Johnson v. Pride Industries

Case: 19-50173 Document: 00515968369 Page: 1 Date Filed: 08/06/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 6, 2021

No. 19-50173 Lyle W. Cayce

Clerk

Michael Johnson,

Plaintiff—Appellant,

versus

PRIDE Industries, Inc.,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas,

USDC No. 3:18-cv-00044-FM

Before Dennis, Elrod, and Costa, Circuit Judges.

James L. Dennis, Circuit Judge:

This appeal concerns Plaintiff Michael Johnson’s claims that his

former employer, PRIDE Industries, Inc. (“PRIDE”), violated 42 U.S.C.

§ 1981 by discriminating against him based on his race and by retaliating when

he complained to his superiors about the discrimination. The district court

granted summary judgment to PRIDE and dismissed the action. While we

agree that summary judgment for the employer was proper as to most of

Johnson’s claims, we conclude that the district court erred in its ruling on

Johnson’s hostile work environment claim. Accordingly, we AFFIRM in

part, REVERSE in part, and REMAND for further proceedings consistent

with this opinion.

Case: 19-50173 Document: 00515968369 Page: 2 Date Filed: 08/06/2021

No. 19-50173

I.

A.

PRIDE is a non-profit that employs individuals with disabilities in

manufacturing and service jobs. It receives government contracts through

AbilityOne, a federal program that requires that at least 75% of a contractor’s

labor work hours be performed by disabled individuals.1 PRIDE had an

AbilityOne contract to provide facilities services at Fort Bliss in El Paso,

Texas.

On March 9, 2015, PRIDE hired Johnson, an African-American, as a

general maintenance worker at Fort Bliss. In May 2016, PRIDE promoted

Johnson to the position of carpenter. Armando Morales was Johnson’s

supervisor in both positions.

Johnson introduced evidence of the following events, which we

presume to be true for summary-judgment purposes. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). While employed as a carpenter,

Johnson endured repeated race-based harassment, with his fellow PRIDE

employee Juan Palomares as the primary perpetrator. Palomares, who is

Hispanic, supervised a different section of PRIDE’s carpentry shop from the

one to which Johnson was assigned, but Johnson and Palomares “often”

interacted. Although Johnson’s summary judgment evidence does not

specify the precise dates when the harassment occurred, he testified about

several specific incidents.

For example, in one particular episode, Morales, Palomares, and Lalo

Carrasco, who worked under Palomares, were having a conversation in

1

The AbilityOne program was established under the Javits-Wagner-O’Day Act, 41

U.S.C. § 46 et seq.

2

Case: 19-50173 Document: 00515968369 Page: 3 Date Filed: 08/06/2021

No. 19-50173

Morales’s office while Johnson was present. Johnson initially stood by

Morales’s desk, and when he moved to sit down near the other men,

Palomares and Lalo started speaking to one another in a mixture of Spanish

and English. The two used the term “cemento,” presumably discussing a

previous incident involving Johnson and another worker at a cement job site.

Palomares was upset about the events that had occurred at the cement job,

and he mentioned Johnson’s name before saying in Spanish “es mayate.”

The parties do not dispute that “es mayate” translates to “this n*****.”

Johnson knew Palomares was referring to him because he was the only black

employee in Pride’s carpentry shop at the time. And, though Johnson

understood only a “little bit” of Spanish, his wife had taught him what

“mayate” meant.

In a second episode, Johnson was at a table in an “eating facility” with

several other employees, including Palomares. As Johnson put it, the men

were “talking about something, and that’s when I heard them say

something—‘mayate’ or something.” The next day, one of the employees

who participated in the conversation apologized to Johnson “for everything

that Mr. Palomares was [sic] saying at the table.”

There were “other times” when Palomares used the epithet

“mayate” in Johnson’s presence, as well as other language he perceived as

demeaning. Specifically, Johnson claimed that Palomares “always”

addressed him as “mijo” or “manos,” and that he never heard Palomares

refer to anyone else by these names. “Mijo” commonly translates to “my

son,” while “manos” is Spanish for “hands.”2

2

Johnson first testified that he understood “mijo” to mean “boy.” He later

acknowledged that he knew “mijo” meant “son,” but he nevertheless found the term to

be an offensive diminutive because he was not Palomares’s son.

3

Case: 19-50173 Document: 00515968369 Page: 4 Date Filed: 08/06/2021

No. 19-50173

One of Johnson’s carpentry colleagues, Raymond Yanez,

corroborated that Palomares used racially offensive language and generally

treated non-Hispanic employees worse than their Hispanic counterparts. In

an affidavit, Yanez averred that Palomares regularly used Spanish-language

racial epithets in the workplace to refer to black employees, calling them

“pinchis mayates,” which translates to “f***ing n*****s,” and “pinchis

negros,” which translates to “f***ing blacks.” Yanez noted that Palomares

specifically used these slurs in reference to Johnson. Palomares also directly

belittled Johnson in work meetings, including on one occasion when

Palomares told Johnson to “shut up” when he asked a question about a job

site.

Besides his use of insults and racial epithets, Palomares mistreated

Johnson in various ways related to his employment duties. For example,

Yanez stated that Palomares disfavored non-Hispanic employees and

Johnson in particular with respect to work assignments. Further, Palomares

hid the paperwork Johnson had submitted to be promoted to the carpentry

position. Johnson submitted the paperwork twice, but it went missing each

time. Several PRIDE employees, including Morales, later told Johnson that

they found the paperwork in Palomares’s desk.

