                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            December 22, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 04-20272
                       _____________________


RICHIE PICKENS; MICHAEL SHOOK; ANDY BRECKWOLDT

                PlaintiffS - Appellants

          v.

SHELL TECHNOLOGY VENTURES INC; ET AL

                Defendants

SHELL TECHNOLOGY VENTURES INC; SHELL INTERNATIONAL EXPLORATION
AND PRODUCTION B V; SHELL INTERNATIONAL EXPLORATION AND
PRODUCTION INC

               Defendants - Appellees
_________________________________________________________________

          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. H-01-CV-2625
_________________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

PER CURIAM:*

     This is a Title VII case in which the plaintiffs assert

national origin discrimination and hostile work environment



     *   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that this opinion should not be published and is not precedent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 -
claims against their former employer.    The district court granted

summary judgment in favor of the employer.     We AFFIRM.

                           I.    BACKGROUND

       This appeal concerns allegations of employment

discrimination brought by Plaintiffs-Appellants Richie Pickens,

Michael Shook, and Andy Breckwoldt (collectively, the

“plaintiffs”) against their former employer, Defendant-Appellee

Shell Technology Ventures, Inc. (“STV”).      STV was created in 1996

by Defendant-Appellee Shell International Exploration and

Production, Inc. and is a business unit of the Royal Dutch/Shell

Group of Companies (“Shell”).    STV has offices in both Houston,

Texas and Rijswijk, Holland and employs staff from several

countries.    The plaintiffs are all American.    For most of the

time period relevant to this appeal, their supervisors were

European nationals located in the Rijswijk office.

        Pickens, who was stationed in Houston, began working for

STV in 1997.    STV terminated Pickens’s employment in 2000.      Shook

was also stationed in Houston.    He began working for Shell in

1981, and he began working for STV in 1996.      STV terminated

Shook’s employment in 2000.     Breckwoldt began working for Shell

in 1979, and he began working for STV in 1997.      He initially

worked in Houston, but he was soon transferred to the Rijswijk

office.    Breckwoldt is still employed by Shell, although not with

STV.    He alleges that his supervisors demoted him several times



                                 - 2 -
in the course of his employment with STV.

     On May 25, 2001, the plaintiffs brought suit in Texas state

court alleging that they were discriminated against because of

their national origin in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-

2(a)(1)(2000), and that they were subjected to a hostile work

environment, also in violation of Title VII.1   Pickens, an

African American, additionally alleges that he suffered from

racial discrimination in violation of Title VII.    STV removed to

the United States District Court for the Southern District of

Texas.   STV then brought a motion for summary judgment, which the

district court granted on February 19, 2004.    The plaintiffs

appeal that judgment.

                     II.   STANDARD OF REVIEW

A.   Summary Judgment Standard of Review

     We review a district court’s grant of summary judgment de

novo, applying the same legal standards as the district court.

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.

2001).   Summary judgment is appropriate if there are no genuine

issues of material fact and the movant is entitled to judgment as



     1
         Pickens and Shook were the original plaintiffs, alleging
violations of Texas state law. On July 5, 2001, Breckwoldt filed
a petition for intervention, asserting claims under Title VII.
Pickens and Shook then amended their pleadings to allege
violations of Title VII. Only the Title VII claims are relevant
to this appeal.

                               - 3 -
a matter of law.   Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); see also FED. R. CIV. P. 56 (c).   The initial burden to

demonstrate the absence of a genuine issue concerning a material

fact is on the movant.    Celotex, 477 U.S. at 324.   Upon showing

that there is an absence of evidence to support an essential

element of the non-movant’s case, the burden shifts to the non-

movant to establish that there is a genuine issue of material

fact.   Id.

