     Case: 10-60398 Document: 00511333655 Page: 1 Date Filed: 12/28/2010




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

                                                 FILED
                                                                        December 28, 2010

                                     No. 10-60398                          Lyle W. Cayce
                                   Summary Calendar                             Clerk


KENNETH E. BROWN,

                                    Plaintiff - Appellant
v.

UNITED PARCEL SERVICE, INC.,

                                    Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CV-837


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       In this Title VII retaliation case, the Court must determine whether
plaintiff-appellant Kenneth E. Brown engaged in activity protected by Title VII
when he complained to his employer about unfair work distribution, unpaid
overtime, and selective enforcement of a lunch policy. We conclude that Brown’s
complaints were not protected by Title VII because they did not concern


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 10-60398

discrimination based on “race, color, religion, sex, or national origin.”
Accordingly, Brown failed to establish a prima facie case of retaliation under
Title VII, and the district court properly granted summary judgment on Brown’s
Title VII retaliation claim.
                               I. BACKGROUND
      Brown, an African American, was an experienced driver for United Parcel
Service, Inc. (UPS) in Gulfport, Mississippi.     Michael Bates, a Caucasian,
became Brown’s supervisor in January 2007. It appears that the two did not get
along. In the summer of 2007, Brown allegedly was being given ten to thirty
stops per day more than other drivers, causing Brown to work unwanted
overtime. Brown complained to Bates about the extra work, but Bates allegedly
refused to acknowledge the problem or authorize Brown’s overtime pay. On July
20, 2007, Brown filed a union grievance requesting reduced hours and unpaid
overtime.   When no action was taken, Brown filed a second, substantially
identical union grievance on September 14, 2007. Brown ultimately received his
unpaid overtime.
      On September 28, 2007, Bates allegedly threatened to terminate Brown’s
employment because Brown took a lunch break at home. Brown asserts that he
and other UPS employees commonly took lunch breaks at home, and that this
practice never before caused a problem. Thus, on October 1, 2007, Brown filed
a third union grievance alleging that Bates’s threat was “an act of retaliation on
his part because of the grievance I had filed for being over 9/5 2 weeks in a 4
week period.” The grievance requested that “[i]n reference to lunch, same rules
should apply to all drivers with no exceptions.” The grievance concludes that “I
do feel discriminated upon by CTRMGR Mike Bates because of his actions.”

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      During a delivery on October 19, 2007, Brown’s truck rolled 15 feet across
a parking lot and collided with a small security vehicle. There was no significant
property damage. There is, however, a dispute as to whether Brown engaged the
parking brake, and whether the parking brake was functioning properly. Bates
ultimately concluded that the accident was an “avoidable runaway accident” and
terminated Brown’s employment on October 25, 2007. The collective bargaining
agreement governing Brown’s employment provides:

      ARTICLE 52 - DISCHARGE OR SUSPENSION

      (A) The Employer shall not discharge nor suspend any employee
      without just cause, but in respect to discharge or suspension shall
      give at least one (1) warning notice of a complaint against such
      employee to the employee, in writing, and a copy of the same to the
      Local Union, except that no warning notice need be given an
      employee before discharge if the cause of such discharge is . . . an
      avoidable runaway accident . . . .

      On October 25, 2007, Brown filed a fourth union grievance essentially
explaining his version of the accident. A grievance committee including UPS
and union representatives denied Brown’s request for reinstatement. Brown
then filed discrimination charges with the Equal Employment Opportunity
Commission (EEOC) on December 15, 2007 and January 8, 2008. The charges,
substantively identical to each other, allege that Brown’s termination was
racially motivated and retaliatory.     Brown specifically charged that other
Caucasian employees had been involved in runaway accidents but had not been
terminated.
      The EEOC issued a notice of right to sue on June 30, 2008, and Brown
timely filed this action asserting claims of race discrimination and retaliation in

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violation of Title VII of the Civil Rights Act of 1964. The district court granted
summary judgment against Brown on all claims. The district court found, inter
alia, that Brown failed to establish a prima facie case of retaliation because he
did not engage in any activity protected by Title VII. Although the district court
granted summary judgment on all of Brown’s claims, Brown has appealed only
the dismissal of his Title VII retaliation claim.1 For the following reasons, we
affirm.
                            II. STANDARD OF REVIEW
       We review a grant of summary judgment de novo and apply the same legal
standard as the district court. See Floyd v. Amite Cty. Sch. Dist., 581 F.3d 244,
247-48 (5th Cir. 2009). Summary judgment is appropriate when “the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).            Issues of fact are reviewed in light most
favorable to the nonmoving party, and questions of law are reviewed de novo.
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).




