Vallecillo v. HUD , 155 F. App'x 764 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 22, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-50238
Summary Calendar
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Peter Vallecillo,
Plaintiff-Appellant,
versus
United States Department
of Housing & Urban Development,
Defendant-Appellee,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CV-1120
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
The question presented in this case is whether the district
court erred in granting summary judgment for Defendant-Appellee
United States Department of Housing & Urban Development (“HUD”) on
Plaintiff-Appellant Peter Vallecillo’s hostile work environment and
constructive discharge claims under 42 U.S.C. § 2000(e) et seq.
(“Title VII”). Because we find that summary judgment was properly
*
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this opinion should not be published and is not precedent except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.
granted, we AFFIRM the district court’s ruling.
I. BACKGROUND
HUD hired Peter Vallecillo as a Community Builder (“CB”) Fellow
in September 1998. The CB program employed 400 professionals from
an applicant pool of over 8,000 in order to provide out-reach
services and foster community and economic development in
approximately 81 HUD regions. After candidates were selected, HUD’s
Human Resources Department, pursuant to Office of Personnel
Management guidelines, reviewed each contender’s prior experience
and recommended a salary grade level of either GS-13, GS-14, or GS-
15.
HUD offered Vallecillo a CB fellowship position, which he
accepted, starting at the GS-13 level. Beginning early in his
tenure, and continuing throughout the duration of his employment,
Plaintiff-Appellant complained that Hispanics were under-represented
in the CB program and that they were paid less than Caucasian and
African-American employees. Vallecillo argues that after he
questioned HUD’s employment practices, he experienced problems with
his own employment with the department.
On two occasions, in November 1998, two supervisors in the San
Antonio office complained to Cynthia Leon, Vallecillo’s immediate
supervisor, that Plaintiff-Appellant had behaved inappropriately and
had been verbally abusive during meetings. In February 1999, Leon
accused Vallecillo of unprofessional conduct associated with his
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office hours. In March 1999, Plaintiff-Appellant received a
performance appraisal of “fully successful,” a rating that was lower
than the rest of his co-workers. Additionally, in March 1999,
Vallecillo received a “memorandum of counseling” admonishing him for
several incidents of unprofessional conduct including verbal
confrontations with supervisors, his alleged misuse of the email
system, and his attitude towards Leon. The memorandum did not
affect Plaintiff-Appellant’s compensation or benefits. Vallecillo
also contends that, on one occasion, one of his supervisors referred
to him as Che Guevara, and that in a small meeting, another
supervisor referred to him as an “aggressive Hispanic” while
commenting on the need for him to transfer to the Ft. Worth branch
of the CB program. Plaintiff-Appellant alleges that he was also
sent an email notifying him that he would be transferred to the Ft.
Worth territory. Vallecillo resigned from the CB program on October
29, 1999.
II. PROCEDURAL HISTORY
Vallecillo filed a claim with the EEOC alleging hostile work
environment based on his national origin and constructive discharge
in violation of Title VII. On August 8, 2003, the EEOC issued its
decision affirming the administrative judge’s determination that
there was insufficient evidence to support Appellant’s claims.
Vallecillo, arguing the same claims, then filed suit against HUD in
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the United States District Court for the Western District of Texas
on November 10, 2003, and Defendant-Appellee filed a motion for
summary judgment on November 12, 2004. On January 27, 2005, the
district court granted HUD’s Motion for Summary Judgment, holding
that Vallecillo failed to establish issues of fact (1) on whether
the complained of harassment was on the basis of race, nationality
or a protected activity; and (2) that the harassment was
sufficiently severe or pervasive. Additionally, because the court
found that Plaintiff’s hostile work environment claim failed, it
summarily denied Vallecillo’s constructive discharge claim.
Vallecillo timely filed his Notice of Appeal on February 3, 2005,
claiming that the district court erred in granting HUD’s Motion for
Summary Judgment on Plaintiff-Appellant’s hostile work environment
and constructive discharge claims. We will consider each claim in
turn.1
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Defendant-Appellee argues that Vallecillo has abandoned
any challenge to the order granting summary judgment by failing
to specifically address the district court’s rationale. See,
e.g., McKethan v. Texas Farm Bureau, 996 F.2d 734, 739 n.9 (5th
Cir. 1993)(failure to sufficiently brief an issue constitutes
waiver of the issue); Cousin v. Trans Union Corp., 246 F.3d 359,
373 n.22 (5th Cir. 2001)(quoting Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994))(“Normally, ‘[a]n appellant abandons all
issues not raised and argued in its initial brief on appeal.’”).
