Pickens v. Shell Technology Ventures Inc. , 118 F. App'x 842 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 04-20272
_____________________
RICHIE PICKENS; MICHAEL SHOOK; ANDY BRECKWOLDT
PlaintiffS - Appellants
v.
SHELL TECHNOLOGY VENTURES INC; ET AL
Defendants
SHELL TECHNOLOGY VENTURES INC; SHELL INTERNATIONAL EXPLORATION
AND PRODUCTION B V; SHELL INTERNATIONAL EXPLORATION AND
PRODUCTION INC
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. H-01-CV-2625
_________________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PER CURIAM:*
This is a Title VII case in which the plaintiffs assert
national origin discrimination and hostile work environment
* 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that this opinion should not be published and is not precedent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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claims against their former employer. The district court granted
summary judgment in favor of the employer. We AFFIRM.
I. BACKGROUND
This appeal concerns allegations of employment
discrimination brought by Plaintiffs-Appellants Richie Pickens,
Michael Shook, and Andy Breckwoldt (collectively, the
“plaintiffs”) against their former employer, Defendant-Appellee
Shell Technology Ventures, Inc. (“STV”). STV was created in 1996
by Defendant-Appellee Shell International Exploration and
Production, Inc. and is a business unit of the Royal Dutch/Shell
Group of Companies (“Shell”). STV has offices in both Houston,
Texas and Rijswijk, Holland and employs staff from several
countries. The plaintiffs are all American. For most of the
time period relevant to this appeal, their supervisors were
European nationals located in the Rijswijk office.
Pickens, who was stationed in Houston, began working for
STV in 1997. STV terminated Pickens’s employment in 2000. Shook
was also stationed in Houston. He began working for Shell in
1981, and he began working for STV in 1996. STV terminated
Shook’s employment in 2000. Breckwoldt began working for Shell
in 1979, and he began working for STV in 1997. He initially
worked in Houston, but he was soon transferred to the Rijswijk
office. Breckwoldt is still employed by Shell, although not with
STV. He alleges that his supervisors demoted him several times
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in the course of his employment with STV.
On May 25, 2001, the plaintiffs brought suit in Texas state
court alleging that they were discriminated against because of
their national origin in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-
2(a)(1)(2000), and that they were subjected to a hostile work
environment, also in violation of Title VII.1 Pickens, an
African American, additionally alleges that he suffered from
racial discrimination in violation of Title VII. STV removed to
the United States District Court for the Southern District of
Texas. STV then brought a motion for summary judgment, which the
district court granted on February 19, 2004. The plaintiffs
appeal that judgment.
II. STANDARD OF REVIEW
A. Summary Judgment Standard of Review
We review a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
1
Pickens and Shook were the original plaintiffs, alleging
violations of Texas state law. On July 5, 2001, Breckwoldt filed
a petition for intervention, asserting claims under Title VII.
Pickens and Shook then amended their pleadings to allege
violations of Title VII. Only the Title VII claims are relevant
to this appeal.
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a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); see also FED. R. CIV. P. 56 (c). The initial burden to
demonstrate the absence of a genuine issue concerning a material
fact is on the movant. Celotex, 477 U.S. at 324. Upon showing
that there is an absence of evidence to support an essential
element of the non-movant’s case, the burden shifts to the non-
movant to establish that there is a genuine issue of material
fact. Id.B. The McDonnell Douglas Framework
The McDonnell Douglas burden-shifting framework governs the
plaintiffs’ Title VII claims. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Under the McDonnell Douglas approach,
the plaintiff has the initial burden of proving a prima facie
case by a preponderance of the evidence. Id. A plaintiff
satisfies this initial burden by showing that: (1) he is a member
of a protected class; (2) he was qualified for the position; (3)
he suffered an adverse employment action such as termination or
demotion; and (4) he was replaced by someone not of the protected
class or others similarly situated were more favorably treated.
See, e.g., Okoye v. Univ. of Tex. Health Sci. Ctr., 245 F.3d 507,
512-13 (5th Cir. 2001).
Once the plaintiff establishes a prima facie case, the
burden of production shifts to the defendant to articulate a
legitimate nondiscriminatory reason for the challenged employment
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action. McDonnell Douglas, 411 U.S. at 802. If the defendant
proffers such a legitimate reason, the burden shifts back to the
plaintiff to show that the defendant’s reason was merely a
pretext for discrimination. Rios v. Rossotti, 252 F.3d 375, 378
(5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 138-42 (2000)). Throughout, the ultimate
burden of persuasion remains with the plaintiff. Reeves, 530
U.S. at 143.
