     Case: 13-20282      Document: 00512722328         Page: 1    Date Filed: 08/05/2014




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

                                                                                  FILED
                                      No. 13-20282                           August 5, 2014
                                                                             Lyle W. Cayce
ERIC J. SPENCER; TATIUS BELLARD,                                                  Clerk


                                                 Plaintiffs - Appellants
v.

SCHMIDT ELECTRIC COMPANY,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-4181


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Eric Spencer and Tatius Bellard, former employees of Schmidt Electric
Company, appeal from the district court’s grant of summary judgment for
Schmidt on Spencer’s claims of hostile work environment and retaliation and
Bellard’s claim of racial discrimination. We AFFIRM.
                  FACTUAL & PROCEDURAL BACKGROUND
       Schmidt is an electrical contractor with headquarters in Austin, Texas.
It was a subcontractor to Vaughn Construction on a construction project at the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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M.D. Anderson building in Houston, Texas. Spencer and Bellard worked at
the M.D. Anderson project while they were employed by Schmidt.            All of
Schmidt’s employees were represented by the International Brotherhood of
Electrical Workers #716. A collective bargaining agreement controlled the
employment relationship between the union, its workers, and Schmidt.
      Schmidt had a written policy stating it would provide equal employment
opportunity to all persons in accordance with applicable law. Schmidt also had
a written harassment-free workplace policy with procedures instructing
employees to notify a supervisor, human resources manager, or any other
Schmidt manager or employee in a supervisory or management position
immediately if they experienced or witnessed harassment. Schmidt’s policy
provided that harassment, discrimination, or threats of any kind to customers,
supervisors, or fellow employees would be ground for immediate dismissal.
The policy also set out Schmidt’s safety approach, instructing employees to
follow all safety policies and procedures for each jobsite. Both Spencer and
Bellard signed an acknowledgment they had received a copy of Schmidt’s
employment policy and agreed to abide by it.
      Spencer began working for Schmidt in September 2010 as an electrician
apprentice. Jean Machen and David Vidrine served as Spencer’s foremen
while they worked at the M.D. Anderson construction site. Spencer is African
American, while the two foremen are white. Spencer testified in his deposition
that Machen and Vidrine repeatedly made racist comments to him and
harassed him in other ways because of his race. For example, he claimed
Vidrine said that Spencer lived “by the Tree of Love,” “where they used to hang
black people from.” Spencer testified there were nooses left around the job site,
that he was required to repeat tasks without any reason, and he was mocked
about the quality of his work. On December 9, 2010, Machen forwarded a text
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message to various people including Spencer. Spencer finally opened the text
on December 20 and found it contained a picture of a cartoon Santa Claus in a
white hood, holding a noose and standing in front of a burning cross. He
testified that Vidrine and Machen later cornered him in a room and asked to
whom he sent the text message and who else knew about it.
      Spencer informed his union steward, J.D. Brown (who was not a Schmidt
employee), about the text message. He did not report the message to anyone
employed at Schmidt. Brown spoke with Spencer on December 21 to inform
him he had spoken about the text message with Jerry Borden, a
superintendent at Schmidt.      Spencer testified Brown relayed to him that
Borden had stated Schmidt intended to “stand behind their foreman” and “do
nothing” about Spencer’s complaint. According to Spencer, Brown informed
him they had done all they could do and that he could go to the EEOC. Brown
disputes Spencer’s account and testified that while he did speak with Borden
and Spencer, he did not tell Spencer that Schmidt would do nothing about the
harassment. Brown testified he told Spencer to put his complaint in writing,
wait for an investigation, and that if the investigation was not satisfactory, he
had the right to go to the EEOC.
      Spencer filed a complaint with the EEOC on December 27, 2010, after
making the single complaint to Brown and without going directly to anyone in
management at Schmidt. On December 28, 2010, Spencer left his position at
Schmidt because of “racial tension and racial hostility.” Sometime between
December 22 and January 3, the general superintendent of Schmidt, Benhart
Frank, became aware of the harassing text message. Frank called Spencer on
January 3 and made him an unconditional offer for him to return to work,
apologizing for the behavior of Machen and Vidrine and explaining he was on
his way to Houston to fire them. Frank repeated the offer of reemployment to
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the union and called Spencer again on January 4 to ask him to return to work.
