     Case: 12-11007       Document: 00512317256          Page: 1     Date Filed: 07/23/2013




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

                                                                             FILED
                                                                            July 23, 2013

                                     No. 12-11007                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MALINA L. MARSH,

                                                   Plaintiff - Appellant
v.

METHODIST HOSPITALS OF DALLAS,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-537


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Malina Marsh was an at-will employee of Defendant-
Appellee Methodist Hospitals of Dallas (“Methodist”) from March 20, 2006 until
her termination on June 18, 2011. On March 15, 2011, Marsh filed a complaint
in federal district court alleging racial discrimination in violation of Title VII,




       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-11007

42 U.S.C. § 2000(e)-2, and 42 U.S.C. § 1981.1 In a thorough, well-reasoned
opinion, the district court granted summary judgment in favor of Methodist on
all of Marsh’s claims. We AFFIRM essentially for the reasons given by the
district court.
       With respect to her unlawful discrimination claim, Marsh was required
to “first establish that she (1) is a member of a protected class, (2) was
subjected to an adverse employment action, (3) was qualified for her position,
and (4) was replaced by someone outside of the protected class.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). The district
court properly concluded that Marsh’s unlawful discrimination claim failed
because she had not demonstrated that she was subject to an adverse
employment action. Although Marsh’s termination ordinarily would be an
adverse action, Marsh did not plead termination in her complaint. Therefore,
her termination was not properly before the district court and could not be
considered. See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113
(5th Cir. 2005). Additionally, her argument that she was not terminated until
after filing her initial complaint—and that as such, it was unnecessary for her
to plead termination—is without merit. As the district court pointed out,
Marsh could have, but did not, amend or seek leave to amend her complaint.
       In her brief, Marsh recites a lengthy list of additional grievances—such
as being called into work on her off days, being forced to reschedule or miss
doctors appointments, being spoken to “aggressively,” and allegedly being
assaulted by her supervisor—and argues that these actions also constituted



       1
         “[T]he analysis under both statutes [is] identical, the only substantive differences
between the two statutes being their respective statute of limitations and the requirement under
Title VII that the employee exhaust administrative remedies.” Jones v. Robinson Prop. Grp.,
L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citation omitted).

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                                      No. 12-11007

adverse employment decisions. None of the behavior Marsh complains of,
however, was an adverse employment action; “Title VII does not . . . address
‘every decision made by employers that arguably might have some tangential
effect upon those ultimate decisions.’” Banks v. E. Baton Rouge Parish Sch.
Bd., 320 F.3d 570, 575 (5th Cir. 2003).2 Methodist thus was entitled to
summary judgment on Marsh’s unlawful discrimination claim.
       We also agree with the district court that Marsh failed to meet her
burden with respect to her hostile work environment claim. “To establish a
claim of hostile work environment under Title VII, a plaintiff must prove” she:
       (1) belongs to a protected group; (2) 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)). As the district court
noted, Marsh, at best, has provided a list of generalized grievances, which do
not establish a prima facie case of hostile work environment. Her conclusory
allegations fail to show that any harassment she suffered was based on her race
or had a racial purpose. See Ramsey, 286 F.3d at 269. Moreover, she did not
establish that her workplace was objectively abusive; “simple 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)


       2
         Because Marsh’s failure to demonstrate an adverse employment action is fatal to her
unlawful discrimination claim, we need not address her disparate treatment argument. We note,
however, that the district court correctly concluded that Marsh’s “subjective belief alone is
insufficient evidence to create a fact question regarding disparate treatment.”

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                                No. 12-11007

(citation omitted). The district court correctly found that Marsh had not
established a hostile work environment claim.
     In sum, the district court properly granted summary judgment in favor
of Methodist on all of Marsh’s claims. Its judgment therefore is
                                                                   AFFIRMED.




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