     Case: 16-11611      Document: 00514235277         Page: 1    Date Filed: 11/13/2017




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

                                      No. 16-11611
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         November 13, 2017

LINDA K. EATON-STEPHENS,                                                    Lyle W. Cayce
                                                                                 Clerk
              Plaintiff – Appellant,

v.

GRAPEVINE COLLEYVILLE INDEPENDENT SCHOOL DISTRICT,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CV-582


Before KING, JONES, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s grant of summary judgment
in favor of Grapevine Colleyville Independent School District on all of Linda
Eaton-Stephens’s claims under Title VII, the Americans with Disabilities Act,
and the Family and Medical Leave Act. While we agree the district court
unduly discredited parts of Eaton-Stephens’s deposition testimony, even
considering that evidence we conclude that Eaton-Stephens cannot show there


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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is a genuine issue of material fact that would preclude summary judgment,
and therefore, we AFFIRM the district court’s judgment.
                                          I.
      Grapevine Colleyville Independent School District employed Linda
Eaton-Stephens, an African-American woman, as a counselor at Heritage
Middle School from 2005 to 2014. Eaton-Stephens was the only black employee
at the school. In 2013, Cheryl Harrison, a teacher at the school, was hired as
the assistant principal. Upon Harrison’s hiring, Eaton-Stephens informed
Principal Pete Valamides that she believed Harrison was prejudiced against
non-white students and faculty because Harrison had ignored her during
previous encounters.    Eaton-Stephens also testified in her deposition that
another counselor, Marsha Fields, called her “the little black counselor” and
that when she told Valamides about the incident, his response was “fix it.”
According to Eaton-Stephen’s testimony, Valamides had intervened on behalf
of other employees who raised non-race-related complaints. Eaton-Stephens
testified that this incident was part of a pattern of increasing friction with
Fields and a registrar, Michaelanne Tapp, which had started in 2009 or 2010.
      During the 2013–2014 school year, Eaton-Stephens was granted
intermittent leave under the Family and Medical Leave Act (FMLA) due to
migraine headaches. During that school year in early 2014, there was an
incident at a parents’ night where Fields chastised Eaton-Stephens about her
use of the copier in front of the parents.     Eaton-Stephens testified that
following that incident Fields told her, “Don’t worry. I’ll get you.” The next
day, Becky Lamb, an assistant to the School District’s human resources
executive director, Gema Padgett, came to the school and took possession of
Eaton-Stephens’s district-assigned laptop.       Padgett and Fields were
investigating an allegation that Eaton-Stephens was taking online college
courses for Michael Capeda, a technical support employee of the School
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                                 No. 16-11611
District. If true, the allegations against Eaton-Stephens would violate School
District policies and the Texas Educator’s Code of Ethics. Eaton-Stephens
testified she believed the report that spurred the investigation originated with
Fields and Tapp as retaliation for the parents’ night incident. Padgett filed an
affidavit stating, after finding two writing assignments under Capeda’s name
on Eaton-Stephen’s laptop, that Eaton-Stephens admitted to writing and
submitting one of the papers online.        Eaton-Stephens testified that she
explained to Padgett and Lamb that she only tutored Capeda and critiqued his
papers.
      At the conclusion of the investigation, Eaton-Stephens testified that
Padgett and Lamb gave her two documents: a letter for administrative leave
and a termination letter. Eaton-Stephens initially signed the administrative
leave letter, but after further reflection and because she believed any
investigation would biased, she subsequently sent a resignation email to
prevent what she believed to be an inevitable termination from harming her
job prospects.
      Eaton-Stephens filed a lawsuit against the School District, and in her
first amended complaint, she alleged claims for racial discrimination,
discrimination based on a disability, and retaliation. The district court granted
summary judgment for the School District on all claims. Eaton-Stephens
timely appealed the judgment.
                                           II.
      We review a district court’s decision on summary judgment de novo.
Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002). Summary
judgment is proper only where the non-movant “fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case.” Piazza’s Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th Cir.
2006). We “must view the evidence in the light most favorable to the party
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                                  No. 16-11611
opposing summary judgment.” Porter v. Houma Terrabonne Hous. Auth. Bd.
of Comm’rs, 810 F.3d 940, 942 (5th Cir. 2015) (footnote omitted). However,
conjecture,   conclusory    allegations,     unsubstantiated     assertions,   and
speculation are not adequate to satisfy the non-movant’s burden on summary
judgment. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002).
                                            III.
      Eaton-Stephens argues that the district court failed to give proper
weight to her deposition testimony and therefore improperly granted summary
judgment for the School District on her claims. We agree that the district court
unduly discredited some of Eaton-Stephens’s deposition testimony as
conclusory. “A party’s own testimony is often ‘self-serving,’ but we do not
exclude it as incompetent for that reason alone.” C.R. Pittman Const. Co. v.
Nat’l Fire Ins. Co. of Hartford, 453 F. App’x 439, 443 (5th Cir. 2011)
(unpublished) (citing Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir.
1999)).   Even if self-serving, a party’s own affidavit containing factual
assertions based on firsthand knowledge is competent summary judgment
evidence sufficient to create a fact issue.        Id. at 443.   Eaton-Stephens’s
testimony that Fields called her “the little black counselor” and that
Valamides, in reference to that statement, told her to “fix it,” is non-conclusory
evidence that should have been considered by the district court. However,
other statements by Eaton-Stephens in her deposition were conclusory, such
as her allegations that Harrison was prejudiced against non-white students
and faculty, or that Fields and Tapp treated her poorly because she was black.
The district court properly identified these conclusory statements as non-
competent summary judgment evidence.
      Eaton-Stephens also argues she should have received a spoliation
inference because her computer’s contents were erased, and that, because the
School District’s policy and rules required retention of the contents for several
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years, the only conclusion was that the action was taken in bad faith. Our
cases indicate a violation of a rule or regulation pertaining to document
retention is not per se bad faith and Eaton-Stephens cites no authority in
support of such a per se bad faith rule. See, e.g., King v. Ill. Cent. R.R., 337
F.3d 550, 556 (5th Cir. 2003) (holding the plaintiff bears the burden to
establish the defendant acted in bad faith and allowing the defendant to
present evidence showing there was an innocuous explanation where
documents subject to federally mandated retention were destroyed).                        We
decline to adopt a per se rule here. As such, Eaton-Stephens has not met her
burden to show bad faith where the only evidence she put forth in support of
her claim of bad faith was the alleged violation of School District policy and
rules. The district court, therefore, did not err in declining to find Eaton-
Stephens was entitled to an adverse inference due to spoliation of evidence.
       Having determined that the district court improperly discredited some
of Eaton-Stephens’s testimony as conclusory but properly declined to grant her
an adverse inference for spoliation, we turn to whether it was error for the
district court to grant summary judgment on Eaton-Stephens’s claims. Three
of Eaton-Stephens’s claims are properly raised for consideration on appeal 1: (1)
Title VII disparate treatment; (2) Title VII hostile work environment; and (3)
whether a FMLA claim was sufficiently pleaded.




