                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS 19, 2007
                                                July
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                     No. 06-20663
                                   Summary Calendar


FRED D BROUSSARD

                                                  Plaintiff - Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; DON KEIL, Individually
and his capacity as Director of Religious Programs; DON KASPAR,
Individually and in his capacity as Director of Chaplaincy; BILLY PIERCE,
Individually and in his capacity as Director of Chaplaincy; MARK PICKETT,
Individually and in his capacity as Chaplaincy Regional Coordinator of
Region III; THOMAS MEDART, Warden, Individually and in his capacity as
Warden of Central Unit TDCJ; TERRY FOSTER, Individually and in his
capacity as Warden of Central Unit, TDCJ; BRENT LARSEN, Individually;
JOHN STARLIPER, Individually and in his official capacity as lieutenant in
the TDCJ Security System

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                              USDC No. 4:04-CV-1059


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20663


      Plaintiff-appellant Fred D. Broussard appeals the district court’s summary
judgment against him in an employment discrimination case. For the reasons
stated, we AFFIRM.
                 I. Factual and Procedural Background
      Beginning in 1997, plaintiff-appellant Fred D. Broussard, an African-
American, worked for the Texas Department of Criminal Justice (“TDCJ”) at the
Central Unit for six years. Prior to that, Broussard served for fourteen years as
a volunteer chaplain in that same unit.
      In 2001, Brent Larsen, a Caucasian, began working as a chaplain at the
Central Unit. Broussard and Larsen had a strained relationship and repeatedly
reported each other’s behavior to their supervisors. The unit warden and
chaplaincy officials instructed both chaplains to learn to work with each other.
      In 2003, the state legislature mandated that the TDCJ reduce its force.
As a result, sixty chaplains lost their jobs, and approximately twenty, including
Broussard, were reassigned.      With two exceptions, the terminations and
reassignments were implemented according to seniority. Chaplains on active
military status retained their assignments, and three chaplains were
administratively assigned death row ministry. All of the chaplains that fell into
these two categories had more time with the state than Broussard. Further, the
chaplains assigned to death row had more experience in that ministry. Larsen,
who also had more time with the state than Broussard, remained at the Central
Unit. Ultimately Broussard was transferred to his seventh choice location, the
Michael Unit. His pay, duties, and benefits remained the same, but Broussard’s
new duty station was over 200 miles from his home.
      After the transfers were announced, Broussard filed an EEOC charge
alleging race discrimination.     About a month later, as Broussard was
transferring to his new unit, the warden of Central Unit prepared a disciplinary


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case against Broussard related to security violations at the Central Unit. The
disciplinary case transferred with Broussard to his new unit, and that warden
dismissed it.
      Broussard resigned after the disciplinary case was dismissed. He then
filed another charge with the EEOC alleging retaliation based on the dismissed
disciplinary case.
      Broussard brought an employment discrimination suit against the
following defendants: TDCJ; Don Keil, individually and in his capacity as
Director of Religious Programs; Don Kaspar, individually and in his capacity as
Director of Chaplaincy; Billy Pierce, individually and in his capacity as Director
of Chaplaincy; Mark Pickett, individually and in his capacity as Chaplaincy
Regional Coordinator of Region III; Thomas Medart, Warden, individually and
in his capacity as Warden of Central Unit TDCJ; Terry Foster, individually and
in his capacity as Warden of Central Unit, TDCJ; Brent Larsen; John Starliper,
individually and in his official capacity as lieutenant in the TDCJ Security
System (collectively, “defendants”).
      The district court granted defendants’ motion for summary judgment,
dismissing all of Broussard’s claims against TDCJ and the eight individuals.
Broussard now appeals.
                                 II. Discussion
      We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return


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a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
1. Title VII Discrimination Claim
      Title VII prohibits employers from discriminating against employees on
the basis of race. 42 U.S.C. § 2000e-2(a). Title VII claims are subject to the
burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this analysis, the plaintiff bears the initial burden
of establishing a prima facie case of retaliation. Id. at 802-04. Then, the burden
of   production    shifts   to   the   defendant    to   articulate    a   legitimate,
nondiscriminatory reason for the adverse employment action. Id. Once the
defendant puts forth a legitimate, nondiscriminatory reason, the burden shifts
back to the plaintiff to produce evidence that the defendant’s articulated reason
is merely a pretext for discrimination, id., or that if true, it is only one reason for
the defendant’s conduct and that race was a motivating factor in the adverse
employment action. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004).
      To establish a prima facie case of discrimination, Broussard must establish
that he “(1) is a member of a protected class; (2) was qualified for [his] position;
(3) was subject to an adverse employment action; and (4) was replaced by
someone outside his protected class,” or, in the case of disparate treatment, that
others similarly situated were treated more favorably. Okoye v. Univ. of Tex.
Houston Health Sci. Cent., 245 F.3d 507, 512-13 (5th Cir. 2001).
      The district court held that Broussard failed to establish a prima facie case
because he did not present evidence that he suffered an adverse employment
action. Broussard argued that his transfer pursuant to a reduction in force
constituted an adverse employment action. However, even assuming that
Broussard established a prima facie case, the district court did not err in