Frank terminated Machen and Vidrine on January 5 for violating Schmidt’s
employment policy. Spencer declined Frank’s offers to return to work.
      The other plaintiff, Bellard, began working for Schmidt at the M.D.
Anderson construction project as a journeyman electrician in May 2010. On
October 26, 2010, Schmidt conducted a safety training session at the M.D.
Anderson project which covered, among other things, ladder safety.           The
session instructed that “[i]f we are working over the 6ft height or over the belt
buckle rule we now have to be tied off and have a person holding the bottom of
the ladder.” Another training session was conducted on December 8, 2010, also
covering ladder safety. The agenda stated that all fall-protection violations
would from then on be handled with zero tolerance. There would be no more
warnings, and an employee violating fall-safety rules would be terminated.
Bellard attended both training sessions.
      On January 17, 2011, Bellard violated a safety rule by standing on the
next-to-the-top rung of a six-foot ladder without being tied-off.       He was
reprimanded by Vaughn Construction safety personnel and received an
employee warning notice providing for his dismissal. Schmidt terminated
Bellard’s employment on January 18. In his deposition, Schmidt’s general
superintendent Frank testified that M.D. Anderson and Vaughn Construction
made decisions about safety violations and that they would be treated with no
tolerance. Frank, though, made the decision to terminate Bellard based on his
investigation of the safety violation. Frank testified that when Bellard was
found on the top of the ladder, he told the Vaughn safety officer “send me home,
I’m looking for a vacation” and that he could draw unemployment. Vaughn’s
safety officer told Schmidt’s safety director that Bellard had no respect for
safety; it would not suffice to send Bellard home for three days as punishment
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for the safety infraction.   Vaughn Construction requested that Bellard be
removed from the worksite. Frank testified that Bellard’s infraction could
have been “a normal safety infraction” had Bellard signed the violation and
gone back to work, but that the comment and disregard to safety led to his
termination.
      Spencer and Bellard, along with a third plaintiff not present in this
appeal, filed suit against Schmidt in state district court, alleging race
discrimination, harassment, retaliation, and hostile work environment under
Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor
Code. Schmidt removed the case to the United States District Court for the
Southern District of Texas. Summary judgment was granted for Schmidt on
each of the plaintiffs’ claims. Spencer appeals the denial of his claims of a
hostile work environment and retaliation, while Bellard appeals the denial of
his claim for racial discrimination.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Albemarle Corp. v. U.S.
Steel Workers ex rel. AOWU Local 103, 703 F.3d 821, 824 (5th Cir. 2013).
Summary judgment is appropriate “if the movant 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(a).


      I.    Spencer’s claim of a hostile work environment
      A hostile work environment claim requires proof of:
      (1) membership in a protected group; (2) harassment (3) based on
      a factor rendered impermissible by Title VII; (4) the harassment
      affected a term, condition, or privilege of employment; and (5) the

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      employer knew or should have known of the harassment yet failed
      to address it promptly.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012).
      If the harasser is plaintiff’s supervisor, though, and not a co-worker,
liability depends on certain other factors:
      If the supervisor’s harassment culminates in a tangible
      employment action, the employer is strictly liable. But if no
      tangible employment action is taken, the employer may escape
      liability by establishing, as an affirmative defense, that (1) the
      employer exercised reasonable care to prevent and correct any
      harassing behavior and (2) that the plaintiff unreasonably failed
      to take advantage of the preventive or corrective opportunities that
      the employer provided.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).

      At issue here is the district court’s determination that the foremen who
harassed Spencer were his supervisors, but that Schmidt was not liable for the
harassment because it was entitled to the affirmative defense established by
the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The district
court held that the foremen were not a part of management and did not have
hiring or firing power, but concluded they were supervisors based on the
evidence that they were tasked with leading the work of other employees. See
Celestine v. Petroleos de Venezuella, 266 F.3d 343, 353-54 (5th Cir. 2001).
Accordingly, the court held that Spencer did not have to prove that Schmidt
was aware of the harassment and had failed to address it. Even so, Spencer
had failed to take advantage of the company’s available corrective procedures.
