     Case: 15-31022      Document: 00513621772         Page: 1    Date Filed: 08/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-31022                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                           August 3, 2016
ROMERICUS STEWART,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

BROWNGREER, P.L.C.; ROBERT HALF INTERNATIONAL,
INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1980


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       From October 2012 through February 2013, Plaintiff–Appellant
Romericus Stewart worked as a “temp to perm” employee in a call center for
Defendant–Appellee BrownGreer, P.L.C.               Under this type of employment
arrangement, Defendant–Appellee Robert Half International, Inc. (RHI)
provided individuals to BrownGreer on a temporary basis with the possibility


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-31022
that the position would lead to long-term employment with BrownGreer.
Stewart alleged that, while working in the call center, he was subjected to
harassment due to his sexual orientation, race, and disability. 1 In particular,
Stewart claimed that a coworker harassed him based on his sexual orientation
by making comments in a high-pitched voice, using a stereotypical hand
gesture, and making homophobic comments.                   Stewart alleged that the
discriminatory remarks included coworkers’ derogatory comments about “fat
people,” which Stewart interpreted as coded statements about homosexuals.
He also stated that his coworkers made discriminatory comments about his
race when they stated that “everyone knows that Martin Luther King Street
runs through ‘bad’ neighborhoods in almost every city in America” and about
his disability when they stated that “some people will not get health insurance
no matter what.” Stewart ultimately filed a written complaint regarding the
harassment with BrownGreer.             Shortly thereafter, Stewart was placed in
remedial training and was not offered permanent employment.
      On August 29, 2014, Stewart filed suit, claiming that he was subjected
to a hostile work environment and retaliatory discharge, in violation of Title
VII of the Civil Rights Act of 1964. BrownGreer and RHI moved for summary
judgment on all claims, and the district court granted their motions. Relevant
to this appeal, the district court found that Stewart failed to state a prima facie
case for either a hostile work environment or a retaliatory discharge. As to
Stewart’s hostile work environment claim, the court found that, assuming
without deciding that sexual orientation is a protected class, the periodic
incidents and isolated comments were not sufficiently severe or pervasive to
make a prima facie showing of harassment. The court also found that the
isolated comments supporting Stewart’s claim based on racial or disability


      1   Stewart is a HIV-positive, homosexual, African-American male.
                                             2
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                                       No. 15-31022
discrimination were insufficient as a matter of law. The court further noted
that Stewart had failed to provide any evidence supporting his assertion that
his coworkers’ comments were veiled references to Stewart’s sexual orientation
or disability. As to Stewart’s retaliatory discharge claim, the court found that
Stewart failed to show that he engaged in a protected activity because no
reasonable person could have believed that the comments reported by Stewart
would amount to a violation of Title VII.                The court therefore dismissed
Stewart’s claims with prejudice on November 2, 2015.                        Stewart timely
appealed.
       “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.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th
Cir. 2013) (quoting Pierce v. Dep’t of the Air Force, 512 F.3d 184, 186 (5th Cir.
2007)). Summary judgment is proper “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). “However, conclusory statements,
speculation, and unsubstantiated assertions cannot defeat a motion for
summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir.
2010). “Rather, the party opposing the summary judgment is required to
identify specific evidence in the record and to articulate precisely how this
evidence supports his claim.” Id.
       On appeal, Stewart has only properly appealed the district court’s
dismissal of his Title VII retaliation claim against BrownGreer. 2 Stewart



       2 Stewart’s passing mention of his hostile work environment claim is insufficient to
adequately brief the issue on appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
Moreover, Stewart fails to address the district court’s grant of summary judgment for all
claims relating to RHI. See Health Care Serv. Corp. v. Methodist Hosps. of Dall., 814 F.3d
242, 251 n.38 (5th Cir. 2016) (noting that issues not adequately raised in the initial brief are
waived).
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                                       No. 15-31022
alleges that, after reporting the alleged comments by his coworkers,
BrownGreer punished him by forcing him to undergo remedial training and
declining to extend an offer of permanent employment. Stewart has failed to
show, however, that he engaged in a protected activity under Title VII. To
make out a prima facie case of retaliation, a plaintiff must show that “(1) he
participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action.” McCoy v.
City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (per curiam). While a
plaintiff may engage in a protected activity when he informs his employer of
an unlawful employment practice, see 42 U.S.C. § 2000e-3(a); Crawford v.
Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009), the
plaintiff “must also have had a reasonable belief that [his fellow employees’]
comment[s] created a hostile work environment under Title VII,” Satterwhite
v. City of Houston, 602 F. App’x 585, 588 (5th Cir. 2015) (per curiam)
(unpublished); accord Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
348–49 (5th Cir. 2007).
       Even assuming, arguendo, that sexual orientation is a protected class for
Title VII claims, 3 Stewart has failed to show that a “reasonable person could
have believed” that the actions by his coworkers constituted a violation of Title
VII. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (noting that
a plaintiff cannot show a Title VII claim from “simple teasing, offhand
comments, and isolated incidents (unless extremely serious)” (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))).                      The claims
predicated on race and disability are similarly insufficient because they are


       3“Title VII in plain terms does not cover ‘sexual orientation,’” and we decline to decide
here whether a plaintiff “may claim some protection under Title VII.” Brandon v. Sage Corp.,
808 F.3d 266, 270 n.2 (5th Cir. 2015).
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                                No. 15-31022
based on single, isolated incidents. See Satterwhite, 602 F. App’x at 588 (“We
have accordingly rejected numerous Title VII claims based on isolated
incidents of non-extreme conduct as insufficient as a matter of law.”).
Moreover, many of the coworkers’ statements that Stewart relies on to support
his claims are facially innocuous, and he has failed to present evidence
supporting his interpretation of those statements as discriminatory. See RSR
Corp., 612 F.3d at 857 (stating that “unsubstantiated assertions cannot defeat
a motion for summary judgment”); cf. EEOC v. Rite Way Serv., Inc., 819 F.3d
235, 243–44 (5th Cir. 2016) (holding that facially discriminatory statements by
a supervisor were sufficient to raise a genuine dispute as to whether a
reasonable person could have believed the conduct violated Title VII). Because
Stewart has failed to show that a reasonable person could have believed that
the incidents constituted violations of Title VII, he has failed to establish a
prima facie case of retaliation. Satterwhite, 602 F. App’x at 589. The district
court therefore did not err in granting BrownGreer’s motion for summary
judgment.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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