     Case: 17-20581      Document: 00514502261         Page: 1    Date Filed: 06/06/2018




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

                                    No. 17-20581
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 6, 2018
                                                                           Lyle W. Cayce
MARCUS HACKETT,                                                                 Clerk


              Plaintiff - Appellant

v.

UNITED PARCEL SERVICE,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1817


Before CLEMENT, COSTA, and WILLETT, Circuit Judges.
PER CURIAM:*
       Plaintiff Marcus Hackett is a middle-aged black Trinidadian male, who
has worked for defendant United Parcel Service (“UPS”) since 1985. He sued
UPS for race and national origin discrimination and retaliation under Title VII
of the Civil Rights Act of 1964; race and national origin discrimination under
42 U.S.C. § 1981; and age discrimination and retaliation under the Age
Discrimination in Employment Act of 1967 (“ADEA”).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20581
      The district court concluded that his claims were meritless and
dismissed them on summary judgment. It also ruled that certain evidence
proffered by Hackett was inadmissible and denied his motion to file a second
amended complaint. Hackett appeals all of these decisions. We affirm.
                                       I.
      Hackett worked in various capacities during the course of his
employment at UPS, frequently in supervisory positions. The present matter
concerns the conduct of his colleagues and supervisors from 2008 through 2017,
during which time he served as Security Supervisor (2008–2012), On-Road
Supervisor (2012–2014), and Preload Supervisor (2014–2017).
      Hackett has alleged the following incidents occurred while serving in the
Security Department: (1) In 2008, one colleague and one supervisor made
disparaging comments about his accent; and (2) a different supervisor falsely
accused Hackett of wrongdoing in 2011 and 2012. The latter incidents were
reported to a higher-ranking supervisor.
      Hackett also alleged the following incidents occurred while he was an
On-Road or Pre-load Supervisor: (1) In October 2012, one of Hackett’s
supervisors read a Bible verse stating, “slaves must obey their masters.”
Hackett reported this event to Human Resources. The supervisor retired the
following year. (2) In 2013, Hackett’s new supervisor made fun of the fact that
he was a deacon at a church, and required Hackett to work late a few times on
nights he had deacon meetings. (3) In 2014, a colleague encouraged fellow-
coworkers to take photos of Hackett to catch him sleeping on the job. (4) In
2014–2015, a third supervisor, Kim Richards, consistently treated him unfairly
by berating him and unduly requiring that he fill out disciplinary write-ups for
himself. Hackett reported this conduct to Richards’s supervisor.
      In addition to this alleged mistreatment, Hackett highlights two
instances in which he was wrongly passed over for an opening within the
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                                 No. 17-20581
company. The first occurred in 2013, when Hackett’s supervisor was
temporarily reassigned to work on a special project. Hackett expected to serve
as his replacement, and alleged he was specifically told by the District
Operations Manager that he was “in charge.” Instead, another employee, Ray
Ribelin, was chosen to serve as the replacement. UPS claims Ribelin was better
qualified because of his ten years’ experience as a Business Manager and his
managerial experience in peak business season. Hackett took leave for several
months to get over his distress about the decision.
      The second instance occurred soon after his return from his leave in May
2014, when he was passed over for the job that was given to Richards, a black
woman. Hackett argues he was more experienced than Richards, who was 38
years old at the time. UPS contends, however, that Richards had a master’s
degree in business, and her 2014 career status report rated her as “ready now”
for promotion. By contrast, Hackett does not have a master’s, and his most
recent report from 2013 rated him as “still developing.”
      During his six-month leave, Hackett filed discrimination charges with
the EEOC on February 27, 2014, which he later amended in response to
Richards’s promotion on April 21, 2015. The EEOC dismissed the claims on
March 25, 2016, and notified Hackett of his right to sue. On June 23, 2016,
Hackett filed a complaint alleging discrimination and hostile work
environment based on age, race, national origin, and religion, as well as
retaliation—though the religious discrimination charge was dropped in his
first amended complaint filed October 7, 2016.
      On August 17, 2017, the district court sustained certain objections raised
by UPS to summary judgment evidence offered by Hackett, granted UPS’s
motion for summary judgment on all claims, and denied Hackett’s motion for
leave to file a second amended complaint. Hackett timely appealed.