      While this appeal was pending, the Supreme Court issued a decision that
clarified how to determine whether a person is a supervisor in a Title VII claim
for workplace harassment. See Vance, 133 S. Ct. at 2439. “Because this court
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must apply the law current at the time of its decision, the [Vance] decision
binds this court.” Nations v. Sun Oil Co. (Delaware), 695 F.2d 933, 936 (5th
Cir. 1983). “It is well established that an appellate court is obligated to take
notice of changes in fact or law occurring during the pendency of a case on
appeal . . . .” Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646, 649-50
(5th Cir. 1978) (quotation marks omitted).
      In Vance, the Court held “that an employee is a ‘supervisor’ for purposes
of vicarious liability under Title VII if he or she is empowered by the employer
to take tangible employment actions against the victim.” Vance, 133 S. Ct. at
2439. A tangible employment action is defined as “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant
change in benefits.” Id. at 2442 (quoting Ellerth, 524 U.S. at 761). The court
expressly rejected “the nebulous definition of a ‘supervisor’ advocated in the
EEOC guidance and substantially adopted by several courts of appeals.” Id.
at 2443 (citation omitted). The rejected EEOC standard would categorize
someone as a supervisor if the person was either “authorized ‘to undertake or
recommend tangible employment decisions affecting the employee,’ . . . or (2)
[was] an individual authorized ‘to direct the employee’s daily work activities.’”
Id. at 2455 (Ginsburg, J., dissenting) (quoting EEOC, Guidance on Vicarious
Employer Liability For Unlawful Harassment by Supervisors, 8 BNA FEP
Manual 405:7654 (Feb. 2003)).
      Schmidt argued to the district court that the foremen were not
supervisors and, accordingly, Spencer should be required to prove Schmidt’s
knowledge of the hostile work environment and had failed to address it. The
district court never reached that argument because of its reliance on caselaw,
now invalidated by Vance, that individuals were supervisors if they had
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“immediate (or successively higher) authority over the harassment victim.”
Celestine, 266 F.3d at 353. The Vance decision was handed down after the
district court’s decision but prior to the briefing in this court. While Spencer
did not discuss the consequences of Vance, Schmidt argued Vance mandated
the conclusion that the foreman were not supervisors and that Spencer’s claim
would fail due to his inability to demonstrate Schmidt’s knowledge of the
harassment and failure to act. We will consider the issue.
      In making its pre-Vance determination on supervisors, the district court
concluded the foremen were not a part of management and did not have hiring
and firing power. We agree, and find that the foremen here did not have power
to take tangible employment actions against Spencer. Frank testified that
while foremen may give employees direction on how to do jobs, he does not
consider them to be supervisors because they do not hire and fire. Brown
testified that foremen did not have the ability to hire. Though they had some
authority to fire, it was an indirect right that required going through the
general foreman who in most cases had also to go up the ranks for permission
to fire an employee. Spencer testified he was “under the impression” the
foremen could fire him, but based that opinion on foreman he worked with in
the past for other contractors. He further stated he believed they could fire by
“pick[ing] up the phone, call the office,” and ask to get a person laid off. His
testimony does not create a fact issue as to whether the foreman could fire, but
supports Frank and Brown’s testimony that foreman had to go up the ranks
for permission to fire an employee. There is no evidence that the foremen were
empowered to take tangible employment actions against Spencer that would
cause a significant change in his employment. The evidence supports that a
foreman was “authorized to direct the employee’s daily work activities,” which


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is the definition of supervisor expressly rejected by the Supreme Court. See
Vance, 133 S. Ct. at 2455 (Ginsburg, J., dissenting) (quotation marks omitted).
      In summary, there is no evidence that the foreman were empowered by
Schmidt to take tangible employment actions; the foremen do not qualify as
supervisors for the purposes of Schmidt’s vicarious liability under Title VII
under the rule set out in Vance.
      Because supervisors were not the harassers, we search for evidence that
Schmidt knew or should have known of the harassment yet failed to address it
promptly. Hernandez, 670 F.3d at 654. Schmidt argued that Spencer failed to
prove knowledge and a failure to act, and Spencer did not present any
alternative argument to the district court or on appeal. Spencer has relied
solely on the argument that Schmidt was liable because the foremen were
supervisors. Spencer presented no evidence on whether Schmidt management
was aware of what the foremen were doing. Thus, Spencer failed to show a
genuine dispute of material fact as to whether Schmidt knew or should have
known of the harassing conduct yet failed to take prompt remedial action.
