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

                                                                             FILED
                                                                            April 23, 2009
                                     No. 08-30984                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


SHARLENE PARKER

                                                   Plaintiff - Appellant
v.

STATE OF LOUISIANA DEPARTMENT OF EDUCATION SPECIAL
SCHOOL DISTRICT

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CV-369


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff - Appellant Sharlene Parker appeals the district court’s grant of
summary judgment in favor of Defendant - Appellee Louisiana Department of
Education Special School District (“the DOE”). Because we find that Parker has
not produced sufficient evidence to survive summary judgment on her claim that
the DOE created a hostile work environment, we affirm the district court’s grant



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-30984

of summary judgment on that claim. Because we conclude that Parker raised
a fact issue on her claims of termination based upon race and retaliation, we
reverse the grant of summary judgment on those claims.          Because of this
reversal, we reverse the concomitant grant of attorney’s fees and, thus, need not
reach the question of whether awarding attorney’s fees to the DOE without first
finding that Parker’s claims were frivolous, unreasonable, without foundation,
or made in bad faith was error. Therefore, we AFFIRM in part and REVERSE
and REMAND in part.
                               BACKGROUND
      Parker is an African-American woman who was employed by the DOE
from November 8, 2004 through June 23, 2006 as a special education teacher at
Dixon Correctional Institute (“DCI”).       She filed this suit on May 28, 2007
alleging that the DOE fired her based upon her race, fired her in retaliation for
her complaints about discriminatory treatment, and created a hostile work
environment.
      Parker alleges the following facts: On February 20, 2006, Parker and one
of her African-American co-workers, Kanisha Jimison, met with Parker’s
immediate supervisor, Roger James, and another of her supervisors, Anne-Marie
Leblanc, both of whom are white, to question them about preferential treatment
that a new white co-employee had been receiving. Specifically, Parker and
Jimison complained that they were expected to complete work that was assigned
to the new employee, Carla Bigham, and that they were required to “walk
through a line-up of prisoners,” which Bigham was not required to do. Parker
contends that her supervisors became “upset” during that meeting and told
Jimison to “shut up.”
      Parker also alleges that, on March 20, 2006, she met with James and
Leblanc again and was told at that time that she would have to move her
classroom to another building, where the classroom would be shared by both

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regular education inmates and Parker’s special education inmates. Parker
contends that she tried to question James about the legality of special education
students being housed with regular education students and asked him to put in
writing his instruction about moving classrooms. She asserts that Leblanc “kept
interrupting” her during that meeting to advise that she felt Parker was “being
insubordinate” by asking her questions. Parker alleges that she asked James
to meet with her privately, but he refused.
      On March 21, 2006, Parker reported for work but then left in order to
attend a scheduled training class. Upon returning to work on March 24, 2006,
Parker found that her materials had been moved to Leblanc’s office, and
according to Parker, security personnel told her that she was not allowed into
the office unless Leblanc was present. Parker contends that she was therefore
unable to get to her materials to complete a lesson plan that James expected to
receive on March 24, 2006. Parker alleges that, although she sent James a
request for an extension explaining why she could not timely complete the lesson
plan, James refused to accept that request because it was not faxed from
Leblanc’s fax machine in accordance with a prior directive of James.
      Finally, Parker testified that, following a meeting in Leblanc’s office on
March 31, 2006, she inadvertently left her security beeper on Leblanc’s desk.
According to Parker, in her experience, whenever a beeper was found, security
personnel simply returned it to the teacher. However, she alleges that when
security personnel advised Leblanc that the beeper belonged to Parker, Leblanc
said she “would take care of it.” Later, the security claimed to have found the
beeper in the “teacher’s planning area,” to which inmates have access and which
is right next to Leblanc’s office. According to Parker’s amended complaint, the
security guard “wrote [her] up” for the beeper incident. LeBlanc then reported
this incident to Deputy Warden Lorena, who then banned Parker from the DCI
facility, asserting that she posed a security threat. Because Parker was unable