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                                  No. 17-20581
                                        II.
      Summary judgments are reviewed de novo. Midwest Feeders, Inc. v.
Bank of Franklin, 886 F.3d 507, 512 (5th Cir. 2018). Summary judgment is
warranted only when “the movant shows 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. P. 56(a). The court views “the evidence in the light most favorable
to,” and draws all reasonable inferences in favor of, the nonmoving party.
Midwest Feeders, 886 F.3d at 513 (internal quotation omitted). But
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”
Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
      Evidentiary rulings are reviewed only for manifest error. Berry v.
Armstrong Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993). When both summary
judgment and evidentiary rulings are appealed, “appellate review is a two-
tiered process” that begins with the evidentiary rulings and then turns to the
summary judgment decision. Id.
      Last, “[w]e review the district court's denial of a motion to amend a
pleading for abuse of discretion.” Leal v. McHugh, 731 F.3d 405, 417 (5th Cir.
2013). Notably, because the motion for leave to amend was filed after a
scheduling order, the district court’s decision was governed by Federal Rule of
Civil Procedure 16(b). S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA,
315 F.3d 533, 535 (5th Cir. 2003). It therefore implicates our long-held
protection of a trial court’s “broad discretion to preserve the integrity and
purpose of the pretrial order.” Id. at 535 (quoting Hodges v. United States, 597
F.2d 1014, 1018 (5th Cir. 1979)). And unlike Rule 15, which encourages
amendments to be granted freely in the interest of justice, Rule 16(b) states
that a scheduling order “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4).
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                                  No. 17-20581
                                       III.
      Hackett has raised numerous issues on appeal. Reviewing each in turn,
we conclude none has merit.
      A. Evidentiary Decisions
      First, we find no manifest error in the court’s decisions to exclude three
statements proffered by Hackett. First, the court discarded a statement in
Hackett’s affidavit that described Ribelin as a Caucasian. Hackett’s deposition
testimony denied any knowledge of his background. Second, the district court
excluded the assertion, based solely on Hackett’s uncorroborated belief, that
Richards was instructed by a specific UPS manager to treat Hackett in an
abusive manner. Third, the district court excluded statements that Hackett
made about a colleague’s disciplinary history, which, again, he offered without
providing a firm basis for this knowledge. We will not interfere with the district
court’s decision to reject these assertions; Hackett has failed to provide any
persuasive basis on appeal for challenging the court’s holding that they were
not based on personal knowledge. See Fed. R. Civ. P. 56(c)(4). It was not a
manifest error to exclude this evidence.
      The court’s decision to disregard portions of the summary judgment
affidavit as a sham was similarly proper. “It is well settled that this court does
not allow a party to defeat a motion for summary judgment using an affidavit
that impeaches, without explanation, sworn testimony.” S.W.S. Erectors, Inc.
v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). Accordingly, the district court
may appropriately reject affidavits that contradict prior accounts—especially
when no explanation for the conflict is offered. See Doe ex rel. Doe v. Dall.
Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
      Here, the court highlighted significant differences between the
allegations in Hackett’s deposition and his later-submitted affidavit. First, his
affidavit suggested he had trained Richards rather extensively on a wide
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                                  No. 17-20581
variety of topics while his deposition stated he offered very limited training on
a single subject. Second, his affidavit stated that Richards’s supervisor never
conversed with Hackett about his interaction with Richards, but his deposition
stated that he and the supervisor had discussed the matter multiple times.
Hackett has only offered bare assertions that these differences are reconcilable
without any evidentiary support. And he offers no explanation for the change
in his account. Accordingly, he has failed to demonstrate that the court
committed manifest error.
      B. Statute of Limitations
      Claims brought under section 1981 have a four-year statute of
limitations—the default period applicable to most federal claims. See Johnson
v. Crown Enters., Inc., 398 F.3d 339, 341 (5th Cir. 2005). Since Hackett’s
section 1981 claim was filed June 23, 2016, the earliest date for a challengeable
discriminatory act is June 23, 2012.
       For this reason, the district court concluded that Hackett’s transfer out
of the Security department in January 2012 was not actionable under the
statute. Hackett contends instead that it was a “continuing violation” that
continued after the cut-off date and thus should be considered timely. See
Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003) (“Under the continuing
violations doctrine, a plaintiff may complain of otherwise time-barred
discriminatory acts if it can be shown that the discrimination manifested itself
over time, rather than in a series of discrete acts.”). He asserts that this event
was “part [of] a larger story of discrimination and retaliation that he had been
suffering for years.”
      This assertion is insufficient to establish a continuing violation. Instead,
the continuing violations doctrine applies when there is “an organized or
continuing effort to discriminate.” Id. This requires more than a showing that
the transfer is merely “related to acts alleged in timely filed charges.” See Nat’l
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                                  No. 17-20581
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Instead, the
transfer, which Hackett calls a “demotion,” is precisely the sort of “one-time
employment event” that qualifies as a discrete act. See Pegram v. Honeywell,
Inc., 361 F.3d 272, 279–80 (5th Cir. 2004). We therefore affirm the district
court’s holding regarding the statute of limitations.
      C. Hostile Work Environment
      The district court granted summary judgment on Hackett’s hostile work
environment claim brought under Title VII, section 1981, and ADEA because
he failed to establish a prima facie case. In order to properly allege a violation
under these statutes, Hackett was required to demonstrate that (1) he is in a
protected class; (2) he suffered unwelcome harassment (3) that was based on
his membership in the protected class; (4) the harassment affected a term,
condition, or privilege of employment; and (5) the employer knew or should
have known of the harassment, but did not take proper remedial action. See
Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011) (ADEA);
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (Title VII); LaPierre v.
Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996) (noting that section
1981 and Title VII claims are governed by “the same evidentiary framework”).
      Moreover, the fourth prong requires a showing that the incident was
“sufficiently severe or pervasive” to create “an abusive working environment.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (internal
quotation omitted). This involves a multifactor analysis, looking to the
frequency and severity of the actions, whether danger or humiliation (not
simply personal offense) resulted, and whether the conduct interferes with
work performance. Alaniz v. Zamora–Quezada, 591 F.3d 761, 771 (5th Cir.
2009).
      In support of his hostile work environment claims, Hackett cites eight
discrete offenses that occurred over seven years and were committed by various
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                                     No. 17-20581
supervisors and colleagues. As the district court rightly noted, several of the
incidents do not support to a prima facie case of Title VII, ADEA, or section
1981 discrimination. For example, one incident targeted Hackett on the basis
of his religious affiliation, but Hackett dropped his religious discrimination
claims in his amended complaint. Further, Hackett expressly denied some of
the acts were motivated by his national origin, race, or age in his deposition
testimony. Instead, he asserted they were either work-related or based on a
personal grudge. As the court noted, other acts occurred prior to 2012 and are
thus barred by the statute of limitations.
      We are not persuaded by Hackett’s attempts to thwart these conclusions
on appeal through bald assertions to the contrary. Even if we were to credit
some, it would still fail to establish the sort of “severe or pervasive” harassment
that is required for a hostile work environment claim. Hernandez, 670 F.3d at
651. We agree with the district court that these incidents fail to meet this high
hurdle. 1
      D. Discrimination
      Title VII, section 1981, and ADEA discrimination claims based on
circumstantial evidence require the court to apply the same burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377–78 (5th
Cir. 2010) (ADEA); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
2007) (Title VII); LaPierre, 86 F.3d at 448 n.2 (Section 1981). Under this
familiar framework, the plaintiff has the initial burden to establish a prima
facie case, which, if properly made, shifts the burden to the employer to “rebut
a   presumption        of     discrimination     by    articulating     a    legitimate,



