     Case: 11-10170    Document: 00511649701         Page: 1    Date Filed: 10/31/2011




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

                                                                          FILED
                                                                       October 31, 2011

                                    No. 11-10170                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



CEDRIC HOWARD,

                                                 Plaintiff - Appellant

v.

UNITED PARCEL SERVICE, INCORPORATED

                                                 Defendant - Appellee



                  Appeal from the United States District Court
                       for the Northern District of Texas
                           USDC No. 3:09-CV-2074-K



Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Cedric Howard (“Howard”) appeals the district court’s grant of summary
judgment in favor of United Parcel Service, Inc. (“UPS”) on his discrimination,
retaliation, and hostile work environment claims. We AFFIRM.




       *
        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not be published and is not precedent except under the limited circumstances set forth in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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                       FACTS AND PROCEEDINGS
      The facts giving rise to Howard’s claims were accurately recited by the
district court1 and are summarized as follows.
      Howard, a black man, has been employed by UPS continuously since
October 1982, when he was hired as an administrative clerk. By June 2007, he
had advanced into management and was promoted to Feeder Division Manager.
The new position required Howard to relocate from Dallas, Texas, where he had
spent most of his career with UPS, to Oklahoma City. In his new role, Howard
reported to district manager Nancy Koeper (“Koeper”).
      The transition to his new job in Oklahoma City was not entirely smooth.
Howard had several problems during his first few months on the job, including:
(1) arguing with a security guard over a reserved parking spot; (2) changing job
classifications and pay rates of union employees in his division without
authorization; (3) sending excessive e-mails and copying clerical staff on
management e-mails; and (4) allegedly coercing his subordinates to make United
Way donations.
      There were also several incidents between Howard and Koeper. In a July
2007 meeting to discuss some of Howard’s transition issues, Howard claims
Koeper stated: “you Texas boys come to my district and think you’re going to do
things your way . . .”. Howard interpreted the term “boy” as a racial slur.
Howard also claims Koeper made an inappropriate racial comment during a
business trip toward the end of 2007. Howard, Koeper, and two other white
co-workers were driving to Lubbock, Texas, when they were stopped by a Texas
state trooper. Howard claims that Koeper opined that the state trooper would


      1
       Howard v. United Parcel Serv., Inc., No. 3:09-CV-2074-K, 2011 WL
195682, at *1–2 (N.D. Tex. Jan. 18, 2011).

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not have pulled the car over but for the presence of Howard in the back seat.
      There was more trouble in Howard’s division during UPS’s “peak time,”
the 2007 holiday season. In December 2007, Howard’s division experienced
several major problems: (1) three shipments comprising hundreds of packages
were delayed en route to customers; (2) the division was cited for federal service
hour violations; and (3) UPS had to pay triple overtime to drivers in the division
due to staffing shortages.
      UPS investigated and concluded that Howard was responsible for the
“peak time” problems and that he had not been forthright during the
investigation. He claims other managers and contract obligations were to blame
for the issues.
      Following the investigation, Howard was demoted in February 2008, to a
management job that he had previously held. His Oklahoma City position was
eliminated and the duties were absorbed by a white manager. His salary was
not reduced but he lost stock options and relocation expense benefits as result
of the demotion. Howard remains employed by UPS in Dallas.
      Howard filed a complaint of racial discrimination and retaliation in a
letter to UPS’s management committee in June 2008. Howard claimed he was
demoted due to racial discrimination and that white employees had made
similar mistakes without being demoted. UPS human resources investigated
Howard’s complaint but could not substantiate any of his claims.
      Howard filed this lawsuit in August 2009, claiming          discrimination,
retaliation, and hostile work environment in connection with his demotion. UPS
moved for summary judgment in October 2010. The district court granted
summary judgment on all claims. Howard appeals.
                          STANDARD OF REVIEW
      We review the district court’s decision to grant a motion for summary

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judgment de novo. Pub. Citizen Inc. v. La. Attorney Disciplinary Bd., 632 F.3d
212, 217 (5th Cir. 2011). Summary judgment is appropriate “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.” FED. R. CIV. P. 56(a). All reasonable
inferences are drawn in favor of the nonmoving party, but a party cannot defeat
summary judgment with conclusory allegations or unsubstantiated assertions.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
                                 DISCUSSION
      A.    Racial Discrimination
      Howard, as the plaintiff in an employment discrimination case, may
present either direct or circumstantial evidence of intentional discrimination.
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). When
presenting only circumstantial evidence that his demotion was motivated by
racial discrimination, such as here, the court applies the McDonnell Douglas
burden-shifting analysis. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). Under that analysis, Howard must first present evidence
establishing the existence of a prima facie case of race discrimination. Id.
      To establish a prima facie case of racial discrimination, Howard must
prove that he: (1) is a member of a protected group or class; (2) was qualified for
his position; (3) was subjected to an adverse employment action; and (4) was
replaced by someone outside the protected class, other similarly-situated
employees were treated more favorably, or he was otherwise demoted because
of his race. Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).
      After Howard establishes a prima facie case, the burden shifts to UPS to
show a legitimate, nondiscriminatory reason for the adverse employment action.
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). UPS’s


