     Case: 19-60795      Document: 00515525031         Page: 1    Date Filed: 08/12/2020




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

                                      No. 19-60795                                 FILED
                                                                             August 12, 2020
                                                                              Lyle W. Cayce
ANTONIO L. JOHNSON,                                                                Clerk

              Plaintiff - Appellant

v.

VT HALTER MARINE, INCORPORATED; DAVID NEWELL, in individual
and official capacity; RUSSELL WOODWARD, in individual and official
capacity; CECIL MAXWELL, in individual and official capacity; ZACHARY
ANDERSON, in individual and official capacity,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CV-340


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Antonio Johnson challenges the district court’s dismissal on
summary judgment his suit for hostile work environment, intentional
discrimination, and retaliatory discharge under 42 U.S.C. § 1981 and Title VII
of the Civil Rights Act of 1964. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60795
                                           I
      In April 2010, Johnson, who is African American, began working as a
contract worker with VT Halter Marine, Inc. (“VT”), which owned and operated
three shipyards. In November 2012, Johnson was hired by VT as a full-time
employee and was assigned to work as a tool room attendant, issuing tools,
equipment, and supplies to workers engaged in vessel construction. Johnson
maintains that between 2013 and 2017, he was disrespected or harassed by
several white employees of VT.
      First, citing a VT policy, Johnson refused to issue a box of earplugs to
Nathan Shepard, a VT employee, in September 2013. Angered, Shepard threw
two pairs of earplugs at Johnson. Later, Shepard and Johnson reconciled, and
Johnson chose not to file an HR complaint. In July 2014, when Johnson told
Cecil Maxwell that under VT policy, Maxwell could not retain a subordinate’s
brass washer, he threw a brass washer at Johnson. Johnson notified HR but
declined to file a formal complaint.
      In October 2014, after Johnson refused to check out a torch tip to Zachary
Anderson, Anderson threw a torch tip and soapstone at Johnson. Neither of
these small, light items hit Johnson. Johnson filed a formal complaint with
HR, which conducted an investigation and then wrote up and reprimanded
Anderson. Johnson later complained to HR that another employee, Russell
Woodward, hurled profanities at him. According to Johnson, the HR manager
told him, “[T]hat’s just shipyard talk.”
      In March 2017, when Johnson would not issue a VT employee a rope
without authorization from a superintendent, the employee called David
Newell, a superintendent, to provide the required authorization. The employee
put the call on speaker so that Johnson could hear Newell give the
authorization. Instead, Newell allegedly said, “Who’s there, that black n-----?”
When Johnson asked what Newell had just said, the employee responded: “He
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                                        No. 19-60795
asked who was there, the black dude?” Johnson and another employee who
witnessed the exchange promptly reported the incident to HR, which
conducted an investigation, suspended Newell without pay for three days, and
issued a written warning.
      Meanwhile, in 2016, VT closed two of its three shipyards and in 2017,
laid off nearly one hundred employees. Under VT’s policy, it first identified
non-essential jobs that could be eliminated. Then, if more than one employee
performed a job that was to be eliminated, the most junior employee was laid
off unless another employee had been disciplined within the last year.
      According to VT, it decided that one of the three tool room attendants
was non-essential, and on March 5, 2017, concluded that it would lay off
Johnson because he was the most junior attendant and the two other
attendants had not been disciplined during the last year. Although VT planned
to let Johnson go on May 5, 2017, they ultimately terminated his employment
on May 4 after he refused to perform a job assigned by his supervisor.
      After exhausting the administrative process, Johnson filed the instant
suit against VT, Anderson, Maxwell, Newell, and Woodward. The district court
granted Defendants’ motion for summary judgment on all claims. This appeal
followed.
                                               II
      We review a grant of summary judgment de novo. 1 Summary judgment
is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 2




      1   Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016).
      2   FED. R. CIV. P. 56(a).
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                                      No. 19-60795
                                            III
       Johnson asserts three claims under 42 U.S.C. § 1981 and Title VII:
hostile work environment, intentional discrimination, and retaliation. 3
Although he asserts each claim against VT and the individual defendants, his
brief on appeal does not respond to the district court’s holdings regarding the
individual defendants. In so doing, Johnson forfeited his claims against them,
and we consider his appeal only as to VT. 4
                                             A
       Johnson asserts that his white coworkers harassed him because of his
race, thereby creating a hostile work environment. To state a hostile work
environment claim under Title VII, 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. 5
       When harassment occurs, a defendant may avoid Title VII liability by
taking “prompt remedial action . . . reasonably calculated to end the
harassment.” 6 The suitability of the remedial action “necessarily depend[s] on
the particular facts of the case—the severity and persistence of the
harassment, and the effectiveness of any initial remedial steps.” 7 We have



       3 Because employment discrimination claims brought under § 1981 “are analyzed
under the evidentiary framework applicable to claims arising under Title VII,” we consider
Johnson’s § 1981 and Title VII claims together. Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 311 (5th Cir. 1999).
       4 See Norris v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017) (noting that failure to

adequately brief an argument forfeits the claim).
       5 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)).
       6 Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999)

(cleaned up).
       7 Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399–400 (5th Cir. 1996).

