Robert Collier v. Dallas County Hospital Dist ( 2020 )


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  •      Case: 19-10761    Document: 00515584800         Page: 1    Date Filed: 09/30/2020
    REVISED September 30, 2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 19-10761                              FILED
    April 9, 2020
    Lyle W. Cayce
    ROBERT COLLIER,                                                                 Clerk
    Plaintiff - Appellant
    v.
    DALLAS COUNTY HOSPITAL DISTRICT, doing business as Parkland
    Health & Hospital System,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:17-CV-3362
    Before KING, JONES, and COSTA, Circuit Judges.
    PER CURIAM:*
    Robert Collier, an African American employee in Dallas County’s
    Parkland Health and Hospital System, filed suit under Title VII after he was
    allegedly fired for insubordination. Collier claims that he was in fact fired in
    retaliation for complaining of racial discrimination and that the hospital was
    *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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10761      Document: 00515584800        Page: 2    Date Filed: 09/30/2020
    No. 19-10761
    a hostile work environment. The district court granted summary judgment for
    the hospital, finding that the rationale given for Collier’s termination was not
    pretextual and that his working environment was not sufficiently abusive to
    constitute a hostile work environment. We affirm.
    I.
    A.
    Collier worked as an operating-room aide in Dallas County’s Parkland
    Health and Hospital System (Parkland) between January 2009 and July 2016,
    where he mainly prepared operating rooms for patients. In August 2014,
    Collier received a written warning after he allegedly failed to follow the
    procedures for proper radio usage and failed to notify his supervisor when he
    was leaving the department. A year later, Collier received a “Final Warning”
    after he allegedly failed to respond to multiple radio calls and punched a wall.
    Collier denies being called on his radio during these occasions but admits to
    punching the wall. 1
    Around this time, Collier complained about racial discrimination at
    Parkland. For example, he submitted complaints to Parkland’s telephone
    hotline stating that African American employees were treated worse than
    Hispanic and Caucasian employees, and he later filed another internal
    complaint making similar allegations. Collier also reported that the N-word
    was scratched into an elevator, and that two swastikas were drawn on the wall
    in a storage room that he frequented. Collier reported this graffiti to Richard
    Stetzel, who oversaw Collier’s supervisor, Javier Reyes, and to human
    1 Parkland has acknowledged that the radios were not always working, and Collier
    notes that he was once nearly disciplined for not using his radio on a day when he had not
    been given access to one.
    2
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    resources. 2 Collier also claimed that a nurse called him “boy” and that other
    nurses called other African American employees “boy” as well.
    Parkland      maintained      that,   although     it   investigated     numerous
    complaints from Collier, none of them involved racially offensive comments or
    graffiti. Nonetheless, Stetzel acknowledged that he was aware of the swastikas
    in the storage room and that he had planned to paint over them within six
    months of first seeing them.
    In June 2016, Collier had a disagreement with Reyes, his supervisor,
    which eventually led to his termination. According to Reyes, Collier refused to
    work in Pod D, one of the four stations where operating-room aides worked,
    and Collier later cursed at Reyes, threatened him, and “became very
    aggressive, violent, [and started] hitting the wall.” 3 Other nearby employees
    confirmed that Collier refused to work in Pod D, despite their attempts to
    convince him to do so, and that Collier exhibited threatening and aggressive
    behavior. The Dallas County Hospital District Police Department was
    summoned, and Collier was issued a citation for assault and was escorted off
    the property.
    Following this incident, Parkland concluded that Collier had been
    insubordinate by refusing to work in Pod D and failing to follow the
    instructions of two additional supervisors, which ultimately “impact[ed]
    2  The N-word remained for several months before being scratched out, and the
    swastikas remained for approximately eighteen months.
