     Case: 11-20464     Document: 00511850345         Page: 1     Date Filed: 05/09/2012




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

                                                                            FILED
                                                                            May 9, 2012

                                     No. 11-20464                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DORIAN HARRISON,

                                                  Plaintiff–Appellant,
v.

CORRECTIONS CORPORATION OF AMERICA,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-1291


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Dorian Harrison appeals the district court’s grant of summary judgment
in favor of Corrections Corporation of America (CCA) on his claims of race
discrimination and retaliation. Because we agree with the district court’s
conclusion that Harrison failed to establish a prima facie case for his claims, we
affirm the district court’s grant of summary judgment.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20464

                                       I
      Harrison, an African-American, is currently employed by CCA as a
detention officer at its Houston Processing Center. CCA hired Harrison as a
detention officer in 2004, and in 2006, he was transferred to the maintenance
department. Harrison’s claims of race discrimination and retaliation originate
from actions alleged to have taken place in 2008 while he was working in the
maintenance department. He alleges that, at that time, another CCA employee,
Louis Story, directed a racial slur at him in the presence of another CCA
employee, Fred Carlos.
      In the grievance Harrison submitted on May 21, 2008, he complained that
Story had said, “Hello my nigger friend, I’m pimping you!” CCA conducted an
investigation and confirmed that the incident had occurred. CCA’s Grievance
Response indicated that the “comment came about after a long period of
‘inappropriate bantering’ among those involved.”          In response to the
investigation, Warden Robert Lacy Jr. recommended that Story be suspended
for three days and undergo additional training. On June 10, 2008, Warden Lacy
communicated the results of the investigation and his recommendations to
Harrison. Instead of filing a step two grievance disagreeing with the results of
the investigation, on August 1, 2008, Harrison filed a Charge of Discrimination
with the EEOC in which he alleged that CCA engaged in race discrimination and
retaliation.
      Sometime after April 2009, Harrison was transferred from the
maintenance department to his current position as a detention officer. CCA
asserts that this transfer occurred after an annual quality assurance audit
resulted in poor results for the maintenance department. According to CCA, all
maintenance staff at the time were relieved of their duties and were offered
transfers to detention officer positions. Harrison accepted the transfer, and he



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                                        No. 11-20464

was paid the same salary as he received while working in the maintenance
department.
       On December 18, 2009, the EEOC issued a Dismissal and Notice of Rights
indicating that, based on its investigation, it was unable to conclude that the
information it had obtained established a statutory violation. Subsequently, on
February 17, 2010, Harrison filed suit against CCA in state court alleging race
discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964 and the Texas Commission on Human Rights Act (TCHRA).1 Eventually
the case was removed to federal court.              CCA filed a motion for summary
judgment to which Harrison did not respond, and the district court granted the
motion.
       The district court analyzed Harrison’s Title VII and TCHRA claims
concurrently because the law governing each is identical regarding the issues
under consideration.2          Applying the McDonnell Douglas burden-shifting
framework, the district court held that Harrison’s claims of race discrimination
and retaliation could not survive the motion for summary judgment because
Harrison failed to establish a prima facie case on either claim. The district court
held that, with respect to both claims, Harrison failed to show that he was
subject to an adverse employment action, and with respect to the race-
discrimination claim, he also failed to allege any facts demonstrating that others
similarly situated were treated more favorably. In doing so, the district court
noted that summary judgment may not be awarded by default. Instead, the
district court emphasized that the movant, CCA, had the burden to demonstrate
the absence of a genuine issue of material fact whether any response was filed.


       1
           42 U.S.C. §§ 2000e to 2000e-17; TEX. LAB. CODE. ANN. §§ 21.051-.556.
       2
        Harrison v. Corrections Corp. of America, No. H-10-CV-1291, slip. op. at 3 n.1 (S.D.
Tex. Apr. 27, 2011) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 n.10 (5th Cir.
2001)).