III. ANALYSIS
A. Discrimination Claims
1. Richie Pickens’s Claims
The district court ruled that STV had a legitimate non-
discriminatory reason for terminating Pickens. While employed by
STV, Pickens began forming a consortium to purchase an oil
refinery in Louisiana. Pickens pursued this venture on company
time and using company resources. Specifically, Pickens tried to
gain access to Shell’s proprietary information regarding the
refinery. After his supervisors became aware of this activity,
STV terminated Pickens for misusing company time and resources to
pursue a personal business venture that constituted a conflict of
interest. On this evidence, the district court found that STV
had legitimate business reasons for terminating Pickens’s
employment.
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Pickens argues that the district court failed to consider
relevant evidence raising a material issue of fact as to whether
STV’s proffered reasons for his termination were pretext for
national origin discrimination.2 Pickens first argues that the
district court failed to consider evidence that Steve Carter and
Dave Martin, both of whom are Scottish and were executives at
STV, made a number of anti-American comments such as “Americans
are greedy,” “Americans are cowboys,” and “Americans are
overpaid.” Specifically, Pickens argues that the district court
erred in only considering this evidence as it related to the
hostile work environment claims, while ignoring its probative
value in proving discriminatory animus.
Contrary to Pickens’s assertions, the district court
specifically noted that the anti-American comments were
immaterial since the decision to terminate Pickens was
exclusively made by Chris Duhon, the Director of STV and an
American. Thus, the district court did not ignore the impact of
the statements on the plaintiffs’ discrimination claims.
Further, these comments do not establish pretext. It is true
that if an employee can establish that others had leverage over
2
Although Pickens additionally claims that he was
discriminated against based on his race, he does not offer any
arguments as to how his termination was a pretext for racial
discrimination nor does he assign error to the district court’s
decision on this matter. Because of his failure to brief the
issue adequately, we deem it waived. See Robinson v. Guarantee
Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir. 2004).
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the official decisionmaker, then it is proper to impute their
discriminatory attitudes to the formal decisionmaker. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000).
Thus, if Pickens could establish a factual issue as to whether
Carter or Martin exerted such leverage over Duhon, then summary
judgment would have been improper. However, Pickens does not
offer sufficient evidence to establish a genuine issue of fact on
this matter. Pickens offers an e-mail that Martin sent to Duhon
recommending that Pickens, as well as Shook, be terminated.
However, this e-mail does not reflect that Martin exerted
leverage or control over Duhon’s decisionmaking. All it reflects
is that Martin offered his input. It does not establish what
impact that input may have had on Duhon. Thus, the e-mail is
insufficient to raise a factual issue as to whether Carter and
Martin’s alleged discriminatory attitudes could be attributed to
Duhon, the ultimate decisionmaker.
Pickens next claims that he was actually pursuing the
refinery venture on behalf of STV and not for personal gain. The
district court found this explanation inherently unbelievable.
Considering that the refinery project was beyond the scope of
both Pickens’s job responsibilities and STV’s line of business
and that he also did not inform his supervisors of the project,
we agree with the district court’s determination. Further, if
this claim were true, the circumstances were such that STV could
have reasonably believed that Pickens was pursuing the refinery
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for personal gain. For the purposes of Title VII, this
reasonable belief is enough to justify Pickens’s termination.
See Jones v. Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1986);
Dickerson v. Metro. Dade County, 659 F.2d 574, 581 (5th Cir. Unit
B Oct. 1981). Thus, Pickens’s claim that he was pursuing the
refinery on STV’s behalf is irrelevant to the disposition of the
case and does not raise an issue of material fact.
Pickens also argues that the district court did not
sufficiently consider an e-mail Martin sent to Carter shortly
after they discovered Pickens’s refinery plans. The e-mail
states:
Finally, [a]t your suggestion, I would like to leave
the decision to take [Pickens] out of the loop until
Thursday morning when we have our next face to face to
ensure we don’t compromise Shell’s position with
respect to [Pickens] as we were already considering a
poor performance procedure with him.
(emphasis added). Pickens seems to view this e-mail as evidence
of STV’s preexisting plans to terminate him because of his
national origin. The e-mail does not prove nearly so much. At
most, it reflects that, independent of Pickens’s refinery
activities, STV was already displeased with Pickens’s job
performance. There is simply no way to draw an inference of
discrimination from this e-mail. Thus, the e-mail does not raise
a genuine issue as to pretext.
In sum, none of Pickens’s arguments demonstrates that there
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is a genuine issue of material fact as to whether STV’s proffered
nondiscriminatory reasons for his termination were a pretext for
national origin discrimination. Under the McDonnell-Douglas
framework, STV is thus entitled to judgment as a matter of law.
Consequently, the district court’s grant of summary judgment as
to Pickens’s discrimination claims was appropriate.
