     Case: 18-11279      Document: 00515166642         Page: 1    Date Filed: 10/21/2019




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

                                      No. 18-11279                          FILED
                                                                     October 21, 2019
                                                                       Lyle W. Cayce
JOHN STANCU,                                                                Clerk

              Plaintiff - Appellant

v.

HYATT CORPORATION/HYATT REGENCY DALLAS,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC Nos. 3:17-CV-675
                                  3:17-CV-2918


Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.
PER CURIAM:*
       John Stancu works as a shift engineer at the Hyatt Regency Dallas
(“Hyatt”). Having filed about twenty lawsuits in the past thirty years, he is
also a prolific pro se litigant. Hyatt is his latest target. In the instant action,
Stancu asserts a variety of employment discrimination claims. Hyatt moved
for summary judgment on all claims, and the magistrate judge recommended
that the motion be granted and the action dismissed.                  The district court

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11279

accepted that recommendation.       Stancu now appeals to this court.        He
challenges the summary judgment on three of his claims as well as three
interlocutory orders:    a consolidation order, an order denying a motion to
compel, and a sanction order. Finding no reversible error of law or fact in these
rulings, we AFFIRM.
                               BACKGROUND
      Stancu accepted an entry-level, shift engineer position at Hyatt in
October 2015. About a month after Stancu started the job, several of his co-
workers told him that Hyatt was discriminating against them and asked him
for advice. He directed them to some literature from the Equal Employment
Opportunity Commission (“EEOC”), which explained how to file discrimination
charges. Word of Stancu’s conduct somehow made its way up to management.
When management learned that Stancu was distributing EEOC literature,
they allegedly began discriminating against him. The alleged discrimination
took a variety of forms: breaking Stancu’s tool cart and stealing his tools,
refusing to place him on the work schedule, assigning him to jobs that were
beyond his training, leaving derogatory notes in his tool cart, denying him an
opportunity for promotion to the position of chief engineer, refusing to provide
supplies needed for the job and his safety, impeding his medical treatment
during leave, directing workers to harass him, sending thousands of work
orders to his personal email, subjecting him to a “vicious move” that caused
him to become ill, and assigning him to work inside “unventilated rooms
infested with toxic and poisonous gases.”       This pattern of discrimination
allegedly persisted until Stancu sued Hyatt.
      Stancu filed his first lawsuit against Hyatt on March 8, 2017. A few
months later, he moved to amend the complaint. That motion, however, failed
to comply with the court’s standing order on non-dispositive motions and was


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accordingly stricken.     Stancu filed a second lawsuit against Hyatt on
October 23, 2017. Around the same time, he renewed his motion to amend the
complaint in his first lawsuit. The facts and claims in Stancu’s proposed
amended complaint were substantially similar to the facts and claims raised
in the second lawsuit.     The district court consolidated the two cases and
designated Stancu’s proposed amended complaint as the consolidated
complaint.      The   consolidated     complaint     raised     claims   of   unlawful
discrimination under the Age Discrimination in Employment Act (“ADEA”),
unlawful retaliation, violation of the Family and Medical Leave Act (“FMLA”),
creation of a hostile work environment under the ADEA, breach of contract,
and pattern-and-practice discrimination.
      The case was assigned to a magistrate judge and proceeded to discovery.
Believing that Hyatt was withholding documents, Stancu filed a motion to
compel. The magistrate judge denied that motion and asked Stancu to explain
why he should not be sanctioned for abusing the discovery process. Stancu
failed to respond, and the magistrate judge ordered him to pay Hyatt $3,535.30
in attorney fees.
      Hyatt eventually moved for summary judgment on each of Stancu’s
claims. The magistrate judge recommended that Hyatt’s motion be granted
and the action dismissed with prejudice. Stancu filed few objections to that
recommendation. The objections he did file were aimed less at the magistrate
judge’s legal conclusions and more at correcting what he perceived to be the
judge’s “twisting” of the facts to fit a “biased” legal standard. The district court
rejected   Stancu’s    objections    and       accepted   the    magistrate    judge’s
recommendation. This appeal followed.




