     Case: 16-10095      Document: 00513730661         Page: 1    Date Filed: 10/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-10095                                 FILED
                                                                            October 24, 2016

IBIM HARRY,                                                                   Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellant

v.

DALLAS HOUSING AUTHORITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:14-CV-482


Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff Ibim Harry sued his former employer, Dallas Housing
Authority, for national origin discrimination and retaliation in violation of
Title VII of the Civil Rights Act. He alleged that he was mistreated by his
supervisor and co-workers because of his Nigerian national origin and that he
was fired because he complained about it. The district court granted summary




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10095    Document: 00513730661     Page: 2   Date Filed: 10/24/2016



                                 No. 16-10095
judgment against Harry on all of his claims, and he appeals. We AFFIRM the
grant of summary judgment.
                                       I.
      Ibim Harry (“Harry”) is a black Nigerian man who began work as an
Administrator in August 2009 for Dallas Housing Authority (“DHA”), a public
housing agency in Texas tasked with providing underprivileged families safe,
affordable housing. Harry supervised a “cylinder,” which is the term DHA uses
for a “team,” guiding and evaluating the performance of his staff and ensuring
compliance with applicable laws regulating public housing agencies.
      Harry’s allegations of discrimination and retaliation center almost
entirely on his turbulent relationship with his direct supervisor, Sherry Melvin
(“Melvin”). Harry claims that Melvin frequently berated and made rude
comments to him under the guise of monthly counseling sessions. He gives the
following examples:
      At these sessions, she called me arrogant, animated, aggressive
      and intimidating. She criticized my manner of speaking and facial
      expressions by commenting that I appeared animated when I
      spoke. When I asked her what she meant by “animated,” she said
      “your eyes pop out,” “your nose flares” and “your manner of
      speaking is very offensive to me.” She told me on numerous
      occasions that I should “communicate with people more in writing
      because it is less offensive.”

Once, Harry pointed out that he had been raised with these traits, and Melvin
responded: “You have been in the United States for several years now, why
can’t you adapt?”
      Harry also alleges that his subordinates “were very hostile to the fact of
having a black African supervisor and regularly mimicked [his] accent, manner
of speaking, and even refused to take instructions from [him] as their
supervisor because [he] was Nigerian.” He describes one incident where a co-
worker assaulted him and called him vulgar names; the offender was
                                       2
    Case: 16-10095     Document: 00513730661      Page: 3   Date Filed: 10/24/2016



                                  No. 16-10095
immediately fired.
      Harry complained about Melvin’s remarks to DHA human resources,
Melvin’s supervisor, and eventually Melvin herself. He complained about
Melvin’s conduct to Melvin herself after an incident where “she harassed [him]
further by holding [him] against [his] will in her office from 12:30 PM to
Midnight accusing [him] of all kinds of things.” Harry “was humiliated and
complained directly to [Melvin] that her statements and treatment of [him]
constituted harassment, made the work environment hostile and amounted to
national origin discrimination.” DHA fired Harry approximately two months
after that incident.
      DHA provides evidence of several examples of Harry’s substandard work
performance and negative attitude. Throughout Harry’s employment, DHA
received numerous complaints from employees that Harry supervised. More
than one of Harry’s subordinates complained that Harry made demeaning
comments to them and was argumentative. One Nigerian woman asked DHA
for a transfer out of Harry’s cylinder because his behavior made her
uncomfortable.
      DHA also points to numerous problems with Harry’s performance as an
Administrator. One of Harry’s subordinates committed “an unacceptably high
level of serious errors” in her completion of a file-audit task, so Harry was given
specific directives for correcting the problem and ensuring that it was not
repeated. Harry failed to comply. During the incident, Harry’s behavior toward
Melvin was “borderline insubordinate.”
      DHA issued Harry three “employee discipline reports” throughout his
tenure at DHA. On August 14, 2012, approximately two months before Harry’s
termination, DHA prepared an “individual development plan” (“IDP”) for him
identifying specific areas where he needed improvement and establishing
directives toward those goals. Over the following two months, Harry failed to
                                        3
     Case: 16-10095       Document: 00513730661         Page: 4    Date Filed: 10/24/2016



