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

                                                                     FILED
                                                                   January 30, 2009
                                 No. 08-40387
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

GREGORIO GARZA, JR

                                             Plaintiff-Appellant

v.

LAREDO INDEPENDENT SCHOOL DISTRICT

                                             Defendant-Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 5:04-CV-137


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Plaintiff-Appellant Gregorio Garza, Jr. (“Garza”), a United States citizen
of Mexican heritage, filed suit against Laredo Independent School District
(“LISD”) alleging employment discrimination based on national origin and
retaliation in violation of Title VII, 42 U.S.C. § 2000e. The district court granted
LISD’s motion for summary judgment, and Garza filed this appeal.                 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should not be published and is not precedent except under the limited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.
                                 No. 08-40387

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Garza was born in Laredo, Texas, and is a United States citizen residing
in Nuevo Laredo, State of Tamaulipas, Mexico. Garza has worked for the LISD
since September 1993. This suit arises out of incidents that occurred while Garza
was employed as a teacher at the Vidal M. Trevino School of Communication and
Fine Arts (“VMT”), a magnet high school located in Laredo, Texas.
      Over the course of several years, Garza experienced several instances of
what he considered to be “different treatment” which resulted in an alleged
hostile work environment. Garza provides numerous examples of disparate
treatment. For example, when new computers and printers were issued, Garza
was not provided one and he only had access to a computer and printer purchased
in 1993. VMT also stopped purchasing cartridges for the printer and Garza
bought his own. In addition, VMT continually increased the number of students
in Garza’s class. He believes that his classes “were probably the largest in the
school [and] probably in violation [of] fire safety norms.” Garza also states that
his classroom was not cleaned for days at a time or over school breaks.
      After several requests for intervention, Garza presented his concerns at the
LISD Board of Directors meeting on October 17, 2002. Garza was interviewed by
the Assistant Superintendent a few days later. Garza then suffered from what
he characterizes as “varied forms of retaliation.” For example, the current VMT
principal issued a letter of warning to Garza regarding a failure to submit
attendance rosters. At the time the letter of warning was given to Garza,
negative accusations were made regarding his ability to teach courses. Garza
also states that members of the staff, separately and in conjunction with local
administration, displayed signs that portrayed him negatively and held meetings
where they blamed Garza as a “traitor.” In addition, a survey being conducted
by one of Garza’s students was confiscated even though other classes conducted
surveys without incident.    Finally, VMT attempted to cancel the Hispanic
Heritage Festival, an event Garza organized for over thirteen years.

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      After these incidents, Garza attempted to transfer from VMT and applied
for two positions at different schools within the LISD. In addition, Garza
requested to teach a college level psychology course at VMT which was denied.
Garza had previously taught courses at a nearby community college.
      On January 20, 2004, Garza filed a discrimination claim against LISD with
the Equal Employment Opportunity Commission (“EEOC”) and the Texas
Commission on Human Rights (“TCHR”). Garza was issued a right to sue letter
in August 2004. Proceeding pro se, Garza filed suit against LSID on September
22, 2004. Garza claimed he was discriminated against based on national origin
and was retaliated against in violation of Title VII and its state equivalent, the
Texas Commission on Human Rights Act. Specifically, Garza claimed that LISD
(1) discriminated against him and subjected him to different terms, conditions,
and unfair treatment on account of his “Hispanic, Mexican national origin,” (2)
subjected him to an environment that negatively impacted his work conditions,
and (3) retaliated against him after he complained to LISD’s Board of Trustees.
      On June 7, 2006, LISD filed a motion for partial summary judgment. On
February 23, 2007, the magistrate judge denied the motion without prejudice due
to the parties’ use of the incorrect legal standard on what constitutes an adverse
employment action. On March 8, 2007, the district court issued an order allowing
LISD to file an updated summary judgment motion. The updated summary
judgment motion was granted by the district court on March 10, 2008. Garza
appeals.
    II. NATIONAL ORIGIN DISCRIMINATION AND RETALIATION
                                    CLAIMS
A. Standard of Review
      This Court reviews the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation
omitted). Summary judgment is proper when “the pleadings, the discovery and

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disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c). In making a determination as to whether
there is a genuine issue of material fact, this Court considers all of the evidence
in the record but refrains from making credibility determinations or weighing the
evidence. Turner, 476 F.3d at 343 (citation omitted). We draw all reasonable
inferences in favor of the nonmoving party, but “a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.’” Id. (citations omitted). “Summary judgment is appropriate
if a reasonable jury could not return a verdict for the nonmoving party.” Id.
(citation omitted).
B. Garza’s National Origin Claim
      Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Garza has not provided direct evidence of
discrimination, therefore, his Title VII claim based on circumstantial evidence is
analyzed under the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Turner, 476 F.3d at 345. Garza
must establish, by a preponderance of the evidence, a prima facie case of
discrimination in order for the court to deny LISD’s motion for summary
judgment.
      Garza may establish a Title VII violation based on race or national origin
discrimination creating a hostile work environment. To establish a prima facie
case, Garza must prove that he (1) is a member of a protected class, (2) was
subjected to unwelcome harassment, (3) the harassment complained of was based
on race or national origin, (4) the harassment complained of affected a term,
condition, or privilege of employment, and (5) the employer knew or should have

