Hernandez v. Yellow Transp., Inc.

• Decision Date: 09 February 2012
• Docket Number: No. 09–10183.,09–10183.
• Parties: Rubin HERNANDEZ; John Ketterer; Abram Trevino, Plaintiffs–Appellants, v. YELLOW TRANSPORTATION, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

114 Fair Empl.Prac.Cas. (BNA) 545

670 F.3d 644

Rubin HERNANDEZ; John Ketterer; Abram Trevino, Plaintiffs–Appellants,

v.YELLOW TRANSPORTATION, INCORPORATED, Defendant–Appellee.

No. 09–10183.

United States Court of Appeals, Fifth Circuit.

Feb. 9, 2012.

Janette Johnson (argued), Janette Johnson & Associates, Dallas, TX, for Plaintiffs–Appellants.

Shauna Johnson Clark (argued), Fulbright & Jaworski, L.L.P., Houston, TX, Danielle Alexis Clarkson, Fulbright & Jaworski, L.L.P., Dallas, TX, Jaclyn Adele Hermes, Fulbright & Jaworski, L.L.P., Austin, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas.ON PETITION FOR REHEARING

Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

No member of the panel nor judge in regular active service having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is DENIED. See Fed. R. App. P. and 5th Cir. R. 35. Treating the petition for rehearing en banc as a petition for panel rehearing, the petition is DENIED. See Internal Operating Procedure to 5th Cir. R. 35. We withdraw our prior opinion, 641 F.3d 118, and substitute the following.

Employees at a terminal for a trucking company brought claims of race discrimination, retaliation, and hostile work environment against their employer. The district court granted summary judgment to the defendant on some of the individual claims and allowed an immediate appeal. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Rubin Hernandez, John Ketterer, and Abram Trevino (“Plaintiffs”) were employed at Yellow Transportation's Dallas terminal. The evidence reveals a workplace that could be quite mean-spirited, crude, and insulting. The issue for us to decide is whether federal rights were violated.

Our evidentiary summary relies on the facts admitted in the district court. Hernandez, who is Mexican–American, worked for the company from 1993 until 2007. He claimed discrimination, retaliation, and a hostile work environment. As to the discrimination claim, Hernandez had a disagreement with a coworker, threatened him, and was fired for violating workplace policy regarding such conduct. The coworker, who was not a passive victim in the altercation, exchanging derogatory remarks with Hernandez, received a lesser penalty.

To support the hostile work environment claim, Hernandez alleges he either personally experienced or witnessed race-based and non-race-based harassment while employed at Yellow Transportation. The retaliation claim seeks to connect his termination with earlier formal claims and informal complaints about discrimination.

Ketterer, who is Caucasian, has been employed as a dock worker since 1990. He claims there was a hostile work environment. He also says he suffered retaliation based in part on twice being fired and later reinstated after serving a suspension. He alleges to have engaged in protected activity by picketing against Yellow Transportation's treatment of minorities.

Ketterer's hostile work environment claim also rests upon race-based and non- race-based harassment he either witnessed or personally suffered as a result of his association with minority employees. He contends his protected status results from his association with African–American and Hispanic employees.

Trevino, who is Mexican–American, has worked as a dock worker since 1984. He brings only a claim of hostile work environment. He also claims to have experienced or witnessed race-based and non-race-based harassment while employed at Yellow Transportation.

Plaintiffs are members of the local chapter of the International Brotherhood of Teamsters. A collective bargaining agreement governs the terms of their employment. Plaintiffs filed charges with and received right-to-sue letters from the Equal Employment Opportunity Commission (“EEOC”) and the Texas Commission on Human Rights.

They filed suit in the U.S. District Court for the Northern District of Texas, claiming race discrimination, retaliation, and hostile work environment. Plaintiffs' claims were brought under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Texas Commission on Human Rights Act, Tex. Labor Code Ann. §§ 21.001–21.556. The relevant claims under each of these statutes are analyzed under the same standard. Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 991–92 (5th Cir.2005); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir.1999).

Yellow Transportation was granted summary judgment on all claims brought by these Plaintiffs. Other plaintiffs remained in the suit. A determination was made by the district court that there was no just reason for delay, and the ruling was made a final judgment. See Fed.R.Civ.P. 54(b). These three plaintiffs then filed a timely appeal.

Chief District Judge Fitzwater's opinion granting judgment is thorough and well-reasoned. Arrieta v. Yellow Transp., Inc., No. 3:05–CV–2271, 2008 WL 5220569 (N.D.Tex. Dec. 12, 2008) (unpublished). In our analysis, we will refer to that opinion for a more comprehensive explanation of some allegations.

DISCUSSION

We review a district court's grant of summary judgment de novo and apply the same standards as the district court. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.2006). 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. Fed.R.Civ.P. 56(a). “We construe all facts and inferences in the light most favorable to the nonmoving party when reviewing grants of motions for summary judgment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir.2005) (citation omitted). “If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 433 (5th Cir.2005) (quotation marks and citation omitted).

Plaintiffs group their arguments of error around four of the dismissals by the district court: (A) Hernandez and Trevino's hostile work environment claims, (B) Ketterer's hostile work environment claim, (C) Ketterer's retaliation claim, and (D) Hernandez's retaliation and race discrimination claims.

Among other arguments, Yellow Transportation counters that plaintiffs at times highlight facts from the voluminous summary judgment record that were not identified for the district court and thus were not considered in ruling on summary judgment. The district court denied reconsideration of the summary judgment in part because some of the evidence these plaintiffs were citing had not been pointed out at the time of the original decision. A district court's decision on summary judgment is largely controlled by what the parties presented. If somewhere in a record there is evidence that might show a dispute of material fact, the district court needs to be pointed to that evidence as opposed to having to engage in an extensive search. Fed.R.Civ.P. 56(c); Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir.1996).

A. Hostile Work Environment Claims of Hernandez and Trevino

As to their hostile work environment claims, Hernandez and Trevino allege the district court improperly refused to consider all the evidence of harassment, including harassment suffered by other Hispanics and by African–Americans, and instances of non-race-based harassment.

Besides being required to examine only the evidence pointed out to it in the extensive record, the district court also said it would consider admissible evidence only. It is a proper summary judgment objection “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2).

We start by examining what the evidence needed to support. To establish a claim of hostile work environment under Title VII, 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 race; (4) the harassment complained of affected a term, condition, or privilege of employment; (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) (citations omitted). It is undisputed that Hernandez and Trevino belong to a protected group as Hispanics. The other factors are not so clear.

Harassment affects a “term, condition, or privilege of employment” if it is “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Id. (quotation marks and citations omitted). Workplace conduct “is not measured in isolation.” Id. (quotation marks and citation omitted). In order to deem a work environment sufficiently hostile, “all of the circumstances must be taken into consideration.” Id. This includes “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (quotation marks and citations omitted). To be actionable, the work environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citation omitted).

Both Hernandez and Trevino refer to numerous events of harassment, some directed at them and others at coworkers. The district court held there were only four incidents of harassment, two each against Hernandez and Trevino, that were severe enough to affect their employment at Yellow Transportation. We examine those first and then consider whether other relevant events were...