     Case: 19-10761      Document: 00515377061         Page: 1    Date Filed: 04/09/2020




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

                                      No. 19-10761
                                                                              Fifth Circuit

                                                                            FILED
                                                                         April 9, 2020

ROBERT COLLIER,                                                        Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

DALLAS COUNTY HOSPITAL DISTRICT, doing business as Parkland
Health & Hospital System,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-3362


Before KING, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       Robert Collier, an African American employee in Dallas County’s
Parkland Health and Hospital System, filed suit under Title VII after he was
allegedly fired for insubordination. Collier claims that he was in fact fired in
retaliation for complaining of racial discrimination and that the hospital was
a hostile work environment. The district court granted summary judgment for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 19-10761
the hospital, finding that the rationale given for Collier’s termination was not
pretextual and that his working environment was not sufficiently abusive to
constitute a hostile work environment. We affirm.
                                            I.
                                           A.
      Collier worked as an operating-room aide in Dallas County’s Parkland
Health and Hospital System (Parkland) between January 2009 and July 2016,
where he mainly prepared operating rooms for patients. In August 2014,
Collier received a written warning after he allegedly failed to follow the
procedures for proper radio usage and failed to notify his supervisor when he
was leaving the department. A year later, Collier received a “Final Warning”
after he allegedly failed to respond to multiple radio calls and punched a wall.
Collier denies being called on his radio during these occasions but admits to
punching the wall. 1
      Around this time, Collier complained about racial discrimination at
Parkland. For example, he submitted complaints to Parkland’s telephone
hotline stating that African American employees were treated worse than
Hispanic and Caucasian employees, and he later filed another internal
complaint making similar allegations. Collier also reported that the N-word
was scratched into an elevator, and that two swastikas were drawn on the wall
in a storage room that he frequented. Collier reported this graffiti to Richard
Stetzel, who oversaw Collier’s supervisor, Javier Reyes, and to human
resources. 2 Collier also claimed that a nurse called him “boy” and that other
nurses called other African American employees “boy” as well.


      1  Parkland has acknowledged that the radios were not always working, and Collier
notes that he was once nearly disciplined for not using his radio on a day when he had not
been given access to one.
       2 The N-word remained for several months before being scratched out, and the

swastikas remained for approximately eighteen months.
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                                     No. 19-10761
      Parkland      maintained      that,   although     it   investigated     numerous
complaints from Collier, none of them involved racially offensive comments or
graffiti. Nonetheless, Stetzel acknowledged that he was aware of the swastikas
in the storage room and that he had planned to paint over them within six
months of first seeing them.
      In June 2016, Collier had a disagreement with Reyes, his supervisor,
which eventually led to his termination. According to Reyes, Collier refused to
work in Pod D, one of the four stations where operating-room aides worked,
and Collier later cursed at Reyes, threatened him, and “became very
aggressive, violent, [and started] hitting the wall.” 3 Other nearby employees
confirmed that Collier refused to work in Pod D, despite their attempts to
convince him to do so, and that Collier exhibited threatening and aggressive
behavior. The Dallas County Hospital District Police Department was
summoned, and Collier was issued a citation for assault and was escorted off
the property.
      Following this incident, Parkland concluded that Collier had been
insubordinate by refusing to work in Pod D and failing to follow the
instructions of two additional supervisors, which ultimately “impact[ed]
patient care.” Four Parkland officials, none of whom were Reyes, decided to
terminate Collier, and he was fired on July 12, 2016. 4




      3   Collier acknowledges disagreement with his supervisor but denies being
insubordinate. For example, Collier’s brief states that “Defendant terminated Plaintiff in
June 2016 due to an argument he had with Supervisor Reyes regarding Supervisor Reyes
continually assigning Plaintiff to isolated Pod D, despite Defendant’s policy to rotate the
ORAs through the different Pods.”
       4 Employee Relations Advisor CaSaundra Henderson, Employee Relations Director

