     Case: 12-31096       Document: 00512295255         Page: 1     Date Filed: 07/02/2013




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

                                                                            FILED
                                                                            July 2, 2013
                                     No. 12-31096
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




CRIST BREW,

                                                  Plaintiff–Appellant,

versus

WEYERHAEUSER NR COMPANY,

                                                  Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 1:10-CV-1215




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Crist Brew, a black former employee of Weyerhaeuser NR Company


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     Case: 12-31096      Document: 00512295255         Page: 2    Date Filed: 07/02/2013



                                     No. 12-31096

(“Weyerhaeuser”), appeals a summary judgment dismissing his race discrimina-
tion, harassment, retaliation, and constructive-discharge claims. We affirm.


                                            I.
       From 1985 to 2009, Brew worked at a wood-products manufacturing plant
that Weyerhaeuser had acquired in 2000. In approximately 1990, Brew was pro-
moted from press operator to press line lead. During most of his tenure, the
plant exclusively relied on seniority to implement layoffs. In October 2008, all
employees were notified that “[f]uture reductions in force . . . will be based on
several factors including performance, attendance and years of service.”
       In November 2008, Weyerhaeuser conducted an investigation in response
to an anonymous letter referencing three incidents at the plant. In 2007, plant
manager Steve Story used sexually-explicit language when criticizing the per-
formance of lab technicians during a quality-assurance team meeting. In March
2008, maintenance supervisor Darryl Jackson made a racist “joke” in the pres-
ence of two white co-workers; he was swiftly reprimanded and subsequently
fired. The letter also described alleged bullying and profanity exhibited by Story
during a meeting with one of his black subordinates. Brew was not present for
any of those incidents. He was, however, one of thirty-seven employees inter-
viewed by a human-resources manager during the ensuing investigation.
       Weyerhaeuser announced a force reduction in January 2009. Although no
press line leads were terminated, ten were considered for demotion by the plant
superintendent, who was white, and by three of six department supervisors. Of
the three department supervisors who evaluated Brew, two were black.1
       Under the new criteria, numerical values were assigned to plant years of
service, discipline, and team performance. Based on their scores, Brew and two

       1
        Of the three supervisors who did not evaluate Brew (but did evaluate several of his
colleagues), one was black.

                                            2
     Case: 12-31096       Document: 00512295255         Page: 3     Date Filed: 07/02/2013



                                       No. 12-31096

white press line leads were demoted to press operator; seven leads, two of whom
were black, retained their positions. Brew filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) in March 2009.
       In May 2009, Weyerhaeuser offered to re-promote Brew—who had the
highest score of the three demoted leads—to a press line lead position on the
night shift. Brew declined the promotion and resigned. After receiving a right-
to-sue letter from the EEOC, he filed a complaint alleging that Weyerhaeuser
had violated Title VII of the Civil Rights Act of 1964, as amended (“Title VII”),
and the Louisiana Employment Discrimination Law.
       The district court established a September 2, 2011, deadline for completion
of discovery, which was later amended to November 2, 2011. On November 1,
Brew propounded forty-six interrogatories and five requests for production. Wey-
erhaeuser declined to produce the requested information, and the district court
denied Brew’s motion to compel.
       Weyerhaeuser had previously moved for summary judgment, which the
court granted.2 The court determined that Brew had failed to establish a prima
facie case of discrimination, harassment, or retaliation and that there was no
dispute of material fact concerning his constructive-discharge claim.


                                             II.
       Brew contends that the district court “erred in holding that [he] did not
show that he was demoted from his position as a result of race discrimination,
retaliation, and harassment actions in violation of Title VII.”3


       2
        Brew’s opposition to summary judgment did not reference the denial of his motion to
compel discovery.
       3
        Title VII is the only discrimination statute germane to this appeal. Brew does not
press an independent claim for state-law relief. Moreover, the Louisiana Employment Dis-
crimination Law “is substantively similar to Title VII, and Louisiana courts routinely look to
                                                                                (continued...)