Sometimes equipment that Johnson needed for jobs would similarly

go missing from the warehouse. Palomares was responsible for picking up all

of the materials needed for job sites and delivering them to the warehouse.

Although the warehouse staff would tell Johnson that Palomares had

completed the delivery, Johnson was on several occasions unable to find

materials necessary for his specific work, including roof coating and paint.

Johnson believes that Palomares took the items in an attempt to interfere with

Johnson’s work.

4

Case: 19-50173 Document: 00515968369 Page: 5 Date Filed: 08/06/2021

No. 19-50173

Beyond his mistreatment by Palomares, several other workplace

incidents occurred that Johnson viewed as harassing. For instance, another

unnamed colleague once called him “n*****.” He also once found a screw

drilled into his truck’s tire while the vehicle was parked at PRIDE’s lot.3

During Johnson’s employment with PRIDE, he made multiple

complaints to his supervisor, Morales; Rhonda Davenport, who served as

Johnson’s “vocational rehabilitation counselor;” and another PRIDE

manager, Sonia Bonham, regarding Palomares’s harassing behavior,

including his use of “mayate” as well as “mijo” and “manos.” Morales told

Johnson that he would speak to Palomares. Bonham told Johnson that she,

too, had been harassed by Palomares and “that things like this would happen;

you’ve just got to be tough and keep going.” Palomares continued to refer to

Johnson as “mijo” and “manos” after he complained.

Beginning in February 2017, Johnson was involved in a number of

additional workplace incidents that culminated in his resignation. First, the

keys to his work truck and a bottle of medicine and batteries for a drill that

were stored inside his truck went missing; they eventually turned up on an

unnamed supervisor’s desk. Later that month, Johnson found a magazine

clip loaded with “dummy rounds” on the bumper of his truck. He reported

the incident to his supervisor.4

PRIDE also formally disciplined Johnson in February 2017 after he

angrily confronted Palomares at PRIDE’s worksite. As documented by

PRIDE, Johnson approached Palomares in the presence of other employees

3

Johnson acknowledged that other vehicles on the premises were also vandalized

with screws in their tires, and he stated that he did not know who was responsible.

4

Both of these incidents were memorialized in notes that Johnson wrote at the time

of the events.

5

Case: 19-50173 Document: 00515968369 Page: 6 Date Filed: 08/06/2021

No. 19-50173

and yelled at him to “leave [him] the [f***] alone” and to “stop the mind

games.” Johnson was written up and directed by management to “follow

instructions and remain respectful to all employees . . . and management.”

Around that time, Johnson also applied and interviewed for a supervisory

carpentry position. PRIDE ultimately selected Gary Koenermann, a

Hispanic individual, for the position. Unlike Johnson, Koenermann had prior

supervisor and management experience, both within and outside of PRIDE.

At the end of February 2017, Johnson filed a charge of discrimination

with the Equal Employment Opportunity Commission (EEOC). In a

response letter to the EEOC, PRIDE’s Human Resources Director, Kathryn

Strawder, acknowledged that, on March 25, 2016, before Johnson was

promoted to the carpentry position, he reported that Palomares had been

harassing him. Specifically, Johnson complained that Palomares called him

“mijo” and was involved in his missing promotion application paperwork.

Strawder stated that PRIDE interviewed Palomares who admitted to using

the word “mijo” but contended he did not use it in a derogatory way. PRIDE

ultimately “did not find that any harassment had occurred.” Later, in an

affidavit, Strawder stated that Johnson made several complaints of workplace

harassment to PRIDE during the course of his employment, and that PRIDE

investigated and “addressed as appropriate” each complaint.

The EEOC issued a right to sue letter in September 2017. 5 That same

month, PRIDE called Johnson in for a meeting to discuss problems with his

attendance. During the meeting, Johnson said coming into work was “too

stressful,” declared that he was resigning, and walked out. He signed a

resignation letter—purportedly drafted by PRIDE—that stated he felt

5

Although EEOC opted not to prosecute Johnson’s case, it filed an amicus brief

with this court in support of Johnson’s appeal.

6

Case: 19-50173 Document: 00515968369 Page: 7 Date Filed: 08/06/2021

No. 19-50173

“there were several incidents that occurred during his time with PRIDE . . .

that affected his mental health,” including “confrontations and/or conflicts

with his supervisor and or other coworkers . . . that have caused him stress

and anxiety.” Per the letter, Johnson resigned “so he can focus on receiving

the treatment he needs.”

B.

