     Case: 12-11022   Document: 00512449991     Page: 1   Date Filed: 11/21/2013




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

                                                                    FILED
                                                              November 21, 2013

                                 No. 12-11022                      Lyle W. Cayce
                                                                        Clerk

TONIA DENISE J. ROYAL,

                                           Plaintiff - Appellant
v.

CCC&R TRES ARBOLES, L.L.C., A Texas Limited Liability Company,

                                           Defendant - Appellee



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      We learn from this Title VII appeal that Tonia Royal worked at an
apartment complex for only four days before she was fired by defendant CCC&R.
During this brief time, she was regularly visited in her small office by two
maintenance men who hovered over her and sniffed her in a sexually suggestive
manner. When she complained to her superiors about this behavior, she was
then fired for unspecific reasons.
      This appeal arises from the district court’s grant of summary judgment
dismissing her complaint on the grounds that the alleged misconduct was not
objectively unreasonable nor a practice made unlawful by Title VII. Royal only
appeals her retaliation claim, that is, her discharge, which she claims resulted
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                                  No. 12-11022

from her complaints about sexual harassment. The question presented on
appeal is whether the facts of this case present genuine disputes of material fact
relating to her claim of harassment based on sex. We hold that genuine disputes
of material fact require us to vacate the grant of summary judgment and remand
for further proceedings.
                                        I.
                                       A.
      Royal was hired by a CCC&R Tres Arboles, L.L.C. (“CCC&R”) apartment
complex as a leasing manager on Monday, August 3, 2009. She was fired on
Thursday, August 6, by her supervisor, Asia Brazil. Royal worked at the only
desk in a small front office.
      According to Royal, two maintenance workers would enter her office and
would hover over her as she sat at her desk and sniff her. This harassment
occurred about twelve times, for each worker, over the four days of Royal’s brief
employment. Sometimes each would come alone, and sometimes they would
come together.    Royal told them several times that she did not like their
behavior. Apparently they were undeterred. The workers would sometimes sniff
and hover directly over Royal’s head when she was seated. Sometimes the men
would sniff even when Royal exited the bathroom.
      There were also other incidents of objectionable conduct, one of which
involved one of the maintenance workers sitting on a cabinet behind Royal with
his legs open. He was an arm’s length away and wearing shorts. She alleged
that he was visibly aroused. For three to five minutes, Royal reports that he
engaged in a “stare-down.”
      Another incident occurred when Royal was gathering files. Turning
around, she encountered the Assistant Manager, Robin Granger, who was
standing behind her. She then stumbled into him with her whole body. Brazil,
Royal’s supervisor, was present when this happened.

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      Royal reported her complaint to Granger, the Assistant Manager, on
Wednesday. According to Royal, Granger told her to “let it slide” and stated
something along the lines of “you know how men are like when they get out of
prison.”
      Brazil held a staff meeting the following day. According to Royal, Brazil
held the meeting so that people could “get things off their chest” and speak about
whatever was bothering them. Royal spoke up at the meeting and said that she
did not like for the men to sniff over her all the time. In response, one of the
maintenance men claimed he had a medical condition. The other maintenance
man, according to Royal, stated that he “needed to get a release.” A different
coworker said in response that the maintenance man had “got [his] mind on the
wrong thing.” Royal took the comment about needing a release as sexual
innuendo. After the staff meeting, there was another follow-up meeting with
Royal, Brazil, and Granger in which Royal purports to have again asked about
the maintenance men’s conduct.
      That same afternoon, Brazil called Royal into her office and discharged
her. According to Royal, Brazil supplied no reason. Brazil states that she made
this decision alone, and that Granger had no involvement in it. CCC&R asserted
at oral argument that Royal’s offenses were swatting a fly harder than was
necessary and slamming a door.
                                       B.
      After filing an Equal Employment Opportunity Commission complaint,
Royal timely sued CCC&R in the District Court for the Northern District of
Texas. She claimed sexual harassment and retaliation under Title VII of the
Civil Rights Act of 1964 as well as violations of various Texas state laws.
      Ruling on CCC&R’s motion for summary judgment, a magistrate judge
held that the CCC&R employees’ conduct was not objectively offensive as
required for a Title VII hostile work environment claim. She reasoned that, with

