Robinson v. Our Lady of the Lake Regional Medical Center, Inc.

Case: 12-31282 Document: 00512301137 Page: 1 Date Filed: 07/09/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 9, 2013

No. 12-31282 Lyle W. Cayce

Summary Calendar Clerk

SAHRAN WILSON ROBINSON,

Plaintiff - Appellant

v.

OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER,

INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:10-CV-584

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Sahran Robinson, who is black, reported to her employer, Our Lady of the

Lake Regional Medical Center (“OLOL”), the use of a racial epithet by a co-

worker. She alleged that, in response, OLOL retaliated against her by, among

*

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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other things, reducing her pay and terminating her employment. The district

court granted summary judgment for OLOL. We AFFIRM.

I. Facts and Proceedings

Robinson began working for OLOL as a “Nurse Tech II” in June 2008.

Soon after, she became a “Surgical Tech” earning $20 per hour.

Robinson received her nursing degree in December 2008. She secured a

temporary nursing permit pending the results of her licensing exam, and, in

January 2009, joined OLOL’s operating room nurse internship program. She

received a corresponding pay increase to $21.88 per hour.

After joining the internship program, Robinson learned that she did not

pass the exam. OLOL reclassified her as a “Surgical Tech,” but continued to pay

the same salary until February 2010.1

Supervisor Holly Leonard met with Robinson for a counseling session on

September 16, 2009. Leonard explained: that Robinson was often late to work;

that she did not clock in or out appropriately; that she confused patients’

specimens; and that she returned to work with a cut on her hand without

appropriate clearance.

Robinson proceeded to report to OLOL that she overheard a conversation

between two white co-workers, one of whom was Mandy Wilson, in which Wilson

referred to a black employee, Danielle Davis, as a “n***** b****.”

An investigation followed. Wilson at first denied making racial, or

otherwise derogatory, comments. However, she later admitted that “she

probably did call [Davis] a ‘b****.’” “[B]ased on her lack of honesty . . . in the

beginning of the investigation,” OLOL terminated Wilson in October 2009.

1

Upon “review[ing] . . . staff salaries for the budgeting process” in February 2010,

OLOL noticed that it was paying Robinson the rate for licensed nurses even though she had

not passed the nursing exam. OLOL therefore reduced her pay on February 14, 2010.

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Wilson continued to visit the OLOL campus after her termination.

Following one visit, Robinson wrote to her supervisors that she was “so afraid

for [her] safety [due to Wilson’s appearance],” and that she was “constantly

looking over [her] shoulder.” In response, OLOL compliance officer Lisa Boston

told Robinson that Wilson “would no longer be coming to the Surgery

department and that all leaders in Surgery were aware that she should not

return to the employee[-]only areas.”

Robinson called Boston on March 17, 2010 to report that Wilson again was

on the OLOL campus. On the same day, Boston received a phone call from

Davis, who had been terminated the day before. Davis said that she “had been

called and texted by a friend who works at” OLOL, and that the “friend” had told

her that Wilson “was back working in the OR.” Boston asked Davis who sent her

the text. Davis started to respond that it was “Sa,” but “then caught herself

[and] asked why [Boston] wanted to know.”

In a March 18, 2010 meeting, Boston asked Robinson whether she had

sent text messages the day before to phone numbers purportedly belonging to

Davis. Robinson replied that she did not recall Davis’ number. Boston asked

Robinson to produce her cell phone. Robinson responded that she was “not

telling [Boston] anything.” Boston “explained that [she] would have to

recommend to Human Resources the termination of [Robinson’s] employment

because she refused to participate in the investigation.” Robinson said “[f]ine”

and “walked out of the room.”

Melissa Guerin, a human resources employee, informed Robinson in a

subsequent meeting that OLOL would not, in fact, end her employment.

Instead, Guerin told Robinson that she would be given a “Decision Day” to

“decide whether she would like to return to work and re-commit as a team

player.” Robinson “stated that she wanted to remain a part of the team.”

