     Case: 09-20714     Document: 00511119701           Page: 1     Date Filed: 05/24/2010




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

                                                  FILED
                                                                            May 24, 2010

                                     No. 09-20714                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



PINKIE E. LYLES,

                                                     Plaintiff-Appellant,
v.

TEXAS ALCOHOL BEVERAGE COMMISSION,

                                                     Defendant-Appellee.




                   Appeal from the United States District Court
                       for the Southern District of Texas,
                            USDC No. 4:08-CV-01648


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Pinkie E. Lyles appeals the district court’s grant of
summary judgment in favor of the Defendant-Appellee, Texas Alcohol Beverage
Commission (“TABC”). For the reasons discussed in greater detail below, we
find that the district court did not err when it granted TABC’s motions for
summary        judgment     on    Lyles’s    Title     VII   race    discrimination,     race




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20714

harassment/hostile work environment, and retaliation claims.1 Accordingly, we
AFFIRM the judgment of the district court.
                    F ACTUAL AND P ROCEDURAL B ACKGROUND
       TABC hired Lyles, an African-American female, on May 1, 2007, to
perform work as the legal secretary for its Houston office. Almost immediately,
Lyles began to have problems with one of her supervising attorneys, Ramona
Perry, also an African-American female. According to Lyles, Perry subjected her
to unrelenting verbal and non-verbal abuse through direct and indirect
comments and criticisms; confrontational and threatening beratings; and open
ridicule in front of fellow employees. The alleged harassment came to a head in
September. Lyles describes the encounter as follows:
              On September 10, 2007, Plaintiff attended a meeting
              and decided to express her dissatisfaction with the way
              (Perry) was treating her. (Perry) with aggression
              verbally attacked Plaintiff and she became nervous,
              afraid and tearful and could not recount all that she
              wanted to say. (Perry) began yelling, humiliating and
              belittling Plaintiff and stated “I will not work with her
              . . . . I do not want you here,” and expressed that she
              had told this to others whom Plaintiff also believed to
              be management. The demeanor of (Perry) at that time
              was such that it frightened Plaintiff and she feared a
              possible physical attack.

Following the September 10 incident, Lyles filed a verbal and written complaint
against Perry with TABC’s Office of Professional Responsibility.                     Lyles’s
complaint discussed Perry’s “non-professional” and abusive conduct—but
noticeably, the complaint not contain any explicit or implicit allegation that
Perry’s hostile and harassing conduct was race-based.



       1
          Title VII prohibits an employer from “discharg[ing] an individual, or otherwise
discriminat[ing] against any individual ... because of such individual’s race, ... or national
origin.” 42 U.S.C. § 2000e-2(a)(1) (2006).

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       On September 13, 2007, TABC terminated Lyles for allegedly poor job
performance and behavioral issues. On October 4, 2007, Lyles filed a charge of
“race” and “color” discrimination against TABC with the Texas Workforce
Commission Civil Rights Division. On October 10, 2007, Lyles filed a similar
charge with the Equal Employment Opportunity Commission (“EEOC”). After
exhausting her administrative remedies, Lyles filed the instant action, alleging
race discrimination against TABC on May 23, 2008. On March 11, 2009, she
filed her “Comprehensive Amended Complaint” asserting a race discrimination
claim, a Texas Labor Code violation, a racially hostile work environment claim,
and claim for retaliation.         TABC filed two separate motions for summary
judgment (one for judgment on the original complaint, and another for judgment
on Lyles’s Comprehensive Amended Complaint).
       On May 20, 2009, the district court granted TABC’s initial motion for
summary judgment regarding Lyles’s race discrimination claim, and on October
7, 2009, the district court granted TABC’s second motion for summary
judgment—granting the defendant judgment on all three of the plaintiff’s
remaining claims.2 Lyles’s timely filed the instant appeal.
                                          A NALYSIS
       “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” Allen v. McWane, Inc., 593
F.3d 449, 450 (5th Cir. 2010). Summary judgment is warranted when “the
pleadings, the discovery and disclosure materials on file, and any affidavits show



       2
          In granting summary judgment against the plaintiff on her Title VII claims, the
district court also concluded that it could not reach the merits on the plaintiff’s Texas Labor
Code claim (specifically under § 21.010) that she was denied the New Employee Orientation
Training by TABC within 30 days of her hiring—as required by statute. The district court
found that pursuant to the Eleventh Amendment, TABC was immune from Lyles’s Texas
Labor Code claim in federal court. Lyles does not appeal this aspect of the district court’s
decision, and as a result, we do not reach a decision regarding the district court’s dismissal of
her Texas Labor Code claim.

