     Case: 12-11053       Document: 00512457477         Page: 1     Date Filed: 12/02/2013




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

                                                                            FILED
                                                                         December 2, 2013

                                       No. 12-11053                        Lyle W. Cayce
                                                                                Clerk

AMADO MENDOZA,

                                                  Plaintiff – Appellant
v.

BELL HELICOPTER,

                                                  Defendant – Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas.
                              USDC No. 4:10-CV-603



Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Amado Mendoza appeals the district court’s grant of summary judgment
for the defendant Bell Helicopter. For the reasons stated below, we affirm.
                                    BACKGROUND
       We are writing exclusively for the parties who are aware of the evidence
in this case. Therefore an exhaustive factual summary is unnecessary. In short,
Amado Mendoza (“Mendoza”), a United States citizen of Hispanic descent, began
working as a tool and die maker at Bell Helicopter (“Bell”) in 2005. He alleged


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-11053

that starting in 2005 he endured race-based comments. He also asserts that he
was subjected to other mistreatment including exposure to race-based flyers and
unfair job assignments. Mendoza alleges that after he began complaining of the
race discrimination in 2008, he was retaliated against. At the time of oral
argument, Mendoza was still employed by Bell.
        On August 23, 2010, Mendoza sued Bell and Textron, Inc. asserting a race
discrimination claim based on a hostile work environment theory and a
retaliation claim under 42 U.S.C. § 1981 and Chapter 21 of the Texas Labor
Code.     Mendoza voluntarily dismissed his claims against Textron, Inc.
Thereafter, the district court granted summary judgment for Bell on both the
race discrimination and retaliation claims. Mendoza appealed the district
court’s grant of summary judgment.
                                  ANALYSIS
        “We review the grant of summary judgment de novo, applying the same
standards as the district court.” Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233
(5th Cir. 2009). “The Court affirms if there is no genuine issue of material fact
and one party is entitled to prevail as a matter of law.” Keen v. Miller Envtl.
Grp., Inc., 702 F.3d 239, 243 (5th Cir. 2012) (internal quotation marks and
citations omitted).
        In his brief, Mendoza mentions Title VII claims. Because Mendoza did not
raise any Title VII claims in the district court, we disregard Mendoza’s
arguments concerning any purported violations of Title VII. See AG Acceptance
Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009). Furthermore, Mendoza fails
to meaningfully address his Texas Labor Code claims on appeal, therefore we
consider those claims waived. Procter & Gamble Co. v. Amway Corp., 376 F.3d


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496, 499 n.1 (5th Cir. 2004). Accordingly, we consider only Mendoza’s race
discrimination and retaliation claims under 42 U.S.C. § 1981.
      Although this is a 42 U.S.C. § 1981 case, “[c]laims of racial discrimination
brought under § 1981 are governed by the same evidentiary framework
applicable to claims of employment discrimination brought under Title VII.”
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996). Therefore,
it is appropriate to rely on Title VII cases, and the McDonnell Douglas
evidentiary framework applies. Id. at 448 & n.2; McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
A.    Hostile Work Environment
      Mendoza argues that the district court erred in finding that he had not
made a prima facie case of race discrimination based on a hostile work
environment theory. Generally, to establish a prima facie case of a hostile work
environment a plaintiff must show:
      (1) [He] belongs to a protected group; (2) [he] was subjected to
      unwelcomed harassment; (3) the harassment complained of was
      based on race; (4) the harassment complained of 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).
      In Harris v. Forklift Systems, Inc., the Supreme Court stated that Title VII
prohibits “requiring people to work in a discriminatorily hostile or abusive
environment.” 510 U.S. 17, 21 (1993). “When the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an



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                                   No. 12-11053

abusive working environment, Title VII is violated.” Id. (internal quotation
marks and citations omitted).
            For harassment to be sufficiently severe or pervasive to alter
      the conditions of the victim’s employment, the conduct complained
      of must be both objectively and subjectively offensive. Thus, not only
      must the victim perceive the environment as hostile, the conduct
      must also be such that a reasonable person would find it to be
      hostile or abusive. To determine whether the victim’s work
      environment was objectively offensive, courts consider the totality
      of the circumstances, including (1) the frequency of the
      discriminatory conduct; (2) its severity; (3) whether it is physically
      threatening or humiliating, or merely an offensive utterance; and (4)
      whether it interferes with an employee’s work performance. No
      single factor is determinative.
E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007) (internal
citations omitted).
      Importantly, “[u]nder the totality of the circumstances test, a single
incident of harassment, if sufficiently severe, could give rise to a viable Title VII
claim as well as a continuous pattern of much less severe incidents of
harassment.” Id. at 400. “‘A recurring point in [Supreme Court] opinions is that
simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions
of employment.’” Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874
(5th Cir. 1999) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(alteration in original)).
      After reviewing the conduct raised by Mendoza in his brief, we agree with
the district court that Mendoza has not demonstrated that there is a fact issue
on whether the complained of conduct was sufficiently severe or pervasive to
create a hostile work environment. Importantly, the complained of conduct