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Robinson then went “straight to [Boston’s] office to discuss the

investigation [into Wilson’s visit to the OLOL campus] with [Boston].” Boston

reported to OLOL management that Robinson acted in an “inappropriate” and

“unprofessional” manner that “was not in keeping” with OLOL standards.

Citing her “unprofessional behavior,” OLOL terminated Robinson’s employment

on March 25, 2010.

Robinson filed suit against OLOL, alleging, among other things, that she

was retaliated against in violation of Title VII of the Civil Rights Act of 1964.

The district court granted summary judgment for OLOL, holding that Robinson

did not establish a prima facie case of retaliation because she did not establish

the requisite causal link between her report of the racial epithet and OLOL’s

reduction of her pay and termination of her employment. Alternatively, the

district court found that Robinson did not show that OLOL’s reasons for

reducing her pay and terminating her employment were pretextual. Robinson

appeals.

II. Standard of Review

“We review a district court’s grant of summary judgment de novo and

apply the same standards as the district court. Summary judgment is proper if

the pleadings and evidence show there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” Hernandez v.

Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir.) (internal citations omitted),

cert. denied, 133 S. Ct. 136 (2012).

III. Robinson’s Retaliation Claim

“A plaintiff establishes a prima facie case of retaliation by showing (i) he

engaged in a protected activity, (ii) an adverse employment action occurred, and

(iii) there was a causal link between the protected activity and the adverse

employment action.” Id. at 657.

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A. “[Robinson] engaged in a protected activity”

The district court found that Robinson “engaged in a protected activity”

when she reported Wilson’s racial epithet to OLOL on September 16, 2009. On

appeal, Robinson suggests that, for the purpose of evaluating whether there was

a “causal link between the protected activity and the adverse employment

action,” discussed below, she engaged in additional protected activities: filing a

charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”) on December 16, 2009, and reporting various grievances to OLOL on

January 28, 2010.2 However, Robinson does not maintain, and the record does

not support, that she raised these arguments in district court. Indeed, in an

exhibit attached to her complaint, under the heading “Prima Facie Case of

Discrimination,” Robinson wrote that she “engaged in protected activity under

Title VII by reporting the use of racially inappropriate comments in the work

place.” (Emphasis added.) Because “this court cannot decide disputed issues of

material fact,” and because Robinson did not “set forth specific facts, by

affidavits or otherwise, to show there is a genuine issue for trial” as to whether

she engaged in these additional protected activities, she waived these arguments

on appeal. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992).

B. “an adverse employment action occurred”

Robinson alleged an assortment of grievances—for example, problems with

“coworkers . . . attempting to retaliate against her”—that she contends qualify

as adverse employment actions. The district court found that only the reduction

in Robinson’s pay and the termination of her employment qualified. On appeal,

Robinson argues that the district court “erred in looking at the context of the

continuing complaints . . . in a piecemeal fashion,” and that, viewed in context,

her various grievances amount to adverse employment actions.

2

Robinson’s grievances included that a friend of Wilson’s was reporting her for various

infractions.

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“To constitute prohibited retaliation, an employment action must be

‘materially adverse,’ one that would ‘dissuade[ ] a reasonable worker from

making or supporting a charge of discrimination.’ The purpose of this objective

standard is ‘to separate significant from trivial harms’ and ‘filter out complaints

attacking the ordinary tribulations of the workplace, such as the sporadic use of

abusive language, gender-related jokes, and occasional teasing.’” Stewart v. Miss.

Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (alteration in original)

(internal citation omitted) (quoting Burlington N. & S.F.R. Co. v. White, 548 U.S.

53, 68 (2006)). Although “arguably adverse employment actions must be viewed

in context,” McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007) (per

curiam), “[a]n employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor annoyances that often

take place at work and that all employees experience.” White, 548 U.S. at 68. In

other words, “Title VII . . . does not set forth ‘a general civility code for the

American workplace.’” Id (quoting Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80 (1998)).

