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

                                                                            FILED
                                                                          January 7, 2009

                                     No. 08-20379                     Charles R. Fulbruge III
                                   Summary Calender                           Clerk


JAMES CAVALIER

                                                  Plaintiff - Appellant
v.

CLEARLAKE REHABILITATION HOSPITAL, INC.

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:07-CV-678


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       James Cavalier appeals the district court’s grant of summary judgment in
favor of Clearlake Rehabilitation Hospital (“Clearlake”). Because we find that
Cavalier has not produced sufficient evidence to survive summary judgment, we
affirm.
       Cavalier, an African-American man, is the former Director of Nursing at
Clearlake. He claims to have been the victim of racial discrimination and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                         No. 08-20379

harassment at the hands of Clearlake’s then-Director of Quality Management,
Belinda Simpson (“Simpson”), in violation of Title VII of the Civil Rights Act of
1964. Cavalier also asserts a claim of constructive discharge. Cavalier and
Simpson both held supervisory positions, so that neither was subordinate to the
other. Cavalier claims that Simpson harassed him in a “persistent, rude and
racist” manner. Specifically, he alleges that Simpson often referred to him as
“boy,” once told him that she would “beat the tar off of him,”1 bragged to others
that she would get him fired, and repeatedly called him a “doofus” and a “dunce.”
       Cavalier filed one written complaint about Simpson’s behavior, and claims
to have made many verbal complaints to human resources and to his direct
supervisor. After Cavalier filed his written complaint, Clearlake assigned Jeff
Prince (“Prince”) to investigate Cavalier’s allegations. Prince concluded that no
illegal harassment had taken place, but that Cavalier and Simpson did not have
a productive working relationship. In an email, Prince advised Cavalier that
Cavalier and Simpson should work together with human resources to repair
their working relationship. Cavalier resigned from Clearlake one week later.
       Cavalier initially filed this discrimination lawsuit in Texas state court.
Clearlake removed to federal court and moved for summary judgment. The
district court granted Clearlake’s motion for summary judgment, and this appeal
followed.
       We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Fabela v. Socorro Indep. Sch. Dist., 329
F.3d 409, 414 (5th Cir. 2003). Summary judgment is appropriate if the record
shows that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). To avoid summary


       1
          There is some dispute about this statement, both as to whether it was made at all and what
was actually said. Simpson and other employees who were present at the time insist that, if Simpson
said this, she actually said she would “beat the tar out of” Cavalier, not “off of” him.

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judgment, the non-moving party must show more than conclusory allegations,
unsubstantiated assertions, or speculation. Ramsey v. Henderson, 286 F.3d 264,
269 (5th Cir. 2002) (citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1429 (5th Cir. 1996)).
      To establish a hostile working environment claim under Title VII, Cavalier
must show that: 1) he belongs to a protected class; 2) he was subjected to
unwelcome harassment; 3) the harassment was race-based; 4) the harassment
affected a term, condition, or privilege of his employment; and 5) Clearlake knew
or should have known of the harassment and failed to take prompt remedial
action. Ramsey, 286 F.3d at 268. The district court found that Cavalier had
satisfied the first three prongs of the test, but was unable to produce evidence
to support the fourth prong.
      Under the fourth prong, the harassment “must be ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Id. (quoting Harris v. Forklift Sys, Inc., 510 U.S.
17, 21 (1993)). We also consider the following circumstances: “the frequency of
the discriminatory conduct, its severity, whether it is physically threatening or
humiliating (or whether it is a mere offensive utterance), and whether it
unreasonably interferes with the victim’s work performance.” Id. However,
“Title VII . . . is not a ‘general civility code,’ and ‘simple teasing,’ offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’” Lauderdale
v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007) (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
      Cavalier alleges twelve specific instances of objectionable behavior.
Viewing the facts favorably to Cavalier, only three of these instances can
reasonably be tied to Cavalier’s race: the “beat the tar off of him” comment and
two occasions when Simpson called Cavalier “boy.” The other nine alleged

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incidents might cause offense or indicate strife between Cavalier and Simpson,
but they are not evidence of race-based harassment. See Indest v. Freeman
Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (stating that “[d]iscourtesy or
rudeness, offhand comments and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in terms and conditions of
employment”) (internal quotations omitted). Though Cavalier may believe that
all twelve incidents were motivated by racial animus, subjective belief of racial
motivation, without more, is not sufficient to show a hostile work environment.
Since these three instances do not rise to the level of severity or pervasiveness
required to show a hostile work environment, the district court correctly found
that the fourth prong was not met.
      However, assuming arguendo that Cavalier could meet the fourth prong,
his claim also fails at the fifth prong.     We have held that a supervisor’s
intervention into an employee conflict shows “immediate remedial action.”
Ramsey, 286 F.3d at 270.        Here, Clearlake assigned a human resources
investigator to look into Cavalier’s written complaint, and the investigator
offered resources to help Cavalier and Simpson resolve their differences.
Further, one factor we have found dispositive is whether the employee
“reasonably took advantage of corrective opportunities provided by the
employer.” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th Cir.
2004). Cavalier did not take advantage of any “corrective opportunities”—he
quit one week after receiving Prince’s email, without responding at all.
      Cavalier also claims Simpson’s conduct caused him to be constructively
discharged. To prevail on a constructive discharge claim, the plaintiff must
show that his working conditions “were so intolerable that a reasonable
employee would feel compelled to resign.” Faruki v. Parsons S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997). The plaintiff must demonstrate a greater severity
or pervasiveness of harassment than the minimum required to prove a hostile

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working environment. Landgraf v. USI Film Prods., 98 F.2d 427, 430 (5th Cir.
1992).
     Here, Cavalier’s constructive discharge claim rests on the same evidence
as his hostile work environment claim. Therefore, because he has not alleged
evidence sufficient to preclude summary judgment on the hostile work
environment claim, he also cannot survive summary judgment on his
constructive discharge claim.
     For the above reasons, we AFFIRM the district court’s order granting
summary judgment.




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