In December 2017, following his resignation, Johnson filed this suit in

Texas state court, alleging that PRIDE violated federal and state employment

discrimination laws by maintaining a hostile work environment and taking

adverse employment actions against him for discriminatory and retaliatory

reasons, including by failing to promote him and constructively discharging

him. PRIDE removed the matter to federal court, and the district court

subsequently granted PRIDE’s motion for summary judgment. The court

held that (1) Johnson’s hostile work environment claim failed because he did

not show that the harassment was severe or pervasive; (2) Johnson’s failure

to promote claim was unavailing because he did not carry his burden to show

that PRIDE promoted other candidates with equal or fewer qualifications in

his place; (3) Johnson could pursue his constructive discharge claim even

though he had not exhausted his administrative remedies; but (4) Johnson’s

inability to establish a hostile work environment necessarily precluded him

from meeting the higher bar of showing constructive discharge; and (5)

Johnson’s retaliation claim failed because he could not establish a nexus

between protected activity and any adverse employment action, including his

alleged constructive discharge. Johnson timely appealed.6

6 Johnson’s pro se notice of appeal also cited the district court’s denial of his

motion to amend or alter as an order he was appealing. This court appointed pro bono

appellate counsel for Johnson, and appellate counsel’s brief expressly abandons appeal of

this order.

7

Case: 19-50173 Document: 00515968369 Page: 8 Date Filed: 08/06/2021

No. 19-50173

II.

We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court. EEOC v. WC&M Enters.,

Inc., 496 F.3d 393, 397 (5th Cir. 2007). Summary judgment is only

appropriate where the “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In considering a motion for summary

judgment, the court must view all facts and evidence in the light most

favorable to the non-moving party and draw all reasonable factual inferences

in the non-movant’s favor. WC&M Enters., Inc., 496 F.3d at 397.

III.

Johnson contends that he has presented sufficient evidence to raise a

genuine issue of material fact as to whether his employer discriminated

against him in violation of 42 U.S.C. § 1981. That statute guarantees to “[a]ll

persons within the jurisdiction of the United States . . . the same right . . . to

make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C.

§ 1981(a). It defines the phrase “make and enforce contracts” to include

“the making, performance, modification, and termination of contracts, and

the enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.” Id. § 1981(b). Johnson asserts that the district

court erred in dismissing the following four claims under § 1981: (1) hostile

work environment; (2) failure to promote; (3) constructive discharge; and

(4) retaliation. We consider “racial discrimination and retaliation claims

based on Title VII and 42 U.S.C.

§ 1981[] under the same rubric of analysis.” Johnson v. Halstead, 916 F.3d

410, 420 (5th Cir. 2019) (quoting Raggs v. Miss. Power & Light Co., 278 F.3d

463, 468 (5th Cir. 2002)). We review Johnson’s argument as to each claim

in turn.

8

Case: 19-50173 Document: 00515968369 Page: 9 Date Filed: 08/06/2021

No. 19-50173

A.

First, Johnson argues that he raises a genuine issue of fact as to his

hostile work environment claim. We agree. A hostile work environment

exists when 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 work

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (cleaned

up). To establish a claim of hostile work environment, a plaintiff must prove

he (1) belongs to a protected group; (2) was subjected to unwelcome

harassment; (3) the harassment complained of was based on his membership

in the protected group; (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. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). The first

three elements of the claim are easily established; Johnson is black and his

evidence makes clear he was harassed based on his race. The dispute here

centers on the fourth element.

Harassment is sufficiently “severe or pervasive enough” to create a

hostile work environment when it is “objectively hostile or abusive”—

meaning “an environment that a reasonable person would find hostile or

abusive”—and is subjectively perceived by the victim as abusive. Harris, 510

at 21. The Supreme Court has “emphasized . . . that the objective severity

of harassment should be judged from the perspective of a reasonable person

in the plaintiff’s position.” Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998). The objective inquiry, moreover, requires that the court

consider “all the circumstances,” including “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably

9

Case: 19-50173 Document: 00515968369 Page: 10 Date Filed: 08/06/2021

No. 19-50173

interferes with an employee’s work performance.” Harris, 510 U.S. at 23.

“[N]o single factor is required.” Id.

In evaluating whether the harassment here was sufficiently severe or

pervasive to alter the conditions of Johnson’s employment, we first review

the most obvious—and obviously offensive—evidence of racial harassment:

the use of racist slurs in Johnson’s presence. Johnson testified about two

specific instances in which Palomares—a supervisor in the same carpentry

shop as Johnson, though not Johnson’s supervisor7—used the word

“mayate” in his presence. During both instances, Johnson was the only black

person present, and thus the reasonable inference can be drawn that the slur

was directed at Johnson. And because Johnson knew from his wife that the

term was the Mexican-Spanish equivalent of “n*****,” he subjectively

perceived the slurs as severely harassing. Johnson also testified that another

colleague once called him “n*****.”

In addition, Johnson’s co-employee, Yanez, described a work

environment in which Palomares regularly used racial invective, referring to

black employees, including Johnson, as “pinchis mayates”—meaning

“f***ing n*****s”—and “pinchis negros”—“f***ing blacks.” The district

court recognized that “mayate” “has the same taboo status as the n-word.”

7

The Supreme Court has “h[e]ld that an employee is a ‘supervisor’” for Title VII

(and thus § 1981) purposes “if he or she is empowered by the employer to take tangible

employment actions against the victim.” Vance v. Ball State Univ., 570 U.S. 421, 424

(2013). Johnson does not argue that this standard is met with respect to Palomares, and we

therefore assume that Palomares’s status vis-à-vis Johnson is one of a co-employee rather

than that a supervisor for purposes of § 1981.