      Because the foremen were co-workers, Schmidt cannot be liable for their
actions without proof Schmidt knew or should have known of the harassment
and failed to take prompt action, a fact Spencer has failed to establish. The
district court did not err in granting summary judgment for Schmidt on
Spencer’s claim of hostile work environment.


      II.   Spencer’s claim of retaliation
      “Title VII prohibits retaliation against employees who engage in
protected conduct,” such as filing a charge of harassment or discrimination.
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002). To make
out a prima facie case of retaliation, a plaintiff must demonstrate (1) he
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engaged in an activity protected by Title VII; (2) the employer took an adverse
employment action against the employee; and (3) there is a causal connection
between the protected activity and the adverse employment action. Brazoria
Cnty. v. EEOC, 391 F.3d 685, 692 (5th Cir. 2004).
       The district court concluded Spencer had established the first element of
his claim, as he had complained about the text message to a representative in
the union. 1 The claim failed, however, because the court concluded Spencer
had not established he suffered an adverse employment action. Such an action
is one by the employer that “a reasonable employee would have found . . . [to
be] materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 68
(2006) (quotation marks omitted).                 “[N]ormally, petty slights, minor
annoyances, and simple lack of good manners will not create such deterrence.”
Id. The court never discussed causation or whether the retaliation was by the
employer.
       Spencer complains of two incidents that allegedly occurred after he
reported the text message to the union. The first was when Vidrine, Machen,
and others cursed him. The district court did not err in concluding that curses
are the sort of “minor annoyances [or] simple lack of good manners” not
actionable for a Title VII retaliation claim. Id.
       The next claimed incident was being cornered in a room on the jobsite by
Vidrine and Machen. Spencer felt he could not get out. He thought it was “safe



       1Neither party disputes the district court’s conclusion that Spencer had met the first
prong by engaging in protected activity. Accordingly, we do not address whether Spencer’s
reporting the text message to a union representative — rather than anyone in Schmidt’s
management — is sufficient to trigger Title VII’s retaliation provision.
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to answer their questions,” though one of the men stood in the doorway while
the other man circled him. They did not directly threaten him, but one of them
asked if Spencer felt he was safe. He said he did not. They also insisted he tell
them to whom he had shown the text message and who else knew about it.
Spencer testified that he thought he was in danger because the work site
included live voltage, but it was unclear whether he was referring to those
dangers generally at the work site or specific dangers in the room at the time
of this incident.    Regardless, a fact-finder could reasonably conclude that
Vidrine and Machen were seeking to intimidate Spencer. If that were the
finding, such intimidation also would need to rise to a level that it “well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.”     Id. (quotation marks omitted).     The district court found
Vidrine’s and Machen’s conduct did not ascend to that level, but that was “a
closer question” than the allegations he had been cursed by the foremen.
      We do not decide whether the district court’s conclusion was correct. We
note that even if the intimidation was of the requisite severity, Spencer must
also establish that the employer was effectively the intimidator, and “that the
desire to retaliate was the but-for cause of the challenged employment action.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). The
district court never addressed these elements of Spencer’s retaliation claim.
Even so, “we may affirm a summary judgment on any ground supported by the
record.” McIntosh v. Partridge, 540 F.3d 315, 326 (5th Cir. 2008).
      We find it sufficient to resolve this issue based on the requirement that
any alleged retaliation must be by the employer, Schmidt. Long v. Eastfield
Coll., 88 F.3d 300, 306 (5th Cir. 1996). Title VII defines an “employer” to be “a
person engaged in an industry affecting commerce who has fifteen or more
employees . . . , and any agent of such a person . . . .” 42 U.S.C. § 2000e(b).
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      Not all employees of the employer are agents for purposes of a retaliation
claim. Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 401 (5th Cir. 1996)
(analyzing Title VII law and applying it to a Title IX claim). We quoted the
Supreme Court on this distinction: “Congress’ decision to define ‘employer’ to
include ‘any agent’ of an employer . . . surely evinces an intent to place some
limits on the acts of employees for which employers under Title VII are to be
held responsible.” Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
72 (1986).   Therefore, employers are not “liable under Title VII for every
discriminatory act committed by employees in the workplace” but only “in
accordance with common law agency principles, for the acts of employees
committed in furtherance of the employer’s business.” Long, 88 F.3d at 306.