Pursuant to Rule 28 of the Federal Rules of Appellate Procedure,
“[t]he argument shall contain the contentions of the appellant
with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes, and parts of the
record relied on.” FED. R. APP. P. 28(a)(5). While Vallecillo
does not specifically address the enumerated reasons the district
court gave for granting Defendant-Appellee’s motion, we determine
that through his broad objections to the court’s findings
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III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
We review a district court's grant of summary judgment de novo,
applying the same standard as the district court. Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999).
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986). When making its determination, the court must draw
all justifiable inferences in favor of the nonmoving party.
Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the
regarding his hostile work environment and constructive discharge
claims, he argues with enough specificity for us to consider all
of his arguments. Moreover, we should note that this is unlike
the more execrable situation where an appellant either raises a
completely new issue in its brief, disadvantaging the appellee,
and for which the procedural bar concerning initial briefs was
developed. It is also unlike the situation in Cinel, where the
insurance company raised an issue with this Court that had no
statutory support, thus, leaving us with no legal basis on which
we could decide the issue.
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non-movant must present more than a mere scintilla of evidence.
Anderson, 477 U.S. at 251. Rather, a factual dispute precludes a
grant of summary judgment if the evidence would permit a reasonable
jury to return a verdict for the nonmoving party. See
Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th
Cir. 1999).
IV. DISCUSSION
1. Hostile Work Environment
Title VII is violated “[w]hen the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult,’ that is
‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)(quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67(1986))(internal
citations omitted). To prevail on a hostile work environment claim,
Vallecillo must prove that: 1) he belongs to a protected group;
2) he was subjected to unwelcome harassment; 3) the harassment
complained of was based on his race or national origin; and 4) the
harassment affected a term, condition, or privilege of employment.
Frank v. Xeorox Corp., 347 F.3d 130, 138 (5th Cir. 2003).
In addition to the Plaintiff’s subjective perception of the
abusiveness of the environment, the environment must be such that
a reasonable person would find it hostile or abusive. Harris, 510
U.S. at 21-22; Frank, 347 F.3d at 138. Whether an environment is
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hostile or abusive can be determined only by looking at the
circumstances, including, inter alia, the frequency of the
discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and whether it unreasonably interferes
with the employee’s work performance. Harris, 510 U.S. at 23.
Most importantly, as the Supreme Court pointed out in Meritor
and re-articulated in Harris, the “‘mere utterance of an...epithet
which engenders offensive feelings in an employee’ does not
sufficiently affect the conditions of employment to implicate Title
VII.” Id. at 21. “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988)(internal
quotation marks omitted).
We agree with the district court that even if the Plaintiff-
Appellant demonstrates that he belongs to a protected class and that
he was subjected to unwelcome harassment, he has not raised an issue
of fact that the complained-of harassment was based on his race or
national origin or that the harassment affected a term, condition,
or privilege of employment. Accepting all of the incidents that
Vallecillo lists as true, none are related to his protected status.
Only two alleged statements verge on being related to Plaintiff-
Appellant’s protected status: 1) his immediate supervisor referring
to him as Che Guevara, and 2) his second-level supervisor referring
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to him as an “aggressive Hispanic,” the type of individual allegedly
needed in the Ft. Worth territory. Even if these statements can be
classified as racially offensive, they are not sufficiently severe
or pervasive to constitute a hostile work environment.
The two statements related to race and national origin
epitomize the type of utterances, epithets, and offhand comments
that the we have repeatedly stated were beyond Title VII’s purview.2
In addition, because a reasonable employee would not perceive the
environment as being hostile or abusive, all of the complained-of
acts, together, do not amount to discriminatory changes in the
terms and conditions of employment. Hence, we agree with the
district court that Plaintiff-Appellant fails to establish a genuine
issue of material fact on his hostile work environment claim.
