     Case: 14-20240      Document: 00512955954         Page: 1    Date Filed: 03/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20240                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
COURTNEY SATTERWHITE,                                                       March 3, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellant,                                              Clerk

v.

CITY OF HOUSTON,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1929


Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Courtney Satterwhite, an employee of the City of Houston, reported his
coworker, Harry Singh, for making an offensive comment. When Singh later
became Satterwhite’s supervisor, he recommended Satterwhite be demoted for
various non-retaliatory reasons. The City agreed and demoted Satterwhite.
Satterwhite filed suit, alleging unlawful retaliation under Title VII of the Civil
Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20240

The district court granted summary judgment to the City because Satterwhite
failed to provide sufficient evidence of a causal link between his allegedly
protected activity and his demotion. We now affirm because Satterwhite did
not engage in a protected activity.
                                       I
      The City hired Satterwhite in 1993 as an Assistant City Controller I. By
March 2010, Satterwhite had been promoted to Assistant City Controller V,
and Singh was the Deputy Director of the Controller’s Office; Singh did not
directly supervise Satterwhite at this time.
      During a March 22 meeting attended by Satterwhite, Singh, and others,
Singh made a comment that referenced Hitler. Satterwhite asserts that Singh
used the phrase “Heil Hitler,” while Singh maintains he said, “you know, we’re
not in Hitler court.” After the meeting, Satterwhite informed Singh that
another city employee, Daniel Schein, was offended by Singh’s remarks.
Although Singh apologized to Schein and Schein declined to file a formal
complaint, Satterwhite reported the incident to the Deputy Director of Human
Resources, who reported it to the City’s Chief Deputy Controller, Chris Brown.
Brown verbally reprimanded Singh.          After his verbal reprimand, Singh
approached Schein to inquire why he had reported the incident to Brown.
Schein informed Singh that Satterwhite had reported the comment.
      In June, Singh was promoted to Acting Deputy City Controller, and
Satterwhite began reporting directly to Singh.
      The next month, the City Controller’s Office and the City Office of
Inspector General (OIG) received identical letters from two individuals
claiming to be members of the Anti-Defamation League. The letter complained
of the “Heil Hitler” incident involving Singh and Singh’s later promotion. The
OIG investigated the incident and determined that “Singh made a comment to
Ms. Martina Lee that they were not running a Hitler court.” The OIG also

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concluded Singh’s statement violated an executive order of the mayor of
Houston prohibiting city employees from using “inappropriate or offensive
racial, ethnic or gender slurs, connotations, words, objects, or symbols.”
      Over the course of the next few months, Singh disciplined Satterwhite
on multiple occasions. One incident involved Satterwhite being unavailable at
his desk for a prolonged length of time without informing others of his
whereabouts, contrary to office policy. Singh later met with Satterwhite to
discuss this absence and verbally reprimand him. Satterwhite purportedly
became upset and yelled at Singh. In September, Singh formally disciplined
Satterwhite for changing the policy regarding how the office handled incoming
government mail without properly communicating information about the
change. On September 21, Satterwhite sent Singh an email expressing his
belief that Singh’s reprimands were retaliation for having reported the “Heil
Hitler” incident. Shortly thereafter, Singh, pointing to Satterwhite’s verbal
and formal reprimands, recommended to City Controller Ronald Green that
Satterwhite be demoted. Satterwhite was given an opportunity to respond to
the stated reasons for demotion at a hearing.
      After the hearing, in which Satterwhite argued that Singh was
retaliating against him for reporting the “Heil Hitler” incident, Green demoted
Satterwhite to Assistant City Controller IV, lowering his salary by two pay
grades. Satterwhite subsequently filed a complaint with the EEOC, and after
receiving notice of his right to sue, brought suit in the district court alleging
unlawful retaliation under Title VII and the TCHRA.          The district court
granted summary judgment to the City because Satterwhite could not
establish that his reports of the “Heil Hitler” incident were a but-for cause of
the demotion. Satterwhite now appeals.




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                                                  II
         We review a district court’s grant of summary judgment de novo. 1
Summary judgment is appropriate if, viewing the evidence in the light most
favorable to Satterwhite, the City shows that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. 2 A genuine
issue of material fact exists if a reasonable jury could return a verdict for
Satterwhite. 3
                                                 III
         Title VII prohibits employers from engaging in retaliatory action against
employees for opposing unlawful employment practices. 4 To set out a prima
facie case of retaliation under Title VII, an aggrieved employee must show: “(1)
he engaged in an activity protected by Title VII; (2) he was subjected to an
adverse employment action; and (3) a causal link exists between the protected
activity and the adverse employment action.” 5
         The McDonnell Douglas 6 burden-shifting test applies to Title VII
unlawful retaliation cases. 7 If Satterwhite is able to establish a prima facie


         1   Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
         2See   FED. R. CIV. P. 56(a); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.
2004).
        See Jackson, 602 F.3d at 377 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
         3

248 (1986)).
         4   42 U.S.C. § 2000e-3(a) provides in part:
                  It shall be an unlawful employment practice for an employer to
                  discriminate against any of his employees . . . because he has
                  opposed any practice made an unlawful employment practice by
                  this subchapter, or because he has made a charge, testified,
                  assisted, or participated in any manner in an investigation,
                  proceeding, or hearing under this subchapter.
       Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Davis v. Dall. Area
         5

Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004)).
         6   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
         7   Byers v. Dall. Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).
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case of unlawful retaliation, the burden then shifts to the City to articulate a
legitimate, non-retaliatory reason for the demotion. 8 If the City carries this
burden, Satterwhite must show that the City’s explanation is a pretext for
unlawful retaliation. 9
       While the district court granted summary judgment to the City because
it held Satterwhite failed to establish a causal link between Satterwhite’s
activities and his demotion, we affirm because Satterwhite’s activities were not
protected under Title VII. 10
       Satterwhite asserts that he engaged in two distinct protected activities:
(1) making an oral report to human resources that Singh used the phrase “Heil
Hitler” in a meeting, and (2) answering questions in connection with the OIG’s
investigation of the “Heil Hitler” incident. While Satterwhite’s actions could
qualify as opposing under 42 U.S.C. § 2000e-3(a), 11 for his actions to be
protected activities Satterwhite must also have had a reasonable belief that
Singh’s comment created a hostile work environment under Title VII. 12
       No reasonable person would believe that the single “Heil Hitler” incident
is actionable under Title VII. The Supreme Court has made clear that a court




       8   See id.
       9   See id.
       10See CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 274 (5th Cir. 2009) (“[W]e may affirm
a grant of summary judgment on any ground presented to the district court for consideration,
even though it may not have formed the basis for the district court’s decision.” (citation
omitted) (internal quotation marks omitted)).
       11See Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 555 U.S. 271,
276-77 (2009).
       12  See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349 (5th Cir. 2007)
(“Because Turner could not have reasonably believed that Colston’s conduct . . . constituted
an unlawful employment practice under Title VII, this incident cannot give rise to protected
activity.”); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)
(dismissing a retaliation claim because “[n]o reasonable person could have believed that the
single incident recounted above violated Title VII’s standard.”).
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determines whether a work environment is hostile “by ‘looking at all the
circumstances,’ including the ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.’” 13         Furthermore, “isolated incidents (unless extremely
serious)” do not amount to actionable conduct under Title VII. 14 We have
accordingly rejected numerous Title VII claims based on isolated incidents of
non-extreme conduct as insufficient as a matter of law. 15
       In Turner v. Baylor Richardson Medical Center, a black employee
complained of her supervisor’s racially insensitive remarks, including an
incident when the supervisor referred to inner-city children as “ghetto
children.” 16 After being terminated, the employee filed suit alleging, among
other claims, unlawful retaliation. 17             We held that the employee had not
established a prima facie case of retaliation because the employee “could not
have reasonably believed” that the isolated comments constituted an unlawful




       13 Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 n.10 (2002) (“Hostile work environment claims based on racial harassment are
reviewed under the same standard as those based on sexual harassment.”).
       14   Faragher, 524 U.S. at 788.
       15 See, e.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 405-06 (5th Cir. 1999)
(rejecting a race-based termination claim because evidence of discrimination only revealed
isolated incidents); Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194-95 & n.5 (5th Cir.
1996) (reversing a jury award based on a hostile-work-environment claim stemming from
single incident in which a supervisor provided an employee with offensive religious
materials); see also Mendoza v. Helicopter, 548 F. App’x 127, 129 (5th Cir. 2013) (per curiam)
(rejecting a hostile work environment claim because “the complained of conduct occurred
sporadically over a several year period and c[ould not] accurately be described as pervasive.
Additionally, no single incident was severe enough to independently support a hostile work
environment claim.”).
       16   Turner, 476 F.3d at 342.
       17   Id. at 345.
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employment practice. 18 Similarly here, Satterwhite acknowledges that Singh’s
comment was a single and isolated incident. He could not have reasonably
believed that this incident was actionable under Title VII, and therefore, it
“cannot give rise to protected activity.” 19
      Satterwhite argues that the “Heil Hitler” incident must be an unlawful
employment practice because the OIG found that it violated an executive order
of the mayor of Houston prohibiting the use of racial, ethnic, and gender slurs.
But the definition of “unlawful employment practice” in Title VII is defined by
Congress not state or local laws, 20 and as previously discussed, no reasonable
person could find the “Heil Hitler” incident alone satisfied Congress’s
definition. Accordingly, Satterwhite has failed to establish a prima facie case
of retaliation.
                                              IV
      Satterwhite also appealed the district court’s judgment with respect to
his claim under the TCHRA. One purpose of the TCHRA is to “provide for the
execution of the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments.” 21 Accordingly, the Supreme Court of Texas has
“consistently held that th[e] analogous federal statutes and the cases
interpreting [Title VII] guide [its] reading of the TCHRA.” 22                     Satterwhite
agrees that his TCHRA claim is “analyzed under the same standard” 23 as his
Title VII claim. Therefore, for the same reasons Satterwhite’s Title VII claim
fails, his TCHRA claim fails.


      18   Id. at 349.
      19   Id.
      20   42 U.S.C. § 2000e-2 to -3.
      21   TEX. LAB. CODE ANN. § 21.001.
      22   Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012).
      23   Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).
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                            *        *         *
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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