                                              3
     Case: 12-31096       Document: 00512295255          Page: 4     Date Filed: 07/02/2013



                                       No. 12-31096

         We review a summary judgment de novo, “using the same stan-
       dard as that employed by the district court under Rule 56.” Kerstet-
       ter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). Sum-
       mary judgment is appropriate “if 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).

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012).


                                              A.
       Title VII prohibits discrimination “because of” a protected characteristic,
including race. 42 U.S.C. § 2000e-2(a)(1). Under the burden-shifting approach
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny, a
plaintiff must first demonstrate a prima facie case. See Vaughn v. Woodforest
Bank, 665 F.3d 632, 636 (5th Cir. 2011).
       Brew “establishes a prima facie case by providing evidence that []he: (1) is
a member of a protected class; (2) was qualified for h[is] position; (3) was subject
to an adverse employment action; and (4) was replaced by someone outside the
protected class, or, in the case of disparate treatment, shows that others simi-
larly situated were treated more favorably.”4 It is undisputed that Brew is a
member of a protected class who was subject to an adverse employment action.
Weyerhaeuser concedes, arguendo, that Brew was qualified for the press line
lead position. Because he was demoted during a force reduction and not



       3
         (...continued)
the federal jurisprudence for guidance. . . . We therefore analyze the issues only under the
applicable federal precedents.” McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir.
2007) (per curiam) (citation and internal quotation marks omitted). Similarly, Brew’s com-
plaint invoked 42 U.S.C. § 1981 only with respect to his desired remedies. Additionally, “Title
VII and section 1981 require the same proof to establish liability.” Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999).
       4
         Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001)
(internal quotation marks omitted).

                                              4
     Case: 12-31096      Document: 00512295255         Page: 5    Date Filed: 07/02/2013



                                      No. 12-31096

replaced by anyone, the existence of a prima facie case turns on whether he has
shown that similarly-situated others were treated more favorably.
       We discern no disparate treatment from the demotion of one of three black,
and two of seven white, press line leads by a committee of four white and three
black supervisors. Brew alleges that five of his white colleagues were either
exempted from the evaluation process or otherwise afforded preferential treat-
ment. He does not allege, much less show, however, that any of them was simi-
larly situated.5 Because Brew has not identified a single comparator outside the
protected class who was differently treated “under nearly identical circum-
stances,” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009), he has
failed to establish a prima facie case of race discrimination.


                                            B.
       Title VII prohibits retaliation: An employer may not “discriminate against
any of his employees . . . because [the employee] has . . . participated in any man-
ner in an investigation. . . .” 42 U.S.C. § 2000e-3(a). To establish a prima facie
case of retaliation, Brew must show “1) that []he engaged in a protected activity;
2) that an adverse employment action occurred; and 3) that a causal link existed
between the protected activity and the adverse action.” Septimus v. Univ. of
Hous., 399 F.3d 601, 610 (5th Cir. 2005). Arguably, Brew engaged in a protected
activity by participating in the investigation into the allegations contained in the
anonymous letter. He has, however, adduced no causal link between that parti-


       5
        Jerry Goff and Mike DeBlieux were not press line leads. Thurmond Lavespere was
not considered for demotion, because he accepted a severance package that was also offered
to Brew. Michael Marbut was subject to the same evaluation process: Brew alleges only that
Marbut later resigned and was re-hired without application, which has no bearing on Brew’s
demotion. Finally, Brew notes that the evaluation form for Jeffery Humphrey was incomplete.
Because Brew failed to invoke Humphrey as a comparator in the district court, he will not be
heard to do so for the first time on appeal. See Tex. Commercial Energy v. TXU Energy, Inc.,
413 F.3d 503, 510 (5th Cir. 2005).

