     Case: 14-30346         Document: 00512857953        Page: 1   Date Filed: 12/04/2014




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


                                        No. 14-30346                              FILED
                                                                           December 4, 2014
                                                                             Lyle W. Cayce
WARREN R. WATKINS,                                                                Clerk

                                                   Plaintiff - Appellant
v.

RECREATION AND PARK COMMISSION FOR THE CITY OF BATON
ROUGE,

                                                   Defendant - Appellee



                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 3:12-CV-366


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Warren R. Watkins appeals the district court’s order 1
granting summary judgment in favor of Defendant-Appellee Recreation and
Park Commission for the City of Baton Rouge (“BREC”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1    The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C.
§ 636(c).
    Case: 14-30346    Document: 00512857953       Page: 2   Date Filed: 12/04/2014



                                 No. 14-30346
                                       I.
      Watkins, an African-American male, was employed as a welder for
BREC from 2004 to March 2012.               Watkins’s supervisors were Donnie
Broussard and Mike Amond. At the time, Mark Lee and Justin Smith were
assistant director and director of park operations.
      Watkins claims that, during his employment with BREC, he was
subjected to harassment and discrimination based on his race as well as
retaliation when he complained about his treatment. Watkins alleges that
other employees used racially charged language or symbols in his presence on
three occasions. The most recent of these incidents occurred in April 2010.
Watkins also alleges he was denied training opportunities and subjected to less
favorable work conditions than a similarly situated white employee, Mike
Hano. Watkins claims other white employees were subjected to less discipline
than he was for similar transgressions.
      Watkins filed his first complaint with the Equal Employment
Opportunity Commission (“EEOC”) in August 2011, which was processed by
the Louisiana Commission on Human Rights in October 2011. He received a
right to sue notice in March 2012.
      In February 2012, Watkins refused to sign a work assignment sheet
because he said it had a “booger” on it. Watkins reported the incident to the
human resources department. In March 2012, Watkins took a work vehicle
home during lunch. Following these incidents and others, Broussard and
Amond had a counseling meeting with Watkins to discuss certain issues with
his work performance, including his refusal to sign the work assignment sheet
and his improper use of the company vehicle. Watkins refused to sign the
memorandum of his counseling session and was told his refusal to do so was
an act of insubordination. Watkins was suspended from work for three days
without pay. At a meeting a few days later, Watkins still refused to sign the
                                       2
    Case: 14-30346         Document: 00512857953       Page: 3   Date Filed: 12/04/2014



                                        No. 14-30346
counseling form and was terminated. Watkins appealed his termination to the
BREC Ad Hoc Peer Review Committee. The committee recommended that
Watkins be reinstated if he agreed to three conditions: (1) complying with
BREC’s rules and supervisors’ instructions, including signing counseling
acknowledgment forms and incident reports; (2) showing a willingness to
improve cooperation and attitude; and (3) scheduling a counseling session with
the Employee Assistance Program. Watkins refused the offer of reinstatement
and instead appealed to the Human Resources Grievances Committee. At a
hearing in June 2012, Watkins informed the committee that he did not want
his job back but wanted to confront BREC employees regarding his
termination. Watkins was not reinstated.
      On June 20, 2012, Watkins sued BREC. Watkins alleged that BREC
violated Title VII and Louisiana state law 2 by discriminating against Watkins
based on his race, creating a hostile work environment, and retaliating against
him after he complained. Watkins filed a second complaint with the EEOC in
August 2012, to address his termination, and received a right to sue letter in
September 2012.
      BREC moved for summary judgment in August 2013. The district court
granted summary judgment to BREC on all claims on December 26, 2013. The
court entered a final judgment on March 20, 2014. Watkins timely appealed.
                                                II.
      We review the district court’s grant of summary judgment de novo,
construing all facts and evidence in the light most favorable to the nonmoving
party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir.
2009). Summary judgment is appropriate when “there is no genuine dispute




      2   See LA. REV. STAT. §§ 23:332, :967.
                                                3
    Case: 14-30346     Document: 00512857953     Page: 4   Date Filed: 12/04/2014



                                  No. 14-30346
as to any material fact and the movant is entitled to judgment as a matter of
law.”    FED. R. CIV. P. 56(a).   We may affirm the district court’s grant of
summary judgment on any ground supported by the record and presented to
the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008)
(per curiam).
        The court below granted summary judgment in favor of BREC on each
of Watkins’s claims. As we conclude there are no genuine issues of material
fact and that BREC is entitled to summary judgment on each of Watkins’s
claims, we affirm the lower court’s ruling.
A. Hostile Work Environment
        To state a hostile work environment claim under Title VII or Louisiana
state law, Watkins must show, inter alia, that “the harassment complained of
affected a term, condition, or privilege of employment.” Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citation and internal quotation
marks omitted); see also King v. Phelps Dunbar, LLP, 743 So.2d 181, 187 (La.
1999) (noting that Louisiana’s employment discrimination laws are similar in
scope to federal laws and thus Louisiana courts look to federal jurisprudence
in interpreting Louisiana law). To affect a “term, condition, or privilege of
employment,” the harassment must be “sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.” Yellow Transp., 670 F.3d at 651 (citation and internal quotation
marks omitted). In making this determination, the court considers all of the
circumstances, including “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.” Id. (citation and internal quotation marks omitted). The
Supreme Court has “made it clear that conduct must be extreme to amount to