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granting   summary     judgment.       The   TDCJ     put   forth   a   legitimate
nondiscriminatory reason for the transfer–that it was implemented according to
seniority and that others who were not reassigned had more time with the state
that Broussard. Broussard has not put forth any evidence that TDCJ’s reason
was pretext or that if it was true, race was a motivating factor. Accordingly, the
district court did not err in granting the defendants summary judgment on
Broussard’s discrimination claim.
2. Retaliation Claim
      Title VII also forbids an employer from discriminating against an
employee “because [the employee] has opposed any practice made an unlawful
employment practice [under Title VII].” 42 U.S.C. § 2000e-3(a). To establish a
prima facie case of unlawful retaliation, Broussard must show (1) that he
“engaged in an 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.” Grimes v. Tex. Dep’t of Mental Health and
Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Under Title VII, an
employee engages in protected activity when he has “opposed any practice made
an unlawful employment practice” under Title VII or “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing” under Title VII. 42 U.S.C. § 2000e-3(a). An adverse employment
action is any action that would be materially adverse to a reasonable employee,
in other words, so harmful so as to dissuade the employee from making a
complaint of discrimination. Burlington N. & Santa Fe v. White, 126 S.Ct. 2405,
2409 (2006).
      Broussard has failed to establish a prima facie case of retaliation. “[I]n
order to establish the causation prong of a retaliation claim, the employee should
demonstrate that the employer knew about the employee’s protected activity.”


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                                  No. 06-20663


Manning v. Chevron Chem. Co., L.L.C., 332 F.3d 874, 883 (5th Cir. 2003).
Broussard did not demonstrate that the warden who filed the disciplinary case
knew of the Broussard’s EEOC charge1, which was related to the chaplaincy
department. As a result, Broussard failed to demonstrate a causal link between
his protected activity–the EEOC charge–and the disciplinary charge.
      However, even if we assume that Broussard demonstrated a prima facie
case, the district court did not err in granting summary judgment. TDCJ
asserted a nondiscriminatory reason for the disciplinary charge–that Broussard
violated security procedures. TDCJ also presented evidence that the warden
who instigated the disciplinary charge did not know of the EEOC charge.
Broussard failed to put forth evidence that this explanation was pretext.
Accordingly, the district court did not err in granting summary judgment on
Broussard’s retaliation claim.
3. Hostile Work Environment
      To succeed on his hostile work environment claim, Broussard must
demonstrate that his work environment “permeated with discriminatory
intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993).   A prima facie case of racial harassment alleging hostile work
environment normally consists of five elements: (1) the employee belongs to a
protected group; (2) the employee was subjected to unwelcome harassment;
(3) the harassment complained of was based on race; (4) the harassment


      1
       Broussard did not engage in protected activity until he filed the EEOC
charge as it was the first time he complained of racial discrimination. His
general complaints about Larsen’s poor work ethic, overzealous security
personnel, and the response of his superiors did not constitute protected activity.
See Watts v. Kroger, 170 F.3d 505, 511-12 (5th Cir. 1999) (recognizing that an
employee’s complaint to the manager regarding her supervisor’s comments did
not satisfy the protected activity as required for her Title VII retaliation claim
because the employee did not report any sexual harassment in that complaint).

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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.” Celestine v. Petroleos de Venezuella SA,
266 F.3d 343, 353 (5th Cir. 2001). In determining whether the environment is
hostile, the court considers all the circumstances such as the frequency of the
conduct and whether it was physically threatening or humiliating. Harris, 510
U.S. at 23.
      Broussard claims that the TDCJ subjected him to a hostile work
environment by repeatedly failing to discipline Larsen or respond adequately to
the three internal grievances that Broussard filed in late 2002 and early 2003.
Broussard tries to frame a disparate treatment claim as a hostile environment
claim. Broussard does not allege that he was subjected to any racial epithets,
insults, ridicule, or jokes, or that any of the harassment was racial in nature.
Broussard’s complaints, when taken as a whole, are not severe and pervasive
enough to create an abusive working environment. Because Broussard has
failed to establish a prima facie case of hostile work environment, the district
court properly granted summary judgment.
4. Section 1983 Claims Against the Individual Defendants
      The individual defendants in this case have asserted the defense of
qualified immunity to Broussard’s § 1983 claim. Qualified immunity will shield
government officials from liability for civil damages when “their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Kinney v. Weaver, 367 F.3d 337, 349 (5th
Cir. 2004). In determining the applicability of qualified immunity, we must first
determine “whether the plaintiff has asserted a violation of a constitutional
right” under currently applicable constitutional standards. Id. at 350 (quoting
Siegert v. Gilley, 500 U.S. 226, 232 (1991). We then consider whether the


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official’s conduct was objectively reasonable in light of law that was clearly
established at the time that the conduct occurred. Id.
      In his complaint, Broussard argues that the individual defendants have
violated the due process and equal protection clauses of the Fourteenth
Amendment. Broussard fails to explain how the defendants violated his right
to due process of the law or to equal protection of the laws. An employment
contract may give rise to a property interest in continued employment, the
deprivation of which could give rise to a due process claim. See Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972); see also Mallek v. City of
San Benito, 121 F.3d 993, 998 (5th Cir. 1997). But Broussard has not asserted
that any employment contract existed. Because Broussard has not directed the
court to a violation of a constitutional right, he cannot defeat defendants’
assertion of qualified immunity to his § 1983 claim. See Salas, 980 F.2d at 305.
Accordingly, the district court properly granted defendants’ motion for summary
judgment on the § 1983 claim.
                                III. Conclusion
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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