      Case: 17-20784     Document: 00514628494         Page: 1    Date Filed: 09/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                    No. 17-20784
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                  September 5, 2018
                                                                       Lyle W. Cayce
MIRZA M. BAIG,                                                              Clerk


              Plaintiff – Appellant

v.

ROBERT A. MCDONALD, Secretary of Veterans Affairs

              Defendant – Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1132


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
       Mirza Baig appeals the district court’s adverse morning-of-trial
summary judgment decision in his employment discrimination suit against the
VA.     The record is somewhat confusing, but we agree with the court’s
conclusion and AFFIRM.
       Baig’s amended complaint in federal court listed five claims: Title VII
racial/national     origin     discrimination;      religious     discrimination;                 age


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20784
discrimination; and retaliation for opposing discrimination.        Although he
repeatedly referred to alleged retaliation and harassment at work, based on
the fact that he was the only Indian and a Muslim in his office, he did not allege
a “hostile environment” claim based on unwelcome treatment so severe and
pervasive that it affected a term or condition of his employment. See Harris v.
Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367 (1993); Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). Baig had, however, included
hostile work environment claims in his amended EEOC complaint.
      Seasonably, the government moved for summary judgment on each of
the claims pled. The government’s motion did not address a hostile work
environment claim, which was not pled. Baig’s response, in addressing his
retaliation claims, asserted the legal basis for a hostile work environment
claim. But the gist of this portion of his response cited the evidence that
allegedly supported employer retaliation for his pending discrimination and
other claims. The government’s reply in support of summary judgment omitted
any reference to a hostile work environment claim.
      Initially, the district court denied summary judgment in a perfunctory
order, but it reconsidered when, during the pretrial conference, it became
convinced of two propositions. First, plaintiff had not created triable fact
issues that he had suffered an adverse employment action or damages for Title
VII purposes. Second, his religious discrimination claim failed as a matter of
law because as a party to a collective bargaining agreement, Baig had not
followed the correct procedure for requesting leave to assist his observance of
Ramadan. During the course of the conference, the court made abundantly
clear the basis for its rulings, including that plaintiff had not accurately pled
a hostile work environment claim. Confronted with this last statement, Baig
continued to insist a hostile work environment claim was part of his lawsuit.


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                                     No. 17-20784
      A week or so later, the court entered a brief summary judgment order.
The order lists plaintiff’s claims of “national origin [discrimination] based on a
hostile work environment; religious discrimination for not being granted an
accommodation during Ramadan; and retaliation for his EEO complaints.”
The court wrote that it found no basis for religious discrimination because the
plaintiff’s “ability to observe the Muslim holy day was frustrated by his failure
to timely secure approval pursuant to the leave policy.” The court also wrote
that “the plaintiff’s retaliation and naturalization [sic] claims fail because he
cannot establish that he suffered an adverse employment action. There is no
evidence of a loss in rank, demotion, loss in pay or termination as a result of
the plaintiff’s national origin or due to retaliation.” The court did not write on
any hostile work environment claim as such. Baig appealed.
         Four issues are raised on appeal.     First, Baig asserts that he was
deprived of proper notice before the court changed its mind and granted
summary judgment. FED. R. CIV. P. 56(f) (reasonable time to respond required
before court grants sua sponte summary judgment). We disagree. The court
was reconsidering a motion that had been fully briefed by both parties,
plaintiff’s counsel did not advise the court that further discovery or opportunity
to respond was required, and the court did not go outside the evidence and
arguments that had been presented when it ruled. In such circumstances, the
court did not abuse its discretion, as might have been the case if it had relied
on newly presented evidence. Millar v. Houghton, 115 F.3d 348, 351 (5th Cir.
1997).
      Baig asserts his religious discrimination claim was a request for the
“accommodation” of allowing him to work through the day and leave early from
work during Ramadan. The government responds with the actual emails,
which show that his request was untimely according to applicable policy, and
he never actually asserted a need to leave work early in order to pray at the
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                                     No. 17-20784
mosque. The fact that Baig’s previous supervisor had allowed Baig to work a
different schedule during Ramadan does not mean that the new supervisor
“discriminated” against him when, in lieu of giving an accommodation, the
supervisor followed strict policy, which allowed leave if pre-requested. Thus,
Baig never specifically informed the new supervisor about a conflict between
his work schedule and his religious practice, nor did following the neutral leave
rules amount to religious discrimination.
       Further, Baig’s retaliation and national origin claims were correctly
rejected by the district court for lack of an “adverse employment action” as that
term applies in Title VII. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1092 (5th Cir. 1995); Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.
2000) (“[C]riticism, such as ... oral threats or abusive remarks, does not rise to
the level of an adverse employment action.”). The written reprimand had no
practical effect on his job duties, pay or benefits.        Supervisors’ alleged
mistreatment and argumentative comments, even if hurtful to Baig, also did
not constitute adverse employment actions.
      There remains the question whether Baig asserted a hostile work
environment claim in his court pleadings or through trial by consent. Having
carefully reviewed the record, we conclude he did not. No such claim appears
in his operative complaint.       The oblique references to a hostile work
environment in his response to the government’s summary judgment motion
are insufficient to place the government on notice, even if such a pleading could
supplement the claims he had actually pled. Nor did the government attempt
to answer a non-obvious hostile work environment claim in its reply briefing.
The pretrial order’s two characterizations of a “hostile work environment” do
not stand out as offering a separate legal theory for relief. Finally, the district
court explained at the pretrial conference that “hostile environment” was not
a part of the lawsuit. There is a slight ambiguity in the court’s statements,
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                                     No. 17-20784
which could refer either to the lack of a pleading or to insufficient proof that
plaintiff’s treatment was so severe as to interfere with his employment
conditions. But the court had also teed up for discussion the issues Baig
specifically   raised:       race/national   origin   discrimination,   religious
discrimination, and retaliation, and counsel did not intervene to reference a
distinct Title VII hostile work environment claim. The court did not err or
abuse its discretion in failing to rule on a hostile environment claim. See Portis
v. First Nat. Bank of New Albany, 34 F.3d 325, 331 (5th Cir. 1994).
      The judgment of the district court is AFFIRMED.




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