pilgrim’s was “a self-
authored, handwritten letter presented in [her] summary judgment briefings”
containing conclusory allegations and unsubstantiated assertions against her
employer in the context of her own depiction of the timeline of events. 2 This


       1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       2 Matthews reports that she originally provided this statement to the union and it is
often referenced in the record as her “union statement.”
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does not qualify as competent summary judgment evidence and with no other
evidence offered in support of her claims, Matthews failed to make out a prima
facie   case   of   racial   discrimination.   See    Brown,   337    F.3d   at   541
(“Unsubstantiated assertions . . . are not sufficient to defeat a motion for
summary judgment.”).
        Additionally, while Matthews is a member of a protected group and was
qualified for the position, she has failed to show that she suffered an adverse
employment action. “Adverse employment actions are ‘ultimate employment
decisions’ such as hiring, firing, demoting, promoting, granting leave, and
compensating.” Stroy, 896 F.3d at 699 (quoting Thompson v. City of Waco, 764
F.3d 500, 503 (5th Cir. 2014)). Matthews’ racial discrimination claim rests on
her assertion that she was demoted, but this is not true. The record reflects
that Matthews was hired and trained as a trimmer on the Cone Line, a position
which she maintained in terms of title, compensation, and benefits throughout
the course of her employment with Pilgrim’s. She was permitted to serve as a
backup incentive grader for temporary periods of time, after which she was to
resume her regular job duties as a trimmer. This was not a “demotion.” Nor
did her brief stints as an incentive grader somehow create a new position for
her within the company that she then became “demoted” from when she
returned to her regular job.
        Even if Matthews was able to make out a prima facie case of racial
discrimination, Pilgrim’s has provided a “legitimate, non-discriminatory
reason for its decision.” Stroy, 896 F.3d at 699. Matthews was relieved of her
duties as an incentive grader because she was dating another employee on the
production line over which she performed the checks. Pilgrim’s reacted to
Matthews’ violation of its Code of Conduct graciously, simply returning her to




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                                       No. 18-40984
her regular duties with no loss of position, pay or benefits. Matthews provides
no competent summary judgment evidence to rebut this legitimate, non-
discriminatory reason. See Brown, 337 F.3d at 541. Moreover, the sole reason
Matthews is no longer employed as a trimmer with Pilgrim’s is because she
took FMLA leave, stopped providing reports on her leave status, and never
came back to work.
       Due to Matthews’ failure to provide any competent summary judgment
evidence during the proceedings below, she also fails to survive summary
judgment on her retaliation and hostile work environment claims. Id. 3
       The district court properly granted summary judgment in favor of
Pilgrim’s on each of Matthews’ alleged Title VII claims.
                                     IV. Conclusion
       Summary judgment in favor of Pilgrim’s is AFFIRMED.




       3  It appears from Matthews’ statement of issues that she claims that she was not
given enough time to conduct discovery prior to the district court’s grant of summary
judgment in favor of Pilgrim’s. She fails, however, to brief this argument altogether so we do
not address the issue herein. See DeVoss v. SW Airlines, Co., 903 F.3d 487, 489 n.1 (5th Cir.
2018) (“[F]ailure to adequately brief an argument forfeits the claim on appeal.”).
Additionally, the record reflects that she had almost six months to conduct discovery and
failed to move the magistrate judge or the district court for additional time.



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