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to report to work due to the ban, she was placed on administrative leave by the
DOE from April 4, 2006 through June 23, 2006. When the ban was not lifted,
she was terminated on June 23, 2006.       She contends that the DOE never
conducted an investigation and that she was never contacted by the DOE about
the reported incidents prior to her termination.
      On March 14, 2008, the DOE filed a motion for summary judgment. In
that motion, the DOE asserted that Parker’s suit should be dismissed on the
following grounds: (1) her hostile work environment claim was insufficient as a
matter of law; (2) her reports of alleged harassment by the DOE did not cause
her termination; (3) she failed to exhaust her administrative remedies; (4) she
failed to report the alleged harassment to the DOE in accordance with its
policies; (5) she was not terminated by the DOE because of her race; and (6)
punitive damages are not available in suits against a state entity, such as the
DOE. The DOE also asserted that it was entitled to an award of attorney’s fees
if it prevailed on its motion, pursuant to 42 U.S.C. § 2000e-5(k).        In her
opposition to the DOE’s summary judgment motion, Parker conceded that
punitive damages were unavailable against the state and withdrew that claim
for relief; however, she asserted that all of the DOE’s other arguments lacked
merit.
      The motion was first considered by a magistrate judge, who recommended
that the motion be granted because the conduct complained of was not
sufficiently severe or pervasive as to constitute a hostile work environment and
there was no evidence that Parker’s termination resulted from her race or was
in retaliation of complaints about preferential treatment of a white employee.
The magistrate judge also recommended that the DOE be awarded its attorney’s
fees as a prevailing party under Title VII. The district court adopted the report
and recommendation of the magistrate judge as its opinion. Parker appeals the



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district court’s grant of summary judgment in favor of the DOE and the award
of attorney’s fees.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate when the
evidence shows that “there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
I.    Hostile Work Environment
      Parker appeals the district court’s grant of summary judgment in favor of
the DOE on her hostile work environment claim.
      To prevail on a Title VII claim based on a hostile work environment, an
employee must prove: “(1) she belongs to a protected group; (2) she was subjected
to unwelcome harassment; (3) such harassment was based on race; (4) the
harassment complained of affected a term, condition, or privilege of employment;
[and] (5) the employer knew or should have known of the harassment in question
and failed to take prompt remedial action.” Ramsey v. Henderson, 286 F.3d 264,
268 (5th Cir. 2002).   “[W]here the harassment is allegedly committed by a
supervisor with immediate (or successively higher) authority over the
harassment victim, the plaintiff employee needs to satisfy only the first four of
the elements listed above.” Celestine v. Petroleos de Venezuella SA, 266 F.3d
343, 353 (5th Cir. 2001).
      The district court concluded that Parker failed to produce any competent
summary judgment evidence demonstrating that the alleged pattern of conduct
by the DOE was severe or pervasive enough to carry her burden of proof under
Title VII. “For harassment on the basis of race to affect a term, condition, or
privilege of employment . . . it must be sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working

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environment.” Ramsey, 286 F.3d at 268. A plaintiff “must subjectively perceive
the harassment as sufficiently severe or pervasive, and this subjective perception
must be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th
Cir. 2003). “We determine whether a hostile work environment exists using a
totality-of-the-circumstances test that focuses on ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating . . . and whether it unreasonably interferes with an employee’s work
performance.’” Turner, 476 F.3d at 347 (ellipsis in original) (quoting Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)).
      As discussed above, Parker contends that she was subjected to a hostile
work environment based upon the following acts: (1) she and Jimison were
forced to walk through a prisoner line-up, while Bigham was not; (2) she was
told she was being “insubordinate” and Jimison was told to “shut up” when they
complained during meetings with James and Leblanc; (3) her teaching materials
were moved to her supervisor’s office; (4) she and Jimison were assigned to
complete work tasks for Bigham; and (5) she was placed on administrative leave
and ultimately fired.
      Drawing all reasonable inferences in Parker’s favor, the totality of the
circumstances presented do not evidence a level of harassment on the basis of
race that affected a term, condition, or privilege of employment. The first three
acts complained of by Parker are easily disposed of. Parker offered no evidence
as to the nature or frequency of having been forced to walk through a prisoner
line-up, thus failing to offer any evidence that the practice was severe or
pervasive. Merely being told once that she was being insubordinate and hearing
a co-worker being told once to “shut-up” are not sufficiently severe or pervasive
to be considered hostile or abusive. It is undisputed that before her teaching
materials were moved to her supervisor’s office, Parker was told that she would
have to move her classroom to a new location but failed to move on her own