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                          STANDARD OF REVIEW
      Summary judgment is appropriate only if the record demonstrates that
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. PRO. 56(a). This court generally
reviews a district court’s grant of summary judgment de novo. DePree v.
Saunders, 588 F.3d 282, 286 (5th Cir. 2009), abrogated on other grounds by
Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018). This standard of
review, however, is altered when a party fails to object to a magistrate judge’s
legal conclusions and those conclusions are accepted by the district court. In
such a situation, a party is barred, “except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed . . . legal conclusions accepted
by the district court, provided that the party [w]as . . . served with notice that
such consequences w[ould] result from a failure to object.” Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (footnote
omitted), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).
      The magistrate judge warned Stancu that “[f]ailure to file specific
written objections w[ould] bar [him] from appealing the factual findings and
legal conclusions of the magistrate judge that are accepted or adopted by the
district court, except on grounds of plain error.” Stancu nonetheless objected
to only the following conclusions: (1) that he failed to raise allegations that
could support a failure-to-promote claim; (2) that he failed to present evidence
establishing a cognizable retaliation claim; and (3) that he failed to raise a
genuine issue of fact that Hyatt’s stated reasons for various employment
actions were pretextual. The court reviews these issues de novo. All other
issues pertaining to the district court’s acceptance of the magistrate judge’s
findings of fact and conclusions of law are reviewed for plain error. Under this
standard, the court has “discretion to correct unobjected-to . . . errors that are


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                                  No. 18-11279

plain . . . and affect substantial rights.” Id. at 1424 (emphasis removed). “In
exercising that discretion, [the court] ‘should correct a plain forfeited error
affecting substantial rights if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.”’ Id. (quoting United States v.
Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779 (1993)).
      The district court’s consolidation order is reviewed for abuse of
discretion, Alley v. Chrysler Credit Corp., 767 F.2d 138, 140 (5th Cir. 1985), as
are the magistrate judge’s orders denying Stancu’s motion to compel and
imposing sanctions, see United States v. $49,000 Currency, 330 F.3d 371, 376
(5th Cir. 2003) (sanctions); Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000)
(discovery rulings).
                                 DISCUSSION
       Stancu’s rambling and conclusory briefing appears to contend that the
district court erroneously granted Hyatt’s motion for summary judgment, and
he challenges three interlocutory orders and asserts, in broad-sweeping terms,
that he was deprived of his constitutional rights. Each of these arguments is
considered in turn.
                                        I
      The magistrate judge liberally construed Stancu’s complaint to assert six
claims: (1) age discrimination under the ADEA; (2) unlawful retaliation under
unspecified statutes; (3) hostile work environment under the ADEA;
(4) violations of the FMLA; (5) breach of contract under Texas state law; and
(6) pattern-and-practice discrimination. Stancu addresses only the first three
of these claims on appeal, and we need not review the others. See Adams v.
Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not
raised or inadequately briefed on appeal are waived.”).




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                                        A
      Stancu argues that Hyatt violated the ADEA by unfairly denying him
the opportunity to apply for promotion to a vacant chief engineer position. The
district court dismissed this claim because, among other reasons, Stancu failed
to establish a prima facie case of age discrimination.
      To   survive    summary      judgment    in     a   failure-to-promote,    age
discrimination case, an “employee must raise a genuine issue of material fact
as to each element of his prima facie case.” Medina v. Ramsey Steel Co.,
238 F.3d 674, 680 (5th Cir. 2001) (emphasis added). “[T]he employee must
demonstrate that 1) he belongs to the protected class, 2) he applied to and was
qualified for a position for which applicants were being sought, 3) he was
rejected, and 4) another applicant not belonging to the protected class was
hired.” Id. at 680–81. A plaintiff’s burden of demonstrating that he was
qualified for the position for which he was not promoted is not onerous. He
must simply provide evidence that he met the objective qualifications for the
position. Id. at 681. Stancu fails to present such evidence.
      Hyatt offered affidavit evidence describing the qualifications for the
position of chief engineer. It is a management position four levels above
Stancu’s entry-level position of shift engineer, and as a matter of policy and
practice, “a shift engineer at Hyatt is not eligible or qualified for a promotion
directly to chief engineer.” To qualify for the position of chief engineer, an
employee must have worked his way through the progression of promotions or
have equivalent experience at another hotel. Stancu neither disputes factually
that these are Hyatt’s objective requirements, nor has he shown that he meets
the requirements. Accordingly, he cannot claim to have created a genuine
issue of material fact as to this critical qualification element of his prima facie
case. Summary judgment in Hyatt’s favor was therefore appropriate.