    3 Collier acknowledges disagreement with his supervisor but denies being
    insubordinate. For example, Collier’s brief states that “Defendant terminated Plaintiff in
    June 2016 due to an argument he had with Supervisor Reyes regarding Supervisor Reyes
    continually assigning Plaintiff to isolated Pod D, despite Defendant’s policy to rotate the
    ORAs through the different Pods.”
    3
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    patient care.” Four Parkland officials, none of whom were Reyes, decided to
    terminate Collier, and he was fired on July 12, 2016. 4
    B.
    In December 2017, Collier filed suit against Parkland for violations of
    Title VII of the Civil Rights Act and the Texas Employment Discrimination
    Act, claiming racial discrimination and retaliation. As noted, Collier claimed
    that he was retaliated against for reporting racial discrimination and claimed
    that the presence of two swastikas and the N-word on hospital walls, as well
    as being called “boy,” made Parkland a hostile work environment.
    Parkland moved for summary judgment, which the district court
    granted. The district court found that Collier could not establish either: (1) that
    Parkland’s rationale for terminating Collier—i.e., insubordination—was
    pretextual; or (2) that Collier’s working environment “was sufficiently hostile
    or abusive to create a racially hostile work environment.” This appeal followed.
    II.
    “We review a district court’s grant or denial of summary judgment de
    novo, applying the same standard as the district court.” Thomas v. Johnson,
    
    788 F.3d 177
    , 179 (5th Cir. 2015) (quoting Robinson v. Orient Marine Co., 
    505 F.3d 364
    , 365 (5th Cir. 2007)). “Summary judgment is appropriate if ‘the
    pleadings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to
    any material fact and that the moving party is entitled to a judgment as a
    matter of law.’” Robinson, 
    505 F.3d at 366
    . Accordingly, all “reasonable
    4  Employee Relations Advisor CaSaundra Henderson, Employee Relations Director
    Arthur Ferrell, Interim Vice President Brandon Bennett, and Director of Nursing Richard
    Stetzel were responsible for Collier’s termination.
    4
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    inferences should be drawn in favor of the nonmoving party.” Tolan v. Cotton,
    
    572 U.S. 650
    , 660 (2014).
    III.
    A.
    To establish a prima facie case of retaliation under Title VII, a plaintiff
    must indicate 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
    , 556-57 (5th
    Cir. 2007) (describing the burden-shifting framework set forth in McDonnell
    Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973)). Once a prima facie case is
    made, the employer must then “articulate a legitimate, nondiscriminatory or
    nonretaliatory reason for its employment action.” Id. at 557. This burden is
    “only one of production, not persuasion, and involves no credibility
    assessment.” Id.
    If the employer satisfies this burden, “the plaintiff then bears the
    ultimate burden of proving that the employer’s proffered reason is not true but
    instead is a pretext for the real discriminatory or retaliatory purpose.” Id. This
    requires the plaintiff to “rebut each . . . nonretaliatory reason articulated by
    the employer,” id., and to establish “that the adverse action would not have
    occurred ‘but for’ the employer’s retaliatory motive,” Feist v. La. Dep’t of
    Justice, 
    730 F.3d 450
    , 454 (5th Cir. 2013); see also Moore v. Eli Lilly & Co., 
    990 F.2d 812
    , 815-16 (5th Cir. 1993) (“To demonstrate pretext, the plaintiff must
    do more than cast doubt on whether the employer had just cause for its
    5
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    decision; he or she must show that a reasonable factfinder could conclude that
    the employer’s reason is unworthy of credence.” (cleaned up)).
    B.
    We conclude that Parkland offered legitimate, nondiscriminatory
    reasons for Collier’s termination, such as insubordination. See, e.g., Rochon v.
    Exxon Corp., No. 99-30486, 
    1999 WL 1234261
    , at *3 (5th Cir. Nov. 22, 1999)
    (“Violation of a work-rule is a legitimate, nondiscriminatory reason for
    termination”). Accordingly, to prevail on his retaliation claim, Collier must
    demonstrate that these rationales were pretextual, see McCoy, 
    492 F.3d at 557
    ,
    and that his complaints of racial discrimination were a but-for cause of his
    termination, see Feist, 730 F.3d at 454.