                                       4
     Case: 14-30346       Document: 00512857953          Page: 5     Date Filed: 12/04/2014



                                       No. 14-30346
a change in the terms and conditions of employment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
       Watkins contends that three incidents support his hostile work
environment claim. However, he fails to proffer evidence showing that the
alleged harassment affected a term, condition, or privilege of his employment.
The three incidents cited by Watkins on appeal occurred over the course of his
nearly eight-year career with BREC. While these incidents were offensive,
they were not severe, pervasive, frequent, or physically threatening, nor did
they interfere with his work performance. In fact, the conduct in this case
“pale[s] in comparison” to conduct in cases in which courts have found a hostile
work environment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348
(5th Cir. 2007) (collecting cases); see also Walker v. Thompson, 214 F.3d 615,
619–22 (5th Cir. 2000) (holding that plaintiff survived summary judgment
where evidence demonstrated years of inflammatory racial epithets). Though
we strongly condemn the type of behavior alleged by Watkins, Title VII is not
a “general civility code” for the workplace. Faragher, 524 U.S. at 788 (citation
and internal quotation marks omitted). We therefore hold that summary
judgment was properly granted on Watkins’s hostile work environment claim. 3


       3  BREC also alleges that the statute of limitations bars Watkins’s claim, and we agree
that this is an additional basis to affirm summary judgment on this claim. The most recent
incident alleged occurred in April 2010. The statute of limitations for a hostile work
environment claim is 300 days. See 42 U.S.C. § 2000e-5(e)(1) (limitations period is 300 days
if plaintiff has instituted proceedings with a state or local agency with authority to grant or
seek relief from such practice). The earliest charge filed with the EEOC is dated August
2011, more than 300 days after the date of the last incident. Though courts will “utilize[] the
theory of a continuing violation in certain exceptional circumstances,” Watkins’s claim would
have been evident by the date of the last incident. See Webb v. Cardiothoracic Surgery Assocs.
of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Celestine v. Petroleos de Venezuella SA,
266 F.3d 343, 352 (5th Cir. 2001) (“[W]here a pattern of harassment spreads out over years,
and it is evident long before the plaintiff sues that she was a victim of actionable harassment,
she cannot reach back and base her suit on conduct that occurred outside the statute of
limitations.”).
                                               5
     Case: 14-30346      Document: 00512857953        Page: 6    Date Filed: 12/04/2014



                                     No. 14-30346
B. Discrimination and Retaliation
      The court analyzes discrimination and retaliation cases using the
McDonnell Douglas framework. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). 4 Under this framework, the plaintiff must establish a prima facie
case of discrimination by showing that: (1) he is a member of a protected class;
(2) he was qualified for his position; (3) he was subject to an adverse
employment condition; and (4) others similarly situated were treated more
favorably. Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005). To
state a prima facie case of retaliation, the plaintiff must establish: (1) he
participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action. Banks v.
E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003).
      If the plaintiff makes a prima facie showing, “the burden then shifts to
the employer to articulate a legitimate, nondiscriminatory or nonretaliatory
reason for its employment action.” McCoy v. City of Shreveport, 492 F.3d 551,
557 (5th Cir. 2007) (per curiam) (citing Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000) (discrimination), and Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002) (retaliation)). “If the employer meets its burden of
production, the plaintiff then bears the ultimate burden of proving that the
employer’s proffered reason is not true but instead is a pretext for the real
discriminatory or retaliatory purpose.” McCoy, 492 F.3d at 557.
      There is no dispute that Watkins is a member of a protected class, was
qualified for his job, and participated in a protected activity. Watkins argues


      4 Louisiana state law incorporates the same framework. Decorte v. Jordan, 497 F.3d
433, 437 (5th Cir. 2007) (applying Title VII framework to Louisiana discrimination claim);
Tatum v. United Parcel Serv., Inc., 79 So.3d 1094, 1103–04 (La. Ct. App. 5 Cir. 2011)
(applying Title VII framework to retaliation claim under the Louisiana statute).
                                            6
     Case: 14-30346       Document: 00512857953          Page: 7     Date Filed: 12/04/2014