                                      No. 16-10095
comply with all of the directives of the IDP. DHA fired Harry on October 5,
2012.
        Harry initiated this action in Texas state court, but DHA removed to
federal court, invoking federal-question jurisdiction. Thereafter, Harry
amended his complaint to the current version, alleging two causes of action:
national origin discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964. After nearly a year of discovery, DHA moved for
summary judgment on both of Harry’s claims, which the district court
granted. 1 Harry timely filed a notice of appeal.
                                            II.
        We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. 2 We may affirm summary
judgment for any reason supported by the record, and we are not bound by the
grounds articulated by the district court. 3 “The court shall grant summary
judgment if 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.” 4
“When considering a motion for summary judgment, the court views all facts
and evidence in the light most favorable to the non-moving party.” 5
                                            III.
        Harry advances two claims: national origin/race discrimination and
retaliation. 6 While Harry’s complaint does not expressly raise a race


        1 Harry also moved under FED. R. CIV. P. 56(d) to defer summary judgment, allowing
more time for discovery. The district court denied the motion, and Harry does not appeal that
ruling.
        2 Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).
        3 Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir. 1993).
        4 FED. R. CIV. P. 56(a).
        5 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
        6 Harry also insists on appeal that he has an independent claim for “wrongful

dismissal” on which the district court improperly granted summary judgment without
providing him an opportunity to be heard. Harry’s complaint makes clear that the claim he
                                             4
     Case: 16-10095       Document: 00513730661          Page: 5     Date Filed: 10/24/2016



                                       No. 16-10095
discrimination claim, the district court determined that alleged discrimination
based on Harry’s race and national origin were indistinguishable, and
therefore that by pleading national origin discrimination, Harry also pleaded
race discrimination. Neither party takes issue with this ruling, so we accept it.
A. National Origin/Race Discrimination
       Title VII makes it unlawful for an employer to discriminate against an
employee based on the employee’s race or national origin. 7 A Title VII plaintiff
may prove discrimination either by direct or circumstantial evidence. 8 If the
plaintiff’s evidence is circumstantial, then the court applies the McDonnell
Douglas 9 burden-shifting framework. 10
       1. Direct Evidence
       We first consider whether Harry has produced any direct evidence of
discrimination. The district court ruled that he did not. We agree.
       Direct evidence is evidence that, if believed, proves the fact of
discriminatory animus without inference or presumption. 11 In the Title VII
context, direct evidence includes any statement or document that shows on its
face that an improper criterion served as a basis for the adverse employment
action. 12
       The only evidence that Harry points to as direct evidence of
discrimination is the remarks made to him by Melvin, his supervisor. Harry’s



styles “wrongful dismissal” is predicated on Title VII discrimination and retaliation, both of
which Harry had a meaningful opportunity to argue before the district court ruled. Harry’s
argument that the district court erred by not analyzing his claims in terms of his preferred
stylization is without merit.
        7 42 U.S.C. § 2000e-2.
        8 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
        9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
        10 McCoy, 492 F.3d at 556.
        11 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
        12 Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003), overruled on

other grounds by Smith v. Xerox Corp., 602 F.3d 320, 330 (5th Cir. 2010).
                                              5
    Case: 16-10095      Document: 00513730661        Page: 6    Date Filed: 10/24/2016



                                    No. 16-10095
affidavit explains:
      [S]he began calling me into her office or aside, frequently. Sherry
      Melvin’s excuse was that she was trying to train me on my
      “communication skills.” At these sessions, she called me arrogant,
      animated, aggressive and intimidating. She criticized my manner
      of speaking and facial expressions by commenting that I appeared
      animated when I spoke. When I asked her what she meant by
      “animated,” she said “your eyes pop out,” “your nose flares” and
      “your manner of speaking is very offensive to me.” She told me on
      numerous occasions that I should “communicate with people more
      in writing because it is less offensive.” . . . I told her that these
      traits were mannerisms that I had been raised with and she said
      “You have been in the United States for several years now, why
      can’t you adapt?”

These remarks are not direct evidence of discrimination because an inference
is required to link them to Harry’s being fired for an improper reason. They
were made in the context of counseling sessions, and allegedly occurred
throughout Harry’s employment, not immediately preceding his termination. 13
To consider them evidence of discrimination, one must infer that these
comments are related to animus against Harry’s national origin and formed a
basis for his termination. Harry acknowledges that these comments must be
“taken together” to “constitute characteristics unique to Harry as a Nigerian”
and that “it is the totality of the commentary . . . that constitutes the
harassment.” While the comments may be circumstantial evidence of
discrimination, we conclude that they do not serve as direct evidence of
discrimination.
      Therefore, the district court correctly found that Harry had not adduced
direct evidence of discrimination, and applied the McDonnell Douglas standard