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known of the harassment in question and failed to take prompt remedial action.
See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
      Garza fails to establish a prima facie case of discrimination. Garza is a
member of a protected class–he is Mexican-American and continues to have
strong ties to Mexico. Drawing all reasonable inferences in favor of Garza, we
find that he was subjected to unwelcome harassment. Garza does not, however
prove that the harassment was based on his race or national origin.
      Garza provides numerous examples of discriminatory conduct, but does not
explain how this conduct was motivated by his national origin or race. We note
that this Court construes the submissions of pro se litigants broadly in deference
of their status. See Royal v. Tombone, 141 F.3d 596, 599 (5th Cir. 1998). This
liberal construction, however, does not alleviate Garza’s burden to present
evidence in support of the claim that he suffered harassment because of his race
or national origin. We find nothing in Garza’s brief that allows the Court to make
this inference. In addition, Garza’s deposition testimony demonstrates that while
he believed and stated that he was treated differently from other teachers, he did
not attempt to argue that other Hispanics were treated differently from white
employees.   Garza specifically stated that he could “only account for the
consequences or treatment that [he] suffered.” LSID’s counsel pressed the point
and specifically asked if one of VMT principals treated Garza differently because
he was Hispanic. Garza stated
      I cannot prove intrinsically that he treated me as inferior. All I can
      tell you is that because I’m from across. [sic] He knew that I was a
      U.S. citizen or something. But all I can tell you is that his actions
      reflected an unequal treatment or a disparate treatment in
      comparison to the rest of the faculty.

      We, again, draw all reasonable inferences in favor of Garza, but his
testimony does not demonstrate that he was harassed because of his race or
national origin. Even assuming Garza was treated differently from all other



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faculty members, that does not indicate that Garza was treated differently
because of his race or national origin.
      Garza also fails to demonstrate that the harassment affected a term,
condition, or privilege of his employment.
      For harassment on the basis of race [or national origin] to affect a
      term, condition, or privilege of employment, as required to support
      a hostile work environment claim under Title VII, it must be
      ‘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). This Court must look at the totality
of the circumstances when determining whether an environment is hostile or
abusive. Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.
1999).   “To be actionable, the challenged conduct must be both objectively
offensive, meaning that a reasonable person would find it hostile and abusive,
and subjectively offensive, meaning that the victim perceived it to be so.” Id. The
Court may consider factors 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.” Ramsey, 286 F.3d at 268 (citation omitted).
      Again, drawing all reasonable inferences in Garza’s favor, the totality of the
circumstances presented does not evidence a level of harassment on the basis of
race or national origin that affected a term, condition, or privilege of employment.
The incidents complained of by Garza occurred over several years, were not
severe, were not physically threatening or humiliating, and there is no evidence
that the harassment interfered with Garza’s work performance. While the Court
does not doubt that Garza found the conduct subjectively offensive, the conduct
does not rise to the level necessary to establish a hostile work environment claim.
      Garza fails to demonstrate a prima facie case of national original
discrimination, and we AFFIRM the district court’s grant of LISD’s motion for
summary judgment based on Garza’s national origin discrimination claim.

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C. Garza’s Retaliation Claim
      The McDonnell Douglas burden-shifting framework also applies to Garza’s
unlawful retaliation claim because he has not provided direct evidence of
retaliation. Turner, 476 F.3d at 348 (citation omitted). Garza must demonstrate
a prima facie case of retaliation by showing that: (1) he “engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action.” Id. (citation
omitted).
      Garza contends that he engaged in protected activity by making a
presentation to the LISD Board of Directors. After reviewing the transcript of
Garza’s statement at the LISD Board of Directors meeting, we agree with the
district court’s determination that Garza did not engage in protected activity at
that time.   The statement was a general complaint regarding the current
principal and the manner in which the school functioned, but Garza did not once
state that there were issues of racial or national origin discrimination. Garza
used the word discrimination in his introductory paragraph, but a review of the
entire transcript makes clear that he was providing complaints regarding the
functioning of the school generally.
      It is undisputed that Garza engaged in a protected activity by filing a
complaint with the EEOC. Garza’s brief, however, does not allege that any
adverse employment actions occurred after he filed his complaint with the EEOC.
An adverse employment action is any action that might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. McCoy
v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Instead, Garza outlines
numerous incidents of retaliation he suffered as a result of his presentation to the
LISD Board of Directors, and after becoming “[c]onfident that the district was not
going to protect [him], he made contact with [the] Texas Commission of Human
Rights.” Garza’s brief does not allege that he was retaliated against after filing
his charge with the EEOC.