       1
         Brown’s statement of the issues on appeal is limited to his retaliation claim, and
Brown’s brief addresses only his retaliation claim. Because Brown has not identified or briefed
any other challenges to the district court’s decision, they are waived. See, e.g., FED . R. APP .
P. 28(a)(9)(A) (requiring appellant’s brief to include appellant’s contentions and the reasons
for them); Smith v. Xerox Corp., 602 F.3d 320, 335 n.61 (5th Cir. 2010) (“Because it fails to
make any similar argument on appeal, however, that issue is deemed waived, and we do not
consider it.”); Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”).

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                                  III. DISCUSSION
       Title VII makes it unlawful for an employer to retaliate against an
employee who opposes an employment practice made unlawful by Title VII. 42
U.S.C. § 2000e-3(a). The district court analyzed Brown’s Title VII retaliation
claim under the familiar McDonnell Douglas burden shifting framework, and we
see no reason to deviate from this approach in this case.2                See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under McDonnell Douglas,
a plaintiff first must establish a prima facie case of retaliation.              Id.   This
requires evidence that: (1) the plaintiff engaged in an activity protected by Title
VII; (2) the employer took an adverse employment action against the plaintiff;
and (3) a causal connection exists between the protected activity and the adverse
employment action.        See, e.g., Stewart, 586 F.3d at 33;          McCoy v. City of
Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). We have defined protected
activity as “opposition to any practice rendered unlawful by Title VII, including
making a charge, testifying, assisting, or participating in any investigation,
proceedings, or hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376, 385 (5th Cir. 2003). If the plaintiff carries his initial burden, the employer
must respond by producing evidence of a “legitimate, nondiscriminatory reason”
for the adverse employment action. Okoye v. Univ. of Tex. Houston Health Sci.
Ctr., 245 F.3d 507, 512 (5th Cir. 2001). Finally, if the employer carries its
burden, the plaintiff must put forward evidence that “the legitimate reasons


       2
         Although Brown pointed out to the district court that in some cases a plaintiff may
be entitled to a mixed-motives framework, Brown did not assert that he was entitled to a
mixed motives framework, and indeed Brown analyzed his own case under the McDonnell
Douglas framework. The district court did not err in applying McDonnell Douglas at summary
judgment.

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offered by the employer were not its true reasons, but were a pretext for
discrimination.” Id.
      We find that Brown has failed to establish the first prong of his prima facie
case, namely, that he engaged in activity protected by Title VII. Title VII does
not protect opposition to all forms of unscrupulous conduct. See, e.g., Stewart,
586 F.3d at 332 (observing that Title VII is not a “general civility code for the
American workplace”).        Instead, Title VII protects only opposition to
discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Magic words are not required, but protected opposition must at
least alert an employer to the employee’s reasonable belief that unlawful
discrimination is at issue. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 348-49 (5th Cir. 2007); Broderick v. Donaldson, 437 F.3d 1226, 1232
(D.C. Cir. 2006); Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003);
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Here,
the record indicates that although Brown complained about unfair work
distribution, unpaid overtime, and selective enforcement of a lunch policy shortly
before his termination, Brown did not complain about race, color, religion, sex,
or national origin discrimination. Because unfair work distribution, unpaid
overtime, and selective enforcement of a lunch policy, without more, are not
prohibited by Title VII, Brown’s opposition to these practices was not protected
by Title VII.
      It is true that Brown asserted in his October 1, 2007 grievance that “I do
feel discriminated upon by CTRMGR Mike Bates because of his actions.” But
read in context, this statement refers to Brown’s belief that he was being singled
out, not because of his race, but “because of the grievance I had filed for being

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                                No. 10-60398

over 9/5 2 weeks in a 4 week period.” As already explained, Title VII did not
prohibit UPS from terminating Brown because he complained about unfair work
distribution and unpaid overtime.
                            IV. CONCLUSION
     For the reasons stated, the district court properly granted summary
judgment on Brown’s Title VII retaliation claim.
     AFFIRMED.




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