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                                            B
      Stancu next raises a claim of retaliation (under no specific statute). The
district court dismissed this claim because regardless whether the claim arose
pursuant to Title VII, the ADEA, or the FMLA, Stancu failed to establish a
prima facie case of retaliation.
      Retaliation claims under each of these statutes are analyzed using the
McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973). The plaintiff
first bears the burden of proving a prima facie case of retaliation. To establish
a prima facie case, a plaintiff must demonstrate that (1) he engaged in a
protected activity pursuant to one of the statutes, (2) an adverse employment
action occurred, and (3) a causal link exists between the protected activity and
the adverse employment action.           See Wheat v. Fla. Par. Juvenile Justice
Comm’n, 811 F.3d 702, 705 (5th Cir. 2016) (FMLA and Title VII); Holtzclaw v.
DSC Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001) (ADEA).                      If the
plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-retaliatory reason for the adverse action. See
Wheat, 811 F.3d at 710. The plaintiff then bears the burden of showing that
the employer’s stated reason was a pretext for retaliation. See id. at 715.
      The district court concluded that Stancu failed to carry his burden of
demonstrating that he suffered an adverse employment action.                         This
conclusion was based on the court’s recitation that to qualify as “adverse,” the
employment action must be “an ‘ultimate employment decision’ or its factual
equivalent.” Taken alone, this statement represents an outdated and mistaken
understanding of the law 1 because, as the Supreme Court explained in the


      1 The EEOC makes this point in its amicus brief. Hyatt argues that the EEOC’s brief
“expands the scope of the appeal” and thus should be disregarded. See Tex. Democratic Party
v. Benkiser, 459 F.3d 582, 595 (5th Cir. 2006). This court, however, reviews Stancu’s

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context of retaliation claims, an adverse employment action is any action that
“well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68, 126 S. Ct. 2405, 2415 (2006). Yet when we review Stancu’s allegations
under the Burlington lens, Stancu still fails to create a material issue of fact
that would preclude summary judgment.
       Most of Stancu’s allegations fall well below the level of any kind of
adverse employment action. His allegation, for instance, that work orders were
sent to his personal e-mail address comes nowhere close to qualifying as an
adverse employment action. See, e.g., Cabral v. Brennan, 853 F.3d 763, 767
(5th Cir. 2017) (concluding that a two-day suspension from work exacted no
“physical, emotional, or economic toll” and thus did not qualify as an adverse
employment action); Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 485–
86 (5th Cir. 2008) (being treated “poorly” and denied break times do not qualify
as adverse employment actions). The same can be said of his complaints that
he was the target of derogatory notes, subjected to extra scrutiny at work,
received an unfair job performance rating, and was given repeated verbal
warnings. See, e.g., Cabral, 853 F.3d at 767; Aryain, 534 F.3d at 485–86.
       Some of Stancu’s allegations perhaps could constitute materially adverse
employment actions but for their conclusory nature. He claims, for instance,
that he was assigned to “work inside unventilated rooms infested with toxic
and poisonous gases,” but he does not present evidence to show that this type
of work assignment was atypical or unauthorized for shift engineers. The same
goes for his assertions that he was assigned job duties for which he was not
trained, deprived of supplies needed for the job, and subjected to a “vicious”


retaliation claim de novo and must apply the law correctly, giving no deference to the district
court. That said, it is not likely that the magistrate judge misapplied Burlington, since he
cited several post-Burlington cases and the Supreme Court decision itself.

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move. These allegations are simply too conclusory. They fail to provide the
detail necessary to create a genuine issue of material fact that Stancu was the
target of an adverse action that would have dissuaded a reasonable worker
from lodging discrimination charges. See Wheat, 811 F.3d at 707 (concluding
that “bare-bone” allegations, without contextual detail, are insufficient to
qualify as materially adverse actions).
        Stancu also avers that Hyatt purposefully left him off the work schedule,
but Hyatt’s evidence explains this was done by mistake, the scheduling
problem was immediately corrected, and it has not been repeated. Stancu fails
to carry his burden of producing evidence that shows that Hyatt’s stated reason
was a pretext for retaliation. 2 See Septimus v. Univ. of Houston, 399 F.3d 601,
607 (5th Cir. 2005).           The district court’s grant of summary judgment on
Stancu’s retaliation claim was correct.
                                                   C
        Stancu also argues that he was subjected to a hostile work environment.
He did not, however, object to the magistrate judge’s recommendation that this
claim be resolved on summary judgment. This court therefore is limited to
reviewing the district court’s judgment for plain error. See Douglass, 79 F.3d
at 1417.
        To establish a hostile work environment claim under the ADEA, an
employee must show that “(1) he was over the age of 40; (2) [he] was subjected
to harassment, either through words or actions, based on age; (3) the nature of
the harassment was such that it created an objectively intimidating, hostile,
or offensive work environment; and (4) there exists some basis for liability on




        2 Although the district court did not rule on this basis, we may affirm on any issue raised below
that is supported by the record. Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, 754 F.3d 272,
276 (5th Cir. 2014).

