                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               November 22, 2005
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                    Clerk
                            No. 05-50238
                          Summary Calendar
                      ))))))))))))))))))))))))))

Peter Vallecillo,

                                                   Plaintiff-Appellant,

versus

United States Department
of Housing & Urban Development,

                                                   Defendant-Appellee,




           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. 5:03-CV-1120




Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     The question presented in this case is whether the district

court erred in granting summary judgment for Defendant-Appellee

United States Department of Housing & Urban Development (“HUD”) on

Plaintiff-Appellant Peter Vallecillo’s hostile work environment and

constructive discharge claims under 42 U.S.C. § 2000(e) et seq.

(“Title VII”).   Because we find that summary judgment was properly


     *
      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this opinion should not be published and is not precedent except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.
granted, we AFFIRM the district court’s ruling.

I.         BACKGROUND

      HUD hired Peter Vallecillo as a Community Builder (“CB”) Fellow

in September 1998.    The CB program employed 400 professionals from

an applicant pool of over 8,000 in order to provide out-reach

services   and   foster   community    and   economic      development     in

approximately 81 HUD regions. After candidates were selected, HUD’s

Human   Resources   Department,   pursuant   to    Office    of    Personnel

Management guidelines, reviewed each contender’s prior experience

and recommended a salary grade level of either GS-13, GS-14, or GS-

15.

      HUD offered Vallecillo a CB fellowship position, which he

accepted, starting at the GS-13 level.         Beginning early in his

tenure, and continuing throughout the duration of his employment,

Plaintiff-Appellant complained that Hispanics were under-represented

in the CB program and that they were paid less than Caucasian and

African-American    employees.    Vallecillo      argues    that   after   he

questioned HUD’s employment practices, he experienced problems with

his own employment with the department.

      On two occasions, in November 1998, two supervisors in the San

Antonio office complained to Cynthia Leon, Vallecillo’s immediate

supervisor, that Plaintiff-Appellant had behaved inappropriately and

had been verbally abusive during meetings.        In February 1999, Leon

accused Vallecillo of unprofessional conduct associated with his



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office    hours.   In    March    1999,        Plaintiff-Appellant      received   a

performance appraisal of “fully successful,” a rating that was lower

than the rest of his co-workers.                    Additionally, in March 1999,

Vallecillo received a “memorandum of counseling” admonishing him for

several    incidents     of    unprofessional          conduct    including    verbal

confrontations with supervisors, his alleged misuse of the email

system, and his attitude towards Leon.                   The memorandum did not

affect Plaintiff-Appellant’s compensation or benefits. Vallecillo

also contends that, on one occasion, one of his supervisors referred

to him as Che Guevara, and that in a small meeting, another

supervisor    referred    to    him   as       an   “aggressive    Hispanic”   while

commenting on the need for him to transfer to the Ft. Worth branch

of the CB program.       Plaintiff-Appellant alleges that he was also

sent an email notifying him that he would be transferred to the Ft.

Worth territory. Vallecillo resigned from the CB program on October

29, 1999.



II.         PROCEDURAL HISTORY

      Vallecillo filed a claim with the EEOC alleging hostile work

environment based on his national origin and constructive discharge

in violation of Title VII.         On August 8, 2003, the EEOC issued its

decision affirming the administrative judge’s determination that

there was insufficient evidence to support Appellant’s claims.

Vallecillo, arguing the same claims, then filed suit against HUD in



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the United States District Court for the Western District of Texas

on November 10, 2003, and Defendant-Appellee filed a motion for

summary judgment on November 12, 2004.             On January 27, 2005, the

district court granted HUD’s Motion for Summary Judgment, holding

that Vallecillo failed to establish issues of fact (1) on whether

the complained of harassment was on the basis of race, nationality

or   a   protected    activity;   and       (2)   that   the   harassment   was

sufficiently severe or pervasive.           Additionally, because the court

found that Plaintiff’s hostile work environment claim failed, it

summarily    denied    Vallecillo’s         constructive   discharge    claim.