                                       No. 14-30346
that several events constitute adverse employment actions against him:
(1) disparate treatment as compared to Hano; (2) the counseling session; (3) the
three-day suspension without pay; and (4) Watkins’s termination.
       The alleged preferential treatment of Hano does not support his
discrimination claim because it is not an adverse employment action. 5 With
respect to the counseling session, suspension, and termination, 6 which
Watkins alleges support both his discrimination and retaliation claims, BREC
offered a number of reasons for these measures, which Watkins fails to rebut
with summary judgment evidence showing pretext.                      BREC cites several
deficiencies in Watkins’s performance that led to the counseling session.
Nothing in the record suggests any of these claimed deficiencies was false. 7
Watkins attempts to rebut one of the proffered reasons by showing another
employee behaved similarly without repercussion; however, that employee was
not similarly situated. 8


       5 In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court
expanded the definition of “adverse employment action” in the context of retaliation. 548 U.S.
at 59–70. Even under a broad reading, the alleged disparate treatment is not sufficiently
adverse to support Watkins’s claim.
       6 We assume, without deciding, that the counseling session constitutes an adverse
employment action under the discrimination and retaliation frameworks. See id. at 68
(defining “adverse employment action” for a retaliation claim as an action that “a reasonable
employee would have found . . . materially adverse [and] might have dissuaded a reasonable
worker from making or supporting a charge of discrimination” (internal quotation marks
omitted)).
       7 Watkins attempts to show these reasons are pretext by stating in his brief that “after
he asked for a meeting about his complaints, [Broussard] told [him] he would be ‘spied’ upon
or ‘subjected to increased surveillance.’” At his deposition, however, Watkins admitted the
complaint discussed with Broussard related to missing tools.
       8One of the reasons for the counseling session was that Watkins took his BREC truck
home for lunch. Watkins alleges that another employee took a work truck home for lunch
without punishment. However, the evidence indicates that the employee had permission,
while Watkins did not. Thus, this example does not support Watkins’s claims. Cf. Lee v.
Kan. City S. Ry., 574 F.3d 253, 260 (5th Cir. 2009) (“If the difference between the plaintiff’s
conduct and that of those alleged to be similarly situated accounts for the difference in
treatment received from the employer, the employees are not similarly situated for the
                                              7
    Case: 14-30346      Document: 00512857953        Page: 8    Date Filed: 12/04/2014



                                    No. 14-30346
      Moreover, BREC provided evidence that the reason for Watkins’s
suspension and ultimate termination was his refusal to sign forms
memorializing the counseling session and his conversations with the human
resources department. Watkins fails to rebut this reason as pretextual with
competent summary judgment evidence. See McCoy, 492 F.3d at 562 (“‘[O]nce
the employer offers a legitimate, nondiscriminatory reason that explains both
the adverse action and the timing, the plaintiff must offer some evidence from
which the jury may infer that retaliation was the real motive.’” (quoting
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997))). In both
instances, Watkins was warned that his refusal to sign the forms was
considered insubordination that could result in disciplinary action, including
termination. Watkins admits he refused to sign these documents. Watkins
does not offer evidence that other employees were treated differently under
similar circumstances.       Further, Watkins refused a subsequent offer of
reinstatement.     These facts do not support Watkins’s discrimination or
retaliation claims. Accordingly, summary judgment was properly granted in
favor of BREC on Watkins’s discrimination and retaliation claims.
      Finally, Watkins argues that he is entitled to protection under
Louisiana’s whistleblower statute, which prohibits an employer from taking
“reprisal against an employee who in good faith, and after advising the
employer of the violation of the law . . . [d]iscloses or threatens to disclose a
workplace act or practice that is in violation of state law.” LA. REV. STAT.
§ 23:967. While Watkins may be correct that the acts he complained of in 2007
violate Louisiana state law, he fails to show a causal nexus between his




purposes of an employment discrimination analysis.” (emphasis in original) (citation and
internal quotation marks omitted)).
                                           8
    Case: 14-30346     Document: 00512857953      Page: 9    Date Filed: 12/04/2014



                                  No. 14-30346
complaint and the alleged reprisals. 9 A whistleblower claim, like a Title VII
retaliation claim, requires proof of a causal link between the plaintiff’s
disclosure of a violation of state law and any acts of reprisal. Tatum, 79 So.3d
at 1104. The retaliatory actions Watkins alleges took place several years later:
Hano was hired in 2010, and Watkins’s counseling, suspension, and
termination took place in 2012. Temporal proximity only supports causation
“when the protected act and the adverse employment action are ‘very close’ in
time.” Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007) (quoting Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (noting that a three-
month or four-month period may be close enough to make a prima facie
showing of causation but holding that a twenty-month period was not)). Thus,
summary judgment was properly granted on Watkins’s whistleblower claim.
      AFFIRMED.




      9 He did not raise the same issue in his 2011 complaints to the EEOC or to the
Louisiana Commission on Human Rights.
                                         9
