     Case: 13-30231       Document: 00512371620         Page: 1     Date Filed: 09/12/2013




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

                                                                            FILED
                                                                        September 12, 2013

                                     No. 13-30231                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ROY HUDSON,

                                                  Plaintiff-Appellant
v.

CLECO CORPORATION,

                                                  Defendant-Appellee



                    Appeal from the United States District Court
                       for the Western District of Louisiana
                               USDC No. 5:11-01699


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
         Roy Hudson appeals the district court’s judgment granting Cleco
Corporation’s second motion for summary judgment as to Hudson’s claims,
advanced under 42 U.S.C. § 1981, for denial of overtime and hostile work
environment. We AFFIRM for essentially the same reasons given by the district
court.




         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-30231

            I. FACTUAL AND PROCEDURAL BACKGROUND
      Roy Hudson has been employed by Cleco since 1988. In 2009, Hudson and
twelve other current and former African-American employees of Cleco filed suit
against Cleco alleging that the company engaged in various forms of racial
discrimination, age discrimination, and retaliation, in violation of Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”),
42 U.S.C. § 1981, the Louisiana Employment Discrimination Law, and the
Louisiana Commission on Human Rights. In 2010, Cleco filed a motion for
summary judgment, which the district court granted in part, and denied in part.
As a result, Hudson’s Title VII, ADEA, and state law claims were dismissed,
leaving only claims Hudson advanced under 42 U.S.C. § 1981 for failure to
promote, discrimination, retaliation, and hostile work environment.
      Cleco subsequently filed a motion to sever the claims of the various
plaintiffs, which the district court granted. In 2012, Cleco filed a second motion
for summary judgment in Hudson’s case, seeking dismissal of all remaining
claims. The district court granted the motion in 2013, and Hudson timely
appeals.
                         II. STANDARD OF REVIEW
      We review a district court’s order granting summary judgment de novo.
First Am. Bank v. First Am. Transp. Title Ins. Co., 585 F.3d 833, 836–37 (5th
Cir. 2009). Summary judgment is appropriate if the moving party can show that
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A factual dispute is
‘genuine’ if a reasonable trier of fact could return a verdict for the nonmoving
party.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008). In
considering a summary judgment motion, we view the evidence in the light most
favorable to the nonmoving party. United Fire & Cas. Co. v. Hixson Bros. Inc.,



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                                  No. 13-30231

453 F.3d 283, 285 (5th Cir. 2006). However, “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat
a motion for summary judgment.” Brown v. City of Houston, Tex., 337 F.3d 539,
541 (5th Cir. 2003). “[W]e may affirm the district court’s ruling on any grounds
supported by the record.” Lifecare Hosps., Inc. v. Health Plus of La., Inc., 418
F.3d 436, 439 (5th Cir. 2005).
                              III. DISCUSSION
A. Successive Summary Judgment Motions
      Hudson first argues that the district court erred in allowing Cleco to file
a second motion for summary judgment after it partially denied Cleco’s first such
motion. According to Hudson, Cleco provided nothing in its second summary
judgment motion demonstrating that new evidence was acquired after the court
partially denied the first motion, nor did Cleco indicate that a subsequent
change in the law supported summary judgment under the second motion.
Under such circumstances, Hudson contends that it was error for the court to
permit Cleco to file the second summary judgment motion.
      Hudson cites no authority for his position, however, nor have we
discovered any. To the contrary, we repeatedly have held a “district court has
broad discretion to control its own docket.” Smith & Fuller, P.A. v. Cooper Tire
& Rubber Co., 685 F.3d 486, 491 (5th Cir. 2012); see also Edwards v. Cass Cnty.,
Tex., 919 F.2d 273, 275 (5th Cir. 1990). Indeed, as pertaining specifically to a
district court’s decision to permit successive summary judgment motions, we
previously have explained that “[s]uch a determination, particularly regarding
questions of the timing and sequence of motions in the district court, best lies at
the district court’s discretion.” Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501,
507 (5th Cir. 1992); see also Hill v. Cleco Corp., No. 13-30249, 2013 WL 4017416,
at *1 n.1 (5th Cir. Aug. 8, 2013) (per curiam) (unpublished). Accordingly, we find