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Harrison filed a motion for new trial, which was denied, and this appeal
followed.
                                             II
       As an initial matter, Harrison is mistaken when he argues on appeal that
the district court did not resolve his claims under the TCHRA. The district court
expressly indicated that it was analyzing his Title VII and TCHRA claims
concurrently.3 The district court’s approach was correct because claims under
each of these statutes are generally treated the same.4 We will follow the same
approach as the district court.
                                             III
       We review the district court’s grant of summary judgment de novo, using
the same standards as the district court.5 Summary judgment shall be granted
“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.”6
       The McDonnell Douglas burden-shifting framework applies to Harrison’s
race discrimination and retaliation claims because they are based on
circumstantial evidence.7           Under the first step of the McDonnell Douglas




       3
           Id.
       4
        See Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606-07 (5th Cir.
2007); Wallace, 271 F.3d at 219 n.10; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 &
n.25 (Tex. 2010); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003);
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
       5
        Haggard v. Bank of the Ozarks, Inc., 668 F.3d 196, 199 (5th Cir. 2012) (citing Holt v.
State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010)).
       6
           FED. R. CIV. P. 56(a).
       7
         Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007); Montemayor
v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).

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                                         No. 11-20464

framework, the plaintiff must establish a prima facie case.8 After the plaintiff
establishes a prima facie case, the burden “shift[s] to the employer to articulate
some legitimate, nondiscriminatory reason for the [action].”9 Finally, if the
employer meets that burden, the plaintiff “must . . . be afforded a fair
opportunity to show that [the] stated reason for [the action] was in fact
pretext.”10 We conclude that the district court correctly granted summary
judgment on Harrison’s claims of race discrimination and retaliation because the
record does not include evidence that would establish a prima facie case of either
claim, and therefore CCA is entitled to judgment as a matter of law.
                                               A
       Title VII makes it “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin.”11 To establish a prima facie case of discrimination under Title VII, a
plaintiff must show that he: “(1) is a member of a protected class; (2) was
qualified for [his] position; (3) was subject to an adverse employment action; and
(4) was replaced by someone outside the protected class, or, in the case of
disparate treatment, shows that others similarly situated were treated more
favorably.”12


       8
        See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Jackson v. Watkins,
619 F.3d 463, 466 (5th Cir. 2010).
       9
           See McDonnell Douglas, 411 U.S. at 802.
       10
            See id. at 804.
       11
            42 U.S.C. § 2000e-2(a).
       12
         Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)
(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)) (internal
quotation marks omitted).

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                                         No. 11-20464

       With respect to claims of discrimination, in accordance with Title VII’s
language, our precedent only recognizes ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating as actionable
adverse employment actions.13 A review of the summary-judgment record
reveals no evidence that Harrison was subjected to an ultimate employment
decision of this sort.14 There is evidence in the record showing that Harrison was
subjected to a racial slur by a CCA employee and that he overheard racial
comments in his workplace prior to this incident, but these do not constitute
actionable adverse employment actions because they are not the equivalent of
the ultimate employment decisions listed above. Consequently, Harrison did not
establish a prima facie case of race discrimination.
                                                B
       Title VII also makes it “an unlawful employment practice for an employer
to discriminate against any of his employees . . . because [the employee] has
opposed any practice made an unlawful employment practice.”15 “To establish
a prima facie case of retaliation, the plaintiff must establish that: (1) he
participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action.”16




       13
            See McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007).
       14
          The summary-judgment record includes exhibits and Harrison’s affidavit, which were
filed along with his original petition; his disclosures; and portions of a transcript of Harrison’s
oral deposition, which was submitted along with other exhibits by CCA in support of its motion
for summary judgment. In Harrison’s appellate brief, he cites to his deposition and his
interrogatory answers, but of these, only the portion of his deposition that was submitted by
CCA is in the record.
       15
            42 U.S.C. § 2000e-3(a).
       16
            McCoy, 492 F.3d at 556-57.

