Serrano v. Best Roofing Technology, Inc. , 40 F. App'x 806 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEOSBANY SERRANO; REIDEL 
SERRANO,
Plaintiffs-Appellants,
v.  No. 01-2507
BEST ROOFING TECHNOLOGY,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-00-62-5-F)
Submitted: June 26, 2002
Decided: July 12, 2002
Before KING and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph Cartolano, LAW OFFICES OF JOSEPH CARTOLANO,
P.A., Miami, Florida, for Appellants. James C. Dever, III, Terence D.
Friedman, MAUPIN, TAYLOR & ELLIS, P.A., Raleigh, North Caro-
lina, for Appellee.
2 SERRANO v. BEST ROOFING TECHNOLOGY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Leosbany Serrano and Reidel Serrano are Cuban
natives who formerly worked as roofing technicians for Best Roofing
Technology, Inc. (BRTI). In their civil action against BRTI, Appel-
lants alleged national origin discrimination in employment in viola-
tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e
(West 1994 & Supp. 2001), and the district court granted BRTI’s
motion for summary judgment. The district court concluded the Serra-
nos failed to establish a prima facie case of hostile work environment
based on racial discrimination, and even if they could, BRTI estab-
lished an affirmative defense under Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S.
775 (1998). Appellants appealed, and we affirm.
We review a district court’s order granting summary judgment de
novo and view the facts in the light most favorable to the nonmoving
party. Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir.
1999). Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). Once the moving party dis-
charges its burden by showing that there is an absence of evidence to
support the nonmoving party’s case, Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986), the nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial. Mat-
sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). Summary judgment will be granted unless a reasonable jury
could return a verdict for the nonmoving party on the evidence pres-
ented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The Serranos assert their supervisor created a hostile work environ-
ment and discriminated against them because they are Cuban. To
establish a hostile work environment claim, a employee is required to
SERRANO v. BEST ROOFING TECHNOLOGY 3
prove: (1) he was harassed based on race; (2) the harassment was
unwelcome; (3) harassment was sufficiently severe or pervasive to
alter the employee’s conditions of employment and to create an abu-
sive work environment;1 and (4) some basis exists to impute liability
on the employer. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772
(4th Cir. 1997). The Serranos’ wholly conclusory allegations concern-
ing an alleged hostile work environment are neither severe nor perva-
sive enough to support such a claim.2 Therefore they failed to
establish a prima facie case of hostile work environment. In addition,
BRTI is shielded from liability under the Ellerth/Faragher affirmative
defense, even if the Serranos had demonstrated a prima facie case. As
the district court concluded, BRTI established that it took reasonable
care to prevent and to promptly correct any unlawful discrimination
and the Serranos failed to take full advantage of BRTI’s personnel
procedures to avoid harm. See Ellerth, 524 U.S. at 715; Faragher,
524 U.S. at 807.
We therefore affirm the district court’s order based on the reason-
ing of the district court. See Serrano v. Best Roofing Tec., Inc., No.
CA-00-62-5-F (E.D.N.C. Nov. 28, 2001). We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
1
Harris v. Forklift Sys. Inc., 510 U.S. 17 (1993) (environment must be
both objectively and subjectively hostile in order to make out hostile
work environment claim under Title VII).
2
To determine whether the harassment is severe enough to create a
hostile work environment, a court should consider: (1) the frequency of
the discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or a mere offensive utterance; (4) whether it
unreasonably interferes with an employee’s work performance; and (5)
whether it resulted in psychological harm. Harris, 510 U.S. at 23; Con-
ner v. Scharader-Bridgeport, Int’l, Inc., 227 F.3d 179, 193 (4th Cir.
2000).