     Case: 13-31142      Document: 00512642300         Page: 1    Date Filed: 05/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-31142                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            May 27, 2014
TRACY MITCHELL,                                                            Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellant
v.

U T L X MANUFACTURING, L.L.C.,

                                                 Defendant–Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-1018


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Tracy Mitchell (“Mitchell”) appeals the district
court’s grant of summary judgment on claims he brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) for race discrimination,
hostile work environment, and retaliation. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                              I. BACKGROUND
      In January of 2007, Mitchell began working as an assembler for
Defendant–Appellee UTLX Manufacturing, L.L.C. (“UTLX”). Mitchell, who is
African-American, was under the direct supervision of Cliff Holt (“Holt”), who
is white. Mitchell alleges that in April 2007, Holt irately accused him of
damaging a tank jacket and cursed at him. Mitchell denied damaging the
jacket and contacted a hotline for the Marmon Group, UTLX’s parent company,
to complain about Holt’s behavior.
      Mitchell claims that he became the target of racial discrimination and
harassment in retaliation for making the report about Holt. Several days after
he made the call to the hotline, Mitchell was transferred from the day shift to
the night shift. Mitchell alleges that his new supervisor on the night shift
yelled at him for failing to properly store a hose. He also claims that Holt,
while pointing to Mitchell’s reflection in a mirror, said “see the machine, the
monkey on the machine.” Mitchell later developed an allergic reaction to a
detergent at work and was given Benadryl at UTLX’s health center; he alleges
that when he returned to work, a white coworker called him a “crack head.”
      Mitchell claims that, during 2007 and 2008, he applied for promotions to
the Welder B and machine operator positions but that he was not selected for
either position. According to Mitchell, he was required to pass an elementary
math test to qualify for those positions, but he also admits that he did not pass
the test. Mitchell contacted the assistant to UTLX’s human resources director
and a UTLX production manager to discuss the fact that he had not been
promoted. He also contacted the Berkshire-Hathaway Group Alert Line, which
had taken the place of the Marmon Group hotline, to complain about his lack
of promotion.
      Mitchell then filed a formal complaint with the Equal Employment
Opportunity Commission (“EEOC”), alleging that he had been subject to race
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discrimination and retaliation, and the EEOC issued a right to sue letter.
Mitchell sued UTLX for race discrimination, retaliation, and hostile work
environment. UTLX filed a motion for summary judgment, and the district
court granted UTLX’s motion and dismissed Mitchell’s suit with prejudice.
Mitchell timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3).
Because this is an appeal of a final judgment of a district court, this Court has
jurisdiction under 28 U.S.C. § 1291.
                              III. DISCUSSION
      On appeal, Mitchell argues that the district court erred in granting
UTLX’s motion for summary judgment as to each of his claims. We review a
grant of summary judgment de novo. Summary judgment is appropriate where
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Although we view all facts in the light most favorable to the non-movant and
draw all reasonable inferences in the non-movant’s favor, see Coleman v. Hous.
Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997), conclusory allegations will
not defeat a properly supported motion for summary judgment, Whelan v.
Winchester Prod. Co., 319 F.3d 225, 230 (5th Cir. 2003) (citing Fed. R. Civ. P.
56(e)).
A. Race Discrimination
      Mitchell argues that he was not promoted to the position of Welder B or
machine operator because of his race. In order to present a prima facie case of
discrimination in a failure to promote case, Mitchell must prove: “(1) that [he]
is a member of the protected class; (2) that he sought and was qualified for the
position; (3) that he was rejected for the position; and (4) that the employer
continued to seek or promoted applicants with the plaintiff’s qualifications.”
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Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004). The
district court found that Mitchell had failed to present a prima facie case of
race discrimination because, inter alia, he had not alleged facts showing that
he was qualified for the position he sought. The district court noted that
applicants for the Welder B and machine operator positions were required to
pass a math test. Because Mitchell had failed the required math test, the
district court concluded he had failed to prove a prima facie case of race
discrimination.
      On appeal, Mitchell does not dispute this conclusion. Instead, Mitchell
claims the district court erred because he was qualified for those positions
“[b]ased on his previous experiences prior to working for UTLX.” Mitchell’s
own briefing, however, reiterates that applicants were required to pass the
math test in order to be qualified for the positions he sought, and it is
undisputed that he failed the test. Thus, because he did not assert facts
showing he was qualified for the position he sought, Mitchell failed to prove a
prima facie case of race discrimination, and summary judgment was