Vallecillo timely filed his Notice of Appeal on February 3, 2005,

claiming that the district court erred in granting HUD’s Motion for

Summary Judgment on Plaintiff-Appellant’s hostile work environment

and constructive discharge claims.           We will consider each claim in

turn.1


     1
      Defendant-Appellee argues that Vallecillo has abandoned
any challenge to the order granting summary judgment by failing
to specifically address the district court’s rationale. See,
e.g., McKethan v. Texas Farm Bureau, 996 F.2d 734, 739 n.9 (5th
Cir. 1993)(failure to sufficiently brief an issue constitutes
waiver of the issue); Cousin v. Trans Union Corp., 246 F.3d 359,
373 n.22 (5th Cir. 2001)(quoting Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994))(“Normally, ‘[a]n appellant abandons all
issues not raised and argued in its initial brief on appeal.’”).
Pursuant to Rule 28 of the Federal Rules of Appellate Procedure,
“[t]he argument shall contain the contentions of the appellant
with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes, and parts of the
record relied on.” FED. R. APP. P. 28(a)(5). While Vallecillo
does not specifically address the enumerated reasons the district
court gave for granting Defendant-Appellee’s motion, we determine
that through his broad objections to the court’s findings

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III.        STANDARD OF REVIEW FOR SUMMARY JUDGMENT

       We review a district court's grant of summary judgment de novo,

applying the same standard as the district court.                Shepherd v.

Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999).

       Pursuant to Federal Rule of Civil Procedure 56(c), summary

judgment is proper when the “pleadings, depositions, answers to

interrogatories,      and   admissions      on   file,   together   with   the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law.”   FED. R. CIV. P. 56(c);       Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986);      Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).       When making its determination, the court must draw

all    justifiable    inferences   in    favor   of   the   nonmoving   party.

Anderson, 477 U.S. at 255;         Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG

Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).

       To defeat a properly supported motion for summary judgment, the



regarding his hostile work environment and constructive discharge
claims, he argues with enough specificity for us to consider all
of his arguments. Moreover, we should note that this is unlike
the more execrable situation where an appellant either raises a
completely new issue in its brief, disadvantaging the appellee,
and for which the procedural bar concerning initial briefs was
developed. It is also unlike the situation in Cinel, where the
insurance company raised an issue with this Court that had no
statutory support, thus, leaving us with no legal basis on which
we could decide the issue.

                                        5
non-movant must present more than a mere scintilla of evidence.

Anderson, 477 U.S. at 251.       Rather, a factual dispute precludes a

grant of summary judgment if the evidence would permit a reasonable

jury    to   return    a   verdict    for   the    nonmoving   party.        See

Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th

Cir. 1999).

IV.          DISCUSSION

             1.   Hostile Work Environment

       Title VII is violated “[w]hen the workplace is permeated with

‘discriminatory       intimidation,    ridicule,    and   insult,’    that    is

‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.’”

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)(quoting

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67(1986))(internal

citations omitted). To prevail on a hostile work environment claim,

Vallecillo must prove that:          1) he belongs to a protected group;

2) he was subjected to unwelcome harassment;              3) the harassment

complained of was based on his race or national origin;              and 4) the

harassment affected a term, condition, or privilege of employment.

Frank v. Xeorox Corp., 347 F.3d 130, 138 (5th Cir. 2003).

       In addition to the Plaintiff’s subjective perception of the

abusiveness of the environment, the environment must be such that

a reasonable person would find it hostile or abusive.            Harris, 510

U.S. at 21-22; Frank, 347 F.3d at 138.            Whether an environment is


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hostile or abusive can be determined only by looking                   at   the

circumstances,      including,   inter   alia,   the     frequency    of    the

discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and whether it unreasonably interferes

with the employee’s work performance.       Harris, 510 U.S. at 23.

     Most importantly, as the Supreme Court pointed out in Meritor

and re-articulated in Harris, the “‘mere utterance of an...epithet

which   engenders    offensive   feelings   in   an    employee’     does   not

sufficiently affect the conditions of employment to implicate Title

VII.” Id. at 21. “[S]imple 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 (1988)(internal

quotation marks omitted).

     We agree with the district court that even if the Plaintiff-

Appellant demonstrates that he belongs to a protected class and that

he was subjected to unwelcome harassment, he has not raised an issue

of fact that the complained-of harassment was based on his race or

national origin or that the harassment affected a term, condition,

or privilege of employment.       Accepting all of the incidents that

Vallecillo lists as true, none are related to his protected status.

Only two alleged statements verge on being related to Plaintiff-

Appellant’s protected status: 1) his immediate supervisor referring

to him as Che Guevara, and 2) his second-level supervisor referring


                                     7
to him as an “aggressive Hispanic,” the type of individual allegedly

needed in the Ft. Worth territory.      Even if these statements can be

classified as racially offensive, they are not sufficiently severe

or pervasive to constitute a hostile work environment.

     The   two   statements   related   to   race   and   national   origin

epitomize the type of utterances, epithets, and offhand comments

that the we have repeatedly stated were beyond Title VII’s purview.2

In addition, because a reasonable employee would not perceive the

environment as being hostile or abusive, all of the complained-of

acts, together, do not amount to        discriminatory changes in the

terms and conditions of employment.          Hence, we agree with the

district court that Plaintiff-Appellant fails to establish a genuine

issue of material fact on his hostile work environment claim.




