Broussard v. TX Dept Cr Justice

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS 19, 2007

July

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 06-20663

Summary Calendar

FRED D BROUSSARD

Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; DON KEIL, Individually

and his capacity as Director of Religious Programs; DON KASPAR,

Individually and in his capacity as Director of Chaplaincy; BILLY PIERCE,

Individually and in his capacity as Director of Chaplaincy; MARK PICKETT,

Individually and in his capacity as Chaplaincy Regional Coordinator of

Region III; THOMAS MEDART, Warden, Individually and in his capacity as

Warden of Central Unit TDCJ; TERRY FOSTER, Individually and in his

capacity as Warden of Central Unit, TDCJ; BRENT LARSEN, Individually;

JOHN STARLIPER, Individually and in his official capacity as lieutenant in

the TDCJ Security System

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. 4:04-CV-1059

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

*

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.

No. 06-20663

Plaintiff-appellant Fred D. Broussard appeals the district court’s summary

judgment against him in an employment discrimination case. For the reasons

stated, we AFFIRM.

I. Factual and Procedural Background

Beginning in 1997, plaintiff-appellant Fred D. Broussard, an African-

American, worked for the Texas Department of Criminal Justice (“TDCJ”) at the

Central Unit for six years. Prior to that, Broussard served for fourteen years as

a volunteer chaplain in that same unit.

In 2001, Brent Larsen, a Caucasian, began working as a chaplain at the

Central Unit. Broussard and Larsen had a strained relationship and repeatedly

reported each other’s behavior to their supervisors. The unit warden and

chaplaincy officials instructed both chaplains to learn to work with each other.

In 2003, the state legislature mandated that the TDCJ reduce its force.

As a result, sixty chaplains lost their jobs, and approximately twenty, including

Broussard, were reassigned. With two exceptions, the terminations and

reassignments were implemented according to seniority. Chaplains on active

military status retained their assignments, and three chaplains were

administratively assigned death row ministry. All of the chaplains that fell into

these two categories had more time with the state than Broussard. Further, the

chaplains assigned to death row had more experience in that ministry. Larsen,

who also had more time with the state than Broussard, remained at the Central

Unit. Ultimately Broussard was transferred to his seventh choice location, the

Michael Unit. His pay, duties, and benefits remained the same, but Broussard’s

new duty station was over 200 miles from his home.

After the transfers were announced, Broussard filed an EEOC charge

alleging race discrimination. About a month later, as Broussard was

transferring to his new unit, the warden of Central Unit prepared a disciplinary

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case against Broussard related to security violations at the Central Unit. The

disciplinary case transferred with Broussard to his new unit, and that warden

dismissed it.

Broussard resigned after the disciplinary case was dismissed. He then

filed another charge with the EEOC alleging retaliation based on the dismissed

disciplinary case.

Broussard brought an employment discrimination suit against the

following defendants: TDCJ; Don Keil, individually and in his capacity as

Director of Religious Programs; Don Kaspar, individually and in his capacity as

Director of Chaplaincy; Billy Pierce, individually and in his capacity as Director

of Chaplaincy; Mark Pickett, individually and in his capacity as Chaplaincy

Regional Coordinator of Region III; Thomas Medart, Warden, individually and

in his capacity as Warden of Central Unit TDCJ; Terry Foster, individually and

in his capacity as Warden of Central Unit, TDCJ; Brent Larsen; John Starliper,

individually and in his official capacity as lieutenant in the TDCJ Security

System (collectively, “defendants”).

The district court granted defendants’ motion for summary judgment,

dismissing all of Broussard’s claims against TDCJ and the eight individuals.

Broussard now appeals.

II. Discussion

We review a grant of summary judgment de novo, viewing all evidence in

the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence

reflects no genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue

of material fact exists ‘if the evidence is such that a reasonable jury could return

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a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

1. Title VII Discrimination Claim

Title VII prohibits employers from discriminating against employees on

the basis of race. 42 U.S.C. § 2000e-2(a). Title VII claims are subject to the

burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Under this analysis, the plaintiff bears the initial burden

of establishing a prima facie case of retaliation. Id. at 802-04. Then, the burden

of production shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the adverse employment action. Id. Once the

defendant puts forth a legitimate, nondiscriminatory reason, the burden shifts

back to the plaintiff to produce evidence that the defendant’s articulated reason

is merely a pretext for discrimination, id., or that if true, it is only one reason for

the defendant’s conduct and that race was a motivating factor in the adverse

employment action. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.

2004).

To establish a prima facie case of discrimination, Broussard must establish

that he “(1) is a member of a protected class; (2) was qualified for [his] position;

(3) was subject to an adverse employment action; and (4) was replaced by

someone outside his protected class,” or, in the case of disparate treatment, that

others similarly situated were treated more favorably. Okoye v. Univ. of Tex.

Houston Health Sci. Cent., 245 F.3d 507, 512-13 (5th Cir. 2001).

The district court held that Broussard failed to establish a prima facie case

because he did not present evidence that he suffered an adverse employment

action. Broussard argued that his transfer pursuant to a reduction in force

constituted an adverse employment action. However, even assuming that

Broussard established a prima facie case, the district court did not err in

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granting summary judgment. The TDCJ put forth a legitimate

nondiscriminatory reason for the transfer–that it was implemented according to

seniority and that others who were not reassigned had more time with the state

that Broussard. Broussard has not put forth any evidence that TDCJ’s reason

was pretext or that if it was true, race was a motivating factor. Accordingly, the

district court did not err in granting the defendants summary judgment on

Broussard’s discrimination claim.