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no error in the lower court’s decision to permit, and rule on, Cleco’s second
summary judgment motion.
B. Claims Advanced Under 42 U.S.C. § 1981
       Hudson next argues that the district court erred in granting Cleco’s
summary judgment motion in connection with his claims advanced under § 1981.
In particular, Hudson contends that genuine disputes of material fact precluded
summary judgment as to his claims for denial of overtime and hostile work
environment.1 We address each of these claims in turn.
       (1) Denial of Overtime
       In support of his discrimination claims, Hudson first contends that Cleco
denied him the opportunity to work overtime on two occasions in 2007.
Addressing this claim requires that we pause briefly to explain how Cleco
manages its overtime scheduling. To support its after-hours maintenance
requirements, Cleco utilizes a “call crew,” or list of employees who may be called
to work overtime as necessity dictates. Call crews are assigned either “primary”
or “back-up” status for two-week intervals, on a rotating basis. Typically, when
overtime is required, primary call crew members are contacted first, after which
back-up call crew members may be contacted if additional assistance is needed.
On occasion, an employee who is not on either the primary or back-up call crew
may be contacted to work overtime even though no member of the call crew has
been contacted to work overtime. Among other reasons, this can occur if: (1) an
employee with specific skills is needed; (2) an employee has recently worked on




       1
         The district court also concluded that various other of Hudson’s “miscellaneous”
§ 1981 discrimination and retaliation claims were untimely. Although the district court’s
conclusion on that score is without error, we need not address those claims in detail, as
Hudson has abandoned them on appeal. See Mackey v. Astrue, 486 F. App’x 421, 423 (5th Cir.
2012) (per curiam) (unpublished) (“Because [the appellant] fails to address the district court’s
reasons for dismissing his claims, he has abandoned all issues on appeal.”).

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an issue relating to the equipment needing repair; or (3) an employee needs to
gain experience on a piece of equipment.
      In September 2007, although Hudson was on the call crew list, Trent
Alexander, a Caucasian male, was called to work overtime despite not having
been on the call crew list. After Hudson complained to a manager, the manager
investigated and discovered that Alexander was called in so that he could gain
experience working on the piece of equipment that was in need of repair. Thus,
although Hudson points to this incident as evidence of racial discrimination,
Cleco’s position is that Alexander needed the experience to enhance his job skills.
      At another time in 2007, Hudson was again on the call crew list when an
employee was needed for an after-hours welding job.            Although Hudson
volunteered for the assignment, he was told he was too tall for the job.
According to Cleco, only someone of a smaller stature could have performed the
assignment, though Hudson maintains that the real reason he was denied the
opportunity to work overtime was because of his race.
      “Claims of racial discrimination in employment, pursuant to 42 U.S.C.
§ 1981 . . . , are governed by the same analysis as that employed for such claims
under Title VII.” DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). For
claims of discrimination based on circumstantial evidence, as here, we apply the
familiar McDonnell Douglas burden-shifting analysis. See Davis v. Dall. Area
Rapid Transit, 383 F.3d 309, 316–17 (5th Cir. 2004) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)).
      To survive summary judgment under McDonnell Douglas, the
      plaintiff must first present evidence of a prima facie case of
      discrimination. If the plaintiff presents a prima facie case,
      discrimination is presumed, and the burden shifts to the employer
      to articulate a legitimate, nondiscriminatory reason for the
      underlying employment action. If the employer is able to state a
      legitimate rationale for its employment action, the inference of
      discrimination disappears and the plaintiff must present evidence


