     Case: 14-40171       Document: 00513009572         Page: 1     Date Filed: 04/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40171                         United States Court of Appeals
                                   Summary Calendar                                Fifth Circuit

                                                                                 FILED
                                                                             April 17, 2015
JARRIOD SCOTT,                                                              Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff–Appellant,
v.

WEBER AIRCRAFT,

                                                  Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CV-728


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Following his termination by Weber Aircraft (Weber), Jarriod Scott
brought this lawsuit alleging racial discrimination, retaliation, hostile work
environment, negligence, defamation, and breach of contract. The district
court granted summary judgment to Weber and Scott appealed. We hold that
the district court correctly granted summary judgment for Weber on each of
Scott’s claims. The judgment of the district court is AFFIRMED.


       * Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
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                                       I.
      We review the district court’s grant of summary judgment de novo.
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is
appropriate 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.” FED.
R. CIV. P. 56(a). All facts and inferences are construed in the light most
favorable to the nonmoving party. Dillon, 596 F.3d at 266.
                                       II.
      The magistrate judge’s report and recommendation provides a full
account of the facts. The district court adopted the findings and conclusions of
the magistrate judge as the findings and conclusions of the district court. Scott
was employed as an assembler by Weber, an aircraft seat manufacturer, from
2005 until he was terminated in 2011.          His employment and eventual
termination were subject to a collective bargaining agreement (CBA)
negotiated between Weber and the General Warehousemen and Helpers, Local
767 (Union).
      According to Scott, who is African-American, in 2006 he observed a white
noose constructed of towels hanging on the end of one of the assembly-line
machines. After three days, Scott brought the noose to the attention of his
supervisor and it was taken down. In 2010, Scott became aware of a third-
party publication on Weber property containing the “n-word.” Scott reported
this and met with his Union representative and the Human Resources (HR)
Manager, Elizabeth Hutchon, that same day. Following this meeting, Hutchon
e-mailed all Weber supervisors, reiterating the policy that no third-party
materials were permitted to be distributed on Weber property without prior
approval by Weber.       Scott alleges that after this report, members of
management and key Weber employees began conducting surveillance of Scott.


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      Scott contends that in March 2011, a car was driven at him in the Weber
parking lot and “grazed” him as he extended his hands to push away from the
vehicle. Scott did not know the driver. Scott reported this incident to HR
personnel at Weber, who then called the police. Scott provided Hutchon with
the license plate of the vehicle and Hutchon provided Scott with the identity of
the employee who owned the vehicle so that Scott could file an insurance claim.
Scott also filed a worker’s compensation claim arising from injuries from this
incident. That claim was denied based on a lack of evidence of the incident and
a lack of evidence of any injury.
      Scott also alleges that a white Weber employee videotaped or
photographed Scott in the parking lot. According to Scott, other employees
began driving in front of and behind him in the parking lot, and at one point a
different unidentified Weber employee pointed his finger at Scott “like he was
fixing to pull a trigger.”
      In August 2010, a female employee reported that Scott had been staring
at her and had touched her backside. In March 2011, another female employee
reported that Scott had been harassing her for the past year by pulling up to
her vehicle in the parking lot and staring at her. In April 2011, a female
employee reported to HR that Scott had inquired with her about “that b---h,”
in reference to another female employee.        Around the same time, a male
employee reported that Scott had stared at him on multiple occasions and
another male employee reported that Scott had stared at him while the
employee was using the restroom.
      The following day, Scott was issued a formal warning for intimidating
and improper conduct. Scott acknowledged that he received the warning.
Several days later, Scott again reported that he had almost been struck by a
car in the parking lot. During the subsequent meeting with HR, Scott shouted
and looked directly at Hutchon when using the word “b---h.” The following day,
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two female employees reported that Scott asked them for their names in a way
that made them feel targeted. The next day, Scott was fired.
      Scott filed a grievance and a meeting was held. Scott contends that at
that meeting, a Weber employee, Dane Coker, stated that there was a video of
the 2011 incident in the parking lot that showed that Scott was not hit by a
vehicle. In May 2011, Scott filed a Charge of Discrimination with the EEOC.
The EEOC found insufficient evidence of a Title VII violation to sustain Scott’s
claim. Scott then filed this lawsuit for race-based employment discrimination,
retaliation, hostile work environment, defamation, negligence, and breach of
contract. The magistrate judge recommended in favor of granting summary
judgment for Weber on all claims. The district court adopted the magistrate
judge’s report and recommendation and granted summary judgment for
Weber. Scott appealed the judgment as to all claims.
                                      III.
      On appeal, Scott raises a number of arguments, but his claims sound
most clearly in retaliation. Because Scott appeals pro se, and for thoroughness,
we, as the magistrate judge did, analyze Scott’s allegations for a variety of
claims. Scott argues that Weber was not entitled to summary judgment on his
race discrimination claim. To prove a claim of intentional discrimination Scott
must show that: (1) he is a member of a protected class; (2) he was qualified for
the position at issue; (3) he was the subject of an adverse employment action;
and (4) he was treated less favorably because of his membership in that
protected class than were other similarly situated employees who were not
members of the protected class, under nearly identical circumstances. Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (citing McDonnell
Douglass Corp. v. Green 411 U.S. 792, 802 (1973)).
      To meet this standard, Scott must first make a prima facie case of racial
discrimination. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 317 (5th
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Cir. 2004). Weber may then articulate a legitimate, non-discriminatory reason
for Scott’s termination. Id. Scott must then “offer sufficient evidence to create
a genuine issue of material fact either (1) that [Weber’s] reason is not true, but
is instead a pretext for discrimination (pretext alternative); or (2) that
[Weber’s] reason, while true, is only one of the reasons for its conduct, and
another ‘motivating factor’ is [Scott’s] protected characteristic (mixed-motives
alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
      As explained in the magistrate judge’s report and recommendation, Scott
failed to make out a prima facie case. Scott did not identify any similarly
situated employees—employees against whom complaints were made—who
were treated differently than he was treated, nor did Scott allege that he was
replaced by someone outside of the protected class.        Moreover, even if Scott
could demonstrate a prima facie case, Weber has articulated a valid non-
discriminatory reason for his termination—Scott’s staring and “intimidating”
conduct toward other employees.
      Scott appeals the district court’s grant of summary judgment on his
hostile work environment claims.        To establish a claim of hostile work
environment, Scott must prove that he (1) belongs to a protected class; (2) was
subjected to unwelcome harassment; (3) the harassment was based on his race;
(4) the harassment affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment in question
and failed to take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264,
268 (5th Cir. 2002).     As explained in the magistrate judge’s report and
recommendation, Scott did not meet this standard. The presence of the noose,
and later the presence of the offensive publication, were isolated incidents.
More importantly, Weber immediately addressed both of these incidents as
soon as Weber supervisors became aware of the situations. Scott offered no