      An agent for these purposes is “someone who serves in a supervisory
position and exercises significant control over . . . hiring, firing, or conditions
of employment.” Canutillo Indep. Sch. Dist., 101 F.3d at 401. We have already
discussed in the context of Spencer’s hostile work environment claim that there
is no evidence that the same two foremen who took the allegedly retaliatory
action against Spencer were empowered by Schmidt to exercise any control
over hiring, firing, or the conditions of Spencer’s employment. The testimony
revealed that foremen were charged with directing and overseeing Spencer’s
work on the job site. Specifically, there was testimony that members of the
union were assigned to certain projects by the union and, per the collective
bargaining agreement, Schmidt was then required to appoint foremen to
oversee work on the site. Ben Frank stated he did not consider foremen to be
supervisors because they could be a “foreman today and a journeyman
tomorrow,” and he did not always have the opportunity to get to know the
employees on a site well-enough to select foremen based on ability or
qualification. Frank’s testimony makes it clear that status as a foreman was
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not something that gave that individual authority over Spencer. There were
other Schmidt employees on site who controlled Spencer’s employment status
and had authority and responsibility to act in the interests of Schmidt.
      It would violate common law agency principles to say that Schmidt
should be held liable for the conduct of foremen, who were not empowered by
Schmidt to represent the company’s interests on site. Because Vidrine’s and
Machen’s actions cannot be attributed to the employer, Schmidt cannot be held
liable under Title VII for the intimidation, even if it was in retaliation for
Spencer’s engaging in protected activity.
      We conclude Spencer cannot make out a prima facie claim of retaliation
due to his failure to allege that when Vidrine and Machen cornered and
questioned Spencer, they were acting as agents for the employer Schmidt
serving in a supervisory position in furtherance of the company’s interests.
The district court did not err in granting summary judgment for Schmidt on
Spencer’s retaliation claim.


      III.   Bellard’s claim of racial discrimination
      In order to establish a prima facie claim of racial discrimination under
Title VII, a plaintiff must show he “(1) is a member of a protected group; (2)
was qualified for the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) . . . was treated less
favorably than other similarly situated employees outside the protected
group.” McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If a
plaintiff makes a prima facie showing of discrimination, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason for its action.
Id. at 557. The plaintiff then “bears the ultimate burden of proving that the
employer’s proffered reason . . . is a pretext . . . .” Id.
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      The first three elements of Bellard’s prima facie case are not in dispute
— Bellard is African American, was qualified to work as an electrician, and
was terminated by Schmidt. At issue is whether Bellard established he was
treated less favorably than similarly situated employees who were outside his
protected group.    “[A]n employee who proffers a fellow employee as a
comparator [must] demonstrate that the employment actions at issue were
taken ‘under nearly identical circumstances.’” Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 260 (5th Cir. 2009). The employees being compared must have
“held the same job or responsibilities, shared the same supervisor or had their
employment status determined by the same person, and have essentially
comparable violation histories.” Id. (citations omitted). If a difference between
the plaintiff’s conduct and that of the allegedly similarly situated employee
accounts for the difference in treatment, the employees are not similarly
situated for the purposes of the employment discrimination analysis. Wallace
v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
      Bellard’s deposition testimony identified three Caucasian employees —
Ed Albinese, John Heineken, and Robert Riley — who he alleges received
three-day suspensions or were transferred to other job sites for similar safety
infractions.   His testimony, however, provides no evidence that those
individuals’ infractions occurred after implementation of the zero-tolerance
policy for ladder safety violations, that they held the same job or had the same
responsibilities, shared the same supervisor, or had comparable violation
histories. Bellard provided no information other than Albinese’s race and
name.    He stated Riley was his supervisor and that Heineken had an
apprentice, indicating they did not, in fact, hold the same position or share the
same supervisor.     Finally, there was undisputed evidence that Vaughn
Construction insisted Bellard be removed from the site because a three-day
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suspension would not be sufficient. There is no such evidence regarding the
other three employees. We agree with the district court’s conclusion that
Bellard cannot establish a prima facie claim of race discrimination.