       1 On appeal, Eaton-Stephens does not challenge the district court’s grant of summary
judgment on her Title VII disparate impact claim or her Americans with Disabilities Act
(ADA) claim beyond merely mentioning that judgment should not have been granted on the
claims. Those claims, therefore, are forfeited. See United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010) (holding that mere mention of a legal theory is not sufficient to raise
the claim on appeal and requiring that the relevant legal standards and authority supporting
the argument be addressed in the briefing to properly raise a claim). We also hold that under
the Scroggins standard, Eaton-Stephens forfeited her Title VII retaliation claims because
nearly every mention of the retaliation claim in her briefing is in the FMLA context and the
Title VII retaliation claims are not sufficiently briefed for our consideration.
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                                  No. 16-11611
      As to Eaton-Stephens’s disparate impact claim, she argues that Fields’s
“little black counselor statement” is direct evidence of discrimination by the
School District. We disagree. A statement is direct evidence of discrimination
if it is “(1) related to the protected class of person of which the plaintiff is a
member, (2) proximate in time to the employment decision, (3) made by an
individual with authority over the employment decision at issue, and (4)
related to the employment decision at issue.” Reilly v. TXU Corp., 271 F. App’x
375, 379 (5th Cir. 2008) (unpub.) (citing Auguster v. Vermilion Par. Sch. Bd.,
249 F.3d 400, 405 (5th Cir. 2001)). Fields was not a person with authority over
any employment decision regarding Eaton-Stephens. Even if Eaton-Stephens
orally reported Fields’s statement to Valamides, who may have had that
authority, we would be required to make too many inferences to conclude any
adverse employment decision was based on that statement.
      If direct evidence is unavailable to prove discrimination, a plaintiff can
show intentional discrimination based on race through circumstantial
evidence. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). We
analyze a claim based on circumstantial evidence under the McDonnell
Douglas burden-shifting framework. Id. (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). Under this framework (1) a plaintiff must show a
prima facie case of intentional discrimination; (2) if the plaintiff proves a prima
facie case, the burden shifts to the employer to proffer a legitimate non-
discriminatory reason for termination; and (3) the plaintiff then bears the
burden to show the employer’s reason was either pretext for discrimination or
that even if true, race was still a motivating factor in the decision. Id. The
School District does not dispute that Eaton-Stephens has established a prima
facie case. The legitimate non-discriminatory reason proffered by the School
District for the investigation of Eaton-Stephens, which subsequently led to her
resignation, was the allegation of academic fraud on behalf of Capeda. Even
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                                       No. 16-11611
assuming that Eaton-Stephens did not write the papers, she still has not
produced evidence showing the School District’s investigation of her was
motivated by race. See Laxton v. Gap, Inc., 333 F.3d 572, 580 n.2 (5th Cir.
2003) (“a plaintiff need only bring evidence that enables the jury to disbelieve
that the employer’s proffered justification truly motivated the adverse
employment action”).         Fields and Tapp are not persons who would have
authority to take adverse employment actions against Eaton-Stephens. Any
of Eaton-Stephens’s allegations regarding persons who might have authority
to take adverse employment against her, such as Valamides, Harrison,
Padgett, or Lamb, are conclusory. 2 Accordingly, there is no evidence that
would enable a jury to disbelieve that academic fraud motivated the
investigation and that race instead was the real motive for the investigation.
       Turning to Eaton-Stephens’s Title VII hostile work environment claim,
we hold that summary judgment was proper because Eaton-Stephens cannot
prove a prima facie case. A prima facie case requires Eaton-Stephens to show:
(1) she belongs to a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on race; (4) the harassment affected
a term, condition, or privilege of employment; and (5) the School District knew
or should have known of the harassment and failed to take prompt remedial
action. See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (stating
the standard for a hostile work environment prima facie case).                     The only