Here, even viewed in context,3 the alleged adverse employment actions do

not reach the requisite level of materiality, see Stewart, 586 F.3d at 331, to

qualify as adverse employment actions. Robinson does not identify, and we

could not find, cases in which conduct similar to her alleged grievances has

amounted to an adverse employment action. For example, Robinson’s allegation

that her “coworkers [were] attempting to retaliate against her,” apparently

reduces to the fact that, once she reported the racial epithet, she was subject to

“stares, whispering, [and] employees not be[ing] cordial,” resulting in a “hostile

3

Robinson argues that the district court “individualized each [allegedly discriminatory]

event.” However, other than using bullet points to list Robinson’s grievances, there is no

indication that the district court adopted a “piecemeal” approach. Indeed, the district court

primarily relied on the White case, referenced above, which Robinson cites for the proposition

that “[c]ontext matters.”

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work environment.” However, the complained-of conduct—for example, being

reported because one of her earrings was exposed in the operating room—was

not “severe or pervasive enough to create an objectively hostile or abusive work

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see, e.g., Earle

v. Aramark Corp., 247 F. App’x 519, 524 (5th Cir. 2007) (per curiam) (observing

that “disciplinary write-ups” and “micro-managing” are not “materially adverse

employment actions”); Stingley v. Den-Mar, Inc., 347 F. App’x 14, 19 (5th Cir.

2009) (per curiam) (observing that an unsubstantiated “belief that [a co-worker]

maliciously talked about [plaintiff] and caused others to treat her less cordially”

was “insufficient to raise a genuine issue of fact as to whether [plaintiff] suffered

a materially adverse employment action”). Robinson also suggests that OLOL

endangered her safety, and showed indifference to her concerns, by continuing

to allow Wilson on campus. However, Robinson does not explain how this

amounts to an adverse employment action, let alone one that is

material—particularly given that Robinson never interacted with Wilson, and

that OLOL warned Wilson not to enter employee-only areas of the hospital.

Accordingly, because “[t]he allegedly retaliatory incidents of which [Robinson]

complains are either unsupported by the record or so ‘trivial’ that they do not

appear to be the sort of actions that would dissuade a reasonable employee from

reporting discrimination,” Grice v. FMC Techs. Inc, 216 F. App’x 401, 407 (5th

Cir. 2007) (per curiam), the district court did not err in finding that only the

reduction in pay and termination of employment amounted to adverse

employment actions.

C. “there was a causal link between the protected activity and the

adverse employment action”

Given our discussion above, whether there is a sufficient “causal link”

reduces to whether there is a close enough connection between Robinson’s report

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of the racial epithet (“the protected activity”) and the reduction in Robinson’s pay

and termination of her employment (“the adverse employment action[s]”).

“Close timing between an employee’s protected activity and an adverse

action against him may provide the ‘causal connection’ required to make out a

prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180,

1188 (5th Cir. 1997). “However, we have made clear that ‘the mere fact that

some adverse action is taken after an employee engages in some protected

activity will not always be enough for a prima facie case.’” Roberson v. Alltel Info.

Servs., 373 F.3d 647, 655 (5th Cir. 2004) (quoting Swanson, 110 F.3d at 1188

n.3). Indeed, “[t]he cases that accept mere temporal proximity between an

employer's knowledge of protected activity and an adverse employment action

as sufficient evidence of causality to establish a prima facie case uniformly hold

that the temporal proximity must be ‘very close.’” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001). This court has observed that “a time lapse

of up to four months has been found sufficient to satisfy the causal connection

for summary judgment purposes,” Evans v. City of Houston, 246 F.3d 344, 354

(5th Cir. 2001) (emphasis added) (internal quotation marks omitted), whereas

a time lapse of five months does not, without additional evidence of retaliation,

establish causation. See Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472

(5th Cir. 2002).

Here, there is insufficient evidence of a connection between Robinson’s

report of the racial epithet and the reduction in her pay and termination of her

employment to establish the requisite causal link. Almost five months elapsed

between Robinson’s September 16, 2009 report of the racial epithet and her

February 14, 2010 reduction in pay. More than six months elapsed between her

report of the epithet and the March 25, 2010 termination of her employment.

