Melvin v. Barr Roofing Co.
| Decision Date | 07 April 2020 |
| Docket Number | No. 19-10214,19-10214 |
| Parties | JOHNNIE MELVIN, Plaintiff - Appellant v. BARR ROOFING COMPANY, Defendant - Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas
Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
*
Johnnie Melvin appeals the district court's grant of summary judgment in Barr Roofing Company's favor on his claims of discrimination, retaliation, and hostile work environment under Title VII and 42 U.S.C. § 1981. For the following reasons, we AFFIRM the district court's grant of summary judgment on Melvin's discrimination claim but REVERSE it on the retaliation and hostile work environment claims.
Because this is an appeal of a summary judgment, we are providing the facts in the light most favorable to the non-movant, recognizing, of course, that some are disputed. See McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). Melvin, an African-American man, was a sheet-metal worker for Barr Roofing on and off from 2001 until 2017. Melvin alleged that, beginning in 2012 or 2013, he became the target of racial slurs at work and that several white coworkers, including his direct supervisor and his supervisor's relatives, called him racial slurs "on a daily or near-daily basis." In March 2013, he complained to Bryan Galloway, vice president of Barr Roofing, about the racial slurs; Melvin was subsequently fired, then rehired.
According to Melvin, in 2016, E.H., a fellow employee related to his supervisor, offered Melvin marijuana while on the job, and he accepted it. After another employee reported that Melvin and others were smoking marijuana on the job, Melvin was asked to take and subsequently failed a drug test. Melvin alleged that E.H. passed the drug test by swapping his urine sample with another person's "clean" sample. Melvin was not fired because of the failed drug test, and he understood that the failed drug test meant he would later be retested.
In April 2017, a white employee took Melvin's work tools and threw them out of a window while they were riding together in a car after completing work. The white employee indicated he was a white supremacist and threatened to throw Melvin off a roof when they worked together again. On May 1, Melvin notified Galloway about the incident. Galloway told Melvin that he would investigate the complaint (though Melvin believes that Galloway might not have followed through on the investigation). Arek Hawkins, Melvin's supervisor, approached Melvin the following day and said that he did not like "snitches."
On May 4, Galloway informed Melvin that Hawkins had written him up for poor performance and "cussing," and accordingly told Melvin to go home for the day rather than continue working. According to Melvin, other employees were not disciplined for similar work performance or cussing, and Melvin "felt that [he] was being punished for reporting [his] complaints." Galloway called Melvin later that afternoon and asked Melvin why he had not shown up for a drug test. Melvin was "confused" because he was "unaware that [Galloway] wanted [him] to take a drug test"; Galloway told Melvin to take a drug test that day. Melvin told Galloway that he could not do so because he lacked access to a vehicle, and Melvin did not take the drug test.
When Melvin returned to work, Hawkins—who supervised Melvin's work "in the field"—reiterated that he did not like snitches and said that Melvin would no longer perform work for Hawkins. On May 9, Galloway fired Melvin for failure to submit to a drug test.
On April 10, 2018, Melvin filed his complaint, alleging violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Melvin stated that he faced "a pattern and practice of harassment and humiliation" at work and that the motive for his termination "was racial discrimination and retaliation."
Barr Roofing moved for summary judgment on Melvin's discrimination and retaliation claims. In his response brief, Melvin argued that Barr Roofing had not properly addressed the issue of harassment. Barr Roofing replied that Melvin had raised the legal issue of a hostile work environment claim for the first time in his response brief, as his complaint referred only to discrimination and retaliation. Melvin moved to amend his complaint, but the district court denied the motion. The district court held that Melvin failed both to sufficiently plead a hostile work environment claim and to allege a prima facie case on such a claim. It further held that summary judgment should be granted for Barr Roofing on Melvin's discrimination and retaliation claimsbecause Melvin failed to show that Barr Roofing's proffered reason for his termination was pretextual. Melvin timely appealed.
We review a grant of summary judgment de novo. Smith v. Reg'l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "A dispute about a material fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We address each issue in turn.1
When using circumstantial evidence, a plaintiff's claims of unlawful discrimination are analyzed using the McDonnell Douglas2 burden-shifting framework. See Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016). Under this framework, courts employ a three-step approach. Initially, a Title VII plaintiff must "set forth a prima facie case of race-based discrimination." Id. If the plaintiff successfully does so, then "the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. (internal quotation marks omitted). The burden then shifts back to the employee to "offer someevidence that the reason proffered was a pretext for discrimination." Id. At the pretext stage, a "heightened but-for causation requirement applies." Garcia v. Prof'l Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019).
To establish a prima facie case for race-based discrimination, Melvin must show that he (1) "is a member of a protected class," (2) "was qualified for the position," (3) "was subject to an adverse employment action," and (4) "was replaced by someone outside [his] protected class or was treated less favorably than other similarly situated employees outside [his] class." Haire v. Bd. of Sup'rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
Melvin fails to identify a similarly situated comparator who received better treatment. Melvin alleges that when he took and failed a drug test in 2016, his white coworker E.H. passed the drug test only because he swapped out his affected urine sample with a "clean" one. However, Melvin was not terminated for the failed drug test in 2016; he was terminated for failing to take a later drug test. Melvin did not allege that other employees similarly failed to take a drug test yet retained their job. Accordingly, Melvin has not shown that a similarly situated person existed.
Melvin also contends that at some point, his white coworker E.H. received a raise, but Melvin had been told that there were "no raises for anyone." Melvin does not dispute Barr Roofing's contention that E.H. was paid more because he had an additional professional skill: he was able to drive for the company. Melvin argues that instead of erroneously saying that no employees would receive a raise, the company should have explained to him that E.H. received additional compensation because of his additional skill. Niceties of employment etiquette are not actionable. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) . If an employee with a different skillset was paidmore than Melvin, then the employee is not a similarly situated comparator.
Because Melvin has not identified a similarly situated comparator, he cannot make out a prima facie case for discrimination. We affirm the grant of summary judgment on this claim.
Claims of unlawful retaliation under Title VII are also analyzed using the McDonnell Douglas burden-shifting framework. Septimus v. Univ. of Hous., 399 F.3d 601, 608 (5th Cir. 2005). To establish a prima facie case of retaliation, a plaintiff must show "(1) that the plaintiff engaged in 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 action." Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
Here, Melvin alleged that he reported race-based harassment to his supervisor after a coworker self-identified as a white supremacist and threatened him. Reporting racial discrimination is an activity protected by Title VII. See 42 U.S.C. § 2000e-3(a); Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003). He was terminated, which is an adverse employment action. Melvin can also show a causal link: plaintiffs can rely on temporal proximity to support a causal nexus when the protected activity and adverse action occur "very close" in time.3 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam). Melvin alleged that he was terminated just five days after reporting harassment, which is very close. See Haire, 719 F.3d at 368 (). Accordingly, viewing the facts in the light most...
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