Newbury v. City of Windcrest

Case: 20-50067 Document: 00515790910 Page: 1 Date Filed: 03/22/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

No. 20-50067 March 22, 2021

Lyle W. Cayce

Clerk

Brandy Newbury,

Plaintiff—Appellant,

versus

City of Windcrest, Texas,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

No. 5:18-CV-98

Before Jones, Smith, and Elrod, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Brandy Newbury worked as an officer for the Windcrest Police

Department but resigned during her first, probationary year. She then sued

the City of Windcrest (“the city”), bringing sex-discrimination, retaliation,

and constructive-discharge claims under Title VII and Texas law, a 42 U.S.C.

§ 1983 claim, and a claim for intentional infliction of emotional distress. The

district court granted summary judgment. We affirm.

I.

Newbury began work for the department in March 2016. As a new

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officer, she was an at-will employee—a “probationary”—during her first

year. Probationary officers work with and receive training from Field Train-

ing Officers (“FTOs”) for about fourteen weeks.

During Newbury’s probationary year, she encountered and occa-

sionally worked closely with Officer Blanca Jaime, who is also female. Jaime

and Newbury did not work well together, butting heads on two occasions in

April 2016. First, they had a heated dispute about the proper use of grammar

in an incident report. During that encounter, Jaime questioned Newbury’s

level of education and yelled at her in front of her colleagues. Second, Jaime

and another officer filmed Newbury on their phones while confronting her

about her presence in the field without her FTO. Beyond those incidents,

Newbury alleges that Jaime generally treated her rudely and dismissively,

once giving her a dirty look and sometimes ignoring her or declining to shake

her hand.

Newbury first raised her concerns about Jaime in April 2016 and

formally alleged sexual harassment in a feedback form in July 2016. The city

took the accusation seriously, hiring a law firm to investigate. The investi-

gators concluded that, although Jaime had been rude to Newbury, the sex-

discrimination allegations were unsubstantiated.

In January 2017, Newbury resigned. She filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”) Division of the

Texas Workforce Commission in March 2017 and received a right-to-sue

letter that October. Newbury sued the city, bringing several claims: sex dis-

crimination under Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. § 2000e–2(a), and the Texas Commission on Human Rights Act,

Tex. Lab. Code § 21.051; retaliation under Title VII and Texas Labor

Code § 21.055; a violation of her right to privacy under the Fourth and

Fourteenth Amendments per § 1983; and intentional infliction of emotional

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distress under Texas law.

The district court granted summary judgment against all of New-

bury’s claims. She appeals only her Title VII and § 1983 claims.

II.

A.

Newbury contends that Jaime sexually harassed her in violation of

Title VII, which forbids sexual harassment in the workplace as a form of sex

discrimination. See Matherne v. Ruba Mgmt., 624 F. App’x 835, 838–39 (5th

Cir. 2015) (per curiam). There are two types of sexual harassment under

Title VII: quid-pro-quo and hostile-environment harassment. See Casiano v.

AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000). Newbury alleges only the

latter.

In same-sex sexual-harassment cases, we conduct a two-step inquiry.

E.E.O.C. v. Boh Brothers Constr. Co., 731 F.3d 444, 453 (5th Cir. 2013)

(en banc). “First, we consider whether the alleged conduct was sex discrim-

ination and, second, we evaluate whether the conduct meets the standard for

a . . . hostile-work-environment claim.” Id.

To satisfy the first step, a plaintiff may pursue one of three evidentiary

paths. Id. at 455. A plaintiff may show

(1) . . . that the harasser was homosexual and motivated by sex-

ual desire; (2) . . . that the harassment was framed “in such sex-

specific and derogatory terms . . . as to make it clear that the

harasser [was] motivated by general hostility to the presence”

of a particular gender in the workplace; [or] (3) a plaintiff may

“offer direct comparative evidence about how the alleged

harasser treated members of both sexes in a mixed-sex

workplace.”

Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81

(1998)). Additionally, a plaintiff may support a harassment claim with evi-

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dence of sex-stereotyping. 1

B.

Newbury’s claim fails at the first step because she doesn’t establish

that Jaime’s conduct was sex discrimination. Newbury doesn’t allege that

Jaime’s conduct was motivated by sexual desire, nor does she contend that it

was otherwise sexual in nature or a display of explicit sexual animus. Instead,

Newbury pursues the third evidentiary path, contending that Jaime was rude

to her because she is a woman and alleging that Jaime treated women worse

than men. See id. at 455.