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burden is one of production, not persuasion, and does not involve a credibility
assessment. Id.
       Once UPS has met this requirement, the burden then shifts back to
Howard to show either: “(1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or (2) that the
defendant’s reason, while true, is only one of the reasons for its conduct, and
another    ‘motivating     factor’   is   the    plaintiff’s   protected    characteristic
(mixed-motive[s] alternative).” Rachid v. Jack In The Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004) (alteration in original).
       Though contested by UPS, the district court was correct in finding that
Howard established a prima facie case of discrimination. Howard was: (1) a
member of a protected class, (2) qualified for the position, (3) subjected to an
adverse employment action when he was demoted, and (4) was “replaced” when
his former job duties were absorbed by a white employee.2
       The district court was also correct in finding that UPS produced
legitimate, nondiscriminatory reasons for Howard’s demotion. Generally, UPS
maintains that Howard was demoted for poor job performance, questions about
his integrity, and a lack of confidence in his ability to ability to manage a
district-wide department. The record reflects UPS’s reasons are supported by

       2
          UPS argues the district court erred in finding the fourth prong was met because
the position held by Howard was eliminated following Howard’s demotion. Citing
unpublished cases from this court and several district courts, UPS argues that when a
position is eliminated, the job duties are absorbed by other existing employees, and no
additional employees are hired, a prima facie case is not established because Howard was
not “replaced” by someone outside the protected class. While this court has acknowledged
differences between job “replacement” and “elimination” cases, those distinctions are more
clearly applicable when the case involves layoffs or employer-planned reductions in force as
opposed to the elimination of the single job at issue, such as here. See Armendariz v.
Pinkerton Tobacco Co., 58 F.3d 144, 149-50 (5th Cir. 1995). Because the record reflects that
only Howard’s specific position was eliminated and his duties were assumed by someone
outside the protected class, Howard has made a prima facie showing of discrimination.

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numerous specific incidents, including: (1) major operational problems in
Howard’s division during the December 2007 “peak time,” including federal
service hour violations, (2) conflicts with subordinates over allegedly coerced
support of the United Way, (3) sending improper and excessive emails to
subordinates, including distributing management information to clerical staff,
(4) changing job classifications of union employees without proper
communication with the union, (5) moving a fellow manager’s office without
notice, (6) getting into an argument with a security guard over a reserved
parking spot, (7) giving inaccurate feedback to regional management, and (8) a
significant rise in the number of labor grievances filed by employees in Howard’s
department. This collection of reasons met UPS’s burden. See Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“[E]ven an incorrect
belief that an employee’s performance is inadequate constitutes a legitimate,
nondiscriminatory reason. . . . [A] dispute in the evidence concerning . . . job
performance does not provide a sufficient basis for a reasonable factfinder to
infer that [the] proffered justification is unworthy of credence.”) (quoting Little
v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)) (alterations in original).
      The last step in the analysis is whether Howard has provided sufficient
evidence demonstrating that UPS’s legitimate reasons for firing him were
merely a pretext. However, “[o]ur job as a reviewing court conducting a pretext
analysis is not to engage in second-guessing of an employer’s business decisions.”
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). As the
district court properly found, Howard offers no evidence suggesting that he was
demoted with unlawful motive as opposed to an honest effort to get his
performance back to previous levels.
      While Howard offers alternative arguments he claims are evidence of
pretext, his arguments fail to demonstrate that UPS’s stated reasons for the

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demotion were not truthful. First, Howard’s argument that UPS failed to comply
with its internal discipline procedures, namely failure to place him in a
performance improvement program, is not itself evidence of pretext. Howard
has not introduced evidence that UPS adhered to its disciplinary policies
differently in cases involving non-minority employees. See Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007) (“A defendant’s failure
to follow its own policy is not probative of discriminatory animus in absence of
proof that the plaintiff was treated differently than other non-minority
employees because Title VII does not protect employees from the arbitrary
employment practices of their employer, only their discriminatory impact.”)
(quoting Upshaw v. Dallas Heart Grp., 961 F. Supp. 997, 1002 (N.D. Tex. 1997)).
      Howard’s other argument that UPS has offered conflicting reasons for his
demotion and his accompanying litany of explanations as to why other
employees were at least partly to blame for the reasons UPS gave for his
demotion similarly fail to call the legitimacy of UPS’s stated reasons into
question. As reflected by the record, this is not a scenario in which one or two
UPS officials have created a questionable history of poor performance as pretext
for a discriminatory motive. Instead, the record shows numerous UPS
individuals were involved in documenting the various incidents cited by UPS as
the basis for Howard’s demotion. Moreover, each of the incidents standing alone
would be sufficient for UPS’s decision to demote Howard, all the more when
viewed in aggregate. UPS’s reasons are neither conflicting nor the fault of other
employees. Instead of pretext, UPS’s reasons show a series of setbacks for a
newly promoted manager which resulted in UPS’s decision to demote Howard.
Thus, there is no genuine issue of material fact that precluded the district court’s
grant of summary judgment.
      B. Retaliation