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                                   No. 12-11022

the exception of Royal’s fall into Granger, no one touched Royal. Additionally,
she noted that the “get a release” comment was not directed at Royal. On the
retaliation claim, the magistrate judge found that “a reasonable person would
not believe that the reported conduct constituted an unlawful employment
practice under Title VII.” The magistrate judge implicitly found that Royal had
failed to make out a prima facie case of retaliation. The district court accepted
the magistrate judge’s findings and granted CCC&R’s summary judgment
motion, dismissing all claims.
      Royal now appeals. She raises only the 42 U.S.C. § 2000e-3(a) retaliation
claim. She fails to brief the other claims she raised in district court, including
the hostile work environment claim. Consequently she has waived them. See
Matter of Texas Mortg. Servs. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985); FED.
R. APP. P. 28(a)(9)(A).
                                        II.
                                        A.
      This court reviews a grant of summary judgment de novo. Reed v. Neopost
USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is proper if
there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A genuine dispute
of material fact means that “evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The evidence is viewed in the light most favorable to the
nonmovant. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th
Cir. 2006).
      A retaliation claim that is premised on a pretextual rationale for dismissal
is analyzed under the McDonnell Douglas framework. Septimus v. Univ. of
Houston, 399 F.3d 601, 608 (5th Cir. 2005) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 807 (1973)). McDonnell Douglas establishes certain rules

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for burden shifting between the plaintiff and the defendant employer: (1) first,
the employee must demonstrate a prima facie case of retaliation; (2) the burden
then shifts to the employer, who must state a legitimate non-retaliatory reason
for the employment action; and (3) if that burden is satisfied, the burden then
ultimately falls to the employee to establish that the employer's stated reason
is actually a pretext for unlawful retaliation. Septimus, 399 F.3d at 607.
       We examine here the plaintiff’s prima facie case of retaliation, which is the
issue addressed by the magistrate judge and the parties’ briefs.1 In the Fifth
Circuit:
       To make her prima facie case, [the plaintiff] must demonstrate that:
       (1) she engaged in protected activity; (2) an adverse employment
       action occurred; and (3) a causal link exists between the protected
       activity and the adverse employment action. Under Title VII, an
       employee has engaged in protected activity if she has “opposed any
       practice made an unlawful employment practice under [Title VII].”
       42 U.S.C. § 2000e-3(a).
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007)
(internal citations and quotation marks omitted).
       It is clear that an adverse employment action occurred here – Royal was
fired. Therefore we will move to the other elements of the prima facie case:
whether Royal created genuine disputes of material fact that (1) she opposed a




       1
         Beyond the conclusory statement that “Brazil terminated Plaintiff’s employment
based upon Plaintiff’s inappropriate behavior in the workplace,” the CCC&R brief does not
address the reasons for Royal’s termination. As we have said, at oral argument, CC&R stated
that Royal slapped flies with excessive force and slammed a door. These resaons may not be
plausible but they are “legitimate.” However, Royal produces a genuine dispute of material
fact about whether these reasons were pretextual.

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                                       No. 12-11022

practice that was unlawful under Title VII,2 and (2) if so, whether that
opposition caused her termination.
                                              B.
       We first turn to whether the facts of the crude conduct we have described
constitute a practice made unlawful by Title VII. A hostile work environment
based on sex may be a violation of Title VII. Such a violation occurs when the
plaintiff proves she “(1) belongs to a protected group; (2) was subjected to
unwelcome harassment; (3) the harassment complained of was based on [sex];
(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.” Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
       The parties dispute whether the harassment was based on sex, and also
whether the harassment “affected a term, condition, or privilege of employment.”
Id. The relevant standard for the latter issue is whether the sexual harassment
is “sufficiently severe or pervasive to alter the conditions of [the victim’s]


       2
         Under Fifth Circuit precedent, “a plaintiff can establish a prima facie case of
retaliatory discharge . . . if he shows that he had a reasonable belief that the employer was
engaged in unlawful employment practices.” Payne v. McLemore’s Wholesale & Retail Stores,
654 F.2d 1130, 1140 (5th Cir. 1981). We hold that there is a genuine dispute of material fact
whether the maintenance men actually violated Title VII. Consequently we do not need to
address the plaintiff’s “reasonable belief.”
        We do observe, however, that our precedent is in tension with the plain text of the
statute, which appears to require that the employer’s practice actually be unlawful under Title
VII. See 42 U.S.C. § 2000e-3(a) (defining unlawful retaliation as “discriminating against any
individual . . . because he opposed any practice made an unlawful employment practice by
[Title VII] . . . .”). This tension, somewhat unexplained in other circuits as well, has not yet
been resolved by the Supreme Court. See Clark County School Dist. v. Breeden, 532 U.S. 268,
270 (2001) (declining to rule on whether the opposition requirement for a retaliation claim can
be satisfied with a “reasonable belief” that conduct violates Title VII); Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 187 (2005) (Thomas, J., dissenting) (“Although this Court has never
addressed the question, no Court of Appeals requires a complainant to show more than that
he had a reasonable, good-faith belief that discrimination occurred to prevail on a retaliation
claim”).