2. Michael Shook’s Claims
The district court found that Shook could not establish a
prima facie case since he was replaced by an American. As with
Pickens, the district court also found that STV had legitimate
non-discriminatory reasons for terminating Shook. While employed
by STV, Shook spent company time and resources developing an
internet startup company. Shook spent time at work soliciting
investors for his proposed business using STV’s e-mail system.
Shook also wrote in various e-mails that he intended to leave STV
if he secured sufficient funding for his new company. Based on
these facts, STV terminated Shook’s employment.
Shook argues that the district court committed a factual
error in determining that he was replaced by an American. Shook
also argues that the district court ignored evidence that
established a genuine issue as to whether his termination was
pretextual. Even if we assume, arguendo, that the district court
erred in determining that Shook was replaced by an American,
Shook still does not raise any genuine issues of fact as to
pretext.
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Shook offers several arguments to demonstrate that his
termination was pretextual. First, he argues that his business
venture did not present a conflict of interest since the internet
company would not compete with STV or any other Shell company.
Second, he argues that he was not using company time to develop
his business since he worked irregular hours. Third, he argues
that other employees used STV’s e-mail system for personal use.
None of these arguments raises a genuine issue of material
fact as to whether his termination was pretextual. Whether the
internet company would actually compete with Shell is irrelevant
because Shook’s devotion of time at the office to a private
business venture for which he admitted he would leave Shell
demonstrates poor judgment. STV’s reasonable belief that Shook’s
activities were against STV’s interests justifies his termination
for the purposes of Title VII. See Jones, 793 F.2d at 729;
Dickerson, 659 F.2d at 581. So as with Pickens’s claim regarding
the refinery venture, Shook’s arguments do no relate to facts
that are material to the question of pretext. As such, STV was
entitled to judgment as a matter of law on Shook’s discrimination
claims and summary judgment was appropriate.
3. Andy Breckwoldt’s Claims
As we understand his argument, Breckwoldt claims that he was
demoted, and thus suffered an adverse employment action, on four
separate occasions. First, Breckwoldt claims he was demoted
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during the process of his move to Rijswijk. When he agreed to
move to Holland, Breckwoldt had received assurances from Bill
Dirks, the original President of STV, that he would head the new
office in Rijswijk. However, in the process of transferring,
Breckwoldt was informed by Carter, STV’s former acting Chief
Executive Officer, that he would merely be a team leader on
Deepwater, one of STV’s project teams. Second, Breckwoldt claims
that in 1998, Martin, his then-supervisor, demoted him from team
leader of Deepwater to team member. However, after about a year,
during which time he was supervised by Americans, Breckwoldt was
eventually able to regain his position as a team leader. Third,
Breckwoldt claims that in March 2000, Martin, who by this time
was once again Breckwoldt’s supervisor, again demoted Breckwoldt
from team leader of Deepwater to team member. Finally,
Breckwoldt claims Martin demoted him yet again after he moved
back to Houston once the Deepwater project was completed. He
requested Martin to sponsor him for a promotion to team leader.
Martin denied the request and instead transferred Breckwoldt to
work as a team member on the Bluegraf project. Breckwoldt claims
that Bluegraf was less prestigious than Deepwater, did not
adequately utilize his skills, and did not match his professional
interests. Breckwoldt also claims that Martin told him that his
future options at STV were limited.
The district court found that Breckwoldt offered no evidence
showing that any of these transfers were indeed demotions. In
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the district court’s view, all that Breckwoldt established was
that in his mind, his new assignments were less desirable. Thus,
the district court found that he did not establish that he
suffered an adverse employment action. On appeal, Breckwoldt
claims that the district court neglected to consider Sharp v.
City of Houston, 164 F.3d 923 (5th Cir. 1999). In Sharp, we
stated that “[t]o be equivalent to a demotion, a transfer need
not result in a decrease in pay, title, or grade; it can be a
demotion if the new position proves objectively worse--such as
being less prestigious or less interesting or providing less room
for advancement.” Id. at 933. On this standard, Breckwoldt
argues that he did establish that he suffered an adverse
employment action.
As to Breckwoldt’s first two demotion claims, even if we
assume, arguendo, that they were adverse employment actions, they
are time-barred. Breckwoldt had 300 days after the complained-of
employment actions to file a charge of discrimination. 42 U.S.C.
§ 2000e-5(e)(1)(2000)(requiring Title VII charges to be made
within 300 days of the incident if the incident was initially
reported to a state or local agency). After first filing charges
with the relevant state agency, he filed a charge with the United
States Equal Employment Opportunity Commission on November 29,
2000. Therefore, he may not recover for employment actions taken
before February 2, 2000. Because the first two alleged demotions
occurred in 1998, Breckwoldt’s claims with respect to them are
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time-barred and summary judgment was appropriate.