B.   The McDonnell Douglas Framework

     The McDonnell Douglas burden-shifting framework governs the

plaintiffs’ Title VII claims.    McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973).   Under the McDonnell Douglas approach,

the plaintiff has the initial burden of proving a prima facie

case by a preponderance of the evidence.    Id.   A plaintiff

satisfies this initial burden by showing that: (1) he is a member

of a protected class; (2) he was qualified for the position; (3)

he suffered an adverse employment action such as termination or

demotion; and (4) he was replaced by someone not of the protected

class or others similarly situated were more favorably treated.

See, e.g., Okoye v. Univ. of Tex. Health Sci. Ctr., 245 F.3d 507,

512-13 (5th Cir. 2001).

     Once the plaintiff establishes a prima facie case, the

burden of production shifts to the defendant to articulate a

legitimate nondiscriminatory reason for the challenged employment



                                - 4 -
action.   McDonnell Douglas, 411 U.S. at 802.      If the defendant

proffers such a legitimate reason, the burden shifts back to the

plaintiff to show that the defendant’s reason was merely a

pretext for discrimination.       Rios v. Rossotti, 252 F.3d 375, 378

(5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 138-42 (2000)).       Throughout, the ultimate

burden of persuasion remains with the plaintiff.       Reeves, 530

U.S. at 143.

                           III.     ANALYSIS

A.   Discrimination Claims

     1.     Richie Pickens’s Claims

     The district court ruled that STV had a legitimate non-

discriminatory reason for terminating Pickens.       While employed by

STV, Pickens began forming a consortium to purchase an oil

refinery in Louisiana.   Pickens pursued this venture on company

time and using company resources.      Specifically, Pickens tried to

gain access to Shell’s proprietary information regarding the

refinery.   After his supervisors became aware of this activity,

STV terminated Pickens for misusing company time and resources to

pursue a personal business venture that constituted a conflict of

interest.   On this evidence, the district court found that STV

had legitimate business reasons for terminating Pickens’s

employment.




                                  - 5 -
     Pickens argues that the district court failed to consider

relevant evidence raising a material issue of fact as to whether

STV’s proffered reasons for his termination were pretext for

national origin discrimination.2   Pickens first argues that the

district court failed to consider evidence that Steve Carter and

Dave Martin, both of whom are Scottish and were executives at

STV, made a number of anti-American comments such as “Americans

are greedy,” “Americans are cowboys,” and “Americans are

overpaid.”   Specifically, Pickens argues that the district court

erred in only considering this evidence as it related to the

hostile work environment claims, while ignoring its probative

value in proving discriminatory animus.

     Contrary to Pickens’s assertions, the district court

specifically noted that the anti-American comments were

immaterial since the decision to terminate Pickens was

exclusively made by Chris Duhon, the Director of STV and an

American.    Thus, the district court did not ignore the impact of

the statements on the plaintiffs’ discrimination claims.

Further, these comments do not establish pretext.   It is true

that if an employee can establish that others had leverage over

     2
          Although Pickens additionally claims that he was
discriminated against based on his race, he does not offer any
arguments as to how his termination was a pretext for racial
discrimination nor does he assign error to the district court’s
decision on this matter. Because of his failure to brief the
issue adequately, we deem it waived. See Robinson v. Guarantee
Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir. 2004).


                                - 6 -
the official decisionmaker, then it is proper to impute their

discriminatory attitudes to the formal decisionmaker.     Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000).

Thus, if Pickens could establish a factual issue as to whether

Carter or Martin exerted such leverage over Duhon, then summary

judgment would have been improper.     However, Pickens does not

offer sufficient evidence to establish a genuine issue of fact on

this matter.   Pickens offers an e-mail that Martin sent to Duhon

recommending that Pickens, as well as Shook, be terminated.

However, this e-mail does not reflect that Martin exerted

leverage or control over Duhon’s decisionmaking.     All it reflects

is that Martin offered his input.    It does not establish what

impact that input may have had on Duhon.     Thus, the e-mail is

insufficient to raise a factual issue as to whether Carter and

Martin’s alleged discriminatory attitudes could be attributed to

Duhon, the ultimate decisionmaker.