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                                     No. 19-60795
previously concluded that an employer took “prompt remedial action” when
“[i]t took the allegations seriously, it conducted prompt and thorough
investigations, and it immediately implemented remedial and disciplinary
measures based on the results of such investigations.” 8
      Johnson first points to his altercations with Shepard, Maxwell,
Anderson, and Woodward, but identifies no evidence that the harassment was
based on race. He then argues that Newell harassed him when he called
Johnson a racial epithet. But when Johnson filed a complaint with HR, VT
conducted a prompt and thorough investigation, quickly suspended Newell for
three days without pay, and issued him a written warning. Johnson offers no
evidence of a deficient or delayed investigation. Nor has he briefed an
argument that the suspension was insufficient. We therefore conclude that
Johnson’s hostile work environment claim fails.
                                            B
      Johnson claims that he was terminated either because of race or in
retaliation for his complaint to HR about Newell. For a claim of intentional
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.” 9 For a
retaliation claim, the plaintiff must show that “(1) he participated in an
activity protected by Title VII; (2) his employer took an adverse employment
action against him; and (3) a causal connection exists between the protected
activity and the adverse employment action.” 10


      8 Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994).
      9 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam).
      10 Id. at 557.

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                                      No. 19-60795
       As Johnson provides no direct evidence of racial discrimination or
retaliation playing a role in his termination, we apply the McDonnell Douglas
burden-shifting framework to both claims. 11 Under this framework, the
plaintiff “carr[ies] the initial burden under the statute of establishing a prima
facie case of racial discrimination.” 12 Once the plaintiff has met this burden, it
“shift[s] to the employer to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.” 13 If the employer has articulated such a
reason, then the plaintiff must show that the stated reason “was in fact
pretext.” 14
       It is undisputed that Johnson, a member of a protected group, was
qualified for his position and was subjected to an adverse employment action
when he was fired less than two months after filing an HR complaint about the
use of a racial epithet. The parties therefore agree that Johnson has made out
a prima facie case for retaliation, and we assume arguendo that he has made
one out for intentional discrimination as well.
       In response, VT claims that it terminated Johnson as part of a large
batch of layoffs and adhered to its policy of laying off workers by seniority.
Johnson does not dispute that VT has produced a legitimate, non-
discriminatory reason for his termination.




       11  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). To be sure, Newell
called Johnson a uniquely deplorable racial slur. But there is no evidence that Newell played
any role in the decision to terminate Johnson. See Roberson v. Alltel Info. Servs., 373 F.3d
647, 653 (5th Cir. 2004).
        12 McDonnell Douglas, 411 U.S. at 802.
        13 Id.
        14 Id. at 804. A plaintiff stating a discrimination claim may show either that the

employer’s stated reason was pretext or “that the defendant’s reason, while true, is only one
of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff's protected
characteristic (mixed-motive[s] alternative).” Rachid v. Jack In The Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004) (quoting Rishel v. Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 865
(M.D.N.C. 2003)).
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                                   No. 19-60795
      Rather, he attempts to establish pretext. He first argues that “VT hired
new employees before, during, and after Johnson’s termination.” But VT hired
workers only in those job classifications needed to complete existing vessel
construction projects: skilled electricians, shipfitters, specialty welders, and
security personnel. Moreover, they did not hire a new tool room attendant or
tool room repairer for over eighteen months after Johnson’s termination.
      Johnson then points to his testimony that, shortly after VT terminated
nine employees in January 2017, the vice president of production told him his
job was secure because staffing was at its “minimum in the Tool Room.” But
this lone statement made five months before Johnson’s discharge creates at
most “a weak issue of fact as to whether [VT’s] reason was untrue.” 15 It is not
enough to establish pretext in light of the “abundant and uncontroverted
evidence that no discrimination had occurred,” namely the closing of two
shipyards, the termination of nearly one hundred employees, and the fact that
VT did not hire a new tool room attendant for over eighteen months after
terminating Johnson. We therefore affirm summary judgment for VT Halter
on Johnson’s discrimination and retaliation claims.
                                         IV
      For the reasons set forth above and as stated in the district court’s
opinion, we affirm the district court’s dismissal of Johnson’s suit.




      15Price v. Fed. Exp. Corp., 283 F.3d 715, 724 (5th Cir. 2002) (quoting Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000)).
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