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                                 No. 14-40171
evidence that any of his other allegations, including the 2011 incident in the
parking lot, were based on his race.
      Scott appeals the district court’s grant of summary judgment on his
retaliation claims. To establish a prima facie case of retaliation under Title
VII, Scott must show that (1) he engaged in activity protected by the statute;
(2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action. Evans v.
City of Houston, 246 F.3d 344, 352 (5th Cir. 2001).       As explained in the
magistrate judge’s report and recommendation, Scott failed to establish a
prima facie case of retaliation because he did not show a causal link between
protected activity and his termination. The only events that might qualify as
“protected activity” are Scott’s reports regarding the noose and the offensive
publication. The first report occurred five years prior to Scott’s termination
and the second report occurred over one year prior to Scott’s termination. In
addition to the protected activity being temporally distant from Scott’s
termination, Scott developed multiple disciplinary problems and incurred an
official warning between his reports and his termination. Furthermore, even
if Scott had established a prima facie case, he did not show that Weber’s stated
reasons for his termination are pretext.
      Scott appeals the district court’s grant of summary judgment for Weber
on Scott’s defamation claim. The basis of Scott’s defamation claim is that
during a meeting with Weber personnel, Coker, a Weber manager, stated that
Coker had a video that showed that Scott was not hit by a vehicle in the
parking lot, as Scott alleged. To establish a cause of action for defamation,
Scott, as a private individual, must show that Weber: (1) published a
statement; (2) that was defamatory; (3) while acting with negligence regarding
the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W. 2d 568, 571
(Tex. 1998). To qualify as defamatory, a statement should be derogatory,
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degrading, somewhat shocking, and contain elements of disgrace. Means v.
ABCABCO, Inc., 315 S.W.3d 209, 214 (Tex. App.– Austin 2010, no pet.)
(internal citations omitted). As explained in the magistrate judge’s report and
recommendation, Scott did not show that the statement was defamatory. The
statement that a video disproves Scott’s claims does not have any of the
characteristics of a defamatory statement.
      Scott’s appeal as to his negligence and breach of contract claims likewise
fails. In support of his negligence claim, Scott did not show how Weber was
negligent regarding his safety in the parking lot. In support of his breach of
contract claim, Scott did not present any evidence that he had a written
contract with Weber or that Weber violated any of the terms of the CBA, which
governed Scott’s employment. The district court correctly granted summary
judgment in favor of Weber.
      The judgment of the district court is AFFIRMED.




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