      13 See Rubenstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)
(relatedness to adverse employment decision and proximity in time to adverse employment
decision are relevant to whether workplace comments constitute direct evidence of
discrimination).
                                           6
    Case: 16-10095         Document: 00513730661        Page: 7     Date Filed: 10/24/2016



                                       No. 16-10095
for circumstantial evidence of discrimination.
         2. Circumstantial Evidence
         Under the McDonnell Douglas burden-shifting framework, a Title VII
plaintiff must first establish a prima facie case of discrimination. 14 Once the
plaintiff makes the applicable prima facie showing, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. 15 If the employer meets this burden of production, then the
plaintiff must show that the articulated reason is pretextual. 16
              i. Prima Facie Showing
         The parties here agree that Harry makes out a prima facie case of
discrimination because it is undisputed that he (1) is a member of a protected
class, (2) was qualified for the position at issue, (3) was the subject of an
adverse employment action, and (4) was replaced by someone who is not a
member of the protected class to which he belongs. 17
              ii. Legitimate Reason
         It is likewise undisputed that DHA has proffered legitimate,
nondiscriminatory reasons for firing Harry. The record overflows with
examples of Harry’s poor work performance in the months leading up to his
termination: “numerous complaints from employees that Mr. Harry
supervised,” “complaints from more than one of Mr. Harry’s subordinates that
Mr. Harry had made negative and demeaning comments to his subordinates,”
“an unacceptably high level of serious errors” in annual re-examination files




         14 Heggemeier v. Caldwell Cty., Tex., 826 F.3d 861, 867 (5th Cir. 2016).
         15 Id.
         16 Id.
         17 See Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir.

2001).
                                              7
     Case: 16-10095        Document: 00513730661        Page: 8    Date Filed: 10/24/2016



                                      No. 16-10095
completed by one of the employees supervised by Harry, 18 failing to submit
progress reports to Melvin, and insubordination.
       In an effort to correct these problems, Melvin prepared an “individual
development plan,” or IDP, for Harry that required him to complete certain
specified training, complete annual re-examinations by a certain date, submit
completed spreadsheet reports to correct his employee’s flawed file screenings,
and ensure that quality-control corrections were completed by certain due
dates, along with regular status reports. Harry failed to comply fully with the
IDP by failing to submit the spreadsheet reports in a timely fashion and by
failing to submit copies of the completed and signed forms for every file
screened. Harry’s discrimination claim thus turns on pretext.
            iii. Pretext
       The district court ruled that Harry did not produce evidence to establish
a genuine issue of material fact on pretext. We agree.
       To establish pretext, Harry points to his own affidavit, in which he says
that he complied with the IDP up until the date he was fired. It is true that a
Title VII plaintiff can show pretext by showing that the explanation proffered
by the employer is false. 19 But here, Harry is unable to substantiate his bald
assertion. 20 In fact, his affidavit doubles back and instead makes excuses for
why he did not comply with the IDP.
       Acknowledging that he cannot provide evidence of his compliance with
the IDP, Harry asserts that this is because DHA “refuses” to produce certain




       18 Harry was responsible for the errors although they were introduced by another
employee because part of Harry’s job as an Administrator was to ensure the accuracy of files.
       19 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       20 See United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (“[S]elf-serving

allegations are not the type of ‘significant probative evidence’ required to defeat summary
judgment.”) (quoting Munitrad Sys., Inc. v. Standard & Poor’s Corp., 672 F.2d 436, 440 (5th
Cir. 1982)).
                                             8
     Case: 16-10095       Document: 00513730661          Page: 9     Date Filed: 10/24/2016



                                       No. 16-10095
e-mails he sent during his employment. Yet, in the year-long discovery period,
Harry never served a proper discovery request on DHA for his e-mail
communications. The record reveals that he tried multiple times, but his
discovery requests were repeatedly found to be overbroad, abusive, and
improper. Importantly, Harry does not appeal the district court’s denial of his
Rule 56(d) motion to defer summary judgment pending further discovery, or
any other discovery-related ruling. He thus cannot complain about a lack of
discovery preventing him from meeting his summary judgment burden.
       More broadly, Harry ignores all of the other proffered legitimate grounds
for his termination. Yet, “[a]n employee seeking to show pretext must rebut
each discrete reason proffered by the employer.” 21 Even if Harry’s
unsubstantiated and self-contradicted assertion in his affidavit created a
genuine issue of fact whether he complied with the IDP, that would be only one
out of many legitimate reasons proffered by DHA that Harry does not attempt
to rebut. Noncompliance with the IDP was the last-in-time proffered legitimate
reason for firing Harry—it occurred immediately prior to his termination—but
is not the only legitimate reason proffered. The record makes clear that Harry’s
time at DHA was riddled with conflict between him and his co-workers, as well
as several other work-related performance issues.
       Harry also points out a linguistic discrepancy between an interrogatory
response submitted by Melvin and Melvin’s affidavit. It is true that an
“unexplained inconsistency” in the employer’s proffered justification is
“evidence from which a jury could infer” pretext. 22 But the discrepancy that
Harry cites is too slight to raise a genuine issue. In an interrogatory response,



