     Case: 17-30790      Document: 00514824995         Page: 1    Date Filed: 02/06/2019




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

                                      No. 17-30790                           FILED
                                                                      February 6, 2019
                                                                        Lyle W. Cayce
DAVID D. PETERSON,                                                           Clerk

              Plaintiff - Appellant

v.

LINEAR CONTROLS, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC. No. 6:16-CV-725


Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT,
Circuit Judges.

PER CURIAM:*
       David Peterson sued his former employer, Linear Controls, alleging a
hostile work environment and discrimination based on race under Title VII.
The magistrate judge granted summary judgment to Linear Controls on each
of Peterson’s 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-30790


                                       I.
      Peterson worked at Linear Controls for six years, primarily as an
offshore electrician. During his last job assignment with the company,
Peterson worked at Fieldwood Energy’s East Breaks 165 platform. His
assignment lasted six weeks, from July 16, 2015 to August 22, 2015 (including
a week-long break). In September 2015, Peterson resigned from Linear
Controls via letter, explaining that he intended to continue his education as an
electrician.
      A month later, Peterson filed an EEOC charge against Linear Controls,
alleging discrimination and retaliation on the basis of race (black) and religion
(Muslim). Peterson reported that he was subjected to “Muslim jokes and
comments because of [his] religious beliefs (not eating pork).” He also reported
“different terms and conditions of employment” in two instances. First, he was
one of four employees to arrive late to a safety meeting, but only he––the sole
black employee––was written up. Second, he was on a team of five white
employees and five black employees, and the black employees had to work
outside and were not permitted water breaks, while the white employees
worked inside with air conditioning and were given water breaks. Peterson
also alleged that his managers would “judge [his] appearance and overlook
[his] work.” The EEOC issued a right to sue letter on request, and Peterson
filed suit against Linear Controls.
      After Peterson and Linear Controls submitted sworn statements from
various Linear Controls employees to support their positions, Linear Controls
moved for summary judgment. A magistrate judge, ruling by the parties’
consent, granted summary judgment to Linear Controls on all claims. Peterson
appeals the dismissal of two claims: hostile work environment and
discrimination based on race.
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                                  No. 17-30790
                                       II.
      We review a grant of summary judgment de novo. Rayborn v. Bossier
Par. Sch. Bd., 881 F.3d 409, 414 (5th Cir. 2018). Summary judgment is proper
when “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). When deciding if there is a genuine issue of material fact, “courts must
view the facts and draw reasonable inferences in the light most favorable to
the nonmoving party.” Rayborn, 881 F.3d at 414 (quotation omitted).
                                       III.
      Peterson appeals the dismissal of his Title VII racial discrimination
claim. The magistrate judge analyzed this claim as one relying on
circumstantial evidence of discrimination and subject to McDonnell Douglas’s
burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). McDonnell Douglas requires a plaintiff to demonstrate that
“(1) he is a member of a protected class, (2) he was qualified for the position at
issue, (3) he was the subject of an adverse employment action, and (4) he was
treated less favorably because of his membership in that protected class than
were other similarly situated employees who were not members of the
protected class, under nearly identical circumstances.” Paske v. Fitzgerald, 785
F.3d 977, 985 (5th Cir. 2015) (quotation omitted). The magistrate judge held
that Peterson did not allege an adverse employment action and did not
adequately identify a similarly situated comparator. Peterson contends that
the magistrate judge improperly excluded witness declarations that identified
(1) similarly situated comparators and (2) direct evidence of discrimination
sufficient to escape the McDonnell Douglas framework and defeat summary
judgment.




