     Case: 12-30325       Document: 00511962299         Page: 1    Date Filed: 08/20/2012




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

                                                                             FILED
                                                                           August 20, 2012
                                       No. 12-30325
                                     Summary Calendar                       Lyle W. Cayce
                                                                                 Clerk

MATTHEW EARLE PROVENSAL,

                                                    Plaintiff-Appellant

v.

MICHAEL JOHN GASPARD; H20 HAIR, INCORPORATED,
doing business as H2O Spa and Salon,

                                                    Defendants-Appellees


                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:10-CV-4276


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Matthew Earle Provensal (“Provensal”) appeals the
district court’s dismissal of his several claims against Defendants-Appellees
Michael John Gaspard (“Gaspard”) and H2O Hair, Incorporated (“H2O”).1 We
affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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            Parties consented to submit this action to the United States Magistrate Judge.
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                                  No. 12-30325

                            I. Facts and Proceedings
      Provensal, a Louisiana board-certified massage therapist, was hired in
that capacity by H2O, a corporation in which Gaspard is a stockholder who
served during all pertinent times as supervisor of H2O’s spa. Provensal was
hired in mid-May, 2009 and resigned in mid-September of that year. Following
his resignation, Provensal sued Gaspard individually and H2O vicariously,
asserting claims under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S. § 2001(e), et seq., Louisiana Civil Code articles 2315, 2316, 2317, and 2320,
and La. Rev. Stat. Ann. §§ 23:302 and 51:2231. He alleged numerous causes of
action and including slander, defamation, religious discrimination, intentional
infliction of emotional distress, and employment discrimination and retaliation.
      The district court disposed of Provensal’s claims on summary judgment
seriatim. In May, 2011, the court dismissed his claims against Gaspard for
slander, defamation, and relief under Title VII in La. Rev. Stat. Ann. §§ 23:302
and 51:2231, as well as claims against H2O for slander, defamation, and
religious discrimination. In February, 2012, the court dismissed Provensal’s
Title VII claims against H2O and his claims against both defendants for
intentional infliction of emotional distress, but held in abeyance Provensal’s
claims against H20 under La. Rev. Stat. Ann. § 23:302 and 51:223. In March,
2012, the court denied Provensal’s motion for reconsideration of its prior
summary judgment and dismissed his remaining claims against H2O under La.
Rev. Stat. Ann. §§ 23:302 and 51:2231. This appeal followed.
                                  II. Analysis
      First, as a practical matter, Provensal’s appeal of the district court’s
dismissal of claims against Gaspard individually was abandoned. As noted in
Gaspard’s appellate brief, Provensal “presented no issues, and made no
argument, concerning the District Court’s dismissal of his claims against
Gaspard” despite Fed. R. App. P. 28(5)’s requirement that Appellant’s brief
identify the issues presented for review on appeal and Fed. R. App. P. 28(9)’s

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                                  No. 12-30325

requirement to present arguments. Thus, as Gaspard correctly states: “None of
the issues, contentions or reasons identified or argued by Provensal’s brief
challenge, or offer any reason to reverse, vacate or modify, the District Court’s
dismissal of the claims against [him].” We agree and so rule.
      Provensal’s remaining claims against his corporate employer, H2O, are
vicarious in nature and, at bottom, turn on whether the district court erred in
granting summary judgment of dismissal on the basis that no genuine dispute
of material fact exists to support Provensal’s contention that adverse
employment actions were taken against him. When reduced to its essentials,
Provensal’s adverse employment claims depend on whether his assertion that
he was made the “lead therapist” at H2O’s spa is supported by sufficient
contested facts to create a genuine dispute, and whether, even if he was, that
nebulous title carries with it sufficient emoluments that its loss or diminution,
actual or perceived, could form the basis of an adverse employment act or
retaliation.
      Even if we assume, arguendo, that the position of “lead therapist” at the
spa somehow constituted an elevated level of responsibility, privilege, and
compensation (which we do not), we are convinced that the district court
properly concluded that Provensal’s proffered evidence of his having been
appointed lead therapist by H2O is speculative, inconclusive, conclusional, and
altogether incapable of rising to even the threshold level of material fact
sufficient to pretermit a grant of summary judgment on that asserted
foundational question.     Noting the amorphous nature of the title, “lead
therapist,” we are convinced that the court correctly classified the evidence
proffered by Provensal to having been appointed to that post insufficient to
create a genuine dispute. The vague and suppositional nature of the statements
of two other H2O employees about thinking that Provensal was made lead
therapist, coupled with his concession that he merely “thought” he had been so
named but could not point to a time, or a date, or to a writing or other statement,

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                                  No. 12-30325

that was not likewise vague and suppositional, satisfies us that the district court
committed no reversible error in determining the absence of any genuine issue
of material fact and granting summary judgment of dismissal of his claims on
that basis. The same holds true for the court’s rulings on prescription.
      The district court correctly applied the requirements of the Supreme
Court’s seminal cases in this area, Faragher v. City of Boca Raton, 524 U.S. 775
(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 714 (1998) to
Provensal’s claim against H2O for sex-based adverse employment decisions
against him. The record on appeal confirms that H2O adopted, published, and
furnished to Provensal, a detailed policy for reporting sexually harassing
behavior and that Provensal unreasonably failed to take advantage of the
opportunities thus presented or otherwise to avoid such harm.
                                 III. Conclusion
      The district court correctly ruled that all of Provensal’s employment
discrimination claims against H2O, both federal and state, either failed under
the Faragher/Ellerth rubric or were time-barred by prescription, as
demonstrated by uncontradicted evidence of the material facts.            For the
foregoing reasons, as detailed and explained more fully by the district court, its
summary judgments are, in all respects,
AFFIRMED.




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