      1  Because we so rule, we need not consider UPS’s additional argument that Hackett’s
hostile work environment claim was untimely.
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                                      No. 17-20581
nondiscriminatory reason for the adverse employment action.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). “If the
employer meets its burden, then it shifts back to the plaintiff to present
substantial     evidence     that    the    employer’s     reason     was     pretext    for
discrimination.” Id.
       Hackett highlights two incidents in which he claims he suffered various
forms of discrimination. First, he argues that he was subject to race and
national origin discrimination when Ribelin was named acting manager in
November 2013. Applying the summary judgment standard, the district court
credited his testimony that he had indeed received some managing
responsibilities temporarily before Ribelin’s appointment, and that the
appointment constituted an adverse action. It concluded, however, that
Hackett had failed to demonstrate that UPS’s legitimate reason for the
decision—Ribelin’s ten years of experience as a Business Manager and his
experience in that capacity with peak season rush—was pretext.
       We agree. Employment discrimination laws are “not intended to be a
vehicle for judicial second-guessing of employment decisions, nor . . . to
transform the courts into personnel managers.” Bienkowski v. Am. Airlines,
Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988). At the time of UPS’s decision,
Hackett had only two years of experience as an operations manager, and he
had no experience as a business manager during peak season. Peak season was
imminent. The decision seems quite reasonable. Hackett fails to articulate any
reason for this court to second-guess UPS’s decision. 2