       2 Eaton-Stephens alleges that Valamides told her to “fix it” in regards to her complaint
about Fields’s race-based statement, but has not produced evidence showing that Valamides
took or sought any adverse employment action against her because of her race or had any
role in the investigation. She alleges Harrison was prejudiced against non-white students
and faculty, but does not provide any basis for this belief other than Harrison’s perceived
unfriendliness to her. In addition, Eaton-Stephens alleges Padgett and Lamb were rude to
her during the investigation and she felt that she “had been placed as a target and they had
already decided that [she] was guilty.” However, Eaton-Stephens does not state any non-
speculative reason for her belief that these actions were because of her race.
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                                No. 16-11611
incident that Eaton-Stephens’s alleges that survives the third prong—that the
harassment be based on race—is the incident where Fields allegedly called her
“the little black counselor.” Poor treatment without more is not sufficient to
show harassment based on race, even if Eaton-Stephens believes race to be the
motivating factor for the poor treatment.      See id. at 269 (holding that
“conclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy” the non-movant’s burden on summary judgment).
      As to “the little black counselor” incident, under the fourth prong this
comment would not be objectively or subjectively severe or pervasive enough
to alter the terms or conditions of Eaton-Stephens’s employment. Compare
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 652 (5th Cir. 2012) (holding
that a plaintiff being called a racially derogatory term and seeing a poster or
letter that was derogatory about Hispanics was not sufficient to support a
hostile work environment claim), Frazier v. Sabine River Auth. La., 509 F.
App’x 370, 374 (5th Cir. 2013) (unpub.) (affirming summary judgment on
hostile work environment claim where, although there was evidence that
coworker used the word “ni—r” in the plaintiff’s presence, it was an isolated
instance and not severe or pervasive enough to support a hostile work
environment claim), and Mosley v. Marion Cty., 111 F. App’x 726, 728 (5th Cir.
2004) (unpub.) (holding that evidence of three incidents involving racial slurs
was insufficient to support a hostile work environment claim), with E.E.O.C.
v. WC&M Enters., Inc., 496 F.3d 393, 400–01 (5th Cir. 2007) (holding there was
sufficiently pervasive and severe harassment based on national origin where
employee was regularly subjected over a one-year period to being called “Arab,”
“Taliban,” being told to go back he came from, and he received a written
warning that said he was acting like a “Muslim extremist”), and Walker v.
Thompson, 214 F.3d 615, 626–27 (5th Cir. 2000), abrogated on other grounds
by Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006) (holding that
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                                 No. 16-11611
African–American employees who were subjected to a variety of racial slurs
over three-year period raised fact issue as to whether slurs were sufficiently
severe or pervasive to violate Title VII). Accordingly, Eaton-Stephens has not
produced evidence sufficient to support a prima facie case of a racially hostile
work environment.
      Eaton-Stephens also argues the district court erred in concluding that
she did not properly plead a FMLA claim. A plaintiff is required to give “a
short and plain statement of the claim showing that the pleader is entitled to
relief” to give “the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The district court correctly found that “[w]hile [Eaton-Stephens] refers
to the FMLA in her First Amended Complaint, [Eaton-Stephens] does so only
as a basis for [her] claim of failure to accommodate under the ADA.” ROA.762.
As such, Eaton-Stephens did not properly plead a FMLA claim.               Even
assuming arguendo that the FMLA claim was properly pleaded, Eaton-
Stephens fails to produce evidence showing any action by School District
employees interfered with her FMLA leave. See Acker v. Gen. Motors, L.L.C.,
853 F.3d 784, 788 (5th Cir. 2017) (citation omitted) (“To prove an interference
claim, a plaintiff must at least show that the defendant interfered with,
restrained, or denied his exercise or attempt to exercise FMLA rights, and that
the violation prejudiced him.”).    Eaton-Stephens testified that Valamides
discouraged her from taking FMLA leave and that her co-workers harassed
her for taking leave, but does not testify that she took less leave because of
these actions. Therefore, any error in concluding Eaton-Stephens failed to
properly plead an FMLA claim would be harmless, because she did not meet
her burden to produce evidence that there was actual interference with her
FMLA rights.


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                               No. 16-11611
                                          IV.
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment for the School District on all of Eaton-Stephens’s claims.




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