      Moreover, the district court identified that even if Bellard could make
out a prima facie case, Schmidt met its burden of articulating a legitimate,
nondiscriminatory reason for terminating Bellard which Bellard had not
demonstrated was pretext.     Schmidt identified two legitimate reasons for
terminating Bellard, that he knowingly violated a zero-tolerance safety policy
and that Vaughn Construction asked Bellard be removed from the site based
on his conduct following the safety infraction. Frank stated that Schmidt
terminated Bellard based on the circumstances of his safety violation, namely,
Bellard’s comments to the Vaughn Construction safety officer indicating his
disregard for safety and causing Vaughn to request Bellard be removed from
the site. Bellard argued that other employees were disciplined less harshly for
similar safety infractions, and he denied that he made the disrespectful
comments or that he at least does not remember making them. This does not
establish, however, that Schmidt’s reasons for terminating Bellard were
pretext or that Schmidt fired Bellard with discriminatory motive. “Simply
disputing the underlying facts of an employer’s decision is not sufficient to
create an issue of pretext.” LeMaire v. Louisiana Dept. of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007). Bellard does not establish pretext by arguing
other employees were treated less harshly. According to Frank, Bellard was
terminated not just because of his safety infraction but because of his
comments to the safety officer indicating his disregard for safety. The district
court did not err in granting summary judgment for Schmidt on Bellard’s claim
of racial discrimination.
      The judgment of the district court is AFFIRMED.
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GRAVES, Circuit Judge, concurring in part and dissenting in part:
      I agree with the majority that the district court properly granted
summary judgment to Schmidt on Bellard’s race discrimination claim, for the
reasons given by the majority. I also agree that the district court properly
granted summary judgment to Schmidt on Spencer’s race discrimination claim,
but I write separately because I do not think there is any need for us to
determine whether Machen was a supervisor under Vance v. Ball State Univ.,
133 S. Ct. 2434 (2013). Finally, I dissent from the majority’s affirmance of the
grant of summary judgment to Schmidt on Spencer’s claim of retaliation.
      I.    Spencer’s Hostile Work Environment Claim
      The majority concludes that the grant of summary judgment on
Spencer’s hostile work environment claim was correct because the record
establishes that Machen is not a supervisor under Vance.          In Vance, the
Supreme Court held “that an employee is a ‘supervisor’ for purposes of
vicarious liability under Title VII if he or she is empowered by the employer to
take tangible employment actions against the victim.” Vance, 133 S. Ct. at
2439. A tangible employment action is “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant
change in benefits.” Id. at 2443 (quoting Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 761 (1998)).     The summary judgment record before us was
created pre-Vance, when it was sufficient to show that an alleged harasser was
a supervisor if he had “immediate (or successively higher) authority over the
employee.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th
Cir. 2001). In my view, there is simply not enough evidence in the record about
this worksite or the role of foremen to determine that Machen was not a
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                                 No. 13-20282
supervisor under Vance. Though the firing decisions are apparently ultimately
made or approved by Schmidt managers, the record shows that foremen have
some authority and input regarding firing decisions.          The weight their
recommendations carry is unclear. For example, when Spencer was escorted
off the Anderson job site, he testified that Machen, a foreman, and Vidrine, a
general foreman, were the employees who escorted him off the site, and that
no other Schmidt managers were informed or involved. It is also unclear
whether foremen have the authority to transfer employees to assignments with
different responsibilities, which may make them supervisors under Vance. See
Vance, 133 S. Ct. at 2443.
      I would not reach the fact-intensive question of whether Machen is a
supervisor, because there are alternative grounds for affirmance. Even under
the harassment standards applicable to supervisors, the grant of summary
judgment should be affirmed. While there is no question that the harassment
of Spencer by Machen rose to the level of a hostile work environment, I would
conclude that the district court correctly held that Schmidt was entitled to the
Ellerth/Faragher affirmative defense to vicarious liability.     See Burlington
Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998).