Arthur Ferrell, Interim Vice President Brandon Bennett, and Director of Nursing Richard
Stetzel were responsible for Collier’s termination.
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                                  No. 19-10761
                                        B.
      In December 2017, Collier filed suit against Parkland for violations of
Title VII of the Civil Rights Act and the Texas Employment Discrimination
Act, claiming racial discrimination and retaliation. As noted, Collier claimed
that he was retaliated against for reporting racial discrimination and claimed
that the presence of two swastikas and the N-word on hospital walls, as well
as being called “boy,” made Parkland a hostile work environment.
      Parkland moved for summary judgment, which the district court
granted. The district court found that Collier could not establish either: (1) that
Parkland’s rationale for terminating Collier—i.e., insubordination—was
pretextual; or (2) that Collier’s working environment “was sufficiently hostile
or abusive to create a racially hostile work environment.” This appeal followed.
                                        II.
      “We review a district court’s grant or denial of summary judgment de
novo, applying the same standard as the district court.” Thomas v. Johnson,
788 F.3d 177, 179 (5th Cir. 2015) (quoting Robinson v. Orient Marine Co., 505
F.3d 364, 365 (5th Cir. 2007)). “Summary judgment is appropriate if ‘the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.’” Robinson, 505 F.3d at 366. Accordingly, all “reasonable
inferences should be drawn in favor of the nonmoving party.” Tolan v. Cotton,
572 U.S. 650, 660 (2014).
                                       III.
                                        A.
      To establish a prima facie case of retaliation under Title VII, a plaintiff
must indicate that: “(1) he participated in an activity protected by Title VII;
(2) his employer took an adverse employment action against him; and (3) a
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                                  No. 19-10761
causal connection exists between the protected activity and the adverse
employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th
Cir. 2007) (describing the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once a prima facie case is
made, the employer must then “articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment action.” Id. at 557. This burden is
“only one of production, not persuasion, and involves no credibility
assessment.” Id.
      If the employer satisfies this burden, “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.” Id. This
requires the plaintiff to “rebut each . . . nonretaliatory reason articulated by
the employer,” id., and to establish “that the adverse action would not have
occurred ‘but for’ the employer’s retaliatory motive,” Feist v. La. Dep’t of
Justice, 730 F.3d 450, 454 (5th Cir. 2013); see also Moore v. Eli Lilly & Co., 990
F.2d 812, 815-16 (5th Cir. 1993) (“To demonstrate pretext, the plaintiff must
do more than cast doubt on whether the employer had just cause for its
decision; he or she must show that a reasonable factfinder could conclude that
the employer’s reason is unworthy of credence.” (cleaned up)).
                                       B.
      We conclude that Parkland offered legitimate, nondiscriminatory
reasons for Collier’s termination, such as insubordination. See, e.g., Rochon v.
Exxon Corp., No. 99-30486, 1999 WL 1234261, at *3 (5th Cir. Nov. 22, 1999)
(“Violation of a work-rule is a legitimate, nondiscriminatory reason for
termination”). Accordingly, to prevail on his retaliation claim, Collier must
demonstrate that these rationales were pretextual, see McCoy, 492 F.3d at 557,
and that his complaints of racial discrimination were a but-for cause of his
termination, see Feist, 730 F.3d at 454.
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                                       No. 19-10761
       Although there are disputed facts regarding his radio usage and his
disagreement with Reyes, Collier indisputably punched a wall, received a
citation for assault, and was determined to be insubordinate. 5 Collier may
quarrel with the specific details of these events, but he ultimately admits that
insubordination could constitute a terminable offense, and he offers no
evidence indicating that Parkland’s rationales were pretextual. Cf. McCoy, 492
F.3d at 557 (“[T]he plaintiff must rebut each . . . nonretaliatory reason
articulated by the employer.”).
       Collier does not, for example, assert that other employees who were
similarly insubordinate received different treatment, or that other similarly
situated employees were fired for pretextual reasons. While Collier alleges that
Reyes, his supervisor, had a retaliatory intent, four other individuals were
responsible for his termination. Collier does not explain how these other
individuals acted with a retaliatory intent or how Reyes’s retaliatory intent
and role as a “critical person involved,” rather than Collier’s observed
insubordination, was the cause of his termination. Accordingly, there is no fact




       5 Collier insists that he was not insubordinate, but there is not a genuine dispute of
material fact regarding whether Parkland could have concluded that he was insubordinate.
As noted, several observers reported his insubordination, which influenced Parkland’s
decision to terminate him. Collier does not refute these witness reports and admits to arguing
with his supervisor. Such conduct qualifies as insubordination. See, e.g., Insubordination,
Black’s Law Dictionary (11th ed. 2019) (“An act of disobedience to proper authority . . . .”).
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                                   No. 19-10761
issue regarding the but-for cause of Collier’s termination, and Collier has failed
to establish that his firing was pretextual. 6
                                         IV.
                                         A.
      To establish a hostile-work-environment claim under Title VII, a
plaintiff must prove that:
      (1) [he] belongs to a protected group; (2) [he] was subjected to
      unwelcome harassment; (3) the harassment complained of was
      based on race; (4) the harassment complained of affected a term,
      condition, or privilege of employment; [and] (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) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). The harassment must
be “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment,” and it cannot be
“measured in isolation.” Ramsey, 286 F.3d at 268 (citations omitted).
      To determine whether a work environment is actionably hostile, “all of
the circumstances must be taken into consideration,” such as “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.” Hernandez, 670 F.3d at 651
(citation omitted). “[T]he work environment must be ‘both objectively and
subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.’” Id. (quoting