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the part of the employer.” Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th
Cir. 2011).
      The magistrate judge reasoned that the “only age-based harassment that
Mr. Stancu offer[ed] evidence of [consists of] the notes that contained insults
about his age.” Stancu admitted that he had no suspicions as to who left the
notes and did not ask anyone in Hyatt’s management if they were responsible
for them. This admission, the magistrate judge concluded, negates Stancu’s
ability to establish that “there exists some basis for liability on the part of the
employer.” Id. Stancu asserts that he “report[ed] [the notes] to management,
and they didn’t stop” them from coming. But Stancu fails to specify how many
notes were reported, the contents of those notes, and, perhaps most
importantly, the frequency or content of any notes that he received after he
reported the problem. It would be sheer speculation to conclude that “there
exists some basis for liability on the part of the employer.” Id. We thus cannot
say that the district court plainly erred.
                                        II
      Stancu’s failure-to-promote, retaliation, and hostile work environment
claims occupy a small portion of his opening brief. Most of it is dedicated to
detailing the “malicious actions” of the magistrate judge and the district court.
These “malicious actions” primarily take the form of three interlocutory orders:
a consolidation order, a discovery order, and a sanction order. Having reviewed
these orders, the court concludes that neither the magistrate judge nor the
district court abused its discretion
                                        A
      Stancu first takes aim at the district court’s consolidation order. That
order, he argues, effectively denied him the “right” to amend his pleadings.
Stancu is mistaken. Because his amended complaint became the designated


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                                 No. 18-11279

complaint when his two cases were consolidated, Stancu is simply wrong when
he suggests that he was somehow prevented from ever amending his
complaint. Setting this point aside, “[c]onsolidating actions is proper when two
or more district court cases involve common questions of law and fact and the
district judge finds that consolidation would avoid unnecessary costs or delay.”
Mills v. Beech Aircraft Corp., 886 F.2d 758, 761–62 (5th Cir. 1989); see also
FED. R. CIV. PRO. 42(a). These conditions are present here. The decision to
consolidate the two cases was plainly correct.
                                       B
      Stancu next argues that the magistrate judge erred when he denied
Stancu’s motion to compel. “A trial court’s discovery ruling should be reversed
only in an unusual and exceptional case.” N. Cypress Med. Ctr. Operating Co.
v. Aetna Life Ins. Co., 898 F.3d 461, 481 (5th Cir. 2018) (quoting O’Malley v.
U.S. Fid. & Guar. Co., 776 F.2d 494, 499 (5th Cir. 1985)) (internal quotation
marks omitted). This is not such a case. The magistrate judge amply explained
why Stancu’s discovery requests were not relevant, not proportional, or
otherwise objectionable. For the reasons he provided, the magistrate judge did
not abuse his discretion when he denied Stancu’s motion to compel.
                                       C
      Stancu also contests the sanction order imposed by the magistrate judge.
A party, however, “may not assign as error a defect in [a nondispositive] order
not timely objected to.” FED. R. CIV. PRO. 72(a). Stancu did not object to the
magistrate judge’s nondispositive sanction order. This issue is therefore not
preserved, and we do not address it. See Singletary v. B.R.X., Inc., 828 F.2d
1135, 1137 (5th Cir. 1987) (“[P]retrial matters referred by a trial judge to a
magistrate [judge] must be appealed first to the district court.”).




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                                     III
      Stancu’s final claim of error is that his constitutional rights “were
arbitrarily taken away” from him. But precisely what these rights are and how
he was deprived of them are questions that Stancu fails to answer. Stancu
makes passing reference to the Fifth, Seventh, and Fourteenth Amendments.
But he fails to explain how he was deprived of the rights these amendments
guarantee. “Although pro se briefs are afforded liberal construction, even pro
se litigants must brief arguments in order to preserve them.” Mapes v. Bishop,
541 F.3d 582, 584 (5th Cir. 2008) (citation omitted). And for an argument to
be adequately briefed, a party must do more than offer conclusory statements
and general citations to constitutional amendments. See Nichols v. Scott,
69 F.3d 1255, 1287 n.67 (5th Cir. 1995). Yet this is all Stancu has done—
provide conclusory allegations and perfunctory references. His constitutional
arguments, whatever they may be, are thus not preserved, and we do not
address them.
                              CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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