10

Case: 19-50173 Document: 00515968369 Page: 11 Date Filed: 08/06/2021

No. 19-50173

Neither party disputes this understanding of the term, and so we accept it for

the purposes of this appeal.8

The magnitude of the offensiveness of being referred to as “mayate”

or “n*****” by a fellow employee cannot be understated—particularly when

used by a fellow employee who outranked Johnson in the carpentry shop in

which the two labored. Our court has observed that the term “n*****” is

“[t]he most noxious racial epithet in the contemporary American lexicon.”

Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th Cir. 2015) (quoting

Montiero v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998));

see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (“It

is beyond question that the use of the word ‘[n*****]’ is highly offensive and

demeaning, evoking a history of racial violence, brutality, and subordination.

This word is ‘perhaps the most offensive and inflammatory racial slur in

English, . . . a word expressive of racial hatred and bigotry.’” (quoting

Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)). Far from “a

8

A variety of authorities on Mexican Spanish confirm this meaning. See, e.g.,

Harry Polkinhorn et al., El Libro De Caló 41 (Rev. Ed. 1986) (noting the

standard meaning of “mayate” as a type of beetle, defining the nonstandard meaning as

“black person” and stating that when the term is “used with pinchi, [it is] equivalent to

[n*****]; pinchi mayate; [g*d** n*****])”); Tomás Almaguer, Race, Racialization,

and Latino Populations in the United States, Racial Formation in the Twenty-

First Century 143, 155-56 (Daniel Martinez HoSang et al. eds., 2012),

http://www.jstor.com/stable/10.1525/j.ctt1pn6cq.13 (last visited Aug. 2, 2021) (noting

that “mayate” is “clearly the most commonly used racial epithet invoked by ethnic

Mexicans and is always used in a disparaging way” and that its reference to a black Mexican

dung beetle “foreground[s] the blackness of [this] insect[] while also providing a sweeping,

dehumanizing move in the racialization process”). “In this circuit, we have previously

acknowledged that ‘mayate’ is Spanish slang for dark skinned people and means dung

beatle.” Rhines v. Salinas Const. Techs., Ltd., 574 F. App’x 362, 365 (5th Cir. 2014) (quoting

Spears v. Patterson UTI Drilling Co., 337 F. App’x 416, 420 n.3 (5th Cir. 2009)).

11

Case: 19-50173 Document: 00515968369 Page: 12 Date Filed: 08/06/2021

No. 19-50173

mere offensive utterance,” this slur is inherently and deeply “humiliating.”

Harris, 510 U.S. at 23.

Pride argues that the occasions in which epithets were used were too

isolated to give rise to a hostile work environment. The Supreme Court has

recognized that actionable hostile work environment claims generally involve

repeated conduct and that “a single act of harassment may not be actionable

on its own.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).

For instance, the “mere utterance of an epithet which engenders offensive

feelings in an employee does not sufficiently affect the conditions of

employment” such as to be actionable. Harris, 510 U.S. at 21. Neither will

“simple teasing [or] offhand comments” alone be actionable. Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted).

Here, of course, we are not dealing with a single incident of

harassment. Johnson testified about two specific uses of deeply degrading

racial epithets by Palomares and one involving another, unnamed coworker,

and Yanez’s affidavit indicates there were other occasions in which similarly

vile language was employed outside of Johnson’s presence. But these

epithets—egregious as they are—are not the only record evidence of

harassment, so we need not decide if they alone could suffice to constitute a

hostile work environment. See Dediol v. Best Chevrolet, Inc., 655 F.3d 435,

442 (5th Cir. 2011) (observing that “the required level of severity of

seriousness varies inversely with the pervasiveness or frequency of the

conduct”). Indeed, viewing the all of the evidence in the light most favorable

to Johnson, we do not think the harassment here is properly characterized as

isolated.9

9

We note that even “isolated incidents” of harassment, if “extremely serious,”

can create a hostile work environment. Id. This must be so because the standard for

12

Case: 19-50173 Document: 00515968369 Page: 13 Date Filed: 08/06/2021

No. 19-50173

For instance, a jury could find that Palomares’s racial hectoring

extended beyond the use of “n*****” and “mayate” to other demeaning

terms. According to Johnson, Palomares repeatedly referred to him as either

“mijo” or “manos”—in violation of PRIDE’s policy mandating that

employees be referred to solely by their given names—but never used those

actionable harassment is phrased in the disjunctive: the harassment must be severe or

pervasive. Accordingly, this court has recognized that, “[u]nder the totality of the

circumstances test, a single incident of harassment, if sufficiently severe, could give rise to

a viable” hostile work environment claim. WC&M Enters., Inc., 496 F.3d at 400; see also

Hudson v. Cleco Corp., 539 F. App’x 615, 620 (5th Cir. 2013) (recognizing that the display

of a “hangman’s noose” at an African-American employee’s workplace could be the type

of “‘extremely serious’ isolated event” that constitutes actionable harassment (quoting

Faragher, 524 U.S. at 788)); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) (“[W]e have

often recognized that even one act of harassment will suffice [to create a hostile work

environment] if it is egregious.”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.

1998) (holding that a single incident of physically threatening and humiliating conduct was

sufficient to create a hostile work environment for a sexual harassment claim).