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      Howard also claims that UPS demoted him in retaliation for reporting
Nancy Koeper’s “Texas boy” comment to the West Region Transportation
Manger Bob Hannigan. Here too the district court was correct in granting
summary judgment in favor of UPS.
      “[I]n order to establish a prima facie case of retaliation, the plaintiff must
show that (1) he engaged in an activity protected by Title VII; (2) an adverse
employment action occurred; and (3) there is a causal link between the protected
activity and the adverse employment action.” Manning v. Chevron Chem. Co.,
LLC, 332 F.3d 874, 883 (5th Cir. 2003).            When the plaintiff presents
circumstantial evidence of retaliation, we use the same McDonnell Douglas
burden shifting framework used for discrimination claims. McCoy v. City of
Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
      Like his discrimination claim, Howard has shown a prima facie case of
retaliation: (1) he engaged in protected behavior when he reported the “Texas
boy” comment to higher management, (2) his demotion was an adverse
employment action, and (3) he has shown a connection between his reporting of
the “Texas boy” comment and his supervisor Nancy Koeper’s refusal to meet one-
on-one with him after he reported the comment. Likewise, UPS has met its
burden of providing legitimate nondiscriminatory reasons for Howard’s
demotion, pointing to the same set of incidents addressed in connection with
Howard’s discrimination claim.
      Like the discrimination claim, the dispositive question is therefore
whether Howard has presented sufficient evidence to create a genuine question
of material fact as to whether UPS’s reasons for his demotion were a pretext for
retaliation. And again, the district court correctly found that Howard has not
presented sufficient evidence to create a genuine issue of material fact.
      Howard offers no new arguments or facts alleging pretext with respect to

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his retaliation claim other than those offered in connection with his
discrimination claim. Claiming the district court erred in failing to find UPS’s
reasons for retaliation pretextual, Howard simply points out that the district
court’s reasoning directly tracks its discrimination analysis. This is neither
unexpected nor error because Howard presented no new facts or arguments.
Accordingly, the district court was correct in granting summary judgment in
favor of UPS on Howard’s retaliation claim for the reasons discussed above.
      C. Hostile Work Environment
      Howard’s final argument is that the district court erred in granting
summary judgment to UPS on his hostile work environment claim. To survive
summary judgment on a hostile work environment claim, Howard must
establish that (1) he is a member of a protected class; (2) he was subject to
unwelcome harassment; (3) the harassment affected a term or condition of his
employment; and (4) that UPS knew or should have known about the
harassment and failed to take prompt remedial action. Turner, 476 F.3d at 347.
      We review the elements of the hostile work environment claim using a
totality-of-the-circumstances test that focuses on “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating . . . and whether it unreasonably interferes with an employee’s work
performance.” Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Although “[d]iscriminatory
verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive”
to support evidence of a hostile work environment claim, DeAngelis v. El Paso
Municipal Police Officers Association, 51 F.3d 591, 593 (5th Cir. 1995), “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions of
employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

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citation omitted) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
82 (1998)). Furthermore, the Supreme Court has warned that these high
standards are intentionally demanding “to ensure that Title VII does not become
a ‘general civility code,’” Faragher, 524 U.S. at 788, and when properly applied,
“they will filter out complaints attacking “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language.” Id.
      Here, accepting the district court’s findings that Howard is a member of
a protected class and that he was subject to harassment in the form of Ms.
Koeper’s “Texas boy” comment, Howard fails to create a genuine issue of
material fact that the environment rose to a level of interfering with his work
performance. Instead, Howard argues that there was “generally an environment
hostile to African Americans” in the UPS Oklahoma City facility. Howard also
relies on an allegation by a former UPS employee that the former employee
overheard racial slurs in a different UPS facility and a statement by a human
resources manager that Howard was “a target”—a comment made in context of
Howard’s mounting performance issues in his new managerial role and not his
racial status.
      Taken together, Howard’s arguments fall far short of demonstrating a
severe and pervasive hostile work environment. See Turner, 476 F.3d at 348
(explaining that comments to a black female employee about “ghetto children”
and additional derogatory comments about the employee’s education, car, and
shopping habits were not sufficient to demonstrate a hostile work environment).
While the “Texas boy” comment was perhaps racially inappropriate, Howard has
not shown an ongoing pattern of racially inappropriate incidents directed
towards him. Without showing such a pattern, Howard’s reliance on Abner v.
Kansas City Southern Railroad Co., 513 F.3d 154 (5th Cir. 2008), is misplaced
because Abner addressed a situation where the employee was subjected to

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multiple threats of violence and racial slurs from his co-workers and supervisors.
Here, we have alleged isolated incidents of questionable conduct, some of which
did not even involve Howard personally. This is insufficient to raise a genuine
issue of material fact and the district court’s grant of summary judgment in
favor of UPS was therefore correct.
                                CONCLUSION
      Howard has not demonstrated a genuine issue of material fact evidencing
unlawful discrimination, retaliation, or hostile work environment by UPS. The
district court’s grant of summary judgment is AFFIRMED.




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