2. Retaliation Claim

Title VII also forbids an employer from discriminating against an

employee “because [the employee] has opposed any practice made an unlawful

employment practice [under Title VII].” 42 U.S.C. § 2000e-3(a). To establish a

prima facie case of unlawful retaliation, Broussard must show (1) that he

“engaged in an activity protected by Title VII, (2) that an adverse employment

action occurred, and (3) that a causal link existed between the protected activity

and the adverse employment action.” Grimes v. Tex. Dep’t of Mental Health and

Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Under Title VII, an

employee engages in protected activity when he has “opposed any practice made

an unlawful employment practice” under Title VII or “made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or

hearing” under Title VII. 42 U.S.C. § 2000e-3(a). An adverse employment

action is any action that would be materially adverse to a reasonable employee,

in other words, so harmful so as to dissuade the employee from making a

complaint of discrimination. Burlington N. & Santa Fe v. White, 126 S.Ct. 2405,

2409 (2006).

Broussard has failed to establish a prima facie case of retaliation. “[I]n

order to establish the causation prong of a retaliation claim, the employee should

demonstrate that the employer knew about the employee’s protected activity.”

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No. 06-20663

Manning v. Chevron Chem. Co., L.L.C., 332 F.3d 874, 883 (5th Cir. 2003).

Broussard did not demonstrate that the warden who filed the disciplinary case

knew of the Broussard’s EEOC charge1, which was related to the chaplaincy

department. As a result, Broussard failed to demonstrate a causal link between

his protected activity–the EEOC charge–and the disciplinary charge.

However, even if we assume that Broussard demonstrated a prima facie

case, the district court did not err in granting summary judgment. TDCJ

asserted a nondiscriminatory reason for the disciplinary charge–that Broussard

violated security procedures. TDCJ also presented evidence that the warden

who instigated the disciplinary charge did not know of the EEOC charge.

Broussard failed to put forth evidence that this explanation was pretext.

Accordingly, the district court did not err in granting summary judgment on

Broussard’s retaliation claim.

3. Hostile Work Environment

To succeed on his hostile work environment claim, Broussard must

demonstrate that his work environment “permeated with discriminatory

intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993). A prima facie case of racial harassment alleging hostile work

environment normally consists of five elements: (1) the employee belongs to a

protected group; (2) the employee was subjected to unwelcome harassment;

(3) the harassment complained of was based on race; (4) the harassment

1

Broussard did not engage in protected activity until he filed the EEOC

charge as it was the first time he complained of racial discrimination. His

general complaints about Larsen’s poor work ethic, overzealous security

personnel, and the response of his superiors did not constitute protected activity.

See Watts v. Kroger, 170 F.3d 505, 511-12 (5th Cir. 1999) (recognizing that an

employee’s complaint to the manager regarding her supervisor’s comments did

not satisfy the protected activity as required for her Title VII retaliation claim

because the employee did not report any sexual harassment in that complaint).

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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.” Celestine v. Petroleos de Venezuella SA,

266 F.3d 343, 353 (5th Cir. 2001). In determining whether the environment is

hostile, the court considers all the circumstances such as the frequency of the

conduct and whether it was physically threatening or humiliating. Harris, 510

U.S. at 23.

Broussard claims that the TDCJ subjected him to a hostile work

environment by repeatedly failing to discipline Larsen or respond adequately to

the three internal grievances that Broussard filed in late 2002 and early 2003.

Broussard tries to frame a disparate treatment claim as a hostile environment

claim. Broussard does not allege that he was subjected to any racial epithets,

insults, ridicule, or jokes, or that any of the harassment was racial in nature.

Broussard’s complaints, when taken as a whole, are not severe and pervasive

enough to create an abusive working environment. Because Broussard has

failed to establish a prima facie case of hostile work environment, the district

court properly granted summary judgment.

4. Section 1983 Claims Against the Individual Defendants

The individual defendants in this case have asserted the defense of

qualified immunity to Broussard’s § 1983 claim. Qualified immunity will shield

government officials from liability for civil damages when “their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Kinney v. Weaver, 367 F.3d 337, 349 (5th

Cir. 2004). In determining the applicability of qualified immunity, we must first

determine “whether the plaintiff has asserted a violation of a constitutional

right” under currently applicable constitutional standards. Id. at 350 (quoting

Siegert v. Gilley, 500 U.S. 226, 232 (1991). We then consider whether the

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official’s conduct was objectively reasonable in light of law that was clearly

established at the time that the conduct occurred. Id.

In his complaint, Broussard argues that the individual defendants have

violated the due process and equal protection clauses of the Fourteenth

Amendment. Broussard fails to explain how the defendants violated his right

to due process of the law or to equal protection of the laws. An employment

contract may give rise to a property interest in continued employment, the

deprivation of which could give rise to a due process claim. See Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972); see also Mallek v. City of

San Benito, 121 F.3d 993, 998 (5th Cir. 1997). But Broussard has not asserted

that any employment contract existed. Because Broussard has not directed the

court to a violation of a constitutional right, he cannot defeat defendants’

assertion of qualified immunity to his § 1983 claim. See Salas, 980 F.2d at 305.

Accordingly, the district court properly granted defendants’ motion for summary

judgment on the § 1983 claim.

III. Conclusion

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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