Five and six month gaps, respectively, between a protected activity and an

adverse employment action, are not “very close” for the purpose of establishing

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a causal link, see Evans, 246 F.3d at 354; Raggs, 278 F.3d at 472, and Robinson

did not introduce additional evidence of causation. Accordingly, she did not

establish the requisite causal link.

In sum, because Robinson has not established a causal link between her

report of the racial epithet and the reduction in her pay and termination of her

employment, the district court correctly found that she did not allege a prima

facie case of retaliation.

D. The Burden-Shifting Analysis

Even assuming that Robinson established a prima facie case, the district

court did not err in granting summary judgment.

“If the plaintiff successfully presents a prima facie case, the burden shifts

to the employer to provide a ‘legitimate, non-retaliatory reason for the adverse

employment action.’” Hernandez, 670 F.3d at 657 (quoting Long v. Eastfield

Coll., 88 F.3d 300, 304-05 (5th Cir. 1996)). “If the defendant presents evidence

that supports that it acted properly, the fact-finder must decide whether

retaliation was the but-for cause for the employer’s action.” Id. “[A] plaintiff may

avoid summary judgment on ‘but for’ causation by demonstrating ‘a conflict in

substantial evidence on this ultimate issue.’” Id. at 660 (quoting Long, 88 F.3d

at 308). “Evidence is ‘substantial’ if it is of such quality and weight that

reasonable and fair-minded men in the exercise of impartial judgment might

reach different conclusions.” Long, 88 F.3d at 308 (internal quotation marks

omitted).

Here, OLOL has proffered legitimate, non-retaliatory reasons for the

adverse employment actions in question, and Robinson has not shown that

retaliation was the but-for cause of the actions.

First, OLOL explained that it reduced Robinson’s pay because it noticed,

while reviewing its budget, that her pay had not been lowered when, after not

passing her licensing exam, she was reclassified as a “Surgical Tech.” Robinson

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argues that she never was overpaid because an OLOL email indicated that her

pay “was equal to that of another surgical tech.” However, as OLOL observes,

the email states that Robinson was making “the same and more than 2 of

[OLOL’s] most tenured” surgical techs. (Emphasis added.) Further, Robinson’s

argument that OLOL could have discovered the pay discrepancy before February

2010 is speculative, and, given OLOL’s record evidence to the contrary, does not

create a genuine issue of material fact. See, e.g., S.E.C. v. Recile, 10 F.3d 1093,

1097 n.15 (5th Cir. 1993) (per curiam) (observing that a “bald allegation of a

factual dispute is insufficient, in itself, to create a genuine issue of material

fact”).

Second, OLOL explained that it terminated Robinson because, after

“stat[ing] that she wanted to remain a part of the team,” she acted in an

“inappropriate” and “unprofessional” manner that “was not in keeping” with

OLOL standards. Although Robinson argues that “the District Court erred in

reviewing a transcript and not listening to the tape” of Robinson’s allegedly

inappropriate behavior, she does not challenge the accuracy of the transcript,

only that it does not reflect the tone of her conversation with compliance officer

Boston. Given the facts of this case, a dispute over the tone of this conversation

does not, without more, amount to “substantial evidence” that retaliation was

the “but for” cause of Robinson’s termination. See Long, 88 F.3d at 308.

Accordingly, Robinson did not introduce evidence, substantial or otherwise, to

show that retaliation for reporting the racial epithet was the but-for cause of

OLOL reducing her pay and terminating her employment.

In sum, even if Robinson established a prima facia case of retaliation,

summary judgment was appropriate because OLOL proffered legitimate, non-

discriminatory reasons for reducing Robinson’s pay and terminating her

employment, and Robinson did not show that retaliation was instead the but-for

cause of these actions.

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IV. Conclusion

Accordingly, we AFFIRM the district court’s grant of summary judgment.

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