     Pickens next claims that he was actually pursuing the

refinery venture on behalf of STV and not for personal gain.       The

district court found this explanation inherently unbelievable.

Considering that the refinery project was beyond the scope of

both Pickens’s job responsibilities and STV’s line of business

and that he also did not inform his supervisors of the project,

we agree with the district court’s determination.     Further, if

this claim were true, the circumstances were such that STV could

have reasonably believed that Pickens was pursuing the refinery

                               - 7 -
for personal gain.    For the purposes of Title VII, this

reasonable belief is enough to justify Pickens’s termination.

See Jones v. Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1986);

Dickerson v. Metro. Dade County, 659 F.2d 574, 581 (5th Cir. Unit

B Oct. 1981).    Thus, Pickens’s claim that he was pursuing the

refinery on STV’s behalf is irrelevant to the disposition of the

case and does not raise an issue of material fact.

     Pickens also argues that the district court did not

sufficiently consider an e-mail Martin sent to Carter shortly

after they discovered Pickens’s refinery plans.    The e-mail

states:

     Finally, [a]t your suggestion, I would like to leave
     the decision to take [Pickens] out of the loop until
     Thursday morning when we have our next face to face to
     ensure we don’t compromise Shell’s position with
     respect to [Pickens] as we were already considering a
     poor performance procedure with him.


(emphasis added).    Pickens seems to view this e-mail as evidence

of STV’s preexisting plans to terminate him because of his

national origin.    The e-mail does not prove nearly so much.    At

most, it reflects that, independent of Pickens’s refinery

activities, STV was already displeased with Pickens’s job

performance.    There is simply no way to draw an inference of

discrimination from this e-mail.    Thus, the e-mail does not raise

a genuine issue as to pretext.

      In sum, none of Pickens’s arguments demonstrates that there



                                 - 8 -
is a genuine issue of material fact as to whether STV’s proffered

nondiscriminatory reasons for his termination were a pretext for

national origin discrimination.     Under the McDonnell-Douglas

framework, STV is thus entitled to judgment as a matter of law.

Consequently, the district court’s grant of summary judgment as

to Pickens’s discrimination claims was appropriate.

     2.    Michael Shook’s Claims

     The district court found that Shook could not establish a

prima facie case since he was replaced by an American.    As with

Pickens, the district court also found that STV had legitimate

non-discriminatory reasons for terminating Shook.    While employed

by STV, Shook spent company time and resources developing an

internet startup company.   Shook spent time at work soliciting

investors for his proposed business using STV’s e-mail system.

Shook also wrote in various e-mails that he intended to leave STV

if he secured sufficient funding for his new company.    Based on

these facts, STV terminated Shook’s employment.

     Shook argues that the district court committed a factual

error in determining that he was replaced by an American.    Shook

also argues that the district court ignored evidence that

established a genuine issue as to whether his termination was

pretextual.   Even if we assume, arguendo, that the district court

erred in determining that Shook was replaced by an American,

Shook still does not raise any genuine issues of fact as to

pretext.

                               - 9 -
     Shook offers several arguments to demonstrate that his

termination was pretextual.   First, he argues that his business

venture did not present a conflict of interest since the internet

company would not compete with STV or any other Shell company.

Second, he argues that he was not using company time to develop

his business since he worked irregular hours.   Third, he argues

that other employees used STV’s e-mail system for personal use.

     None of these arguments raises a genuine issue of material

fact as to whether his termination was pretextual.   Whether the

internet company would actually compete with Shell is irrelevant

because Shook’s devotion of time at the office to a private

business venture for which he admitted he would leave Shell

demonstrates poor judgment.   STV’s reasonable belief that Shook’s

activities were against STV’s interests justifies his termination

for the purposes of Title VII.   See Jones, 793 F.2d at 729;

Dickerson, 659 F.2d at 581.   So as with Pickens’s claim regarding

the refinery venture, Shook’s arguments do no relate to facts

that are material to the question of pretext.   As such, STV was

entitled to judgment as a matter of law on Shook’s discrimination

claims and summary judgment was appropriate.



