     Case: 12-30750       Document: 00512130054         Page: 1     Date Filed: 01/30/2013




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

                                                                            FILED
                                                                         January 30, 2013

                                     No. 12-30750                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SHELTON L. FRAZIER,

                                                  Plaintiff-Appellant
v.

SABINE RIVER AUTHORITY STATE OF LOUISIANA,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CV-778


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Shelton L. Frazier, proceeding pro se, brought suit against his former
employer complaining of race discrimination, retaliation, and a hostile work
environment. The district court granted summary judgment in favor of the
employer. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30750

                                      FACTS
      Frazier, an African-American, began employment with Sabine River
Authority State of Louisiana (“Sabine”) as an unclassified park attendant on
May 21, 2008. Frazier earned $6.70 per hour and did not receive state benefits.
Two months later, Sabine promoted Frazier to the classified position of Civil
Service Park Buildings and Grounds Attendant with a raise to $7.56 per hour
and eligibility for state benefits. In January 2009, Sabine awarded Frazier a
merit increase to $7.86, and in 2010, he received another raise to $8.17 per hour.
      Frazier alleged that in October 2010, a co-worker told Frazier that Sabine
had hired a white unclassified park attendant, Seth Sebastian, before hiring
Frazier and that Sebastian received $10.00 per hour. Sebastian never became
a classified worker.
      Frazier also alleged that in February 2011, he talked to his supervisor,
Daniel Jones, about a co-worker using the word “nigger” in Frazier’s presence
and about various other concerns. According to Frazier, Jones stated a meeting
should be held with the individual who used the word. Jones referred the matter
to Mike Carr, the maintenance manager and a supervisor over both Jones and
Frazier.
      On March 16, 2011, Carr called Frazier into his office. Frazier alleged
Carr did not like that Frazier had e-mailed his concerns to the executive
director, thus bypassing Carr. The parties agree that the conversation became
heated when they discussed Frazier’s use of his cellular phone on the job.
Frazier told Carr the accusation that Frazier “was the biggest cell phone user on
the job” was “the biggest lie from the pits of hell.” Carr replied, “[D]on’t ever call
me a li[ar] again.” When Frazier asked if Carr was threatening him, Carr
responded, “[Ye]s, sir.” Sabine contends that Carr qualified this by stating, “I’m
not . . . I’m saying that’s a lie. [D]on’t call me a liar.” The executive director
resolved the matter by sending Carr and Frazier home for the day with pay.

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                                 No. 12-30750

Frazier filed a threat-of-violence claim against Carr; the executive director
subsequently determined there was no threat of violence.
      Frazier also contends that in addition to the co-worker’s use of the word
“nigger” discussed above, three other instances of racial discrimination occurred
at Sabine. First, he heard a co-worker refer to a town in Sabine Parish called
“Negreet,” but according to Frazier, the co-worker meant “nigger.” Second,
Frazier was told by a co-worker that another co-worker had used the word
“nigger” before. And third, he alleged a co-worker made a noose and gestured
as though he was hanging it around another co-worker’s neck. This was done
in Frazier’s presence, though it was not directed at him.
      Frazier filed an EEOC charge on August 16, 2011, and resigned from his
position on August 25, 2011. After receiving a right-to-sue-letter, he filed the
complaint that is the subject of this appeal, alleging race discrimination,
retaliation, and a hostile work environment.        The district court granted
summary judgment in favor of Sabine.
                                 DISCUSSION
      The district court’s grant of summary judgment is reviewed de novo.
Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 549 (5th Cir. 2012). Summary
judgment is appropriately granted 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).    A genuine dispute exists if the evidence is such that a
reasonable juror could find for the non-moving party. Davis-Lynch, 667 F.3d at
549. Questions of fact must be “viewed in the light most favorable to the
nonmovant and questions of law are reviewed de novo.” Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).
      Frazier’s arguments on appeal challenge the district court’s resolution of
questions of law and fact. To address his arguments, we examine his race
discrimination, retaliation, and hostile work environment claims separately.

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                                 No. 12-30750

A.    Race Discrimination
      Frazier claims Sebastian’s higher pay rate was race discrimination and
violated the Fair Pay Act. A claim of race discrimination is analyzed using the
traditional burden-shifting rules of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). To survive summary judgment in a race discrimination case, a
plaintiff must first establish a prima facie case showing he (1) is a member of a
protected class, (2) was qualified for the position held, (3) was subject to an
adverse employment action, and (4) was “treated differently from others
similarly situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.
2005).
      Because Frazier offered Sebastian as a comparator employee to show that
Frazier was treated differently, Frazier has the burden of demonstrating that
“the employment actions at issue were taken under nearly identical
circumstances.” Turner v. Kan. City S. Ry., 675 F.3d 887, 893 (5th Cir. 2012).
“The employment actions being compared will be deemed to have been taken
under nearly identical circumstances when the employees being compared held
the same job or responsibilities, shared the same supervisor, or had their
employment status determined by the same person, and have essentially
comparable violation histories.” Id.
      The district court held that Frazier failed to offer competent summary
judgment evidence that he and Sebastian had “nearly identical circumstances,”
as required to establish a comparator for purposes of Frazier’s prima facie case.
Id. Frazier first argues on appeal that he and Sebastian were equally qualified
and neither had any certifications prior to being hired by Sabine for the same
position. Frazier contends he provided the district court with a copy of the
Louisiana workers’ website showing that he and Sebastian both were hired as
unclassified park attendants. This fact is not in dispute, and it does not
demonstrate that they were equally qualified or that they had “nearly identical