Newbury’s allegations are highly speculative; she presents only two

pieces of evidence in support. First, she alleges that Jaime was rude to both

her and another female officer. Second, she notes that a male employee told

outside investigators that he believed Jaime treated men better than she

treated Newbury. But that same employee also told investigators that Jaime

was rude to him too. Moreover, other employees told the investigators that

Jaime treats some female colleagues “cordially.”

“Title VII is not a general civility code for the American workplace.”

Id. at 454. Newbury has provided evidence only that Jaime is rude to some

colleagues and friendly to others. Her allegation that Jaime’s rudeness was

motivated by sexual animus is speculative and unsupported by the record.

Newbury contends that, under Bostock v. Clayton County, 140 S. Ct.

1731 (2020), her claim should survive summary judgment. Indeed, she

asserts that, under Bostock, for a Title VII claim to succeed, a plaintiff’s sex

need not be the sole—or even main—reason for the action taken against him

1

Boh Brothers, 731 F.3d at 456. Boh Brothers left open the possibility of other evi-

dentiary pathways, but we have identified no others in our caselaw. Id. at 456–57.

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or her. Newbury points out that the Court stated that “[b]ecause the plaintiff

alleged that the harassment would not have taken place but for his sex—that

is, the plaintiff would not have suffered similar treatment if he were female—

a triable Title VII claim existed.” Id. at 1744.

Newbury’s reliance on Bostock is misplaced. The Court interpreted

Title VII to prohibit workplace discrimination against homosexual and trans-

gender persons. Id. at 1737. It reasoned that an employer’s taking adverse

action against employees because of their sexual orientation or transgender

status was inextricably tied to sex, even if sex was not the sole motivating

factor for the action. Id. at 1742.

Although the Court expanded the groups of individuals protected by

Title VII, it in no way altered the preexisting legal standard for sexual harass-

ment. Indeed, it reaffirmed the existing standard from Oncale. See Bostock,

140 S. Ct. at 1743–44. The Court by no means purported to shield all sexual-

harassment claims from summary judgment, regardless of the evidence vel

non. Because Newbury cannot show sex discrimination, the district court

properly granted summary judgment on that claim.

III.

A.

Newbury contends that the district court erred in granting summary

judgment on her constructive-discharge claim. Although she concedes that

she resigned and wasn’t fired, she asserts that she was constructively

discharged.

“A resignation is actionable under Title VII . . . only if the resignation

qualifies as a constructive discharge.” Brown v. Kinney Shoe Corp., 237 F.3d

556, 566 (5th Cir. 2001). A plaintiff alleging constructive discharge must

show that his or her “working conditions were so intolerable that a reasonable

employee would feel compelled to resign.” Faruki v. Parsons S.I.P., Inc.,

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123 F.3d 315, 319 (5th Cir. 1997). To determine whether working conditions

are sufficiently intolerable, we consider whether the plaintiff suffered

“(1) demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading work;

(5) reassignment to work under a younger supervisor; (6) bad-

gering, harassment, or humiliation by the employer calculated

to encourage the employee’s resignation; or (7) offers of early

retirement or continued employment on terms less favorable

than the employee’s former status.”

Lauderdale v. Tex. Dep’t of Crim. Just., Institutional Div., 512 F.3d 157, 167

(5th Cir. 2007) (cleaned up). Furthermore, “[c]onstructive discharge re-

quires a greater degree of harassment than that required by a hostile envir-

onment claim.” Brown, 237 F.3d at 566.

B.

Newbury’s constructive-discharge claim falls short. She did not re-

ceive a demotion, pay cut, or shift in her responsibilities. Indeed, she seems

to argue only the sixth potential event—that Jaime’s alleged harassment was

“calculated to encourage [her] resignation.” Lauderdale, 512 F.3d at 167

(cleaned up). Her claim fails because, as previously shown, she has not pro-

duced sufficient evidence to establish a hostile-environment claim.

Moreover, although Newbury alleges harassment, she does not spe-

cify how her alleged harassment satisfies the higher standard for constructive

discharge compared to that of a hostile-environment claim. See Brown,

237 F.3d at 566. Instead, she asserts that the district court erred in granting

summary judgment on her constructive-discharge claim for the same reasons

that it erred in granting summary judgment on sexual harassment. In addi-

tion to a hostile-work environment, there must be aggravating factors to find

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that the harassment was severe enough to be constructive discharge. 2 The

harassment that Newbury alleges—two confrontations and general

unfriendliness—falls far short. The district court properly granted summary

judgment on constructive discharge.