Sister circuits have concluded that even the limited use of severe racial epithets

can rise to the level of a hostile work environment. In Boyer-Liberto v. Fontainebleau Corp.,

the Fourth Circuit, sitting en banc, held that a supervisor’s use of the racial epithet “porch

monkey” on two occasions, without more, constituted a hostile work environment. 786

F.3d at 270, 280 (4th Cir. 2015). The Fourth Circuit reasoned that “this [w]as the type of

case contemplated in Faragher [v. City of Boca Raton] where the harassment, though

perhaps ‘isolated,’ can properly be deemed to be ‘extremely serious.’” Id. at 280-81

(quoting 524 U.S. at 788)); see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir.

2013) (Kavanaugh, J., concurring) (“[I]n my view, being called the n-word by a supervisor

. . . suffices by itself to establish a racially hostile work environment.”). Similarly, the

Seventh Circuit has held that two instances of a supervisor’s use of the n-word in an

employee’s presence combined with an additional racially offensive remark were sufficient

to establish a viable hostile work environment claim. Rodgers v. Western-Southern Life Ins.

Co., 12 F.3d 668 (7th Cir. 1993) (observing that “[p]erhaps no single act can more quickly

alter the conditions of employment and create an abusive working environment than the

use of an unambiguously racial epithet such as ‘[n-word]’ by a supervisor in the presence

of his subordinates” (internal quotation marks and citation omitted)). Because this case

does not concern isolated incidents of harassment, we do not decide whether the isolated

use of the most odious epithet by Palomares, without more, could constitute actionable

harassment.

13

Case: 19-50173 Document: 00515968369 Page: 14 Date Filed: 08/06/2021

No. 19-50173

terms in addressing the other, non-black employees. The district court

concluded that neither “mijo” or “manos” are “inherently offensive or

derogatory.” While neither of these terms are intrinsically offensive—

indeed, the district court observed that “mijo” is generally used as a term of

endearment—or necessarily related to race, we are mindful that the context

in which a word is used is key to determining whether it is offensive or

connected with race. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006)

(noting that factors like “inflection” and “tone of voice” can be crucial in

determining whether a word is deployed in a racially invidious manner). In

American English, there is a long and sordid history of people using

diminutives like “boy” to refer to adult black men in a racially invidious

manner. See, e.g., id. at 456 (explaining that evidence that a supervisor

referred to individual black employees as “boy” could constitute evidence of

racial discrimination); Bailey v. USF Holland, Inc., 526 F.3d 880, 885–86 (6th

Cir. 2008). And, as stated, we also have a duty to make all reasonable

inferences in Johnson’s favor. Anderson, 477 U.S. at 255. Accordingly, we

conclude that Johnson has established a genuine issue of material fact as to

whether Palomares used “mijo” or “manos” in an objectively offensive

manner. After all, Palomares allegedly used the vilest of racial epithets in

Johnson’s presence. The interactions between the two are inescapably

colored by those epithets, and even seemingly innocuous “nicknames” like

“mijo” or “manos” can take on a racially insulting, bullying, or belittling cast

when viewed within the full breadth of the relationship between Palomares

and Johnson. Whether “mijo” and “manos” were actually used in an

objectively offensive racial manner is an issue for the factfinder.

Besides racist epithets, Johnson adduced further evidence of

mistreatment by Palomares that a jury could perceive as racial harassment.

Specifically, Johnson testified that Palomares hid paperwork he submitted in

connection with his application for a promotion at PRIDE. As Johnson

14

Case: 19-50173 Document: 00515968369 Page: 15 Date Filed: 08/06/2021

No. 19-50173

stated, he twice applied to be promoted to the position of carpenter only to

have his paperwork go missing. That paperwork was, according to Johnson,

ultimately discovered in Palomares’s desk.10 In addition, the affidavit from

Yanez, Johnson’s co-employee, states that Palomares gave Johnson less

desirable work assignments.11 Considering both the alleged interference with

Johnson’s efforts to obtain a promotion and the less favorable work

assignments in the context of Palomares’s verbal harassment, it could be

inferred that these actions were likewise motivated by racial animus. Cf.

WC&M Enters., Inc., 496 F.3d at 400-01 (explaining that “in the context of”

more obvious evidence of religious discrimination, a factfinder could

conclude that a harasser’s act of banging on the glass partition to a

colleague’s office, though not overtly tied to religious animus, “was also

motivated by” religious prejudice).12

10

Johnson testified that his supervisor, Morales, and Bonham, another PRIDE

supervisor, informed him that the paper was found in Palomares’s desk. PRIDE contends

this testimony is inadmissible hearsay. That is incorrect. Morales and Bonham’s

statements regarding where Johnson’s missing promotion application materials were found

fall within the hearsay exemption under Federal Rule of Evidence 801 for

statements by an opposing party’s “employee on a matter within the scope of” the

employment relationship. Fed. R. Evid. 801(2)(D).

11

Although Yanez’s affidavit implies that Palomares had authority to assign tasks

to Johnson, as noted above, Johnson does not argue that Palomares was empowered by

PRIDE “to take tangible employment actions against” him—which is the authority that

distinguishes a supervisor from a co-employee under Title VII and § 1981, see Vance, 570

U.S. at 424. Indeed, Johnson specifically asserts that the framework for claims of non-

supervisory harassment applies.

