     Case: 19-31047      Document: 00515435897         Page: 1    Date Filed: 06/01/2020




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

                                                                           FILED
                                                                        June 1, 2020
                                    No. 19-31047                        Lyle W. Cayce
                                  Summary Calendar                           Clerk


LACHARMON HARRIS,

               Plaintiff - Appellant

v.

DRAX BIOMASS INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:18-CV-709


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Lacharmon Harris, who is African American, sued his former employer,
Drax Biomass Inc., under Title VII of the Civil Rights Act of 1964 after he was
fired, ostensibly for repeated failures to operate heavy machinery properly.
Harris alleged that Drax violated Title VII because its decision to fire him was
actually based on his race, not his job performance, and because Drax subjected



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-31047
him to a hostile work environment. The district court granted Drax’s motion
for summary judgment, holding that Harris had failed to identify direct or
circumstantial evidence suggesting that his firing was based on race. The
district court also held that Harris was not subjected to harassment severe or
pervasive enough to be actionable under Title VII. Harris filed a timely notice
of appeal and we now affirm.
                                       I.
      We review a decision to grant summary judgment de novo, applying the
same standard as the district court. EEOC v. Rite Way Serv., Inc., 819 F.3d
235, 239 (5th Cir. 2016). “Summary judgment is appropriate only if, viewing
the evidence in the light most favorable to the non-moving party, ‘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.’” Harville v. City of Houston, 945
F.3d 870, 874 (5th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)).
                                       A.
      Under Title VII, it is unlawful “to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1). To survive summary judgment, a “Title VII plaintiff
must carry the initial burden of offering evidence adequate to create an
inference that an employment decision was based on a discriminatory
criterion.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977).
This prima facie case may be established via direct or circumstantial evidence.
Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994).
Harris, however, has not established a prima facie case using either option.
                                       1.
      “Direct evidence is evidence which, if believed, proves the fact without
inference or presumption.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,
                                       2
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992 (5th Cir. 2005) (citing Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858,
861 (5th Cir. 1993)). To constitute direct evidence of racial discrimination,
workplace comments must: (i) relate to a protected classification, such as race;
(ii) be temporally proximate to the adverse employment decision at issue;
(iii) be made by someone with authority over that decision; and (iv) relate to
the decision. Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 581 (5th Cir.
2020). Harris argues that he presented direct evidence of discrimination to the
district court when he alleged:
      1) his supervisor, Bobby Cooper, told another Black employee that
      “a monkey could do your job”; 2) that Cooper continuously hollered
      and cursed at him; 3) refused to train him to use the chipper/barker
      once he was assigned to it; 4) Cooper listed Harris as late by the
      time clock but refused to verify the time Harris clocked in;
      5) Cooper would break up any group of Blacks who were talking
      together waiting for work to begin, telling them they needed to
      move around, but not say this to white workers; and 6) he was
      required to work using defective equipment, then cited for
      damages.
Cooper did not make or recommend the decision to fire Harris, and most of
these allegations do not necessarily implicate race, so we would need to make
several inferences to conclude that Drax’s decision to fire Harris was based on
race. That such inferences are necessary means that, even if the summary-
judgment record substantiates Harris’s allegations, he has not established a
prima facie case of discrimination through direct evidence.
                                        2.
      When a Title VII plaintiff relies on circumstantial, rather than direct,
evidence, we apply the burden-shifting framework originally developed in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima
facie case under this framework, Harris must show that he “(1) is a member of
a protected group; (2) was qualified for the position at issue; (3) was discharged
or suffered some adverse employment action by the employer; and (4) was
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replaced by someone outside his protected group or was treated less favorably
than other similarly situated employees outside the protected group.” McCoy
v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
      Harris’s summary-judgment evidence does not satisfy the fourth element
of a prima facie case, because it does not show that he was replaced by someone
outside of his protected class or was treated less favorably than a similarly
situated comparator of another race. Harris was replaced by Frank Shockley,
who is African American.1 And neither of the two white employees who Harris
identifies as comparators were similarly situated to him; each of those
employees was involved in a single incident involving heavy machinery while
Harris was involved with several such incidents. See Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 260 (5th Cir. 2009) (“[T]he plaintiff’s conduct that drew the
adverse employment decision must have been ‘nearly identical’ to that of the
proffered comparator who allegedly drew dissimilar employment decisions.”
(quoting Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 213 (5th Cir.
2004)). Consequently, Harris has not adduced sufficient circumstantial
evidence to establish a prima facie case of racial discrimination.
                                          B.
      Harris’s summary-judgment evidence does not show that he was forced
to work in an actionably hostile work environment. To establish a hostile-work-
environment claim under Title VII, Harris must prove that he was subjected
to harassment that “affected a term, condition, or privilege of employment.”
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)). To do so, he “must
demonstrate that the harassment was objectively unreasonable,” and “both


      1 Harris argues that Shockley was only a temporary replacement, but uncontroverted
evidence shows that Shockley remains employed by Drax performing essentially the same
function.
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                                  No. 19-31047
objectively and subjectively offensive.” Dediol v. Best Chevrolet, Inc., 655 F.3d
435, 441 (5th Cir. 2011). We evaluate whether conduct was objectively
offensive under the totality of the circumstances, including: “(1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or merely an offensive utterance; and (4) whether
it interferes with an employee’s work performance.” Id. (quoting EEOC v.
WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007)).
      The only summary-judgment evidence suggesting that Harris was
subjected to a hostile work environment is his deposition testimony indicating
that: (i) Cooper yelled at him for not doing his job correctly; (ii) Harris
requested but did not receive training on certain equipment; (iii) Harris heard
about a comment that Cooper made to a different African American employee
indicating that a monkey could do that employee’s job; and (iv) Cooper would
break up groups of African American employees who were waiting for work to
begin but not groups of white employees. Even taken in the light most
favorable to Harris, this is not the sort of severe and pervasive harassment
that is actionable under Title VII. Compare Dailey v. Shintech, Inc., 629 F.
App’x 638, 640, 644 (5th Cir. 2015) (plaintiff failed to establish a hostile work
environment even though his supervisor called him “a ‘black little motherf—r’
on at least two occasions” and the supervisor said “he would ‘kick his black a—
s’”), with Dediol, 655 F.3d at 439, 443 (a genuine dispute existed when the
plaintiff “endured a pattern of name-calling of a half-dozen times daily” that
“may have interfered with his pecuniary interests” and when, “[o]n many
occasions, there were incidents of physical intimidation and/or violence”
involving the plaintiff’s supervisor).
                                         II.
      For the foregoing reasons, we AFFIRM the judgment of the district court.


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