       2 UPS’s position is further buttressed by the fact the same individual who hired
Ribelin also temporarily named Hackett for the position. Accordingly, as the district court
noted, UPS was entitled to the same actor inference, which “creates a presumption that
animus was not present where the same actor responsible for the adverse employment action
either hired or promoted the employee at issue.” Spears v. Patterson UTI Drilling Co., 337 F.
App’x 416, 421–22 (5th Cir. 2009).
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                                  No. 17-20581
      Hackett also contends that UPS’s failure to promote him in November
2014 was an act of age discrimination. UPS instead chose an employee who
had a master’s in business and was “ready” for promotion according to the
company’s own evaluation record. By contrast, Hackett does not have a
master’s and was not “ready” for promotion according to his evaluation record.
Hackett offers no evidence that he was more qualified except for his longer
tenure with the company. But we have never “attempt[ed] to equate years
served with superior qualifications.” Moss v. BMC Software, Inc., 610 F.3d 917,
923 (5th Cir. 2010) (internal quotation omitted). And we will not question the
business determination that one employee is more qualified than another
unless “the qualifications [are] so widely disparate that no reasonable
employer would have made the same decision.” Id. (internal quotation
omitted).
      We agree with the district court that such circumstances are not present
here. On appeal, Hackett notes that he trained Richards, and cites other
instances in which he was passed over for younger employees. Even if we were
to consider both arguments, they fail to cast any doubt on UPS’s explanation
that it promoted Richards based on her qualifications. We see no reason to
disturb the district court’s conclusion.
      E. Retaliation
      As with discrimination, the same legal standard for retaliation applies
to Title VII, section 1981, and ADEA claims, which includes the three-part
McDonnell Douglas framework. See, e.g., Davis v. Dall. Area Rapid Transit,
383 F.3d 309, 319 (5th Cir. 2004) (Title VII and section 1981); Sherrod v. Am.
Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (ADEA). A plaintiff must
demonstrate that he was engaging in protected activity, that he suffered an
adverse employment action, and that some causal link between the two exists.