12

See also Cole v. Bd. of Trustees of N. Ill. Univ., 838 F.3d 888, 896 (7th Cir. 2016)

(“[F]orms of harassment that might seem neutral in terms of race . . . can contribute to a

hostile work environment claim if other evidence supports a reasonable inference tying the

harassment to the plaintiff’s protected status.” (citing Landrau–Romero v. Banco Popular de

Puerto Rico, 212 F.3d 607, 614 (1st Cir. 2000) (“Alleged conduct that is not explicitly racial

in nature may, in appropriate circumstances, be considered along with more overtly

discriminatory conduct in assessing a Title VII harassment claim.”)).

15

Case: 19-50173 Document: 00515968369 Page: 16 Date Filed: 08/06/2021

No. 19-50173

We think that the summary judgment record contains sufficient

evidence for a jury to conclude that harassment here was not isolated, and,

more importantly, that Johnson endured “an objectively hostile or abusive

work environment.” Harris, 510 at 21. Our decision is bolstered by evidence

suggesting that Johnson suffered psychological harm as a result of the

harassment, forcing him to take a medical leave of absence in March 2017 and

go on a reduced schedule when he returned to work in August 2017. A jury

could thus conclude that the harassment “unreasonably interfere[d]” with

Johnson’s “work performance.” Id. at 23.

To review, and taking the evidence in the light most favorable to

Johnson, Palomares used the term “mayate” on at least two occasions in

Johnson’s presence. Johnson knew this word translated to “n*****.”

Palomares also regularly used the racist epithets “pinchis mayates” and

“pinchis negros.” He assigned Johnson less favorable work tasks and

referred to Johnson—and Johnson only—as “manos” and “mijo,” terms

that could reasonably be interpreted as racially pejorative depending on

context-specific factors. In addition, Palomares twice hid paperwork that

Johnson submitted in his effort to receive a promotion. Johnson also endured

harassment perpetrated by another co-employee who once called him

“n*****” to his face.13 And the harassment Johnson suffered arguably

interfered with his ability to work at PRIDE. Under the totality of the

circumstances, a reasonable factfinder could conclude that the harassment

13

In his brief, Johnson claims that Palomares “stole” materials from the warehouse

that Johnson needed for job assignments. Johnson also argues that other workplace

episodes—namely, the alleged vandalism of his truck and the placing of a loaded magazine

clip on his truck—constitute evidence of race-based harassment. Because we hold that

Johnson has raised genuine issues of material fact regarding whether a hostile work

environment existed regardless of these additional incidents, we do not address whether

their connection to racial animus would be too speculative to withstand summary

judgment. See Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994).

16

Case: 19-50173 Document: 00515968369 Page: 17 Date Filed: 08/06/2021

No. 19-50173

Johnson allegedly experienced at PRIDE was severe or pervasive enough to

constitute a hostile work environment.14 See id. at 400.

Although we conclude that Johnson has raised a genuine issue of

material fact as to whether the harassment he suffered was severe or

pervasive enough to alter the conditions of his employment, that is not the

end of the story. To sustain his burden and survive summary judgment,

Johnson must also make a sufficient showing that a genuine issue of fact exists

14

PRIDE contends that there is no actionable discrimination, relying chiefly on a

panel’s unpublished decision in Johnson v. TCB Constr. Co. (“TCB”), 334 F. App’x 666

(5th Cir. 2009). In that case, after a black employee asked his supervisor for a raise, the

supervisor threw the employee’s paycheck on the ground. When the employee bent down

to pick it up, the supervisor said, “[j]ust like a damn [n*****].” Id. at 668 (internal

quotation marks omitted) (first set of alterations in original). Although that incident was

the only time the supervisor used the slur “n*****” in the employee’s presence, the

supervisor regularly used that slur outside of the employee’s presence and once referred to

the employee as “ugly” and “an old hermit.” Id. Acknowledging that the supervisor’s

conduct was “highly objectionable,” the panel determined that the use of “n*****” in the

employee’s presence was “isolated” and did not interfere with the employee’s work

performance. Id. at 671 (quoting Harris, 510 U.S. at 23). The panel also discounted the

supervisor’s frequent use of “n*****” because it occurred outside of the employee’s

presence. Id. Accordingly, this court held that the supervisor’s conduct did not create an

actionable hostile work environment claim.

There are important distinctions between the present case and TCB. First,

Johnson described at least three instances in which the terms “mayate” or “n*****” were

uttered in his presence, whereas in TCB “n*****” was used in the plaintiff’s presence

only once. Accordingly, the alleged use in Johnson’s presence of the very most offensive

racial epithets was more frequent than the single, “isolated” use of “n*****” in the

presence of the employee in TCB. Faragher, 524 U.S. at 788. Moreover, Johnson testified

that he was frequently subjected to other potentially racially offensive epithets and stated

that his harasser assigned him less favorable work tasks and hid his job promotion materials.

And here, unlike in TCB, Johnson has adduced evidence that the harassment affected his

ability to do his job. See Harris, 510 U.S. at 23. More fundamentally though, we question

TCB’s reasoning and are not convinced we would reach the same result if faced with the

case today. And ultimately, because TCB is unpublished, it does not constitute a

precedential decision. 5th Cir. R. 47.5.