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                                  No. 12-11022

employment and create an abusive working environment.” Harvill v. Westward
Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)). The harassment must consist of more
than “simple teasing, offhand comments, and isolated incidents (unless
extremely serious).” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(internal citation and quotation marks omitted). Relevant factors are “the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
       We hold that there is a genuine dispute of material fact whether the
maintenance men’s behavior violated Title VII. Brazil was on notice of the
sniffing, the hovering and the “I need a release” comment. The sniffing and
hovering over a woman, by two men, in a small, confined space could be viewed
by a reasonable jury as harassment based on Royal’s sex. Indeed, it is difficult
to imagine the maintenance men sniffing and hovering over Royal if she were a
man.
       Several factors could lead a reasonable jury to disagree with CCC&R’s
contention that the sniffing was harassment but was not sexual harassment.
First, CCC&R offered very little in the way of a non-sexual explanation of the
conduct.   Further, and perhaps most revealingly, the reactions of Royal’s
coworkers also suggested that they understood the sniffing to be sexual.
Granger, the assistant manager, reportedly explained the sniffing by saying “you
know how men are like when they get out of prison.” The implicit suggestion
here is that they crave female companionship. And one of the maintenance men
himself seemed to attribute the sniffing to sexual desire when he stated that he
“needed a release” at a staff meeting.



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         The magistrate judge thought it was significant that the “get a release”
comment was not directed at Royal. It is easy to conclude, however, that the
comment, made at this staff meeting, was addressed to the particular situation.
It could be viewed by a reasonable jury that the comment put Brazil on notice
that the conduct of which Royal had earlier complained was sexual in nature.
         The magistrate judge also concluded that Royal’s claims were not
pervasive enough under Meritor to constitute sexual harassment. See 477 U.S.
at 67. We think this is error. A reasonable jury could conclude that the
described conduct was pervasive: Royal worked in a small office area and was
subject to each maintenance man’s objectionable conduct approximately twelve
times over four days. The only thing interrupting this conduct seems to have
been Royal’s termination. These menacing acts, which were done over Royal as
she was sitting and some of which were done by a man who had previously been
in prison, can certainly be seen as “physically threatening,” “humiliating,” and
frequent, three factors that indicate sexual harassment under Harris. 510 U.S.
at 23.
         The magistrate judge highlighted two cases in which we found that the
conduct was insufficient to create a hostile work environment. In Shepherd v.
Comptroller of Pub. Accounts of the State of Texas, 168 F.3d 871 (5th Cir. 1999),
the conduct consisted of (1) unwanted touching of the arm; (2) comments that
the plaintiff’s elbows were the same color as her nipples (3) comments that the
plaintiff had big thighs while simulating looking under her dress; (4) standing
over the plaintiff’s desk several times and attempting to look down her shirt; and
(5) a coworker patting his lap and remarking “here’s your seat.” Id. at 872-73.
         The second case the magistrate judge noted was Hockman v. Westward
Commc’ns, LLC, 407 F.3d 317 (5th Cir. 2004). There, the court noted the
conduct of the offender:



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      (1) [H]e once made a comment to [the plaintiff] about another
      employee’s body, (2) he once slapped her on the behind with a
      newspaper, (3) he ‘grabbed or brushed’ against [the plaintiff’s]
      breast and behind, (4) he once held her cheeks and tried to kiss her,
      (5) he asked [the plaintiff] to come to the office early so that they
      could be alone, and (6) he once stood in the door of the bathroom
      while she was washing her hands.
Id. at 328.
      However, both Hockman and Shepherd have been called into question by
our court in Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428 (5th Cir. 2005).
Harvill observed that each of these cases had applied the wrong legal standard
when both required the conduct to be “severe and pervasive,” even as the
Supreme Court has made clear that the standard is “severe or pervasive.”
Harvill, 433 F.3d at 434-35 (emphasizing that “severe or pervasive” is the
verbatim standard enunciated in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986)). Harvill noted that applying the wrong standard can lead to the
wrong outcome:
      Contrary to being an irrelevant distinction . . . the requirement that
      a plaintiff establish that reported abusive conduct be both severe
      and pervasive in order to be actionable imposes a more stringent
      burden on the plaintiff than required by law. The Supreme Court
      has stated that isolated incidents, if egregious, can alter the terms
      and conditions of employment. See Faragher, 524 U.S. at 788 . . .
      . By contrast, under a conjunctive standard, infrequent conduct,
      even if egregious, would not be actionable because it would not be
      ‘pervasive.’
Id. at 436.
      The application of the wrong legal standard is evident in Shepherd, where
the court noted that “[w]e find . . . that [the coworker’s] stares and the incidents
in which he touched [the plaintiff’s] arm, although they occurred intermittently
for a period of time, were not severe.” Shepherd, 168 F.3d at 874. The court
seems to be saying here that the conduct is pervasive but not severe, and so is


