     Case: 11-41289     Document: 00512029041         Page: 1     Date Filed: 10/23/2012




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

                                                                            FILED
                                                                         October 23, 2012

                                       No. 11-41289                        Lyle W. Cayce
                                                                                Clerk

SONIA A. HERNANDEZ,

                                                  Plaintiff-Appellant
v.

SIKORSKY SUPPORT SERVICES, INC., doing business as Aerospace
Maintenance, Inc.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-326


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Sonia Hernandez brought Title VII claims against her employer, Sikorsky
Support Services, Inc. The district court granted summary judgment to Sikorsky
because Hernandez had not established a prima facie case. We AFFIRM.
                      FACTS AND PROCEDURAL HISTORY
        Hernandez is employed as a records clerk at Sikorsky, a company that
manufactures and services helicopters for the United States Navy. The events


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41289

underlying this case took place in Las Cruces, New Mexico, and at the Naval Air
Station in Corpus Christi, Texas.
       Hernandez claims that a series of incidents amounted to sex
discrimination and created a hostile work environment. First, while she was on
temporary assignment in Las Cruces, her supervisor Kenneth Gorman made an
inappropriate sexual comment to her. Second, Hernandez alleges she was
harassed at another time by Gorman. Third, Hernandez asserts Gorman’s
failure to utilize the shift-assignment system in a proper way denied her
seniority-based preference in shift scheduling. Fourth, she asserts she was
refused access to passwords. Fifth, Hernandez alleges she was given a written
disciplinary report for an inaccuracy in her logbooks, but a similarly situated
male employee received no discipline. Finally, Hernandez alleges she was
required to receive lifting lessons after sustaining a small injury though
similarly situated male colleagues were not. On appeal, Hernandez offers three
of these incidents to support her gender discrimination claim – shift scheduling,
denial of passwords, and disciplinary reprimand – and all six incidents in
support of her claim of hostile work environment.
      Hernandez filed a grievance with her union, which has not been resolved,
alleging sex discrimination. Hernandez also presented her allegations to the
Equal Employment Opportunity Commission. The EEOC’s investigation resulted
in a finding of sex discrimination and a “right to sue” letter being issued.
      Hernandez filed suit in October 2010. The district court granted summary
judgment in favor of Sikorsky one year later. Hernandez timely appealed.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo. Onoh v.
Nw. Airlines, Inc., 613 F.3d 596, 599 (5th Cir. 2010). We view all evidence in the
light most favorable to the non-moving party; summary judgment should be
granted only if there is no genuine issue of material fact and the movant is

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                                  No. 11-41289

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue
of material fact exists if “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate if the non-moving party “fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
       On appeal, Hernandez presents four issues. Each of them challenges the
district court’s interpretation of whether there was evidence supporting her
claims such that summary judgment for the Defendant should have been denied.
On her claim of sex discrimination, Hernandez challenges the district court’s
conclusions that neither the shift-scheduling issues nor the denial of passwords
could amount to adverse employment action and that her disciplinary reprimand
did not amount to different treatment as compared to a male colleague in a
similar position.     On her claim of hostile work environment, Hernandez
challenges the district court’s conclusion that there was not enough evidence to
submit the claim to a jury. We consider her issues as we discuss her two claims:
(A) employment discrimination and (B) hostile work environment.


A.     Employment Discrimination Claim
       An employment discrimination claim on the basis of sex is analyzed using
the traditional burden-shifting rules of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). A plaintiff must first establish a prima facie case that she has
suffered discrimination based on sex. Frank v. Xerox Corp., 347 F.3d 130, 137
(5th Cir. 2003). If that case is made, the burden shifts to the defendant to
“articulate a legitimate, nondiscriminatory reason for the questioned employment
action.” Id. If such a reason is given, “the burden shifts back to the plaintiff to
produce evidence that the defendant’s articulated reason is merely a pretext for
discrimination.” Id.

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                                   No. 11-41289

      A prima facie case of sex discrimination requires proof that a plaintiff (1)
is a member of a protected class, (2) is qualified for the position held, (3) has been
subjected to an adverse employment action, and (4) was treated differently from
others similarly situated. Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th
Cir. 2005).
      Three of the issues Hernandez presents go to whether she suffered adverse
employment action, namely in being denied a seniority-based preference in shift
scheduling, denied certain passwords, and reprimanded.              For an adverse
employment action to have occurred, there must be an ultimate employment
decision such as hiring, firing, promoting, demoting, transferring, or reducing
compensation. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). The
evidence must produce an “objective showing of a loss in compensation, duties,
or benefits” to constitute an adverse employment action. Id. at 283.
      Hernandez has not shown an objective loss with respect to shift scheduling.
It is not even clear that Hernandez suffered subjective loss, as the shift she was
given was the one shown as her first choice on her shift-request documents.
Further, Hernandez has not alleged any objective difference between shifts as
measured by compensation, duties, benefits, job status, or objective prestige.
Regardless, the district court was correct to conclude that this did not rise to the
level of an adverse employment decision as it did not make the job “objectively
worse.” Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir. 2001)
(citation omitted).   In analyzing a similar claim, we held that changing a
plaintiff’s work hours does not by itself constitute an adverse employment action.
Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998)
      As to the denial of passwords, Hernandez has similarly not shown objective
loss. The relevant passwords were needed to make certain corrections in logs of
flight hours. Hernandez had to make such corrections a few times per week and
was able to do so by calling a supervisor to her desk to enter the password.