17

Case: 19-50173 Document: 00515968369 Page: 18 Date Filed: 08/06/2021

No. 19-50173

regarding the fifth element of his hostile environment claim, i.e., that PRIDE

knew or should have known about the harassment and failed to take prompt

remedial action. Ramsey, 286 F.3d at 268.

An “employer has actual knowledge of harassment that is known to

‘higher management’ or to someone who has the power to take action to

remedy the problem.” Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir.

1999) (internal citation omitted). “The plaintiff bears the burden of showing

that his employer failed to take effective action.” Skidmore v. Precision

Printing & Pkg., Inc., 188 F.3d 606, 616 (5th Cir. 1999). In this case, Johnson

testified that he complained about Palomares’s harassment, including

Palomares’s use of racist epithets, to multiple individuals at PRIDE; in

particular, Johnson informed the following individuals that he was enduring

on-the-job harassment: Morales, his direct supervisor who was physically

present when Palomares referred to Johnson as “es mayate”; Davenport,

PRIDE’s vocational rehabilitation counselor; and Bonham, a PRIDE

manager who, according to Johnson, responded to his complaint by stating

“that things like this would happen” and that he had “to be tough and keep

going.” Moreover, Strawder, PRIDE’s Human Resources Director,

conceded that Johnson complained to PRIDE on multiple occasions about

workplace harassment. Johnson has thus established a genuine fact issue as

to whether PRIDE had actual knowledge of the harassment he endured. See

Sharp, 164 F.3d 929.

The question, then, is whether PRIDE failed to take prompt remedial

action in response to its awareness that Johnson was being harassed at the

workplace. See Ramsey, 286 F.3d at 268. This court “ha[s] held that an

employer must take prompt and appropriate remedial action, ‘reasonably

calculated’ to end the harassment” in order to avoid liability. Waltman v.

Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989) (quoting Jones v. Flagship

Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986)). Here, PRIDE’s letter to the

18

Case: 19-50173 Document: 00515968369 Page: 19 Date Filed: 08/06/2021

No. 19-50173

EEOC makes clear that Johnson had complained to Human Resources

personnel at PRIDE regarding harassment by Palomares even before Johnson

began working in the carpentry shop. And Johnson testified that, after he

started his tenure in the carpentry shop, he complained repeatedly to his

direct supervisor and to another PRIDE manager about Palomares’s use of

racial invective. Despite these complaints, Johnson contends that the

harassment continued.15 E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 466

(5th Cir. 2013) (en banc) (holding that a cursory and ineffectual investigation

into a plaintiff’s complaints does not constitute prompt remedial action).

Conversely, PRIDE submitted an affidavit from Strawder, the Human

Resources employee, averring that Johnson’s complaints were investigated

and “addressed as appropriate.” But, other than interviewing Palomares

regarding his alleged harassment of Johnson before Johnson started working

in the same carpentry shop as Palomares, PRIDE does not point to any

affirmative steps it took to investigate—let alone halt—the harassment

Johnson complained of. See Waltman, 875 F.2d at 479. Thus, although

“[w]hether an employer’s response to discriminatory conduct is sufficient

will necessarily depend on the particular facts of the case,” Williams-

Boldware v. Denton Cnty., Tex., 741 F.3d 635, 640 (5th Cir. 2014). (quoting

Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 395, 399-400 (5th Cir. 1996)),

we have no trouble concluding that Johnson has created a genuine dispute of

fact as to whether PRIDE’s response, if any, to the harassment he allegedly

endured while he was employed in the carpentry shop was prompt,

appropriate, and reasonably calculated to stop the harassment. See Waltman,

875 F.2d at 479.

15

Even though Johnson does not specify the precise dates on which he complained

to PRIDE management, it is evident from his testimony that he raised objections regarding

Palomares’s harassment on multiple occasions.

19

Case: 19-50173 Document: 00515968369 Page: 20 Date Filed: 08/06/2021

No. 19-50173

Accordingly, we reverse the district court’s summary judgment on

Johnson’s hostile work environment claim and remand for trial.

B.

Johnson next argues that the district court erred in dismissing his

claim that PRIDE discriminated against him by failing to promote him to a

supervisory position within the carpentry shop. Under the familiar

McDonnell Douglas burden-shifting analysis, at summary judgment, a plaintiff

must first establish a prima facie case of discrimination. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of

discrimination based on a failure-to-promote theory, a plaintiff must show

that (1) he is a member of a protected class; (2) he sought and was qualified

for a position for which applicants were being sought; (3) he was rejected for

the position; and (4) the employer either (a) hired a person outside of the

plaintiff’s protected class, or (b) continued to seek applicants with the

plaintiff’s qualifications. McMullin v. Miss. Dep’t of Pub. Safety, 782 F.3d 251,

258 (5th Cir. 2015). Next, if the plaintiff carries his burden to establish a

prima facie case, the burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the underlying employment action.

Id. And if the employer satisfies this burden, the plaintiff must then provide

adequate evidence to show the reason proffered by the employer is a mere

pretext for unlawful discrimination. Id.