      In order to raise this affirmative defense, the employer must first show
it took no adverse employment action against Spencer. See Aryain v. Wal-Mart
Stores Texas LP, 534 F.3d 473, 480 (5th Cir. 2008). Spencer alleges that he
was constructively discharged, which would preclude Schmidt from raising the
affirmative defense. See id. In determining whether an employer’s actions
constitute a constructive discharge, we ask whether working conditions
became “so intolerable that a reasonable person in the employee’s position
would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542
U.S. 129, 141 (2004); see Aryain, 534 F.3d at 480.         To show constructive
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                                No. 13-20282
discharge, a plaintiff must present “something more” than what is required to
establish a hostile work environment claim. Aryain, 534 F.3d at 480. Here,
Spencer failed to point to sufficient summary judgment evidence supporting a
claim of constructive discharge. The only evidence he pointed to, apart from
the same evidence establishing the hostile work environment, was that he was
given some menial assignments and made to repeat the same task multiple
times. While certainly annoying, this does not rise to the level of intolerable
working conditions that would compel a reasonable employee to resign. See
Suders, 542 U.S. at 141; Aryain, 534 F.3d at 480.
      Since Spencer was not constructively discharged, Schmidt may assert
the Ellerth/Faragher affirmative defense to vicarious liability. Under
Ellerth/Faragher, an employer may avoid vicarious liability by showing that:
(1) the employer exercised reasonable care to prevent and correct promptly any
harassing behavior; and (2) the plaintiff unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the employer.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. I would conclude, as the
district court did, that Schmidt met both prongs. With regard to the first
prong, Schmidt established that it exercised preventative action by
disseminating anti-discrimination policies which prohibited discrimination
and harassment and provided multiple avenues for complaints by employees,
which Spencer does not argue are inadequate or unreasonable. See Lauderdale
v. Texas Dept. of Criminal Justice, 512 F.3d 157, 164 (5th Cir. 2007). Further,
Schmidt promptly corrected the harassing behavior. Specifically, within two
weeks of Spencer opening the text message and informing the union of it, Ben
Frank, the head of Schmidt, fired Machen for sending the text and Vidrine for
being a general foreman who knew of the text but who did not inform his
superintendent.     This is sufficient to establish the first prong of the
Ellerth/Faragher defense. Under the second prong, Schmidt must establish
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                                  No. 13-20282
that Spencer unreasonably failed to take advantage of any preventative or
corrective opportunities made available by the employer. Ellerth, 524 U.S. at
765; Faragher, 524 U.S. at 807. Here, while Spencer notified the union of the
text message, he did not alert anyone at Schmidt, and after receiving a
secondhand report from his union steward that Schmidt was not taking action,
he did not follow any of the multiple avenues for complaint to Schmidt
management.     See Lauderdale, 512 F.3d at 164-65.         Further, Frank also
repeatedly offered Spencer his job back after Schmidt fired Machen and
Vidrine, including offering to transfer Spencer to a different worksite if he so
desired. In these circumstances, particularly given the prompt and effective
corrective action taken by Schmidt, I agree with the district court that Schmidt
established both prongs of the Ellerth/Faragher defense and was entitled to
summary judgment on Spencer’s hostile work environment claim.
      II.   Spencer’s Retaliation Claim
      I disagree with the majority that summary judgment was correctly
granted to Schmidt on Spencer’s claim of retaliation. The anti-retaliation
provisions of Title VII are broader than the anti-discrimination provisions. See
Burlington Northern & Santa Fe R.R. Co. v. White, 548 U.S. 53, 66-67 (2006).
To establish a prima facie case of retaliation, a plaintiff must show that: (1) he
participated in an activity protected by Title VII; (2) his employer took
materially adverse action against him; and (3) a causal connection exists
between the protected activity and the materially adverse action. Aryain, 534
F.3d at 484. A materially adverse action is one that “a reasonable employee
would have found . . . [to be] materially adverse, which in this context means
it might well have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (internal
quotation marks omitted). “Trivial harms” do not rise to the level of material
adverseness. Id. “An employee’s decision to report discriminatory behavior
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                                   No. 13-20282
cannot immunize that employee from those petty slights or minor annoyances
that often take place at work and that all employees experience.” Id. “[T]he
significance of any given act of retaliation will often depend upon the particular
circumstances. Context matters.” Id. at 69.