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                                  No. 11-41289

Hernandez has not alleged she suffered demotion of position, reduction of
compensation, or reduction of duties as a result of not having possession of the
passwords at issue. The denial of these passwords does not constitute adverse
employment action. See Pegram, 361 F.3d at 283.
       Finally, the disciplinary reprimand was not an adverse employment action.
“[D]isciplinary actions in the form of reprimands, do not constitute ultimate
employment decisions.” Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 658
(5th Cir. 2002), overruled on other grounds by Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 66 (2006). Hernandez suffered no direct consequences from
the reprimand such as to compensation, duties, or job title. Moreover, the
reprimand was kept in Hernandez’s personnel file for only a year.
       We do not reach the other issues regarding the employment discrimination
claim because Hernandez suffered no adverse employment action.


B.     Hostile Work Environment Claim
       A prima facie case for a hostile work environment claim requires proof that
(1) a plaintiff belongs to a protected group and (2) was subjected to unwelcome
harassment (3) that was based on the protected status, and (4) “the harassment
affected a term, condition, or privilege of employment.” Frank, 347 F.3d at 138.
In analyzing whether the environment was sufficiently abusive to alter the
conditions of employment, a court considers the totality of the circumstances;
those include the frequency, severity, nature of the conduct, and the level of
interference with an employee’s work. Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993).
       The altered employment conditions are not just economic or tangible harm.
Id. at 21. Still, the “conduct must be extreme to amount to a change in the terms
and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998). The conduct at issue must create an environment that is abusive or

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                                  No. 11-41289

hostile, viewed objectively through the lens of a reasonable person. Harris, 510
U.S. at 21.
      The fourth issue that Hernandez raises on appeal is whether the district
court incorrectly concluded that the totality of the circumstances did not raise
sufficient evidence of a hostile work environment. The circumstances here
include one sexually-themed comment, the repositioning of Hernandez’s desk,
and Gorman arriving to work early to intimidate Hernandez. The circumstances
also include acts of alleged favoritism towards male employees including shift
scheduling, access to passwords, safety training, and notice regarding an open
managerial position.
      Hernandez was not able to recall the content of Gorman’s one statement.
Therefore, jurors would not have been able to evaluate whether the comment was
objectively offensive such that it could affect the conditions of Hernandez’s
employment. Hernandez has not alleged any further offensive comments.
      Hernandez acknowledged that all desks were repositioned in the same time
period for a valid corporate reason. Further, Hernandez is unable to point to any
harassment by Gorman during his sporadic early visits to the office.
      With respect to shift scheduling, Hernandez was assigned the shifts for
which she stated a preference. This claim clearly fails and does not support
favoritism to male employees.
      Some male employees received access passwords that Hernandez did not.
Hernandez admits that she never requested the passwords from her supervisors
or inquired why other employees had them. Hernandez states no basis on which
to consider the question of passwords to be a basis for liability.
      Hernandez complains that she was not notified about an open managerial
position but concedes that she was not qualified for the position based on
seniority. Further, she had earlier declined a managerial position.



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                                  No. 11-41289

      In two instances Hernandez claims that she was treated differently than
similarly situated males. In one instance, Hernandez received a written warning
for what was categorized as a Level I error. A male colleague received no
reprimand for a more serious Level II error. In the male colleague’s case, the
error was one incident and found to be the result of a supervisor’s error; that
supervisor ultimately received an oral reprimand. In Hernandez’s case, in
addition to the initial error, a review of her logbooks showed multiple entries out
of date for over four months and a general backlog of information entry.
Hernandez states that she inherited this work from another colleague, but
Hernandez did not report this backlog to her supervisors. Hernandez does not
dispute that her disciplinary reprimand was justified.
      In the second instance, Hernandez was subjected to safety training
following a minor workplace injury while male colleagues told Hernandez they
did not receive similar training following injuries. Hernandez was injured lifting
boxes under the tenure of one safety manager, while her comparator employees
were injured by a door and propellers under a different safety manager.
      There is no evidence of interference with Hernandez’s work and no
allegation of physical threats or humiliation as contrasted with a private and
isolated verbal remark. Harris, 510 U.S. at 23. Further, the incidents were
neither so severe nor pervasive as to create an objectively abusive or hostile work
environment. Id. Hernandez presented no direct evidence that these incidents
were anything more than the unsatisfying operation of routine corporate
procedures. There is no evidence that these incidents altered the conditions of
Hernandez’s employment.
      AFFIRMED.




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