As to the elements of Johnson’s prima facie case, the district court

correctly recognized that it is undisputed that he has established the first and

third elements. With respect to the first element, Johnson is black and thus

a member of a protected class. Regarding the third element, Johnson has

established that he was not selected for the promotion. However, the district

court erred in determining that PRIDE conceded that Johnson satisfied the

second element of his claim. The district court stated that the parties did not

dispute that Johnson “sought and was qualified for the position.” But

20

Case: 19-50173 Document: 00515968369 Page: 21 Date Filed: 08/06/2021

No. 19-50173

PRIDE argued in its motion for summary judgment that Johnson could not

“identify how he was qualified or what the qualifications of the selected

persons were.” On appeal, PRIDE continues to dispute that Johnson

possessed the necessary qualifications for the position. Although Johnson

did offer evidence regarding his own qualifications, he failed to adduce any

evidence of the qualifications required for the position sought. Accordingly,

Johnson did not establish that he was qualified for the position and therefore

has failed to carry his burden to establish a prima facie case on his failure-to-

promote claim. Cf. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 310 (5th

Cir. 2004) (plaintiffs failed to satisfy qualifications prong of prima facie case

when they “submitted no evidence that their . . . experience was

commensurate with that of” the posted requirements for the position they

sought).

C.

Johnson contends that the district court erred in granting PRIDE

summary judgment on his constructive discharge claim. This claim requires

a plaintiff, at summary judgment, to offer evidence that the employer made

the employee’s work conditions “so intolerable that a reasonable employee

would feel compelled to resign.” Stover v. Hattiesburg Pub. Sch. Dist., 549

F.3d 985, 991 (5th Cir. 2008). The evidence must demonstrate a greater

severity or pervasiveness of harassment than the minimum required to

establish a prima facie hostile work environment claim. Id. The following

events are relevant in determining whether a reasonable employee would feel

compelled to resign:

(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 employee worse

off whether the offer were accepted or not.

21

Case: 19-50173 Document: 00515968369 Page: 22 Date Filed: 08/06/2021

No. 19-50173

Id. (internal quotation mark and citation omitted).

As an initial matter, PRIDE argues that Johnson’s claim is barred due

to his failure to exhaust administrative remedies. However, the

administrative exhaustion doctrine that PRIDE cites is inapplicable in this

case because it pertains only to a Title VII plaintiff and not to a plaintiff, like

Johnson, who brings his claims under § 1981. See Caldwell v. Nat’l Brewing

Co., 443 F.2d 1044, 1046 (5th Cir. 1971) (holding that the “administrative

remedies under Title VII . . . can be deliberately bypassed by a § 1981

plaintiff”).

In any event, Johnson’s constructive discharge claim fails on the

merits. Johnson contends that, in addition to the harassment discussed in

relation to his hostile work environment claim, PRIDE’s alleged failure to

address his complaints of harassment, and the effect that failure had on his

diagnosed mental disabilities, constitute constructive discharge. However,

none of the factors relevant to whether a reasonable employee would feel

compelled to resign are present here. Johnson adduced no evidence that he

was demoted or suffered a reduction in salary or job duties.

Additionally, there is only a minimal temporal nexus between the

alleged harassment and Johnson’s resignation. Johnson filed his EEOC

charge on February 27, 2017—nearly seven months before he resigned in

September 2017. And he does not allege that any specific harassment or

other adverse employment actions occurred during the seven months

between these events. Further, in February 2017, PRIDE transferred

Palomares outside of the carpentry shop to which Johnson was assigned.

Thus, Johnson was not even working in the vicinity of his alleged harasser for

nearly the last seven months he was employed by PRIDE. The lack of a

temporal connection between the alleged harassment and Johnson’s

resignation undermines his contention that he was constructively discharged.

See Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755-56 (5th Cir. 1986)

22

Case: 19-50173 Document: 00515968369 Page: 23 Date Filed: 08/06/2021

No. 19-50173

(concluding that a five-month gap between the last alleged act of harassment

and plaintiff’s resignation did not support a finding of constructive

discharge).

The district court did not err in granting summary judgment in favor

of PRIDE on Johnson’s constructive discharge claim.

D.

Johnson also challenges the rejection of his retaliation claim. The

McDonnell Douglas burden-shifting framework applies, so Johnson has the

initial burden to set forth a prima facie case of retaliation. A “prima facie

case of retaliation under either Title VII or § 1981” requires that a plaintiff

“show that: (1) he engaged in an activity protected by Title VII; (2) he was

subjected to an adverse employment action; and (3) a causal link exists

between the protected activity and the adverse employment action.” Davis,

383 F.3d at 319. PRIDE does not dispute that Johnson has created a fact issue

as to whether he engaged in protected activity by making complaints to the

Human Resources Department and sending a letter to the EEOC. Turning

to the second element of his prima facie case, Johnson contends he suffered

an adverse employment action in the form of his constructive discharge.

Because we have already concluded that Johnson was not constructively

discharged, he cannot establish that he experienced an adverse employment

action in this respect. Hence, Johnson has failed to establish his prima facie

case of retaliation. We affirm the district court’s grant of summary judgment

in favor of PRIDE on this claim.

V.

For these reasons, we affirm the district court’s grant of summary

judgment to PRIDE on all claims, with the exception that we reverse its ruling

with respect to Johnson’s hostile work environment claim. Accordingly, we

23

Case: 19-50173 Document: 00515968369 Page: 24 Date Filed: 08/06/2021

No. 19-50173

AFFIRM in part, REVERSE in part, and REMAND for further

proceedings consistent with this opinion.

24