2
For instance, in Shepherd, Jodie Moore, a co-worker of
Plaintiff Debra Jean Shepherd remarked that “[Shepherd's] elbows
[were] the same color as [her] nipples.” Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999).
In addition, Moore commented on the size of Shepherd's thighs
while pretending to look under her desk, attempted to look down
Shepherd's clothing, and exclaimed “here’s your seat” while
patting his lap. Id. Although Shepherd involved alleged
discrimination based on sex, and Vallecillo’s claims are based on
race and national origin, at best, Vallecillo’s allegations are
on the same plane as those in Shepherd. Shepherd’s allegations
were insufficient to succeed on summary judgment in that case,
Id., and Vallecillo’s are insufficient here. See also,
Hayatavoudi v. Univ. of Louisiana Sys. Bd. of Tr., 240 F.3d 1073(5th Cir. 2000)(holding that a reference to an Iranian-American
employee as being like “the dogs in the desert, howling as the
caravan goes by,” which was interpreted as a reference to an
Arabic proverb was not sufficiently severe or
pervasive)(unpublished).
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2. Constructive Discharge
Vallecillo’s constructive discharge claim can be regarded as
an aggravated case of hostile work environment. In addition to the
facts proffered in support of his hostile work environment claim,
he claims that he was twice given an ultimatum to transfer to Ft.
Worth, and that an internal grievance that he filed was dismissed
and forwarded on for further review. Appellant’s claims are not
persuasive.
A plaintiff who advances a hostile-environment constructive
discharge claim “must show working conditions so intolerable that
a reasonable person would have felt compelled to resign.”
Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342,
2354 (2004); see also, Faruki v. Parsons, 123 F.3d 315, 319 (5th
Cir. 1997); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir.
1997); Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir.
1994). The resigning employee bears the burden of proving
constructive discharge. Jurgens v. EEOC, 903 F.2d 386, 390-391 (5th
Cir. 1990). In determining whether an employee has been
constructively discharged, courts consider the following factors
relevant, singly or in combination: (1) demotion; (2) reduction
in salary; (3) reduction in job responsibilities; (4) reassignment
to menial or degrading work; (5) badgering, harassment, or
humiliation by the employer calculated to encourage the employee's
resignation; or (6) offers of early retirement that would make the
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employee worse off, regardless of whether the offer was accepted.
Barrow, 10 F.3d at 297. The test is an objective, “reasonable
employee” test: whether a reasonable person in the plaintiff's
shoes would have felt compelled to resign. Id.; See also Haley v.
Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th Cir. 2004).
While proof that the employer imposed the intolerable
conditions with the specific intent to force the employee to resign
is not required, aggravating factors may be used to support a
constructive discharge claim. These factors include hostile working
conditions or invidious intent to create or perpetrate the
intolerable conditions compelling the resignation. Jurgens, 903
F.2d at 390-393. Finally, it is of utmost importance that
“[c]onstructive discharge requires a greater degree of harassment
than required by a hostile environment claim.” Brown v. Kinney Shoe
Corp., 237 F.3d 556, 566 (5th Cir. 2001).
We agree with the district court’s reasoning that because
Appellant’s hostile work environment claim has failed, his
constructive discharge claim must also fail. See id. Furthermore,
conditions were not so intolerable as to compel Vallecillo’s
resignation. HUD did not demote Vallecillo, and his salary was not
reduced. To the extent that any of his job responsibilities were
reduced, these reductions did not rise to an actionable degree.
See, e.g., Brown v. Bunge Corp., 207 F.3d 776, 782–83 (5th Cir.
2000)(affirming the district court's grant of summary judgment to
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the employer on constructive discharge, where the resigning employee
showed he was demoted and had fewer job responsibilities).
Moreover, the meeting and email notifying and reminding
Appellant that he would be transferred to Ft. Worth do not
constitute badgering, harassment, or humiliation. Finally, the
facts that the meeting notifying Vallecillo of the proposed transfer
occurred almost two-and-one-half months before Appellant resigned
and that he was never actually transferred detract from his claim
of constructive discharge. Hence, Vallecillo was not constructively
discharged.
V. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court as to all claims.
AFFIRMED.
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