IV.

A.

Newbury avers that the district court erred in granting summary

judgment on her retaliation claim. To establish a prima facie case of retalia-

tion, 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, 556–

57 (5th Cir. 2007) (per curiam). A plaintiff may use direct or circumstantial

evidence. Id. at 556.

If the plaintiff makes a prima facie case, “the burden then shifts to the

employer to articulate a legitimate, nondiscriminatory or nonretaliatory rea-

son for its employment action.” Id. at 557. If the employer does so, the

burden shifts back to the plaintiff to prove that the proffered reason is pretext

for the discriminatory or retaliatory purpose. Id. The plaintiff bears a heavy

burden and must “rebut each nondiscriminatory or nonretaliatory reason

articulated by the employer.” Id.

2

See, e.g., Landgraf v. USI Film Prods., 968 F.2d 427, 429–30 (5th Cir. 1992)

(declining to find that the district court clearly erred in denying a constructive-discharge

claim where the evidence showed that the plaintiff resigned for reasons other than that she

was subject to “continuous and repeated inappropriate verbal comments and physical con-

tact”), aff’d, 511 U.S. 244 (1994)).

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B.

Newbury’s claim necessarily fails because she does not establish a

prima facie case of retaliation. The city acknowledges that, by alleging sexual

harassment in her FTO feedback form, Newbury participated in a protected

activity and thereby satisfied the first element. But Newbury did not suffer

an adverse employment action, so she fails to satisfy the second element.

In the Title VII-retaliation context, an employment action must be

materially adverse, such that it would dissuade a reasonable employee from

making a discrimination complaint. Cabral v. Brennan, 853 F.3d 763, 767 (5th

Cir. 2017). In some cases we have held that reprimands are adverse employ-

ment actions, but in others we have determined that reprimands do not rise

to that level. Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th Cir.

2019), cert. denied, 141 S. Ct. 160 (2020).

In her brief, Newbury asserts that she was fired, alleging that her com-

plaint against Jaime “was a factor in her termination.” That characterization

is inaccurate, however, because Newbury has explicitly stipulated that she

resigned from the department. And, although constructive discharge quali-

fies as an adverse employment action, Newbury has failed to establish a prima

facie claim of constructive discharge. See Harvill v. Westward Commc’ns,

L.L.C., 433 F.3d 428, 439–40 (5th Cir. 2005).

Newbury also complains that her supervisor, Officer Pena, told her

that filing a report against Jaime would “make things worse” for her. We

need not determine whether reprimands rise to the level of adverse employ-

ment actions because Newbury’s own testimony undercuts the possibility

that Pena’s remark was a reprimand. See Welsh, 941 F.3d at 824. Indeed,

Newbury testified that, later in the same meeting, Pena voluntarily “re-

tracted his former statement and [said] that none of this would be reflected

on [her] evaluations.” Pena told her that she “was doing a great job” and

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“would be a great asset” to the police department, further assuring her that

he would “evaluate [her] professionally.” Per Newbury’s own testimony,

Pena’s rapidly recanted advice to Newbury does not amount to a reprimand.

Finally, Newbury contends that her reassignment to work on the same

shift as Officer Grelle is evidence of retaliation. Newbury alleges that Grelle

followed her in an attempt to catch her violating department policy by hold-

ing another job. 3 Despite reporting Grelle’s alleged actions to her superiors,

she was later reassigned to work on the same shift as he did. Newbury con-

tends that that shift change was retaliatory.

Newbury again fails to establish a prima facie claim of retaliation. It is

doubtful that her shift change rose to the level of an adverse employment

action. 4 But even if she could satisfy the second element, Newbury flunks

the third by failing to show a causal connection between her complaint against

Jaime and her placement on a shift with Grelle. Nowhere in her complaint or

briefing does Newbury actually allege that her shift change was punishment

for her complaint against Jaime; instead, she asserts that it was retaliation for

her informal, non-protected complaint against Grelle.

Furthermore, Newbury was placed on Grelle’s shift nearly six months

after she lodged her complaint against Jaime. To establish causality, the pro-

tected activity and the adverse action must have “very close” temporal prox-

3

Newbury does not assert that Grelle’s alleged actions were sexual harassment or

sex discrimination.

4

A shift change is generally insufficient to constitute a materially adverse employ-

ment action. See Johnson v. Halstead, 916 F.3d 410, 420 (5th Cir. 2019). Newbury’s shift

change lacked the characteristics that might constitute an adverse action. For instance, she

doesn’t allege that she faced “significant interference with outside responsibilities or dras-

tically and objectively less desirable hours.” Id. In fact, Newbury moved from a night shift

to a day shift, a change that is generally preferable, and Grelle was not the only other officer

on her new shift.