     3.   Andy Breckwoldt’s Claims

     As we understand his argument, Breckwoldt claims that he was

demoted, and thus suffered an adverse employment action, on four

separate occasions.   First, Breckwoldt claims he was demoted

                              - 10 -
during the process of his move to Rijswijk.   When he agreed to

move to Holland, Breckwoldt had received assurances from Bill

Dirks, the original President of STV, that he would head the new

office in Rijswijk.   However, in the process of transferring,

Breckwoldt was informed by Carter, STV’s former acting Chief

Executive Officer, that he would merely be a team leader on

Deepwater, one of STV’s project teams.   Second, Breckwoldt claims

that in 1998, Martin, his then-supervisor, demoted him from team

leader of Deepwater to team member.    However, after about a year,

during which time he was supervised by Americans, Breckwoldt was

eventually able to regain his position as a team leader.    Third,

Breckwoldt claims that in March 2000, Martin, who by this time

was once again Breckwoldt’s supervisor, again demoted Breckwoldt

from team leader of Deepwater to team member.    Finally,

Breckwoldt claims Martin demoted him yet again after he moved

back to Houston once the Deepwater project was completed.    He

requested Martin to sponsor him for a promotion to team leader.

Martin denied the request and instead transferred Breckwoldt to

work as a team member on the Bluegraf project.    Breckwoldt claims

that Bluegraf was less prestigious than Deepwater, did not

adequately utilize his skills, and did not match his professional

interests.   Breckwoldt also claims that Martin told him that his

future options at STV were limited.

     The district court found that Breckwoldt offered no evidence

showing that any of these transfers were indeed demotions.    In

                              - 11 -
the district court’s view, all that Breckwoldt established was

that in his mind, his new assignments were less desirable.    Thus,

the district court found that he did not establish that he

suffered an adverse employment action.    On appeal, Breckwoldt

claims that the district court neglected to consider Sharp v.

City of Houston, 164 F.3d 923 (5th Cir. 1999).    In Sharp, we

stated that “[t]o be equivalent to a demotion, a transfer need

not result in a decrease in pay, title, or grade; it can be a

demotion if the new position proves objectively worse--such as

being less prestigious or less interesting or providing less room

for advancement.”    Id. at 933.   On this standard, Breckwoldt

argues that he did establish that he suffered an adverse

employment action.

     As to Breckwoldt’s first two demotion claims, even if we

assume, arguendo, that they were adverse employment actions, they

are time-barred.    Breckwoldt had 300 days after the complained-of

employment actions to file a charge of discrimination.    42 U.S.C.

§ 2000e-5(e)(1)(2000)(requiring Title VII charges to be made

within 300 days of the incident if the incident was initially

reported to a state or local agency).    After first filing charges

with the relevant state agency, he filed a charge with the United

States Equal Employment Opportunity Commission on November 29,

2000.   Therefore, he may not recover for employment actions taken

before February 2, 2000.   Because the first two alleged demotions

occurred in 1998, Breckwoldt’s claims with respect to them are

                               - 12 -
time-barred and summary judgment was appropriate.

     Breckwoldt’s third demotion (i.e., his second demotion from

team leader to team member of Deepwater) occurred in March 2000

and is not time-barred.   However, this claim fails because

Breckwoldt has not pointed to any evidence indicating how the job

responsibilities of a team member are objectively worse than

those of a team leader.   Further, a review of the record

indicates that no such evidence exists.   Without such evidence,

it is impossible to find that being moved from team leader to

team member was an adverse employment action within the scope of

Title VII.   Because Breckwoldt has failed to raise a genuine

issue of material fact as to one of the elements of the prima

facie case, STV was entitled to judgment as a matter of law as to

Breckwoldt’s third demotion claim.