    Although there are disputed facts regarding his radio usage and his
    disagreement with Reyes, Collier indisputably punched a wall, received a
    citation for assault, and was determined to be insubordinate. 5 Collier may
    quarrel with the specific details of these events, but he ultimately admits that
    insubordination could constitute a terminable offense, and he offers no
    evidence indicating that Parkland’s rationales were pretextual. Cf. McCoy, 
    492 F.3d at 557
     (“[T]he plaintiff must rebut each . . . nonretaliatory reason
    articulated by the employer.”).
    Collier does not, for example, assert that other employees who were
    similarly insubordinate received different treatment, or that other similarly
    situated employees were fired for pretextual reasons. While Collier alleges that
    Reyes, his supervisor, had a retaliatory intent, four other individuals were
    5 Collier insists that he was not insubordinate, but there is not a genuine dispute of
    material fact regarding whether Parkland could have concluded that he was insubordinate.
    As noted, several observers reported his insubordination, which influenced Parkland’s
    decision to terminate him. Collier does not refute these witness reports and admits to arguing
    with his supervisor. Such conduct qualifies as insubordination. See, e.g., Insubordination,
    Black’s Law Dictionary (11th ed. 2019) (“An act of disobedience to proper authority . . . .”).
    6
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    responsible for his termination. Collier does not explain how these other
    individuals acted with a retaliatory intent or how Reyes’s retaliatory intent
    and role as a “critical person involved,” rather than Collier’s observed
    insubordination, was the cause of his termination. Accordingly, there is no fact
    issue regarding the but-for cause of Collier’s termination, and Collier has failed
    to establish that his firing was pretextual. 6
    IV.
    A.
    To establish a hostile-work-environment claim under Title VII, a
    plaintiff 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 race; (4) the harassment 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.
    Hernandez v. Yellow Transp., Inc., 
    670 F.3d 644
    , 651 (5th Cir. 2012) (quoting
    Ramsey v. Henderson, 
    286 F.3d 264
    , 268 (5th Cir. 2002)). The harassment must
    be “sufficiently severe or pervasive to alter the conditions of the victim’s
    employment and create an abusive working environment,” and it cannot be
    “measured in isolation.” Ramsey, 
    286 F.3d at 268
     (citations omitted).
    To determine whether a work environment is actionably hostile, “all of
    the circumstances must be taken into consideration,” such as “the frequency of
    the discriminatory conduct; its severity; whether it is physically threatening
    or humiliating, or a mere offensive utterance; and whether it unreasonably
    6   For these reasons, we need not address Parkland’s argument that part of the
    retaliation claim is time-barred. Nonetheless, Parkland’s argument is inapposite. The
    statutory limitations period does not “bar an employee from using the prior acts as
    background evidence in support of a timely claim,” which Collier does here. Nat’l R.R.
    Passenger Corp. v. Morgan, 
    536 U.S. 101
    , 113 (2002).
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    interferes with an employee’s work performance.” Hernandez, 
    670 F.3d at 651
    (citation omitted). “[T]he work environment must be ‘both objectively and
    subjectively offensive, one that a reasonable person would find hostile or
    abusive, and one that the victim in fact did perceive to be so.’” 
    Id.
     (quoting
    Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 787 (1998)). Moreover, “[t]he
    alleged conduct must be more than rude or offensive comments [or] teasing.”
    Hockman v. Westward Commc’ns, LLC, 
    407 F.3d 317
    , 326 (5th Cir. 2004).
    “These standards for judging hostility are sufficiently demanding to ensure
    that Title VII does not become a ‘general civility code.’” Faragher, 
    524 U.S. at 788
     (citation omitted).
    B.