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not actionable. Hockman subsequently relied heavily on comparing its facts to
Shepherd’s in finding that the work environment at issue was not sufficiently
hostile to be actionable. Hockman, 407 F.3d at 326-29.
      Setting aside, however, the error of Shepherd and Hockman, the
compressed time frame here makes the conduct more pervasive than the conduct
in both of those cases. When we found in Shepherd that sexually suggestive
comments were “mere utterance[s],” we noted that the specified comments were
spread out over a period lasting more than a year, obviously diluting their
pervasive characteristic. 168 F.3d at 874. The court’s approach was similar in
Hockman, where in holding that the verbal and physical conduct at issue did not
violate Title VII, we noted that the enumerated instances of objectionable
conduct were scattered over a year and a half period. 407 F.3d at 328. By
contrast, the conduct at issue here could be seen as pervasive because it was
compacted into a four-day period.
      Furthermore, we think that the magistrate judge also overemphasized the
lack of physical contact.    Certainly, lack of physical contact is a factor to
consider. But it is hardly dispositive. It is unsurprising that we have held
previously that a reasonable jury could find that coworkers created a hostile
work environment despite having no physical contact with the plaintiff. See,
e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996)
(upholding a jury verdict against a judgment n.o.v. challenge where a coworker
“inquired about [the plaintiff’s] sexual activity or made comments similarly
offensive two or three times a week”); Glorioso v. Mississippi Dept. of Corrs., 193
F.3d 517, 1999 WL 706173, at *4-6 (5th Cir. 1999) (unpublished) (reversing
summary judgment on a retaliation claim that was based on the plaintiff’s
perception that she had been sexually harassed when a coworker called her a
“bitch”).



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                                No. 12-11022

      We conclude that Royal has shown a genuine dispute of material fact
whether the maintenance men’s described behavior created a hostile work
environment based upon sexual harassment violating Title VII.
                                      C.
      We next consider whether Royal has shown a genuine issue of disputed
material fact regarding a causal link between Royal’s complaint of harassment
and her termination. “It is well established that, in determining whether an
adverse employment action was taken as a result of retaliation, our focus is on
the final decisionmaker.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th
Cir. 2003) (internal quotation marks and citation omitted). Our analysis here
focuses on Brazil, the sole decisionmaker terminating Royal. At the summary
judgment stage, Royal must create a genuine issue of disputed material fact
whether Brazil knew of Royal’s opposition to the sexual harassment. See Gollas
v. Univ. of Texas Health Sci. Ctr. at Houston, 425 F. App’x 318, 324 (5th Cir.
2011).
      Royal was fired by Brazil the same day she complained about the
maintenance men’s behavior in two meetings that Brazil and Granger attended.
Additionally, Brazil was there when one of the maintenance men stated “I need
a release.” Consequently, Brazil was aware of the conduct of the men and the
“I need a release” comment. The temporal link between the concerns Royal
raised at the meetings and Royal’s termination strongly supports a causal link.
See, e.g., Glorioso, 1999 WL 706173, at *4 (holding that a supervisor’s
recommendation of termination within a week after the plaintiff raised her
grievance presented a genuine issue of material fact regarding causation).
      Furthermore, a genuine dispute of material fact was created whether
Granger independently notified Brazil about Royal’s complaints to him about the
maintenance men. Although Brazil declared that Granger did not inform her of
Royal’s complaints, it is unclear whether Brazil’s declarations resolve the

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matter.     For instance, Brazil also declared that she did not remember a
complaint about the sniffing noises at the staff meeting, and that she has no
recollection that the second meeting between Royal, Granger and herself had
occurred.
      It is unclear why, at that particular time, Brazil would have held a staff
meeting for people to “get things off their chest[s]” if she had been ignorant that
Royal was encountering difficulties, when Royal’s difficulties were the basis for
the meeting, as far as the record shows. Also, Royal stated that on one occasion
Brazil hovered over her, which Royal understood as Brazil “join[ing] in on the
fun.” This, too, suggests that Brazil knew of Royal’s complaints to Granger.
      In sum, the facts construed most favorably to the nonmovant demonstrate
that a reasonable jury could find that Brazil knew about the hovering, sniffing,
and the “need a release” comment. A genuine issue of material fact regarding
causation is thus raised.
                                        III.
      We make clear that the only part of the district court’s judgment that has
been appealed and, consequently before us, is the dismissal of Royal’s retaliation
claim. In this respect, we hold that Royal has shown genuine issues of disputed
material facts whether the described conduct created a hostile work environment
in violation of Title VII, and, if so, whether her complaint about that conduct was
causally related to her termination. Thus, because she has made out a prima
facie case on her retaliation claim, further proceedings not inconsistent with this
opinion are required, and accordingly the judgment of the district court is, in this
respect, VACATED and the case REMANDED for further proceedings.
                                                   VACATED and REMANDED.




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