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                                       No. 08-30984

accord. The evidence of these three acts, alone or in conjunction with the other
acts complained of by Parker, do not support a hostile work environment claim.
       It is possible to imagine circumstances where requiring an employee to
perform additional work would be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment. But Parker failed to offer summary judgment evidence of the
specific nature and extent of the additional tasks she was allegedly required to
perform for Bigham, how often those tasks were performed, and how performing
those tasks interfered with her own work performance. Without this evidence,
Parker failed to raise a question of material fact as to whether the additional
tasks she was asked to complete to assist Bigham were sufficiently severe or
pervasive to be considered hostile or abusive by an objective, reasonable person.
Moreover, Bigham was a temporary employee who had only been to DCI five
times. Bigham was required to be accompanied at all times because she had not
yet attended orientation training.          The only tasks Parker describes in her
affidavit are the types of activities one would expect in assisting a new co-
worker.1 Parker’s proposed rule would make a common practice – asking a more
experienced employee to assist a new employee – hostile or abusive. While we
view the evidence in the light most favorable to Parker, she is only entitled to
“reasonable, justifiable inferences from that evidence.” Lusk v. Foxmeyer Health
Corp., 129 F.3d 773, 779 (5th Cir. 1997). The evidence of additional tasks offered




       1
         Parker asserts that she was required to complete Bingham’s “evaluation packet,
including vision and hearing screenings.” She also claims to have been “instructed to go with
her to the nurse’s station to collect data on the inmates, and to attend sessions with her when
she was working with inmates.” She also stated that she was required to “complete work that
was assigned to the white employee and to escort her on the grounds since the white employee
had not received mandatory orientation training.” Parker fails to provide any description of
the effort required to perform the tasks or the frequency of which she was required to assist
Bigham.

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by Parker does not create a reasonable inference of a hostile work environment.


      As to her termination, while we agree below that she has raised a fact
issue on whether it was motivated by improper purpose, it is not a separate
incident of a “hostile work environment.” Accordingly, the district court properly
granted summary judgment on Parker’s hostile work environment claim.
II.   Termination
      Parker also appeals the district court’s grant of summary judgment in
favor of the DOE on her claims relating to her termination. Parker claims that
she was terminated because of her race, and independently, that she was
terminated in retaliation for complaining about preferential treatment of a white
employee. The DOE contends, and the district court held, that Parker failed to
offer summary judgment evidence that Parker’s termination was the result of
her race or in retaliation of her complaints about preferential treatment.2
      The well-established test adopted in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), applies to claims brought under Title VII. To establish
a prima facie case of race discrimination, a plaintiff must demonstrate that she:
(1) is a member of a protected class; (2) is qualified for the position from which
she was discharged; (3) suffered an adverse employment action; and (4) was
treated less favorably than similarly situated individuals who were not members
of her protected class. Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th
Cir. 2003); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13
(5th Cir. 2001).     Similarly, “[a] plaintiff establishes a prima facie case for



      2
          Although Parker asserts on appeal that the DOE failed to move for summary
judgment on her race based discrimination claim, the DOE’s motion for summary judgment
stated that Parker was terminated “because she posed a threat to the security of the
institution.” In the present case, this was sufficient to put Parker on notice that she was
required to offer evidence that she was terminated because of her race to avoid summary
judgment.