      6   For these reasons, we need not address Parkland’s argument that part of the
retaliation claim is time-barred. Nonetheless, Parkland’s argument is inapposite. The
statutory limitations period does not “bar an employee from using the prior acts as
background evidence in support of a timely claim,” which Collier does here. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
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                                  No. 19-10761
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). Moreover, “[t]he
alleged conduct must be more than rude or offensive comments [or] teasing.”
Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 326 (5th Cir. 2004).
“These standards for judging hostility are sufficiently demanding to ensure
that Title VII does not become a ‘general civility code.’” Faragher, 524 U.S. at
788 (citation omitted).
                                        B.
      Collier relies on three main facts to support his hostile-work-
environment claim: (1) a nurse called him “boy”; (2) the N-word was scratched
into an elevator, and Parkland failed to removed it for months despite his
complaints; and (3) two swastikas were drawn on the walls of a room that he
worked in, and Parkland waited eighteen months to paint over them despite
his complaints.
      As Collier rightly observes, other courts have found that the prolonged
duration of racially offensive graffiti, especially once it has been reported, could
militate in favor of a hostile-work-environment claim. See, e.g., Watson v.
CEVA Logistics U.S., Inc., 619 F.3d 936, 943 (8th Cir. 2010) (“[T]he key
difference between graffiti and a racial slur should not be overlooked: the slur
is heard once and vanishes in an instant, while graffiti remains visible until
the employer acts to remove it.” (internal quotation marks omitted)); see also
EEOC v. Rock-Tenn Servs. Co., 901 F. Supp. 2d 810, 827 (N.D. Tex. 2012) (“[I]f
the graffiti remains over an extended period of time, or the employer’s response
is repeatedly ineffective . . . , a fact question arises as to the reasonableness of
the employer’s response . . . .” (citing Tademy v. Union Pac. Corp., 614 F.3d
1132, 1149 (10th Cir. 2008))). As Collier notes, the N-word remained for several




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                                    No. 19-10761
months before being scratched out, and the swastikas remained for
approximately eighteen months, despite Parkland’s knowledge.
      Moreover, other courts of appeals have found instances where the use of
the N-word itself was sufficient to create a hostile work environment. See, e.g.,
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J.,
concurring) (“As several courts have recognized, . . . a single verbal (or visual)
incident can . . . be sufficiently severe to justify a finding of a hostile work
environment.”); Rodgers v. W.–S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)
(“Perhaps no single act can more quickly ‘alter the conditions of employment
. . .’ than the use of an unambiguously racial epithet such as [the N-word] by a
supervisor.” (citation omitted)).
      Though disturbing, the particular facts of this case— the two instances
of racial graffiti and being called “boy”— are insufficient to establish a hostile
work environment under our precedent. For example, we have found that the
oral utterance of the N-word and other racially derogatory terms, even in the
presence of the plaintiff, may be insufficient to establish a hostile work
environment. See, e.g., Dailey v. Shintech, Inc., 629 F. App’x 638, 640, 644 (5th
Cir. 2015) (no hostile work environment where a coworker called plaintiff a
“black little motherf—r” and threatened to “kick his black a—s”); Frazier v.
Sabine River Auth., 509 F. App’x 370, 374 (5th Cir. 2013) (finding that use of
the N-word, the word “Negreet,” and a noose gesture “were isolated and not
severe or pervasive enough” to create a hostile work environment); Vaughn v.
Pool Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982) (use of the N-word,
“coon,” and “black boy”).
      The conduct that Collier complains of was not physically threatening,
was not directed at him (except for the nurse’s comment), and did not
unreasonably interfere with his work performance. Cf. Hernandez, 670 F.3d at
651. In fact, Collier admitted that the graffiti interfered with his work
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                                 No. 19-10761
performance by only one percent. Accordingly, on the record before us, Collier’s
hostile-work-environment claim fails because it was not “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Ramsey, 286 F.3d at 268 (citation omitted).
                                      V.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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