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                                  No. 17-20581
See Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496–97 (5th Cir.
2015) (ADEA); Davis, 383 F.3d at 319 (Title VII and 1981).
      Hackett alleged that the two acts of discrimination were also acts of
retaliation. He notes that he made several complaints to either supervisors or
Human Resources prior to Ribelin’s November 2013 promotion. And Richards’s
November 2014 promotion followed Hackett’s complaint to the EEOC. The
district court found no causal link between these employment decisions and
Hackett’s complaints. We agree.
      We first review the Ribelin promotion. Attempting to demonstrate this
was an act of retaliation on appeal, Hackett revisits the various wrongs that
he experienced during his time at UPS. Only two involve instances in which
he reported certain behavior to a supervisor, and only one (the incident
involving the Bible reading) involved a report to Human Resources that was
further investigated and formally addressed. The latter was also the last
potentially protected activity prior to Ribelin’s promotion, yet it occurred over
a year before the promotion. Moreover, there is no evidence in the record that
suggests these complaints motivated UPS’s decision to promote Ribelin, which
was based on legitimate considerations. Especially given the long lapse
between events, see Feist v. Louisiana, Dep’t of Justice, Office of the Attorney
Gen., 730 F.3d 450, 454–55 (5th Cir. 2013), the court reasonably concluded that
there was no evidence to support an inference of causation.
      Hackett’s challenge to Richards’s 2014 appointment suffers from a
similar infirmity. He argues that the appointment was retaliation for his initial
EEOC complaint in February 2014. But Richards was hired in November 2014,
a full eight months after Hackett filed the EEOC charge. This timing is
problematic for his prima facie case.
      Hackett tries to bridge the causal gap by observing that it was during
this interval that his colleague encouraged coworkers to take pictures of him
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                                  No. 17-20581
sleeping at work. But Hackett’s own testimony severs any causal connection
between this attempt to embarrass Hackett and the EEOC complaint; instead,
Hackett testified it was likely in response to something that occurred many
years prior.
      Additionally, Hackett notes the various ways in which Richards seemed
to target and discipline him unfairly once she received the position. Hackett
provides no legal basis to support his use of post-retaliation evidence. And we,
like the district court, fail to see how the after-the-fact conduct by Richards
demonstrates a causal link between the EEOC charge and UPS’s decision to
promote her. Hackett’s bald assertion (based on conjecture) that Richards was
directed to act this way in retaliation does not clarify that connection.
      Finally, Hackett references the promotions of two other employees, but
offers no explanation as to how these decisions are in any way related to his
EEOC complaint. We cannot discern a relationship. Accordingly, the district
court’s dismissal of Hackett’s retaliation claims was appropriate.
      F. Motion to Amend
      Finally, Hackett appeals the district court’s decision not to permit him
to file an amended complaint outside the time specified in the scheduling order.
Modifications to scheduling orders require a demonstration of good cause and
the court’s consent. Fed. R. Civ. P. 16(b)(4). Evaluating whether good cause
exists requires a balance of four factors: “(1) the explanation for the failure to
timely [comply]; (2) the importance of the [modification]; (3) potential prejudice
in allowing the [modification]; and (4) the availability of a continuance to cure
such prejudice.” Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 237 (5th Cir. 2015)
(internal quotation omitted).
      The amended complaint sought to add a retaliation claim based on the
actions of Hackett’s current supervisor, Spring Williams. It lists a series of
verbal confrontations initiated by Williams during which Hackett’s litigation
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was referenced. The events allegedly occurred from April 2017 until mid-June
2017. Hackett moved for leave to file his second amended complaint at the end
of July, nine months after the applicable deadline to modify complaints and
only a few weeks before the court issued its dispositive order granting
summary judgment. And, notably, while the events occurred, the docket call
had long been set for July 28, 2017—although this deadline was later cancelled
on July 11, 2017.
      The court noted that, in light of the pressing court deadline at the time,
Hackett’s failure to raise the claim until months after the mistreatment began
suggests an unreasonable delay. Turning to importance, the court also doubted
that Hackett’s new claim—based entirely on a series of uncomfortable
statements by a supervisor—met the prima facie requirement of establishing
he suffered a materially adverse action. Cf. Aryain v. Wal-Mart Stores Tex. LP,
534 F.3d 473, 485 (5th Cir. 2008) (noting that rude treatment does not meet
that standard, but instead “fall[s] into the category of petty slights, minor
annoyances, and simple lack of good manners” (internal quotation omitted)).
Lastly, when weighing the prejudice, the court was reluctant to reopen the
entire litigation to further discovery, more depositions, and a second summary
judgment process for an eleventh hour motion—especially when the court had
just disposed of the rest of the case. And, as the court noted, Hackett could still
vindicate his rights by filing a new EEOC claim (which, according to his
appellate briefing, he already has).
      Having reviewed this deliberation, we conclude that the district court did
not abuse its “broad discretion to preserve the integrity and purpose of the
pretrial order, which, toward the end of court efficiency, is to expedite pretrial
procedure.” S&W Enters., 315 F.3d at 535 (internal quotation marks and
citation omitted). Accordingly, we will not disturb its denial of Hackett’s motion
for leave to file an amended complaint
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                           No. 17-20581
                                IV.
  AFFIRMED.




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