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that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “If the record,
taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, then there is no genuine issue for trial.” Harvill v. Westward Commc’n,
L.L.C., 433 F.3d 428, 433 (5th Cir. 2005) (quotation marks and citation omitted).
       Lyles is proceeding pro se. Consequently, in considering the issues that
Lyles has raised on appeal, we note that the Court applies “less stringent
standards to parties proceeding pro se than to parties represented by counsel
and liberally construe[s] the briefs of pro se litigants.” Grant v. Cuellari, 59 F.3d
523, 524 (5th Cir. 1995).
      I.     L YLES’S R ACE D ISCRIMINATION C LAIM
       On appeal, Lyles contends that the district court erred in granting
summary judgment on her race discrimination claim.            She claims that the
district court failed to consider the “totality of the circumstances” and “draw all
necessary inferences in the light most favorable to” her. Our review of the
record, however, reveals that the district court was correct to grant summary
judgment in favor of the defendant. Lyles’s race discrimination claim did not
survive TABC’s motion for summary judgment because Lyles failed to establish
a prima facie case of discriminatory discharge.
      “To establish a prima facie case of employment discrimination [Lyles] must
establish that [s]he (1) is a member of a protected class; (2) was qualified for the
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,
. . . that other similarly situated employees were treated more favorably.” Bryan
v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). In the present case,
Lyles, an African-American, is a member of a protected class. Further, TABC
concedes that Lyles was qualified for the position of legal secretary and that she
was discharged. Lyles, however, cannot prove the fourth element: that she was

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replaced by a person outside the protected class, or in the case of a disparate
treatment claim, that others similarly situated, but outside the protected class,
were treated more favorably.
      In this regard, the evidence in the record squarely supports the district
court’s decision. First, TABC offered uncontested evidence (in the form of an
affidavit by Lou Bright, General Counsel for TABC) that “after Lyles was
terminated, an African-American female was hired for the position.”
Furthermore, Lyles has offered no evidence that she was treated differently than
other non-protected class members similarly situated to her. Because Lyles has
not demonstrated that she was replaced by someone outside of her protected
class, nor has she put forth any evidence to show that others similarly situated,
but outside the protected class, were treated more favorably, Lyles has failed to
present a prima facie case.
      Accordingly, since Lyles could not establish a prima facie case of race
discrimination, the district court was correct to grant summary judgment in
favor of the defendant.
      II.   L YLES’S H OSTILE W ORK E NVIRONMENT C LAIM
      Lyles also challenges the district court’s grant of summary judgment on
her hostile work environment claim.        In order to establish a hostile work
environment claim, Lyles must demonstrate that (1) she is a member of a
protected class, (2) she suffered unwelcome harassment, (3) the harassment was
based on race, (4) the harassment affected her job, and (5) the employer was
responsible. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).          “In
determining whether a workplace constitutes a hostile work environment, courts
must consider the following circumstances: 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. (internal quotations omitted). In the present


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case, however, there is insufficient evidence to conclude that the harassment
Lyles suffered was based on race.
       Perry’s statements alone do not demonstrate racial animus. It is true that
the evidence indicates that Perry’s conduct in the office was quite abrasive—if
not abusive.    Lyles submitted evidence to demonstrate that Perry yelled
comments such as: “I will not work with her” and “I do not want you here.” This
evidence, however, fails to provide an adequate explanation as to how Perry’s
conduct could reasonably be considered race-based. Lyles states that Perry “was
of the opinion and or belief that Plaintiff’s demeanor was that of a Caucasian. .
. (g)iven the fact that Plaintiff spent several years in a corporate environment,
lived in a suburban small town environment, used her middle name rather than
her given name and chose to speak English in its proper content rather than
current day casual dialect.”    Lyles’s own personal beliefs regarding Perry’s
opinions of Lyles, however, cannot import racial animus into Perry’s own
individual conduct.    This Court “has cautioned that conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden in a motion for summary judgment.” Ramsey, 286 F.3d at
269.
       With no objective evidence in the record to substantiate Lyles’s opinion
that Perry’s conduct was race-based, we conclude that the district court was
correct to award summary judgment in favor of TABC on Lyles’s hostile work
environment claim.
       III.   L YLES’S R ETALIATION C LAIM
       Lyles accuses TABC of retaliating against her for lodging a complaint with
its internal Office of Professional Responsibility (“OPR”). “To establish a prima
facie retaliation claim, [Lyles] must prove that: (1) she engaged in an activity
that Title VII protects; (2) [TABC] carried out an adverse employment action;
and (3) a causal nexus exists between her protected activity and [TABC’s]


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                                   No. 09-20714

adverse action.” Harvill, 433 F.3d at 440. In the present case, Lyles never
established a prima facie case for her retaliation claim since she never engaged
in an activity that Title VII protects.
         Under Title VII, an employee has engaged in protected activity if she has
“opposed any practice made an unlawful employment practice by this
subchapter,” or “made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. §
2000e-3(a). Lyles’s complaint before the OPR, however, did not oppose any
unlawful employment practice pursuant to Title VII because her complaint did
not contain any explicit or implicit allegation that Perry’s hostile and harassing
conduct was race-based.
         Since Lyles’ complaint did not oppose or protest racial discrimination or
any other unlawful practice under Title VII, she did not, prior to her
termination, engage in a protected activity. Accordingly, the district court was
correct to conclude that Lyles had failed to put forth a prima facie case of
retaliation.
                                   C ONCLUSION
         For the aforementioned reasons, we AFFIRM the judgment of the district
court.




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