    Collier relies on three main facts to support his hostile-work-
    environment claim: (1) a nurse called him “boy”; (2) the N-word was scratched
    into an elevator, and Parkland failed to removed it for months despite his
    complaints; and (3) two swastikas were drawn on the walls of a room that he
    worked in, and Parkland waited eighteen months to paint over them despite
    his complaints.
    As Collier rightly observes, other courts have found that the prolonged
    duration of racially offensive graffiti, especially once it has been reported, could
    militate in favor of a hostile-work-environment claim. See, e.g., Watson v.
    CEVA Logistics U.S., Inc., 
    619 F.3d 936
    , 943 (8th Cir. 2010) (“[T]he key
    difference between graffiti and a racial slur should not be overlooked: the slur
    is heard once and vanishes in an instant, while graffiti remains visible until
    the employer acts to remove it.” (internal quotation marks omitted)); see also
    EEOC v. Rock-Tenn Servs. Co., 
    901 F. Supp. 2d 810
    , 827 (N.D. Tex. 2012) (“[I]f
    the graffiti remains over an extended period of time, or the employer’s response
    is repeatedly ineffective . . . , a fact question arises as to the reasonableness of
    the employer’s response . . . .” (citing Tademy v. Union Pac. Corp., 
    614 F.3d 8
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    1132, 1149 (10th Cir. 2008))). As Collier notes, the N-word remained for several
    months before being scratched out, and the swastikas remained for
    approximately eighteen months, despite Parkland’s knowledge.
    Moreover, other courts of appeals have found instances where the use of
    the N-word itself was sufficient to create a hostile work environment. See, e.g.,
    Ayissi-Etoh v. Fannie Mae, 
    712 F.3d 572
    , 580 (D.C. Cir. 2013) (Kavanaugh, J.,
    concurring) (“As several courts have recognized, . . . a single verbal (or visual)
    incident can . . . be sufficiently severe to justify a finding of a hostile work
    environment.”); Rodgers v. W.–S. Life Ins. Co., 
    12 F.3d 668
    , 675 (7th Cir. 1993)
    (“Perhaps no single act can more quickly ‘alter the conditions of employment
    . . .’ than the use of an unambiguously racial epithet such as [the N-word] by a
    supervisor.” (citation omitted)).
    Though disturbing, the particular facts of this case— the two instances
    of racial graffiti and being called “boy”— are insufficient to establish a hostile
    work environment under our precedent. For example, we have found that the
    oral utterance of the N-word and other racially derogatory terms, even in the
    presence of the plaintiff, may be insufficient to establish a hostile work
    environment. See, e.g., Dailey v. Shintech, Inc., 629 F. App’x 638, 640, 644 (5th
    Cir. 2015) (no hostile work environment where a coworker called plaintiff a
    “black little motherf—r” and threatened to “kick his black a—s”); Frazier v.
    Sabine River Auth., 509 F. App’x 370, 374 (5th Cir. 2013) (finding that use of
    the N-word, the word “Negreet,” and a noose gesture “were isolated and not
    severe or pervasive enough” to create a hostile work environment); Vaughn v.
    Pool Offshore Co., 
    683 F.2d 922
    , 924-25 (5th Cir. 1982) (use of the N-word,
    “coon,” and “black boy”).
    The conduct that Collier complains of was not physically threatening,
    was not directed at him (except for the nurse’s comment), and did not
    unreasonably interfere with his work performance. Cf. Hernandez, 
    670 F.3d at
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    651. In fact, Collier admitted that the graffiti interfered with his work
    performance by only one percent. Moreover, Collier does not argue that he felt
    humiliated by the graffiti, nor would the record support such an assertion.
    Accordingly, on the record before us, Collier’s hostile-work-environment claim
    fails because it was not “sufficiently severe or pervasive to alter the conditions
    of the victim’s employment and create an abusive working environment.”
    Ramsey, 
    286 F.3d at 268
     (citation omitted).
    V.
    For the foregoing reasons, we AFFIRM the judgment of the district court.
    10