     Breckwoldt’s fourth alleged demotion must also fail on

summary judgment.   This allegation has two components.   The first

is Martin telling Breckwoldt that his future options at STV were

limited.   The second is Breckwoldt’s transfer to the Bluegraf

project.   As to the first aspect of this claim, assuming such a

statement was made, it would not qualify as an adverse employment

action.    See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th

Cir. 1997) (finding that a verbal threat of termination was not

an adverse employment action under Title VII).   Regarding the

second aspect of this claim, Breckwoldt has not offered any

evidence explaining how being a team member of Bluegraf was

                               - 13 -
objectively worse than being a team member of Deepwater.    Thus,

the district court properly granted summary judgment to STV as to

Breckwoldt’s claims.

B.   Hostile Work Environment Claims

     1.   National Origin Based Claims

     The district court granted summary judgment on the

plaintiffs’ assertions that they suffered from a hostile work

environment because of their national origin.    The plaintiffs

mainly cited Carter and Martin’s anti-American comments as

evidence that a reasonable person working at STV would consider

STV to be hostile, abusive, and discriminatory towards Americans.

The district court found that these remarks were not pervasive or

abusive enough to create a hostile work environment.

     On appeal, the plaintiffs argue that the district court did

not adequately consider the evidence supporting their claims.

The plaintiffs mainly cite the anti-American remarks.    They also

point to Carter’s overall insensitivity and mean-spiritedness,

the perception among STV staff that Carter did not like

Americans, and the perception among STV staff that Americans were

not treated fairly.    The plaintiffs’ arguments are unavailing.

     The Supreme Court has held that “[w]hen the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working



                               - 14 -
environment, Title VII is violated.”      Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)(internal quotation marks and

citations omitted); see also Weller v. Citation Oil & Gas Corp.,

84 F.3d 191, 194 (5th Cir. 1996) (noting that factors to consider

for a hostile work environment claim include “the frequency of

the conduct, the severity of the conduct, the degree to which the

conduct is physically threatening or humiliating, and the degree

to which the conduct unreasonably interferes with an employee’s

work performance”).

     The plaintiffs’ evidence does not raise a genuine issue of

material fact as to whether the standard established in Harris

was met.   Much of the evidence upon which the plaintiffs rely is

the “perception” that Americans were being unfairly treated, but

this hardly illustrates that the working conditions were so bad

as to create an abusive workplace.      The plaintiffs’ strongest

evidence is Carter’s anti-American comments.      However, these

statements also lack the requisite pervasiveness or severity.

See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th

Cir. 1999) (noting that discourtesy, rudeness, offhand comments,

and isolated incidents that are not extremely serious will not

amount to discriminatory changes in the terms and conditions of

employment).   Without more evidence, the plaintiffs cannot

establish a genuine issue of material fact as to whether STV

created a hostile work environment for American employees.

     2.    Race Based Claims

                               - 15 -
     In addition to national origin discrimination, Pickens

asserts that he also suffered from a racially hostile work

environment.   The district court ruled that Pickens’s claim

failed because it was based solely on events occurring at a

company Christmas party held in Holland in December 1998 for

STV’s executives.   The party featured a traditional Dutch skit in

which Santa’s helpers were white children with their faces

painted black.   During the course of the skit, other employees in

the audience directed racially insensitive comments towards

Pickens.   In the district court’s view, the Christmas party did

not involve remarks that were pervasive or abusive enough to

create a hostile work environment.

     As with the national origin based claims, Pickens argues

that the district court generally misapprehended the relevant

test for determining a hostile work environment.   This claim

fails.   This single event was simply not sufficiently severe to

create a hostile working environment.   See Indest, 164 F.3d at

264; Weller, 84 F.3d at 194; DeAngelis v. El Paso Mun. Police

Officers Ass’n, 51 F.3d 591, 595-96 (5th Cir. 1995).   Because

Pickens offers no other evidence of racial bias or harassment in

the workplace, summary judgment on his hostile work environment

claim was also proper.

                         IV.    CONCLUSION

     For the foregoing reasons, the judgment of the district



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court is AFFIRMED.




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