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                                  No. 08-30984

unlawful retaliation by proving (1) that she engaged in activity protected by Title
VII, (2) that an adverse employment action occurred, and (3) that a causal link
existed between the protected activity and the adverse employment action.”
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).
       A plaintiff’s prima facie case creates an inference of discrimination that
shifts the burden of production to the defendant to come forward with evidence
that   the   adverse   employment      action   was   taken    for   a   legitimate,
nondiscriminatory reason.      Okoye, 245 F.3d at 513. The burden is one of
production, not persuasion, and “can involve no credibility assessment.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).             Once the
employer articulates a legitimate nondiscriminatory reason and produces
competent summary judgment evidence in support of it, the inference created by
the prima facie case drops out of the picture.        Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 222 (5th Cir. 2000).
       A plaintiff may then attempt to establish that he was the victim of
intentional discrimination by offering evidence that the employer’s legitimate
nondiscriminatory reason is unworthy of belief. Reeves, 530 U.S. at 143. The
trier of fact may consider the evidence establishing the plaintiff’s prima facie
case and inferences properly drawn from it on the issue of whether the
defendant’s explanation is pretextual. Id.; Russell, 235 F.3d at 222-23. Thus,
a plaintiff’s prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated. Reeves, 530 U.S. at 147.
       Parker asserts that the security beeper incident was merely a pretext for
her wrongful termination. Specifically, she asserts that she did not leave her
beeper in an area accessible to prisoners, and thus, did not create any security
threat warranting her exclusion from the DCI facility. Instead, she states in her
affidavit that she “inadvertently left [her] beeper on Ms. LeBlanc’s desk,” which

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was not accessible to prisoners. She also asserts in her affidavit that “when
security personnel advised LeBlanc that the beeper belonged to me, LeBlanc said
she would take care of it.” These statements support an inference that the entire
beeper incident was fabricated by LeBlanc to create a pretext for her
termination.    The summary judgment evidence indicates that the teacher
workroom where the beeper was reportedly found was in close proximity to
LeBlanc’s office, and LeBlanc is the person who decided that the incident should
be reported to Deputy Warden Lorena. LeBlanc also is the person in whose
office the beeper was left, giving her easy access to it, if she wished to place it in
a location that would cause problems for Parker.           Deputy Warden Lorena
testified that she made the decision to exclude Parker from the DCI facility on
the basis of LeBlanc’s report. Parker stated in her affidavit that this was not the
first incident of a teacher leaving a beeper in an area accessible to prisoners, but
that other incidents did not result in the exclusion of the teacher from the DCI
facility.
       We believe that Parker’s statement that she left her security beeper on
LeBlanc’s desk raises a question of material fact that defeats summary judgment
on Parker’s termination claims. Contrary to the magistrate judge’s report and
recommendation, Parker’s assertion in her affidavit that she left her beeper on
LeBlanc’s desk was a statement of fact that we must assume is true for purposes
of summary judgment. We are not permitted to make a credibility assessment
of the competing stories regarding the beeper incident; this is an issue that must
be resolved by a jury. See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428,
436 (5th Cir. 2005) (noting that a district court cannot make credibility
determinations or weigh the evidence when deciding a summary judgment
motion).
       If LeBlanc fabricated the beeper incident to create a pretext for
terminating Parker, a jury could reasonably infer that Parker was fired for an

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improper purpose.3 The fact that the ultimate decision to exclude Parker from
the DCI facility was made by Deputy Warden Lorena does not sever the
potential causal link. LeBlanc is the person who reported the beeper incident
to Deputy Warden Lorena, and as discussed above, and there is sufficient
evidence to support a reasonable inference that LeBlanc fabricated the evidence
relied on to make the decision to exclude Parker. Thus, while Deputy Warden
Lorena made the decision to exclude Parker from the DCI facility, there is
evidence that LeBlanc improperly influenced that decision. See Long, 88 F.3d
at 307 (noting that if the final decisionmaker serves as the “cat’s paw” of those
acting with retaliatory motives, the causal link remains intact).
       The DOE’s argument that Parker failed to exhaust her termination claims
is without merit. Exhaustion occurs when the plaintiff files a timely charge with
the EEOC and administrative efforts fail to reach a resolution. See McClain v.
Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir.), cert. denied 129 S. Ct. 198
(2008).    “[T]he scope of an EEOC charge should be liberally construed for
litigation purposes because Title VII ‘was designed to protect the many who are
unlettered and unschooled in the nuances of literary draftsmanship.’” Id.
(quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970)).
A Title VII complaint may include the allegations contained in the EEOC charge
and those that “can reasonably be expected to grow out of the charge of
discrimination.” Id. (quoting Sanchez, 431 F.2d at 466). Parker filed an EEOC
complaint asserting “I believe I have been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, because of my race, Black,
my sex, female, and in retaliation for complaining about race and sex
discrimination on February 20, 2006.” Parker’s claims in the present case are