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                                  No. 17-30790
      Peterson’s arguments fail to revive his claim. Assuming the declarations
identify similarly situated comparators, Peterson still cannot satisfy Title VII’s
adverse employment action requirement. Paske, 785 F.3d at 985.
      Our court strictly construes adverse employment actions to include only
“ultimate employment decisions,” such as “hiring, granting leave, discharging,
promoting, or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559,
560 (5th Cir. 2007). Peterson alleged that he and his black team members had
to work outside without access to water, while his white team members worked
inside with air conditioning. Taking this as true, the magistrate judge did not
err in holding that these working conditions are not adverse employment
actions because they do not concern ultimate employment decisions. Id.; see
also Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485–86 (5th Cir. 2008).
      Peterson also contends that the district court ignored direct evidence of
discrimination sufficient to defeat summary judgment. Peterson’s complaint
alleged that his supervisor denied him leave from work to visit a sick family
member and later, when discussing Peterson’s request with another employee,
said “[f***] that [n*****].”
      Racial slurs may “constitute[] direct evidence that racial animus was a
motivating factor” behind an adverse employment action. Brown v. E. Miss.
Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993). Such language must be
(1) “proximate in time” to the action, (2) “made by an individual with authority”
over the action, and (3) “related to the” action. Brown v. CSC Logic, Inc., 82
F.3d 651, 655 (5th Cir. 1996), abrogated on other grounds by Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000). At first glance,
Peterson’s allegations appear to meet this test. His complaint states that his
supervisor denied him leave, an adverse employment action, and then in the
context of that denial called Peterson the n-word to another employee. But
Peterson’s deposition testimony belies the allegations in his complaint. He
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                                       No. 17-30790
acknowledges he was allowed to “go in”––leave the offshore site––to visit his
sick fiancée. A supervisor warned Peterson he might not be allowed to return
to the same job if he left, but Peterson admits that he was allowed to return.
Another Linear Controls employee’s declaration confirms that Peterson was
permitted to leave on this occasion and others. As the magistrate judge
determined, there is no evidence that Peterson was denied leave. Because
Peterson was not subjected to an adverse employment action, we affirm the
dismissal of his Title VII racial discrimination claim. Peterson’s reliance on
Reeves does not save his claim, because he cannot make out a prima facie case
of discrimination without an adverse employment action. Reeves, 530 U.S. at
142–43.
                                             IV.
       Peterson also appeals the dismissal of his hostile work environment
claim. A prima facie case of hostile work environment requires a plaintiff show
that: (1) he “belongs to a protected group;” (2) he was “subject to unwelcome [ ]
harassment;” (3) the harassment was based on a protected characteristic; and
(4) the harassment “affected a term, condition, or privilege of [his]
employment.” Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999) (quotation
omitted). 1
       The magistrate judge granted Linear Controls’ motion for summary
judgment on Peterson’s hostile work environment claim, finding the alleged
harassment did not affect a term, condition, or privilege of Peterson’s
employment. Peterson alleged that, for ten days in July 2015, the black
members of his team worked outside in the heat while the white members of