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                                  No. 13-30231

      that the employer’s proffered reason was mere pretext for racial
      discrimination.
Id. at 317 (citations omitted). To establish a prima facie case of discrimination,
a plaintiff must demonstrate that he: “(1) is a member of a protected group; (2)
was qualified for the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was replaced by someone
outside his protected group or was treated less favorably than other similarly
situated employees outside the protected group.” McCoy v. City of Shreveport,
492 F.3d 551, 556 (5th Cir. 2007) (per curiam).
      Here, the district court held that Hudson failed to establish his prima facie
case, because Cleco’s failure to allow Hudson to work overtime on the two
previously discussed occasions did not constitute an “adverse employment
action.”   Alternatively, the court concluded that even if Hudson had
demonstrated that the de minimis denial of overtime qualified as an adverse
employment action, he still could not prevail, as he could not rebut Cleco’s
legitimate rationale for its employment-scheduling decisions. Because we agree
with the court’s alternative rationale, we need not decide whether Hudson has
established a prima facie case under McDonnell Douglas.
      As mentioned, Cleco has presented legitimate, non-discriminatory
rationales for its decisions not to call Hudson into work on the two complained-of
instances. In the first case, Hudson was not called in because the company
determined that another employee, Trent Alexander, needed the experience
provided by the overtime opportunity. In the second case, Hudson was deemed
too tall to perform the task required by the overtime assignment. Hudson does
not contest these facts, nor does he attempt to rebut the legitimate rationale
proffered by Cleco for its employment decisions.        Rather, Hudson merely
reasserts his allegation that the true reason he was denied overtime work was




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                                  No. 13-30231

because of his race. Such a conclusory allegation is insufficient to create a
genuine dispute of material fact. See McCoy, 492 F.3d at 562.
      (2) Hostile Work Environment
      Hudson also alleges that the district court erred in granting summary
judgment in Cleco’s favor as to his § 1981 claim for hostile work environment.
To establish a claim of hostile work environment, a plaintiff must show that he:
      (1) belongs to a protected group; (2) 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 employment; (5) the employer knew or should have
      known of the harassment in question and failed to take prompt
      remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation
marks and citation omitted).
      Although Hudson references various purported instances of racism in the
Cleco workplace, the district court correctly found these allegations to be “either
conclusory statements of racial discrimination, inadmissible hearsay,
unsubstantiated assertions, or statements that do not relate personally to
Hudson.” Additionally, these generalized allegations “were neither ‘physically
threatening or humiliating’ towards [Hudson], nor did the harassment
‘unreasonably interfere[] with [his] work performance.’” Hernandez, 670 F.3d
at 654 (quoting Ramsey, 286 F.3d at 268). Thus, as the district court properly
concluded, Hudson’s allegations, even if true, generally are not sufficiently
severe or pervasive to have altered the terms and conditions of his employment
with Cleco. See Faragher, 524 U.S. at 788.


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                                  No. 13-30231

      The sole allegation Hudson advances that arguably precludes summary
judgment involves a hangman’s noose that was displayed in Cleco’s Crowley,
Louisiana, training center in 2007. Under the proper circumstances, such an
incident might constitute an “extremely serious” isolated event causing a
discriminatory change in the terms and conditions of one’s employment. See id.;
see also Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th Cir.
2007). As reprehensible as the incident was, however, we need not decide
whether it alone would support a hostile work environment claim, because
Hudson    has   not   presented    competent     summary    judgment    evidence
demonstrating that the noose was associated with his specific workplace
environment.
      Hudson does not present any evidence that he saw the noose or that its
display was directed at him. To the contrary, Hudson himself vaguely stated
that he merely “heard talk” of it, and the record is devoid of any evidence
supporting the contention that Hudson was at the training facility when the
noose was discovered.     Furthermore, at the time of the incident, Hudson
admittedly did not complain of or report it to Cleco, nor did he ever tell his
coworkers about it. In fact, as Cleco notes, Hudson’s first reference to the noose
appears to have been made in an affidavit that contradicts Hudson’s deposition
testimony. “It is well settled that this court does not allow a party to defeat a
motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
495 (5th Cir. 1996); see also Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 233
n.9 (5th Cir. 1984) (“The nonmoving party cannot defeat a summary judgment
motion by attempting to create a disputed material fact through the introduction
of an affidavit that directly conflicts with his prior deposition testimony.”).
Accordingly, we conclude that Hudson has not supported his claim with
competent summary judgment evidence. See Hill, 2013 WL 4017416, at *2.

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                          IV. CONCLUSION
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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