       21 Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (emphasis
added); see also McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (citing Laxton,
333 F.3d at 578).
       22 Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 415 (5th Cir. 2007).

                                               9
    Case: 16-10095      Document: 00513730661        Page: 10     Date Filed: 10/24/2016



                                     No. 16-10095
Melvin stated that “Harry still had not submitted complete, filled out
spreadsheet reports.” In her affidavit, Melvin rephrased: “Harry failed to
submit any of the spreadsheet reports in a timely fashion.” The district court
ruled that the explanations, “while not identical, are not materially
inconsistent.” We agree. A reasonable jury could not infer based on that
discrepancy that Harry’s failure to comply fully with the IDP, and every other
proffered justification for firing Harry, are all pretextual.
      Therefore, Harry has not met his summary judgment burden to establish
a genuine issue of material fact that DHA’s proffered reasons for firing him
were pretextual.
B. Retaliation
      “To survive summary judgment in a Title VII retaliation case, the
plaintiff must make a prima facie showing: (1) that the plaintiff engaged in
activity protected by Title VII, (2) that an adverse employment action occurred,
and (3) that a causal link existed between the protected activity and the
adverse action.” 23 As with a discrimination claim, once such a prima facie
showing is made, the burden shifts to the defendant to articulate a
nondiscriminatory reason, then back to the plaintiff to demonstrate pretext. 24
      Even assuming that Harry can make out a prima facie case of retaliation,
all of DHA’s stated justifications for terminating Harry, described previously,
apply equally to his retaliation claim. Therefore, the fact that Harry cannot
establish a genuine issue of material fact that such justifications are pretext
similarly defeats his retaliation claim. Accordingly, the district court’s grant of
summary judgment on Harry’s retaliation claim was proper, and we affirm it.




      23 Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (quoting
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002)).
      24 McCoy, 492 F.3d at 556.

                                           10
    Case: 16-10095        Document: 00513730661          Page: 11     Date Filed: 10/24/2016



                                       No. 16-10095
                                              IV.
       We address as a final note Harry’s argument on appeal that the district
court erred by declining to consider his hostile work environment claim.
Harry’s original, state-court petition asserted a cause of action for hostile work
environment, but after DHA removed to federal court, Harry amended his
complaint to eliminate it. 25 The parties conducted discovery for nearly a year
pursuant to Harry’s complaint so amended. When DHA moved for summary
judgment on Harry’s discrimination and retaliation claims—the claims
actually pleaded in his complaint—Harry sought to re-introduce his
abandoned hostile work environment claim by arguing that DHA failed to
move for summary judgment on it, and therefore “conceded” it. In essence,
Harry raised a “new” hostile work environment claim in his summary
judgment opposition.
       Under certain compelling circumstances, we have required district
courts to construe a new claim raised in opposition to summary judgment as a
motion to amend. 26 No such circumstances are present here. Therefore, the
district court was free to determine that Harry’s new claim was not properly
before it. 27 We find no abuse of discretion in its decision to do so, especially
considering that discovery had already ended and that there was no apparent
excuse for re-raising the abandoned claim other than as a maneuver to avoid
summary judgment.




       25  Harry’s complaint as amended contains a section enumerating specific causes of
action, but does not include hostile work environment. Nor does it recite the elements of or
allege facts supporting each element of hostile work environment.
        26 See Riley v. Sch. Bd. Union Par., 379 F. App’x 335, 341 (5th Cir. 2010) (unpublished)

(pro se plaintiff); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972) (serious errors
by plaintiffs’ counsel).
        27 See Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir.

2005) (citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)).
                                              11
Case: 16-10095   Document: 00513730661    Page: 12   Date Filed: 10/24/2016



                           No. 16-10095
                                V.
  For the reasons stated above, we AFFIRM.




                                12