       1 A fifth element exists when a coworker, rather than a supervisor, creates the hostile
work environment. Peterson’s allegations concern a supervisor, so we do not consider this
element. See Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d 157, 162–63
(5th Cir. 2007).
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                                 No. 17-30790
his team worked inside in the air conditioning. He also alleged that black
employees were routinely denied water breaks, but in his deposition admitted
there was only one instance in which he was denied a water break. The
magistrate judge held that Peterson’s allegations did not create a hostile work
environment because (1) Peterson’s job description required working in an
outdoor environment; (2) he worked at Linear Controls for seven years, but his
allegations only concerned a ten-day period; and (3) the assignment did not
cause him physical injury or harm.
      Whether harassing conduct is sufficiently severe or pervasive to affect a
term, condition, or privilege of employment depends on the totality of 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” or workplace competence. Harvill v. Westward Commc’ns,
LLC, 433 F.3d 428, 434 (5th Cir. 2005) (quoting Harris v. Forklift, 510 U.S. 17,
23 (1993)).
      Peterson did not allege sufficiently severe or pervasive conduct. He
worked for Linear Controls for six years, but his allegations regarding harsher
job assignments concern only one ten-day period. More is generally required to
show pervasive harassment. See, e.g., Watkins v. Recreation and Park Comm’n
for the City of Baton Rouge, 594 F. App’x 838, 841 (5th Cir. 2014) (rejecting
claim premised on three instances of racially charged language and symbols
over eight-year employment); Lauderdale, 512 F.3d at 164 (reviving claim
when a supervisor called his employee “ten to fifteen times a night for almost
four months”).
      Additionally, he does not allege that his job performance or career
outlook were affected. Peterson’s job description required him to work outside,
and the work he completed was not physically threatening or humiliating.
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                                 No. 17-30790
Peterson does not allege that working outside interfered with his job
performance or competence. In fact, his responsibilities demonstrably
progressed over his time at Linear Controls. He moved up the ranks from
helper to electrician and was offered a higher paying position in maintenance,
which he turned down. The totality of the circumstances do not present a
hostile work environment. See, e.g., Jackson v. Honeywell Int’l, Inc., 601 F.
App’x 280, 287–88 (5th Cir. 2015) (rejecting claim because plaintiff testified
that racial slurs did not unreasonably interfere with his work performance or
job satisfaction).
       Peterson’s coworker’s statement that a supervisor used the n-word to
describe Peterson does not change our analysis of this claim. The one-time use
of that despicable word does not comport with our court’s conception of a hostile
work environment. See, e.g., Howard v. United Parcel Serv., Inc., 447 F. App’x
626, 632 (5th Cir. 2011) (rejecting claim grounded in one “racially
inappropriate” term directed toward plaintiff and allegations that other
employees overheard racial slurs). This is particularly true here, where
Peterson did not hear the slur. See Johnson v. TCB Constr. Co. Inc., 334 F.
App’x 666, 671 (5th Cir. 2009) (rejecting claim when supervisor frequently used
n-word outside plaintiff’s presence but there was no evidence it affected
plaintiff’s job).
       Peterson also argues that the ten-day period was a particularly
“egregious incident” creating a hostile work environment. He admits that he
did not present this argument to the trial court. Generally, an argument “not
raised in the district court cannot be asserted for the first time on appeal.”
Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004) (quotations
omitted). There is an exception, however, when the issues presented to the
district court would have permitted the district court to “rule on the essential
argument” advanced on appeal. Lifemark Hosps., Inc. v. Liljeberg Enters., Inc.,
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                                     No. 17-30790
304 F.3d 410, 427 n.29 (5th Cir. 2002). But even if Peterson activated this
exception by presenting a standard hostile work environment claim to the
district court, his “egregious incident” argument cannot survive on the merits.
        Egregious, isolated incidents “can alter the terms and conditions of
employment.” Harvill, 433 F.3d at 435. An example of an egregious race-based
incident arose when a company’s supervisors brought in a white woman in a
gorilla suit who made sexually and racially offensive comments about black
employees on Juneteenth. Henry v. Corpcar Servs. Hous., Ltd., 625 F. App’x
607, 608–09 (5th Cir. 2015). She also touched them inappropriately and
without consent. Id. This single, egregious incident created a hostile work
environment considering the social context of the gorilla costume and
Juneteenth;     the     incident’s   physically   humiliating     nature;   and    the
demonstrable impact on black employees’ job performance and outlook. Id. at
613.
        The conduct Peterson alleged does not meet this standard. Peterson’s
claim that black employees were given unfavorable working conditions is
disturbing given the racial makeup of Linear Controls’ workforce and the
allegation that a supervisor referred to Peterson as the n-word. But social
context is not the only factor we consider. See id. Peterson was directed to
perform tasks that fell within his job description. See Hobbs v. City of Chicago,
573 F.3d 454, 464 (7th Cir. 2009) (“No reasonable jury could conclude that
being assigned duties that were part of one’s job description . . . amount[s] to a
hostile work environment.”). He does not claim he was physically humiliated,
see Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 829 (5th Cir. 2009)
(listing the physical harassment alleged in “egregious” cases of harassment),
or that his job performance was affected, see Henry, 625 F. App’x at 613
(describing how plaintiff “suffered from severe anxiety, depression, anger, and
nervousness” before resigning). Under the totality of the circumstances here,
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                              No. 17-30790
Peterson did not allege an egregious incident creating a hostile work
environment.
                                   V.
      For the foregoing reasons, we AFFIRM the dismissal of Peterson’s
claims.




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