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      Assuming, however, that some of the incidents of retaliation recounted by
Garza continued to occur after Garza filed his charge of discrimination with the
EEOC, this Court finds that they do not constitute adverse employment actions.
Garza stated that he was retaliated against because (1) meetings were conducted
in a biased, unprofessional, and hostile fashion; (2) meetings were called to blame
him for the actions of the district including the loss of VMT’s buildings; (3) most
of the staff stopped talking to him, acknowledging his presence, or displaying
basic morning and afternoon courtesy greetings; (4) school staff would scorn his
students outside of his classroom; (5) the administration would give inaccurate
information to students about him and would tell others that Garza was not to
be liked; (6) the Academic department suspended some of his programs; (7)
students were allowed to eat lunch and breakfast in his classroom, leaving a
mess; (8) his end of semester programs lacked attendance and support; (9) he was
prevented from holding fund-raising activities while other colleagues were able
to do so; (10) janitors neglected to clean his classroom; (11) staff members
attempted to persuade the principal to cancel the Hispanic Festival because he
was the co-coordinator and master of ceremonies; (12) custodians handled the
United States flag inappropriately; (13) safety officers failed to observe safety
issues; (14) steel chairs in his classroom were replaced with plastic ones while
other academic colleagues had cushioned chairs in their classrooms; and (15) staff
addressed him with sarcasm. A review of previous cases decided by this Court
demonstrates that the incidents of retaliation described by Garza do not reach
the level of an adverse employment action. See, e.g., Peace v. Harvey, 207 F.
App’x. 366, 368 (5th Cir. 2006) (holding that a plaintiff did not suffer an adverse
employment action after she (1) received a note detailing leave approval
procedures, (2) was not provided a designated seat at a ceremony, (3) was
assigned “menial and degrading work,” (4) was told she could no longer park in
her assigned space, (5) was yelled at by a supervisor, and (6) was told to move out
of her office); McCullough v. Kirkum, 212 F. App’x 281, 285 (5th Cir. 2006)

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(holding that (1) comments by unnamed employees, (2) a transfer to a different
division, and (3) relocating an employee from one desk to another did not rise to
the level of an adverse employment action); Grice v. FMC Techs. Inc., 216 F.
App’x 401-404 (5th Cir. 2007) (holding that an adverse employment action did not
take place after finding that the employer (1) watched the plaintiff closely, (2)
accused the plaintiff of forgery, (3) falsified an incident report to place blame on
the plaintiff, and (4) did not allow the plaintiff to be a step-up lead in the absence
of the Lead Assembler).
      Garza fails to demonstrate a prima facie case of retaliation, and we
AFFIRM the district court’s grant of LISD’s motion for summary judgment based
on Garza’s retaliation claim.
III. OTHER ISSUES RAISED BY GARZA ON APPEAL
      Garza presents several other issues on appeal: (1) whether the case lasted
too long because the district court allowed a number of procedural irregularities
and extensions, (2) whether the court erroneously allowed LISD to admit a
document filed forty-six days late, (3) whether LISD distorted facts to the court
with regards to the filing of the parties’ Joint Pretrial Order, (4) whether the
court’s integrity was placed at risk when the judge referred to LISD’s attorney by
name, (5) whether LISD engaged in improper conduct by taking depositions and
not notifying the opposing party, (6) whether the court’s integrity was placed at
risk by making a comment in a local newspaper about corruption among South
Texas police forces, and (7) whether the court misled Garza to believe that the
parties were heading toward a trial and not a grant of summary judgment,
thereby denying Garza due process.
      Issue (1) fails. District court judges have broad discretion in managing the
docket. Sims v. ANR Freight Sys., 77 F.3d 846, 849 (5th Cir. 1996). “Speed is
necessary, and the limited capabilities of the judicial system certainly should be
considered in determining whether to impose limits on the introduction of



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evidence and the length of trial. However, such considerations must be addressed
with a cautious respect for the requirements necessary to achieve a fair trial.”
      Under Federal Rule of Civil Procedure (“Rule”) 61, issue (2) fails. Rule 61
states:
      Unless justice requires otherwise, no error in admitting or excluding
      evidence — or any other error by the court or a party — is ground
      for granting a new trial, for setting aside a verdict, or for vacating,
      modifying, or otherwise disturbing a judgment or order. At every
      stage of the proceeding, the court must disregard all errors and
      defects that do not affect any party's substantial rights.

A review of the record does not demonstrate that the length of the proceedings
or the court’s decision to allow LISD to file late documents affected Garza’s
substantial rights. Issues (1) and (2) are DENIED.
      Issues (3)-(7) are presented for the first time on appeal.        Generally,
arguments presented for the first time on appeal will not be considered. Holiday
Inn, Inc. v. C. H. Alberding, 683 F.2d 931, 933-34 (5th Cir. 1982). “In the absence
of exceptional circumstances where a miscarriage of justice would result, a
condition not present here, questions that were not presented to or passed on by
the trial court will not be considered on appeal.” D. H. Overmyer Co. v. Loflin,
440 F.2d 1213, 1215 (5th Cir. 1971). Even assuming arguendo that issues (3)-(7)
present pure issues of law, they do not present “exceptional circumstances” as
required by this Court’s precedent.
                               IV. CONCLUSION
      For the foregoing reasons, the district court’s grant of LSID’s motion for
summary judgment is AFFIRMED.




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