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                                        No. 11-20464

       Because the language of the anti-discrimination and anti-retaliation
provisions differ, an adverse employment action is defined differently for each
provision.17 With respect to a claim of retaliation, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”18 Materiality is required
in order “to separate significant from trivial harms,” and a reasonable-employee
standard is used “because . . . the provision’s standard for judging harm must be
objective.”19 “[T]he significance of any given act of retaliation will often depend
upon the particular circumstances.”20
       Harrison’s original petition asserted that two actions constituted unlawful
retaliation: he claimed (1) he was reprimanded for actions for which other CCA
employees were not reprimanded, and (2) he was transferred from the
maintenance department. We conclude that a reasonable employee would not
find either of these actions materially adverse. Therefore, Harrison did not
establish a prima facie case of retaliation.
                                               1
       While the record indicates that Harrison may have been reprimanded, the
reprimands evidenced in the record would not dissuade a reasonable worker
from making or supporting a charge of discrimination. In his deposition,
Harrison claimed that he, unlike other employees, was verbally counseled for not
reporting every thirty minutes. He also claimed in his deposition that he



       17
            See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-67 (2006).
       18
         Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (internal
quotation marks omitted).
       19
            Id.
       20
            Id. at 69.

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                                       No. 11-20464

received bad evaluations and was reprimanded for misplacing a tool, although
he considered his three-day suspension for misplacing the tool to be fair. A
reasonable employee would not be dissuaded by a reprimand and punishment
he considered to be fair. Furthermore, we conclude that the verbal reprimands
and generic bad evaluations in this case, evidenced only by Harrison’s brief
deposition answers, are nothing more than “trivial harms,” which the
materiality requirement is intended to separate from significant harms.21
Because the reprimands evidenced in the record would not dissuade a reasonable
worker from making or supporting a charge of discrimination, they do not
constitute an adverse employment action as required to establish a prima facie
case of retaliation.
                                             2
      Additionally, the summary-judgment record does not contain evidence
sufficient to show that Harrison’s transfer constituted an adverse employment
action as required to establish a prima facie case of retaliation. Viewed in
Harrison’s favor, the evidence indicates that: Harrison and two other officers
were moved from the maintenance department to detention officer positions;
other than being told that Assistant Warden Price wanted to change—or try
something new in—the maintenance department, Harrison was not told
anything about the reasons for his transfer; and the transfer was lateral, paying
the same salary as Harrison received in the maintenance department. There is
no record evidence to support Harrison’s claims, raised in his appellate brief,
that the maintenance department position offered more opportunities for
promotion and salary increases, that detention officers were terminated more
frequently, or that a reasonable employee would view the detention officer
position as less satisfactory and fulfilling.


      21
           See id. at 68.

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                                          No. 11-20464

       “We have recognized previously that ‘a lateral reassignment to a position
with equal pay could amount to a materially adverse action in some
circumstances,’” but this depends on the facts of the particular case, which must
be judged from the perspective of a reasonable employee.22 Without record
evidence to show that the detention officer position offered less opportunities for
promotion or salary increases, involved a greater likelihood of termination, or
the like, Harrison cannot show that a reasonable employee would have found the
lateral transfer at the same salary to be materially adverse.23 Therefore,
Harrison’s transfer does not constitute an adverse employment action as
required to establish a prima facie case of retaliation.
                                               3
       On appeal, Harrison also argues that CCA retaliated against him by
means of “a flagrant and indecent attempt to lure [him] into a sexual situation,
so that, once caught in flagrante delicto, he could be fired” and “[t]hreats to the
jobs of [himself] and others because of the civil rights complaint.”                    These
arguments were not made to the district court, and they do not appear in
Harrison’s original petition. Accordingly, these arguments are waived as we will
not consider arguments made for the first time on appeal.24
                                      *        *         *
       The decision of the district court is AFFIRMED.



       22
        Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (quoting Aryain
v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008)) (citing Burlington, 548 U.S. at
71).
       23
         See id.; Aryain, 534 F.3d at 485; see also Magiera v. City of Dallas, 389 F. App’x 433,
438 (5th Cir. 2010) (unpublished); Barnett v. Boeing Co., 306 F. App’x 875, 881 (5th Cir. 2009)
(unpublished); Sabzevari v. Reliable Life Ins. Co., 264 F. App’x 392, 396 (5th Cir. 2008)
(unpublished).
       24
        E.g., Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 170 (5th Cir. 2010) (citing
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)).

                                               9