appropriate as to his race discrimination claim.
B. Retaliation
      Mitchell next argues the district court erred in dismissing his retaliation
claim. In order to establish a prima facie case of retaliation, Mitchell must
prove: (1) he engaged in a protected activity; (2) an adverse employment action
occurred; and (3) there is a causal link between his protected activity and the
adverse employment action. See Septimus v. Univ. of Hous., 399 F.3d 601, 610
(5th Cir. 2005). “Protected activity is defined as opposition to any practice
rendered unlawful by Title VII, including making a charge, testifying,
assisting, or participating in any investigation, proceeding, or hearing under
Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)
(citation and internal quotation marks omitted). The district court found that
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Mitchell had failed to assert facts that he was engaged in a protected activity.
Mitchell had alleged retaliation after his call in April 2007 to the Marmon
Group’s hotline, wherein he reported a grievance with his supervisor. But, the
district court found that Mitchell was complaining about an incident with his
supervisor where his supervisor did not engage in any discriminatory conduct.
Because of this, his phone call was not a protected activity, and so the district
court concluded Mitchell had failed to establish a prima facie case of
retaliation.
      Mitchell again offers no facts or law to refute the district court’s
conclusion. Mitchell’s brief states that he made the call to the Marmon Group
hotline after Holt yelled at him for damaging a “fucking jacket.” But, nothing
about this incident suggests that Holt’s behavior was discriminatory in nature
or that Holt engaged in a practice rendered unlawful by Title VII. Thus,
Mitchell’s complaint about the incident does not qualify as protected activity.
We hold the district court correctly dismissed Mitchell’s claim for retaliation
because he failed to assert facts showing he was engaged in protected activity.
C. Hostile Work Environment
      Finally, Mitchell argues that the district court erred in dismissing his
hostile work environment claim. “Title VII requires employees to exhaust their
administrative remedies before seeking judicial relief.” McClain v. Lufkin
Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). “[T]his court construes an
EEOC complaint broadly but in terms of the administrative EEOC
investigation that can reasonably be expected to grow out of the charge of
discrimination.” Id. (internal quotation marks omitted). Applying this rule,
the district court thoroughly analyzed Mitchell’s initial and amended EEOC
complaints and ultimately concluded that his complaints only asserted claims
for race discrimination and retaliation. Because Mitchell had failed to bring
his hostile work environment claim to the EEOC before bringing it to the
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                                  No. 13-31142
district court, the district court found he had not exhausted his administrative
remedies and dismissed his claim.
      On appeal, Mitchell never addresses the district court’s administrative
exhaustion ruling and thus abandons any challenge to the district court’s
reasoning for granting UTLX’s motion for summary judgment. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993) (issues not briefed are
abandoned); see also Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A
party who inadequately briefs an issue is considered to have abandoned the
claim.”). Even if we were to consider the district court’s finding that Mitchell
had failed to exhaust the administrative remedies for his hostile work
environment claim, we would affirm the district court. Upon reviewing both
Mitchell’s initial and amended EEOC complaints, it is clear that Mitchell
raised only his race discrimination and retaliation claims before the EEOC.
Thus the district court correctly dismissed his hostile work environment claim
as unexhausted.
                       IV. MOTION FOR SANCTIONS
      UTLX has also filed a motion for sanctions against Mitchell or his
counsel, or both. UTLX argues that Mitchell’s appeal violates Federal Rule of
Appellate Procedure 28 and is “devoid of legal authority establishing error and
identification of error in the District Court’s ruling.” UTLX further argues that
sanctions are appropriate because Mitchell’s attorney has filed frivolous
appeals in the past, citing Huntsberry v. Willamette Valley Co., 547 F. App’x
403 (5th Cir. 2013) (per curiam) (unpublished) to support this claim.
      We deny UTLX’s motion for sanctions and its motion for double costs and
attorney’s fees. But, counsel for appellant is advised that further filing of
frivolous appeals will result in sanctions. This appeal borders on frivolous for
failing to address any legal error of the district court or to present a cognizable
basis for reversal. Counsel for appellant is also advised that all briefs must
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comply with the requirements of Federal Rule of Appellate Procedure 28. See
Fed. R. App. P. 28 (briefs must contain, inter alia, a statement of the relevant
facts with references to the record and an argument section with “citations to
the authorities and parts of the record on which the appellant relies”).
                              V. CONCLUSION
      For the foregoing reasons, we AFFIRM.
      IT IS ORDERED that the appellee’s motion for sanctions against the
appellant and/or appellant’s counsel is DENIED.
      IT IS FURTHER ORDERED that the appellee’s motion for attorney’s
fees and costs is DENIED.
      IT IS FURTHER ORDERED that further frivolous appeals will result in
sanctions.




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