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                                  No. 12-30750

circumstances,” particularly for an unclassified position. Though the specific
qualifications are disputed, Sebastian was trained in plumbing and Frazier had
a background in carpentry. Therefore, the district court correctly held Frazier
did not meet his burden of demonstrating that Sebastian was an appropriate
comparator to establish his prima facie case.
      Second, Frazier contends that the district court erred in holding that his
race discrimination claim was prescribed.        Frazier argues his claim was
equitably tolled until October 2010 when he became aware of the difference in
pay. We need not reach this issue because we hold that the district court was
correct in finding that Frazier had not demonstrated that Sebastian was a
comparator employee and thus had not made a prima facie case.
      Frazier also contends that the district court erred in holding that his
discriminatory pay claim under the Fair Pay Act was time-barred. The district
court reasoned that “Frazier was only an unclassified worker for, at most, two
and a half months at the very beginning of his career with Sabine.” Frazier
argues time did not begin to run on the prescription period under the Fair Pay
Act until the date he resigned.
      The Fair Pay Act provides different points in time in which the charging
period will be triggered:
      an unlawful employment practice occurs, with respect to
      discrimination in compensation in violation of this title, when a
      discriminatory compensation decision or other practice is adopted,
      when an individual becomes subject to a discriminatory
      compensation decision or other practice, or when an individual is
      affected by application of a discriminatory compensation decision or
      other practice, including each time wages, benefits, or other
      compensation is paid, resulting in whole or in part from such a
      decision or other practice.

42 U.S.C. § 2000e-5(e)(3)(A). Following Frazier’s July 2009 promotion, he was
no longer affected by or subject to the allegedly discriminatory compensation


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                                   No. 12-30750

decision because he and Sebastian could no longer have been comparators. See
id.; Turner, 675 F.3d at 893. Therefore, the district court did not err in holding
that the claim under the Fair Pay Act was time-barred.
B.    Retaliation
      Frazier claims Sabine retaliated against him for complaining about
discrimination with regard to his pay rate. To survive summary judgment on a
claim of retaliation, Frazier must establish that (1) he participated in a protected
activity; (2) he experienced an adverse employment action; and (3) there was a
causal link between his protected activity and the adverse employment action.
Stewart, 586 F.3d at 331.
      Preliminarily, the district court held that Frazier did not preserve a
retaliation claim by raising it with the EEOC, “a condition precedent to any Title
VII suit.” Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). In
Frazier’s EEOC charge, he did not check the “retaliation” box, and in the
particulars section, he failed to mention any claim of retaliation.
      Frazier argues on appeal that failure to check the appropriate box is not
fatal to his retaliation claim. This is true, but Frazier’s description of his charge
in the particulars section described only a discrimination claim: “I was subjected
to harassment, denied a pay raise and overlooked when work tasks and
assignments were passed out . . . I believe I have been discriminated [against]
because of race.” While the court’s scope of inquiry is not limited to the boxes
checked, it is limited to that “which can reasonably be expected to grow out of
the charge.” Id. “[T]he crucial element of a charge of discrimination is the
factual statement contained therein. Everything else entered on the form is, in
essence, a mere amplification of the factual allegations.” Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). Discrimination and retaliation
claims are distinct, and the factual statement in Frazier’s EEOC charge did not
put Sabine on notice that Frazier was asserting a retaliation claim.

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                                 No. 12-30750

Additionally, although Frazier argued his retaliation claim in his opposition to
summary judgment, he did not address the issue raised by Sabine that he failed
to preserve this claim.
      Because we hold Frazier did not preserve a retaliation claim, we need not
address his argument raised for the first time on appeal that the denial of a pay
raise was retaliatory in nature. We also need not reach Frazier’s argument that
Sabine’s references in its motion for summary judgment to his excessive use of
leave was pretext for retaliation. The district court correctly granted summary
judgment on Frazier’s retaliation claim.
C.    Hostile Work Environment
      As to his hostile work environment claim, Frazier argues the district court
failed to address his allegations that a co-worker plotted “to set him up for
failure” and that his job required he work on a lake even though he could not
swim. A claim of hostile work environment requires a showing by the plaintiff
that 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.

Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005). For a work
environment to be deemed sufficiently hostile, we consider all relevant
circumstances. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Such
circumstances include “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.” Id.




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                                  No. 12-30750

      The district court stated it reviewed the “total record.” The district court
specifically addressed the alleged threat made by Carr, the co-worker’s use of the
word “nigger” in Frazier’s presence, the use of the word “Negreet,” and the noose
gesture in the context of these factors. We agree with the district court’s well-
reasoned conclusion that these instances were isolated and not severe or
pervasive enough to support a hostile work environment claim.               Even
considering the allegations that a co-worker intended to set Frazier up to fail
and that he had to work near water, we do not conclude that Frazier made the
required showing to survive summary judgment. Frazier does not provide
concrete examples, and he does not show – or even allege – that the co-worker’s
alleged plot or his work requirements were based on race. See id. at 269.
Therefore, as the district court concluded, Frazier has not established a prima
facie claim for hostile work environment.
      AFFIRMED.




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