     Case: 13-30249       Document: 00512335433          Page: 1     Date Filed: 08/08/2013




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

                                                                             FILED
                                                                           August 8, 2013

                                     No. 13-30249                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JENNIFER HILL,

                                                   Plaintiff - Appellant
v.

CLECO CORPORATION,

                                                   Defendant - Appellee




                   Appeals from the United States District Court
                 for the Western District of Louisiana, Shreveport
                              USDC No. 5:11-CV-1700


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jennifer Hill appeals from the district court’s judgment granting
Defendant-Appellee Cleco Corporation’s (“Cleco”) second motion for summary
judgment, thus denying her 42 U.S.C. § 1981 claims based on failure to
promote and hostile work environment.                We AFFIRM for essentially the
reasons given by the district court.


       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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                                          No. 13-30249

       Hill began working for Cleco in August 2000, and she continues to work
at Cleco today. In April 2008, Hill was employed as a Senior Applications
Systems Analyst/Programmer in Cleco’s Information Technology department.
In April, she applied for the open position of General Manager, Technology and
Corporate Services, along with seven other employees. The instant case arose
as a result of Cleco’s decision to hire someone else as the new General Manager.
       “We review a district court’s order granting summary judgment de novo.”
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
“Summary judgment is proper if the evidence shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th
Cir. 2011). “In considering a summary judgment motion, all facts and evidence
must be taken in the light most favorable to the non-movant.” LeMaire, 480
F.3d at 387. But, “conclusory allegations, unsubstantiated assertions, or only
a scintilla of evidence” are insufficient to create a genuine issue of material fact.
Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006). We may affirm a grant of
summary judgment “on any grounds supported by the record.” Lifecare Hosp.,
Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).
       We first address Hill’s argument that the district court erred with
respect to her section 1981 claim for failure to promote.1 The district court
held Hill’s failure-to-promote claim barred by the one-year prescriptive period
governing tort actions under Louisiana law. Hill’s claim arose on May 3, 2008,
when the General Manager position was filled, but she did not file her



       1
        Hill also argues that the district court erred in allowing Cleco to file a second summary
judgment motion. Hill, however, cites no caselaw supporting her argument. “[T]he district court
has broad discretion in controlling its own docket,” and it did not abuse its discretion in this case.
Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 507 n.16 (5th Cir. 1992) (citation omitted).

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complaint until December 11, 2009. Hill argues that the statute of limitations
is four years based on the catchall statute of limitations period provided by 28
U.S.C. § 1658(a). Section 1658, however, only applies prospectively to causes
of action “arising under federal statutes enacted after December 1, 1990.”
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004). “The critical
question, then, is whether [Hill’s] cause[] of action ‘ar[ose] under’ the [Civil
Rights Act of 1991] or under [section] 1981 as originally enacted.”2 Id. at 373
(third alteration in original). If Hill’s claim was cognizable under section 1981
as originally enacted, then the Louisiana prescriptive period applies. But if her
claim arose only after the enactment of the 1991 Act, then section 1658(a)
would apply.
      Prior to the 1991 Act, “[o]nly where the promotion r[ose] to the level of an
opportunity for a new and distinct relation between the employee and employer
[was] such a claim actionable.” Patterson v. McLean Credit Union, 491 U.S.
164, 185 (1989). “In deciding whether a change of position rises to the level of
a new and distinct relation, the court must compare the employee’s current
duties, salary, and benefits with those incident to the new position.” Police
Ass’n of New Orleans v. City of New Orleans, 100 F.3d 1159, 1170-71 (5th Cir.
1996). Although Hill asserts that her claim arose under the 1991 Act because
“the promotion would not have resulted in substantial changes made to [her]
position,” the district court correctly noted the significant differences between
the Senior Systems Analyst position and the General Manager. In her current
position Hill had no supervisory authority, whereas the General Manager
would be responsible for at least 30 other positions. Additionally, as General



      2
         The 1991 Act amended section 1981 to include claims that were not covered under
section 1981 as it was originally enacted. See Jones, 541 U.S. at 372-73.

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Manager, she would have received a salary increase of around $45,000 and been
eligible for bonuses between $30,000 and $40,000. Her promotion therefore
clearly meets the test for “a new and distinct relation between employee and
employer,” and Louisiana’s one-year prescription period applies to Hill’s claim.
Because her complaint was filed over a year after Cleco hired a different
individual as the General Manager, the district court properly found her
section 1981 failure-to-promote claim time-barred.
      Second, Hill alleges that she was subject to a hostile work environment
in violation of section 1981, a cause of action arising under the 1991 Act. We
thus must address the merits of her hostile work environment claim. “To
establish a claim of hostile work environment under Title VII,” Hill must show:
      (1) [she] belongs to a protected group; (2) [she] was subjected to
      unwelcome harassment; (3) the harassment complained of was
      based on race; (4) the harassment complained of affected a term,
      condition, or privilege of employment; (5) the employer knew or
      should have known of the harassment in question and failed to take
      prompt remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.”
Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004)
(citation omitted). Although Hill’s brief references various asserted instances
of racism in the Cleco workplace, the district court correctly found these
allegations “either conclusory statements of racial discrimination, inadmissible
hearsay, unsubstantiated assertions, or statements that do not relate
personally to Hill.” Additionally, these generalized allegations “were neither
‘physically threatening or humiliating’ towards [Hill], nor did the harassment


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‘unreasonably interfere[] with [her] work performance.” Hernandez, 670 F.3d
at 654 (citation omitted).
      The lone allegation arguably precluding summary judgment in this case
involves a hangman’s noose that briefly was displayed in Cleco’s Crowley,
Louisiana training center, which of course is outrageous. As deplorable as the
incident patently is, however, it does not assist the claim before us. Thus, we
need not determine whether this single incident alone will support a hostile
work environment claim, see Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d
157, 163 (5th Cir. 2007), because Hill has not presented competent summary
judgment evidence demonstrating that the “racist noose” was associated with
her environment. Hill’s unsubstantiated allegation that she saw the noose is
completely refuted by the evidence. The employee who discovered the noose,
and filed an EEOC complaint based on the incident in March 2008, stated that
it was removed the same day he observed it, October 5, 2007. There is no
evidence that Hill was at the training facility when the noose was discovered;
to be sure, training records show that Hill was not even present at the Crowley
facility in 2007. Hill has continuously refused to say exactly when she saw the
noose, only that it was sometime after the noose was first seen. Furthermore,
she admittedly did not complain or even report it to Cleco; nor did she ever tell
her coworkers about it.
      We thus conclude that Hill has not properly supported her claim with
competent summary judgment evidence. As we have consistently stated,
conclusory allegations are insufficient to establish a prima facie case of hostile
work environment. See Ramsey, 286 F.3d at 269. The judgment of the district
court therefore is
                                                                    AFFIRMED.



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