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imity, and “a five month lapse is not close enough . . . to establish the causal

connection element of a prima facie case of retaliation.” Lyons v. Katy Indep.

Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020) (internal quotation marks omit-

ted). The district court properly granted summary judgment against New-

bury’s retaliation claim.

V.

In addition to sexual harassment, Newbury alleges sex discrimination.

To establish a sex-discrimination claim under Title VII, a plaintiff must show

“(1) that she is a member of a protected class; (2) that she was qualified for

the position sought; (3) she was subject to an adverse employment action;

and (4) she was replaced by someone outside her protected class or was

treated less favorably than other similarly situated employees outside her

class.” Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll.,

719 F.3d 356, 363 (5th Cir. 2013). As in retaliation cases, once a plaintiff

establishes a prima facie sex-discrimination claim, the employer must provide

a nondiscriminatory reason for the adverse action. Id. at 364. And if the

employer provides such a reason, the burden shifts back to the plaintiff to

prove the reason was pretextual. Id. at 364–65.

Newbury’s sex-discrimination claim fails for the same reason as does

her retaliation claim—she did not suffer an adverse employment action.

Constructive discharge is an adverse employment action, see Harvill,

433 F.3d at 439–40, but, as previously discussed, Newbury has failed to state

a prima facie claim for constructive discharge, so she does not satisfy the

second element.

Moreover, Newbury has not established that similarly situated men

were treated differently. The record, as previously discussed, shows that

Jaime was polite to some women and rude to some men in the department.

Newbury, therefore, also fails on the fourth element. See Haire, 719 F.3d

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at 363. The district court correctly granted summary judgment on the sex-

discrimination claim.

VI.

A.

Newbury appeals the summary judgment on her § 1983 claim, con-

tending that the city violated her privacy by surreptitiously activating her

police body camera when she was off duty and filming her inside her apart-

ment. A plaintiff may sue a municipality that violates her constitutional

rights “under color of any statute, ordinance, regulation, custom, or usage”

for money damages. § 1983; see also Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 690 (1978). To establish municipal liability, a plaintiff must show

“(1) an official policy (or custom), of which (2) a policy maker can be charged

with actual or constructive knowledge, and (3) a constitutional violation

whose ‘moving force’ is that policy (or custom).” Pineda v. City of Hous.,

291 F.3d 325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Hous.,

237 F.3d 567, 578 (5th Cir. 2001)).

B.

Newbury’s first barrier to establishing a § 1983 claim is her failure to

raise a dispute of material fact on whether she actually suffered a constitu-

tional violation. She contends that her body camera was activated and re-

corded her at home, including during “the commission of an intimate act

with her significant other.” In support of that allegation, she testified that

she saw the red light on her body camera flashing. She also asserts that other

colleagues have had their cameras turn on when they did not intentionally

activate them.

Newbury does not address—much less refute—the camera manufac-

turer’s testimony that such remote recording is impossible. The manufac-

turer stated that the cameras cannot be activated remotely. It did, however,

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offer a possible explanation for the blinking light: When the camera is in

“sleep mode,” movement can change its setting to “active mode,” but the

device will still not record. The manufacturer also noted that the light can

blink if the power fluctuates when the camera is in its docking station.

Newbury also concedes that she has never seen recorded footage from

the body camera inside her home. Thus, it is highly speculative that she suf-

fered any violation of her privacy.

Even if a city employee did record Newbury in her apartment, she fails

to allege a policy or custom—the first element of a § 1983 claim against a

municipality. See Pineda, 291 F.3d at 328. “The existence of a policy can be

shown through evidence of an actual policy, regulation, or decision that is

officially adopted and promulgated by lawmakers or others with policy-

making authority.” Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010).

Alternatively, a plaintiff can satisfy the policy element by showing that there

is a “persistent, widespread practice of city officials or employees, which,

although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents

municipal policy.” Burge v. St. Tammany Par., 336 F.3d 363, 369 (5th Cir.

2003) (internal quotation marks and citation omitted).

Newbury presents no evidence that the city has a policy or practice of

furtively recording employees off duty, even if she was recorded remotely.

Indeed, it is undisputed that the city has a formal policy against improper

recordings. Thus, Newbury cannot raise a fact issue to survive summary

judgment on her § 1983 claim.

AFFIRMED.

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