                                             5
     Case: 12-31096      Document: 00512295255         Page: 6    Date Filed: 07/02/2013



                                      No. 12-31096

cipation and his subsequent demotion. Indeed, he has offered no evidence that
any supervisor who evaluated him was even aware of his interview with the
investigating human resources manager. “An employer cannot engage in a retal-
iatory action if at the time of the alleged action it does not know about an
employee’s protected conduct.”6 Brew has not established a prima facie case of
retaliation.


                                            C.
       “A hostile work environment claim is composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice.’”7
       A prima facie case of racial harassment alleging hostile work envir-
       onment 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 complained of affected a term condition or privi-
       lege of employment; (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). “For
harassment to affect a ‘term, condition, or privilege of employment’ it must be
sufficiently severe or pervasive so as to alter the conditions of employment and
create an abusive working environment.”               Id. (internal quotation marks
omitted).
       Brew alleges that “racial comments by white employees and supervisors
at the plant . . . created a racially hostile environment,” after which he “began
to experience adverse demands involving his duties as an employee . . . .” The

       6
        Balakrishnan v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 452 F.
App’x 495, 500 (5th Cir. 2011) (per curiam).
       7
        Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (quoting 42 U.S.C.
§ 2000e-5(e)(1)).

                                             6
     Case: 12-31096        Document: 00512295255          Page: 7     Date Filed: 07/02/2013



                                        No. 12-31096

only derogatory “racial comments” in the record were made by Jackson to two
white colleagues; Brew was not present. Though evidence of racial discrimina-
tion against third parties may be relevant to a hostile-work-environment claim,8
Brew has not shown that Jackson’s “joke” was emblematic of pervasive harass-
ment.9 To the contrary, it resulted in Jackson’s termination and an extensive
investigation, during which Brew indicated that he had not experienced any bias
at the plant in the previous six months.
       Brew’s appellate brief alludes to a single incident of alleged harassment
in which he was personally involved. In December 2008, Story approached Brew
and asked him questions about how his machine was working. During the
exchange, Brew questioned whether Story was “picking on me. . . . because I’m
black?” Story immediately convened a meeting with Brew and his black super-
visor to discuss Brew’s performance, and Brew apologized to Story. Although
Brew characterizes his interaction with Story as “racially charged,” it was Brew
—not Story—who invoked race. There is no evidence that Story or any other
supervisor ever said anything racially-orientated to Brew. Whereas Brew main-
tains that he “has a genuine issue of fact in feeling reprimanded and intimi-
dated,” he has not shown that “the harassment complained of was based on
race.” Id. Brew has not established a prima facie case of harassment.


                                              III.
       Brew alludes to, but marshals no arguments or authority in support of, his
constructive-discharge claim. It is therefore waived. See United States v. Scrog-


       8
         See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 653 (5th Cir.), cert. denied, 133
S. Ct. 136 (2012).
       9
          We do not consider other incidents of alleged harassment not based on race—plant
manager Story’s sexually-explicit criticism of lab technicians and threat to fire an entire press
line for “bitching and complaining”—because Brew has no evidence “that the non-race-based
harassment was part of a pattern of race-based harassment.” Id. at 654.

                                               7
     Case: 12-31096       Document: 00512295255         Page: 8     Date Filed: 07/02/2013



                                       No. 12-31096

gins, 599 F.3d 443, 446 (5th Cir. 2010). Also waived is Brew’s contention, made
for the first time on appeal, that the district court erred by denying his motion
to compel discovery. See Tex. Commercial Energy, 413 F.3d at 510. Similarly,
we will not consider alleged violations of 42 U.S.C. § 1983, § 1985, and the Four-
teenth Amendment that were not presented to the district court. Id.
       The summary judgment is AFFIRMED.10




       10
          Weyerhaeuser’s request for sanctions, presented in its brief but unaccompanied by
a motion, is denied. See FED. R. APP. P. 38 Advisory Committee’s Note (1994 amendment)
(“[B]efore a court of appeals may impose sanctions, the person to be sanctioned must have
notice and an opportunity to respond. . . . . A statement inserted in a party’s brief that the
party moves for sanctions is not sufficient notice.”).

                                              8