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                                  No. 12-11053

occurred sporadically over a several year period and cannot accurately be
described as pervasive. Additionally, no single incident was severe enough to
independently support a hostile work environment claim. Mendoza failed to
establish a prima facie case of race discrimination under a hostile work
environment theory.
B.    Retaliation
      Mendoza argues that the district court erred in finding that he had not
presented a prima facie case of retaliation. As with Mendoza’s discrimination
claim, the law regarding his § 1981 retaliation claim tracks the Title VII
jurisprudence. Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 n.8 (5th Cir.
2003). “The elements of [Mendoza’s] prima facie evidentiary showing are 1) that
[h]e engaged in a protected activity; 2) that an adverse employment action
occurred; and 3) that a causal link existed between the protected activity and the
adverse action.” Septimus v. Univ. of Houston, 399 F.3d 601, 610 (5th Cir. 2005).
      We will focus on the second prong, whether an adverse employment action
occurred. Mendoza is correct that the district court was mistaken regarding the
appropriate standard for “adverse employment action” in the retaliation context.
The district court overlooked the fact that in Burlington Northern and Santa Fe
Railway Co. v. White, the Supreme Court rejected the approach which “limited
actionable retaliation to so-called ultimate employment decisions . . . such as
hiring, granting leave, discharging, promoting and compensating.” 548 U.S. 53,
60, 67 (2006) (internal quotation marks and citations omitted).      Instead, the
Supreme Court held that “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or


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                                   No. 12-11053

supporting a charge of discrimination.” Id. at 68 (internal quotation marks and
citations omitted). The Supreme Court observed four things about this standard.
First, it emphasized the need “to separate significant from trivial harms” and
warned that “normally petty slights, minor annoyances, and simple lack of good
manners will not create such deterrence.” Id. (citations omitted). Second, it is
an objective standard. Id. at 68-69. Third, “[c]ontext matters. The real social
impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by
a simple recitation of the words used or the physical acts performed.” Id. at 69
(internal quotation marks and citations omitted). Fourth, “the standard is tied
to the challenged retaliatory act, not the underlying conduct that forms the basis
of the Title VII complaint.” Id.
      We now consider whether Mendoza has demonstrated that he suffered an
adverse employment action under White. Mendoza bases his retaliation claim
primarily upon conduct he identifies as “bogus discipline.”           Specifically,
Mendoza was verbally counseled at least three times for taking too long on
assignments and once for riding an electric buggy at work. In the context of
this case, we find that those verbal counselings would not have dissuaded a
reasonable employee from making or supporting a charge of discrimination.
Mendoza also received a written warning for making fun of a co-worker’s weight
after Mendoza complained of that co-worker’s behavior towards Mendoza.
Mendoza does not dispute that he made fun of his co-worker’s weight. On the
facts of this case, we find that the written warning Mendoza received for making
fun of his co-worker’s weight would not have dissuaded a reasonable employee
from making or supporting a charge of discrimination.


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      Finally, Mendoza complains that if he talked to Caucasian co-workers, the
“lead man” would tell Mendoza or the entire group to get back to work, but that
the lead man would instead join the conversation if it was only a group of
Caucasian workers talking. The evidence cited in support of this argument is
extremely vague. It does not indicate how many times this occurred, the dates
it occurred, or whether the other employees were similarly situated to Mendoza
with regard to their previous histories of making or supporting claims of
discrimination. These “[c]onclusory allegations unsupported by specific facts . . .
will not prevent an award of summary judgment.” Giles v. Gen. Elec. Co., 245
F.3d 474, 493 (5th Cir. 2001) (internal quotation marks and citations omitted).
      Ultimately, we find that Mendoza has failed to establish a prima facie case
of retaliation.
                                 CONCLUSION
      Amado Mendoza failed to establish a prima facie case of race
discrimination under a hostile work environment theory. Furthermore, he failed
to establish a prima facie case of retaliation. Therefore, the district court did not
err in granting summary judgment for Bell Helicopter.
AFFIRMED.




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