Breckwoldt’s third demotion (i.e., his second demotion from
team leader to team member of Deepwater) occurred in March 2000
and is not time-barred. However, this claim fails because
Breckwoldt has not pointed to any evidence indicating how the job
responsibilities of a team member are objectively worse than
those of a team leader. Further, a review of the record
indicates that no such evidence exists. Without such evidence,
it is impossible to find that being moved from team leader to
team member was an adverse employment action within the scope of
Title VII. Because Breckwoldt has failed to raise a genuine
issue of material fact as to one of the elements of the prima
facie case, STV was entitled to judgment as a matter of law as to
Breckwoldt’s third demotion claim.
Breckwoldt’s fourth alleged demotion must also fail on
summary judgment. This allegation has two components. The first
is Martin telling Breckwoldt that his future options at STV were
limited. The second is Breckwoldt’s transfer to the Bluegraf
project. As to the first aspect of this claim, assuming such a
statement was made, it would not qualify as an adverse employment
action. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th
Cir. 1997) (finding that a verbal threat of termination was not
an adverse employment action under Title VII). Regarding the
second aspect of this claim, Breckwoldt has not offered any
evidence explaining how being a team member of Bluegraf was
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objectively worse than being a team member of Deepwater. Thus,
the district court properly granted summary judgment to STV as to
Breckwoldt’s claims.
B. Hostile Work Environment Claims
1. National Origin Based Claims
The district court granted summary judgment on the
plaintiffs’ assertions that they suffered from a hostile work
environment because of their national origin. The plaintiffs
mainly cited Carter and Martin’s anti-American comments as
evidence that a reasonable person working at STV would consider
STV to be hostile, abusive, and discriminatory towards Americans.
The district court found that these remarks were not pervasive or
abusive enough to create a hostile work environment.
On appeal, the plaintiffs argue that the district court did
not adequately consider the evidence supporting their claims.
The plaintiffs mainly cite the anti-American remarks. They also
point to Carter’s overall insensitivity and mean-spiritedness,
the perception among STV staff that Carter did not like
Americans, and the perception among STV staff that Americans were
not treated fairly. The plaintiffs’ arguments are unavailing.
The Supreme Court has held that “[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
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environment, Title VII is violated.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)(internal quotation marks and
citations omitted); see also Weller v. Citation Oil & Gas Corp.,
84 F.3d 191, 194 (5th Cir. 1996) (noting that factors to consider
for a hostile work environment claim include “the frequency of
the conduct, the severity of the conduct, the degree to which the
conduct is physically threatening or humiliating, and the degree
to which the conduct unreasonably interferes with an employee’s
work performance”).
The plaintiffs’ evidence does not raise a genuine issue of
material fact as to whether the standard established in Harris
was met. Much of the evidence upon which the plaintiffs rely is
the “perception” that Americans were being unfairly treated, but
this hardly illustrates that the working conditions were so bad
as to create an abusive workplace. The plaintiffs’ strongest
evidence is Carter’s anti-American comments. However, these
statements also lack the requisite pervasiveness or severity.
See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th
Cir. 1999) (noting that discourtesy, rudeness, offhand comments,
and isolated incidents that are not extremely serious will not
amount to discriminatory changes in the terms and conditions of
employment). Without more evidence, the plaintiffs cannot
establish a genuine issue of material fact as to whether STV
created a hostile work environment for American employees.
2. Race Based Claims
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In addition to national origin discrimination, Pickens
asserts that he also suffered from a racially hostile work
environment. The district court ruled that Pickens’s claim
failed because it was based solely on events occurring at a
company Christmas party held in Holland in December 1998 for
STV’s executives. The party featured a traditional Dutch skit in
which Santa’s helpers were white children with their faces
painted black. During the course of the skit, other employees in
the audience directed racially insensitive comments towards
Pickens. In the district court’s view, the Christmas party did
not involve remarks that were pervasive or abusive enough to
create a hostile work environment.
As with the national origin based claims, Pickens argues
that the district court generally misapprehended the relevant
test for determining a hostile work environment. This claim
fails. This single event was simply not sufficiently severe to
create a hostile working environment. See Indest, 164 F.3d at
264; Weller, 84 F.3d at 194; DeAngelis v. El Paso Mun. Police
Officers Ass’n, 51 F.3d 591, 595-96 (5th Cir. 1995). Because
Pickens offers no other evidence of racial bias or harassment in
the workplace, summary judgment on his hostile work environment
claim was also proper.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
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court is AFFIRMED.
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