     2
      For instance, in Shepherd, Jodie Moore, a co-worker of
Plaintiff Debra Jean Shepherd remarked that “[Shepherd's] elbows
[were] the same color as [her] nipples.”    Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999).
In addition, Moore commented on the size of Shepherd's thighs
while pretending to look under her desk, attempted to look down
Shepherd's clothing, and exclaimed “here’s your seat” while
patting his lap. Id. Although Shepherd involved alleged
discrimination based on sex, and Vallecillo’s claims are based on
race and national origin, at best, Vallecillo’s allegations are
on the same plane as those in Shepherd.   Shepherd’s allegations
were insufficient to succeed on summary judgment in that case,
Id., and Vallecillo’s are insufficient here. See also,
Hayatavoudi v. Univ. of Louisiana Sys. Bd. of Tr., 240 F.3d 1073
(5th Cir. 2000)(holding that a reference to an Iranian-American
employee as being like “the dogs in the desert, howling as the
caravan goes by,” which was interpreted as a reference to an
Arabic proverb was not sufficiently severe or
pervasive)(unpublished).

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              2.     Constructive Discharge

       Vallecillo’s constructive discharge claim can be regarded as

an aggravated case of hostile work environment.              In addition to the

facts proffered in support of his hostile work environment claim,

he claims that he was twice given an ultimatum to transfer to Ft.

Worth, and that an internal grievance that he filed was dismissed

and forwarded on for further review.                Appellant’s claims are not

persuasive.

       A plaintiff who advances a hostile-environment constructive

discharge claim “must show working conditions so intolerable that

a    reasonable      person   would   have      felt   compelled   to    resign.”

Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342,

2354 (2004); see also, Faruki v. Parsons, 123 F.3d 315, 319 (5th

Cir. 1997);         Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir.

1997); Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir.

1994).        The resigning employee bears the burden of proving

constructive discharge. Jurgens v. EEOC, 903 F.2d 386, 390-391 (5th

Cir.     1990).       In   determining       whether   an   employee    has   been

constructively discharged, courts consider the following factors

relevant, singly or in combination:             (1) demotion;      (2) reduction

in salary; (3) reduction in job responsibilities; (4) reassignment

to   menial    or    degrading   work;        (5)   badgering,   harassment,   or

humiliation by the employer calculated to encourage the employee's

resignation;        or (6) offers of early retirement that would make the


                                         9
employee worse off, regardless of whether the offer was accepted.

Barrow, 10 F.3d at 297.               The test is an objective, “reasonable

employee” test:         whether a reasonable person in the plaintiff's

shoes would have felt compelled to resign.                     Id.; See also Haley v.

Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th Cir. 2004).

       While    proof     that      the     employer        imposed      the    intolerable

conditions with the specific intent to force the employee to resign

is not required, aggravating factors may be used to support a

constructive discharge claim. These factors include hostile working

conditions      or     invidious      intent      to   create       or    perpetrate     the

intolerable conditions compelling the resignation.                             Jurgens, 903

F.2d   at   390-393.          Finally,      it    is   of    utmost      importance      that

“[c]onstructive discharge requires a greater degree of harassment

than required by a hostile environment claim.” Brown v. Kinney Shoe

Corp., 237 F.3d 556, 566 (5th Cir. 2001).

       We agree with the district court’s reasoning that because

Appellant’s      hostile       work       environment       claim     has      failed,   his

constructive discharge claim must also fail.                      See id.      Furthermore,

conditions      were    not    so   intolerable        as    to   compel       Vallecillo’s

resignation.      HUD did not demote Vallecillo, and his salary was not

reduced.       To the extent that any of his job responsibilities were

reduced, these reductions did not rise to an actionable degree.

See, e.g., Brown v. Bunge Corp., 207 F.3d 776, 782–83 (5th Cir.

2000)(affirming the district court's grant of summary judgment to


                                             10
the employer on constructive discharge, where the resigning employee

showed he was demoted and had fewer job responsibilities).

     Moreover,     the   meeting      and    email   notifying    and   reminding

Appellant   that   he    would   be    transferred     to   Ft.   Worth   do   not

constitute badgering, harassment, or humiliation.                  Finally, the

facts that the meeting notifying Vallecillo of the proposed transfer

occurred almost two-and-one-half months before Appellant resigned

and that he was never actually transferred detract from his claim

of constructive discharge. Hence, Vallecillo was not constructively

discharged.

V.          Conclusion

     For the foregoing reasons, we AFFIRM the judgment of the

district court as to all claims.

AFFIRMED.




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