      Case: 17-10294          Document: 00514533976              Page: 1      Date Filed: 06/28/2018




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

                                                                                               FILED
                                          No. 17-10294                                     June 28, 2018
                                        Summary Calendar
                                                                                          Lyle W. Cayce
                                                                                               Clerk
BERNIS TOLLIVER,

                 Plaintiff - Appellant

v.

YRC, INCORPORATED, doing business as YRC Freight,

                 Defendant-Appellee

-------------------------------------------------------------------------------------------------

RONNIE HELAIRE,

                 Plaintiff - Appellant

v.

YRC, INCORPORATED, doing business as YRC Freight,

                  Defendant - Appellee
-------------------------------------------------------------------------------------------------
LOVIE BERRY,

                 Plaintiff - Appellant

v.

YRC, INCORPORATED, doing business as YRC Freight,

                  Defendant - Appellee
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      Case: 17-10294          Document: 00514533976              Page: 2      Date Filed: 06/28/2018



                                            No. 17-10294


TERRY A. DEVEREAUX,

                 Plaintiff - Appellant

v.

YRC, INCORPORATED, doing business as YRC Freight,

                   Defendant - Appellee
--------------------------------------------------------------------------------------------------
CALVIN ALEXANDER

                Plaintiff - Appellant
v.

YRC, INCORPORATED, doing business as YRC Freight,

                   Defendant - Appellee
----------------------------------------------------------------------------------------------------
LYNDELL GIBSON

                Plaintiff - Appellant
v.

YRC, INCORPORATED, doing business as YRC Freight,

                   Defendant - Appellee




                  Appeals from the United States District Court
                        for the Northern District of Texas
               USDC Nos. 3:15-CV-2554, 3:15-CV-2717, 3:15-CV-2866
                   3:15-CV-2561, 3:15-CV-3050, 3:15-CV-3421


Before JOLLY, OWEN, and HAYNES, Circuit Judges.



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     Case: 17-10294       Document: 00514533976         Page: 3     Date Filed: 06/28/2018



                                       No. 17-10294


PER CURIAM:*
       Plaintiffs in this consolidated case appeal the district court’s grant of
summary judgment to their employer, YRC Inc., on their Title VII Civil Rights
Act claims. Plaintiffs allege that between 1999 and 2016, African-American
dockworkers at YRC encountered nooses, racist graffiti, and other incidents in
the workplace. Although we agree that creating such symbols is morally
unacceptable, upon careful review, we must AFFIRM. 1
       As a threshold matter, the district court properly exercised its discretion
in not considering new factual allegations that Plaintiffs raised for the first
time on summary judgment. See Jacked Up, LLC v. Sara Lee Corp., 854 F.3d
797, 810 (5th Cir. 2017); see also Green v. JP Morgan Chase Bank, N.A., 562 F.
App’x 238, 240 (5th Cir. 2014) (per curiam). 2 The district court also properly
declined to consider events that occurred outside the limitations period, as no
evidence suggests that those alleged events, which date back to 1999, were
related enough to the more recent incidents to establish a “continuing
violation.” See Filer v. Donley, 690 F.3d 643, 647–48 (5th Cir. 2012).
       The question then is whether two incidents where unknown persons left
a noose in YRC facilities, and one incident where someone wrote racist graffiti
on a YRC truck, is enough to create a hostile work environment. Such conduct
is undoubtedly highly reprehensible. However, Title VII is not the same thing
as a code of conduct and does not reach all actions that ordinary employers


       * 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.
       YRC argues that Plaintiffs have waived any claim of error due to inadequate briefing.
       1

We pretermit this issue and instead affirm on the merits.
       2Though not “controlling precedent,” unpublished decisions of this court “may be cited
as persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4).
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                                 No. 17-10294


should deem inappropriate and worthy of discipline. Cf. Indest v. Freeman
Decorating, 164 F.3d 258, 266 (5th Cir. 1999) (Title VII does not guarantee
civility in the workplace). Under our precedent, these events were not
“sufficiently severe or pervasive,” particularly where Plaintiffs did not contend
that the acts were directed at them and for the most part learned about the
acts secondhand. See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)
(quoting Harris v. Forklift Sys. 510 U.S. 17, 21 (1993)); see also Brooks v.
Firestone Polymers, LLC, 640 F. App’x 393, 400 (5th Cir. 2016) (per curiam);
Hudson v. Cleco Corp., 539 F. App’x 615, 620 (5th Cir. 2013) (per curiam).
      But even if we were to conclude that the incidents were sufficiently
severe, the evidence showed that YRC took the sort of prompt remedial action
the law requires, including offering $25,000 for information on the
perpetrators, interviewing hundreds of employees, reporting the incidents to
law enforcement, hiring more security guards, and giving weekly reminders
about YRC’s discrimination policies. See Williams-Boldware v. Denton Cty.,
741 F.3d 635, 640–42 (5th Cir. 2014); Hirras v. Nat’l R.R. Passenger Corp., 95
F.3d 396, 400 (5th Cir. 1996). Although YRC did not discipline anyone, that is
because the perpetrators remain unknown. Plaintifs raised no fact issue to the
contrary. Thus, the district court properly granted summary judgment. See
Williams-Boldware, 741 F.3d at 640–42; Hirras, 95 F.3d at 400.
      AFFIRMED.




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