       3
           The four-month time lapse between this incident and her firing does not negate a
finding of pretext, particularly since she was placed on administrative leave relatively soon
after this incident.

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clearly encompassed by Parker’s EEOC charge of discrimination. The DOE’s
arguments to the contrary border on frivolous.
      The DOE also argues that Parker’s complaints about discriminatory
treatment during the February 20, 2006 meeting were not protected conduct
under Title VII because none of the conduct she complained of was unlawful
under Title VII. “An employee has engaged in activity protected by Title VII if
he has either (1) ‘opposed any practice made an unlawful employment practice’
by Title VII or (2) ‘made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing’ under Title VII.” Long, 88
F.3d at 304 (quoting 42 U.S.C. § 2000e-3(a)); see also Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130, 1135 (5th Cir. Unit A Sept. 1981)
(noting distinction between opposition clause and participation clause). The
opposition clause, not the participation clause, is relevant to this case. See
Payne, 654 F.2d at 1135. “To satisfy th[e] opposition requirement, [Parker] need
only show that she had a reasonable belief that the employer was engaged in
unlawful employment practices.” Turner, 476 F.3d at 348 (internal quotations
omitted).
      In Payne, this Court addressed the issue “whether proof of an actual
unlawful employment practice is necessary under the opposition clause, or
whether an employee is protected from retaliation under the opposition clause
if the employee reasonably believes that the employer is engaged in unlawful
employment practices.” 654 F.2d at 1138. This Court decided the latter, holding
that “a plaintiff can establish a prima facie case of retaliatory discharge under
the opposition clause of section 704(a) if he shows that he had a reasonable belief
that the employer was engaged in unlawful employment practices.” Id. at 1140.
      In the present case, Parker asserts that she complained during the
February 20, 2006 meeting that the DOE was discriminating against her as a
result of her race. The DOE did not assert in its motion for summary judgment

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that its treatment of Parker before she was terminated was not the result of
Parker’s race, it only asserts that Parker failed to offer sufficient evidence of the
severity and pervasiveness of the alleged conduct. On the record before us, we
must assume that Parker did have a reasonable belief that her treatment was
discriminatory. At a minimum, Parker has created a question of material fact
concerning the objective reasonableness of her belief that the DOE was engaged
in an unlawful employment practice.           See Long, 88 F.3d at 305.    That we
conclude that Parker failed to offer evidence that the conduct complained of
created a hostile work environment does not alter our analysis. See Long, 88
F.3d at 304-09 (affirming summary judgment in favor of defendant on hostile
work environment claims but reversing summary judgment on retaliation
claims).
III.   The DOE’s Attorney’s Fees
       Parker also appeals the award of attorney’s fees to the DOE. The district
court, acting on the magistrate judge’s recommendation, awarded the DOE its
attorney’s fees pursuant to 42 U.S.C. § 2000e-5(k). The district court’s award
was based upon the fact that the DOE was the prevailing party. By our decision
today, the DOE is no longer the prevailing party on a large portion of Parker’s
claims. Thus, the award of attorney’s fees, at this point, is inappropriate and
should be reversed. As a result, we need not reach the question of whether such
an award would have been appropriate had we affirmed the district court’s
judgment in full.
                                 CONCLUSION
             For the foregoing reasons, the district court’s judgment is
AFFIRMED as to the grant of summary judgment on Parker’s claim of a hostile
work environment. In all other respects, the judgment is REVERSED and
REMANDED for proceedings consistent with this opinion.



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