      I agree with the majority that most of Spencer’s allegations fail to rise to
the level required to show that a materially adverse action was taken against
him, including the allegations that he was cursed at by Vidrine, Machen, and
other employees. However, Spencer also alleged that an incident where he was
“cornered” and questioned by Machen and Vidrine after he reported the text to
the union constituted retaliation. A review of the record indicates that this
claim should survive summary judgment. Spencer testified he opened the text
message and reported it to a union representative, J.D. Brown, who reported
the issue to a Schmidt manager within a day.                  Spencer testified that
subsequently, he was cornered by Machen, the sender of the text, and Vidrine,
a general foreman, in an elevator room where he was working. He testified
that Machen “proceeded to make a circle around me while David Vidrine
engaged me in conversation.” They asked him who he sent the text message
to, who else knew about it, and “did I feel like . . . I was safe there.” He testified
that he did not feel he could leave the room if he wanted to because “one was
blocking the entrance and the other one was orbiting my body.” Though he
testified that he answered their questions and did not ask to leave, he also
testified that he told them he did not feel safe at the job.
      On the heels of being sent a text by Machen including explicit racist and
threatening imagery, including Ku Klux Klan symbolism, a burning cross and
a noose, Spencer was cornered and questioned by the sender and a general
foreman about who he had told about the text and whether he felt safe, while
one stood in front of the door and one “orbited” him in the room. I would
conclude that a reasonable jury could find that this incident could make a
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                                   No. 13-20282
“reasonable employee” feel actually threatened for reporting an incident of
racial harassment, which could deter a reasonable employee from making or
supporting a complaint and thus rises to the level of material adverseness
under Burlington Northern. Id. at 67. Spencer has raised sufficient evidence
about whether this action constituted material adverseness to survive
summary judgment.
      I would also find that the other prongs of the retaliation standard are
met, sufficient to survive summary judgment. See Aryain, 534 F.3d at 484.
Spencer’s complaint to the union, which he made with the expectation that the
union would raise the complaint with Schmidt on his behalf, constituted
“oppos[ing] any practice made an unlawful employment practice” and is
protected activity. See 42 U.S.C. § 2000e-3; see Long v. Eastfield Coll., 88 F.3d
300, 304 (5th Cir. 1996). Further, Spencer testified that after he opened the
text on December 20 and alerted the union, who notified Schmidt by at least
December 21, Machen and Vidrine cornered him and asked him who he had
shown the text message to and who else knew about it. While the record is not
clear on which day the confrontation happened, it is clear that it happened
between December 21 and December 28. This “very close” temporal proximity
between the complaint and the alleged retaliation, see Clark County School
District v. Breeden, 532 U.S. 268, 273 (2001), together with Machen and
Vidrine’s questioning directly referencing the text and who Spencer had told
about the text, are sufficient to raise a fact issue as to whether or not they acted
because of the complaint to the union.
      The majority concludes that summary judgment is appropriate because
the retaliation is not attributable to Schmidt. As the majority recognizes, the
district court did not reach this issue, and the parties do not address it on
appeal. This question depends on whether Machen and Vidrine “serve[] in a
supervisory position and exercise[] significant control over . . . hiring, firing, or
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                                 No. 13-20282
conditions of employment.” See Long, 88 F.3d at 306. As I stated above, the
question of whether Machen and Vidrine are supervisors is a fact-intensive
issue. The retaliatory incident involved Machen, a foreman, as well as Vidrine,
a general foreman. The record reflects that general foremen may supervise the
work of other foremen, have input into hiring and firing decisions, and may be
able to transfer, discipline or fire employees. Thus, I would also conclude that
there are fact issues precluding us from concluding that Vidrine’s and
Machen’s alleged retaliation against Spencer is not attributable to Schmidt.
      Finally, Schmidt has not indicated that there could be any other
motivation for Machen and Vidrine’s intimidation and implicit threatening of
Spencer, and it is difficult to imagine any other motivation, other than to
frighten him and dissuade him from pursuing further corrective action
regarding the alleged discrimination.       There are sufficient fact issues
surrounding the incident to warrant denial of summary judgment on the issue
of retaliation.
      III.   Conclusion
      For the foregoing reasons, I concur in the majority’s decision in part and
agree that summary judgment was correctly granted on Bellard’s race
discrimination claim and Spencer’s hostile work environment claim.              I
respectfully dissent with regard to the grant of summary judgment on
Spencer’s claim of retaliation, which I would reverse and remand.




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