     Case: 13-30649        Document: 00512509203       Page: 1    Date Filed: 01/22/2014




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


                                     No. 13-30649
                                                                                    FILED
                                                                             January 22, 2014
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
EMMETT BURRLE, JR.,

                                                 Plaintiff - Appellant
v.

PLAQUEMINES PARISH GOVERNMENT,

                                                 Defendant - Appellee




                     Appeal from the United States District Court
                        for the Eastern District of Louisiana
                               USDC No. 2:12-CV-739


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Emmett Burrle, Jr. formerly worked in construction for the Plaquemines
Parish Government (“the Parish”). After resigning his post, Burrle reapplied
for positions within the Parish. He was not rehired. He subsequently filed
hostile work environment and constructive discharge claims, 1 which failed to
withstand the Parish’s motion for summary judgment. We agree with the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   These claims were made under 42 U.S.C. § 1981.
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                                  No. 13-30649


district court that Burrle presented insufficient evidence to support his claims,
and we affirm its grant of summary judgment.
                                         I.
      Burrle’s claims revolve around his supervisor, Scott Lott. Burrle is an
African American and Lott is Caucasian.          As a preliminary matter, Lott
promoted Burrle to Supervisor, over three white candidates, and then to
temporary Superintendent. Lott also personally loaned Burrle over $1,000
when Burrle told him that he needed money for a personal matter. After he
quit, Burrle refused to state why he was resigning at his exit interview. When
he filed for state unemployment benefits, he explained his resignation was
motivated by an inability to deal with the stress of the job. The Parish’s
Human Resources Director indicated that of the five Parish employees
complaining to her about Lott, only Burrle was black and the other four were
white.
                                        II.
      We review summary judgment grants de novo. Young v. Equifax Credit
Information Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002). Summary judgment
is properly granted if there is no “evidence . . . such that a reasonable jury could
return a verdict for the nonmoving party” when all evidence is viewed in the
light most favorable to the non-movant. Royal v. CCC&R Tres Arboles, L.L.C.,
736 F.3d 396, 400 (5th Cir. 2013) (internal quotation marks and citation
omitted). The moving party may carry his burden by “pointing out . . . that
there is an absence of evidence to support the nonmoving party’s case.” Celotex
Corp. v. Catrett, 477 U.S. 318, 325 (1986).
                                        A.
      Prevailing on a hostile work environment claim generally requires a
plaintiff to establish that:
                                         2
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                                     No. 13-30649


      (1) he belongs to a protected group, (2) he 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 his employment, and (5) the employer
      knew or should have known of the harassment and failed to take
      prompt remedial action.
Barkley v. Singing River Elec. Power Ass’n, 433 F. Appx. 254, 258 (5th Cir.
2011).
      Burrle fails to establish that, because of his race, he was subject to
harassment “sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation marks and citation
omitted).
      The Parish supplied several affidavits indicating that Lott exhibited no
racist behavior. By contrast, Burrle’s allegations are reduced to two incidents.
First, Lott allegedly asked Burrle “when is that boy going to retire,” referring
to a black worker who was not present. This incident does not rise to the level
of “severe or pervasive” harassment required under Meritor. Second, a man
apparently not employed by the Parish allegedly used the “n” word in Lott and
Burrle’s presence. Burrle argues that Lott somehow sanctioned this use, but
Burrle’s account does not support his own argument. 2 Moreover, Lott does not
remember the man in question using the “n” word, and no witnesses support
Burrle’s story.
      The only piece of evidence that even remotely hints that Burrle might
have been the target of racial discrimination is his signed declaration.



      2 Burrle states that a councilman told him, “Excuse me [Burrle], but I hate that [“n”
word], Randy . . . .” Lott asked the councilman, “Who?” The councilman supplied Randy’s
last name. Lott replied, “Me, too.”
                                            3
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Summary judgment continues to be proper, however, when (a) the only
evidence the plaintiff produces after extensive discovery is a self-serving
affidavit and (b) evidence favoring summary judgment is overwhelming. 3 Cf.
BMG v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (“[c]onsidering that the only
evidence in support of the defendants’ theory is a conclusory, self-serving
statement by the defendant,” summary judgment was appropriate); see also
Vais Arms, Inc. v. Vais, 383 F. 3d 287, 294 (5th Cir. 2004) (defendant’s “vague,
self-serving statements in his affidavit” were insufficient to raise a genuine
issue of material fact in the face of plaintiff’s “overwhelming evidence”). Burrle
also argues, without citing any authority, that the district court should not
have struck a declaration by Burrle’s witness. Nothing suggests that the
district court erred in striking the declaration for non-conformance with 28
U.S.C. § 1746 (putting forth the requirements for unsworn declarations). 4




       3 Burrle goes into extensive detail about workplace incidents that do little to advance
his claim. Burrle points to an incident that predated Lott’s tenure in which a white Parish
employee under him used the “n” word in an argument with a black employee. The black
employee, however, then used the Parish’s grievance procedure and was satisfied with the
outcome.
       Also, Lott allegedly wrote up black employees but did not write up white employees
for what Burrle claims was similar conduct. Other than the label Burrle affixes to the write-
ups, there seems to be no indication that the write-ups were racially motivated. On one
occasion, Lott required Burrle to write up a black foreman. Rather than being an example of
racism, however, the write-up was based on the black foreman’s refusal to himself write up
a white employee under him.
        Burrle also asserts that Lott micromanaged his work and did not supply him with an
adequate budget. He presents no third-party evidence that this was racially motivated. And
in fact, white employees appear to have complained of similar micromanagement.

       4 Burrle’s witness later signed an affidavit, filed by the Parish, in which he stated that
his signature on the declaration submitted by Burrle was not intended to reflect the accuracy
of the statement. The declaration submitted by Burrle was apparently handwritten by
Burrle’s lawyer and signed by the witness at the bottom.
                                               4
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                                 No. 13-30649


      We agree with the district court that Burrle has not produced evidence
that, when viewed in the light most favorable to him, could convince a
reasonable jury to find for him on his hostile work environment claim. See
Royal, 736 F.3d at 400. This claim consequently fails.
                                       B.
      Burrle’s constructive discharge claim fails as well. A prerequisite to a
constructive discharge claim is that it “requires a greater severity of
pervasiveness or harassment than the minimum required to prove a hostile
work environment.” Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th
Cir. 1991). Because Burrle has failed to produce sufficient evidence to support
his hostile work environment claim, he has similarly failed to produce evidence
sufficient to support a constructive discharge claim.
                                       III.
      Because we find that Burrle has not raised a genuine issue of material
fact on his hostile work environment or constructive discharge claims, the
district court’s summary judgment is
                                                                   AFFIRMED.




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