Forbes v. Catalyst Technol Inc ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20473
Summary Calendar
_____________________
SANDRA K. FORBES,
Plaintiff-Appellant,
versus
CATALYST TECHNOLOGY INC.; CRI INTERNATIONAL
INC.; SHELL OIL COMPANY,
Defendants-Appellees.
__________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas, Houston
USDC No. H-99-CV-3834
_________________________________________________________________
January 23, 2002
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this case, Sandra Forbes, a black Jamaican female, alleges
that her former employers, Catalyst Technology and CRI
International, along with their affiliate Shell Oil, violated 42
U.S.C. § 2000e (Title VII) and 42 U.S.C. § 1981. According to
Forbes, the defendants (1) created a hostile work environment based
on her race and gender, (2) paid her less than white employees who
performed the same tasks, and (3) retaliated against her because
*
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this opinion should not be published and is not precedent except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.
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she reported discriminatory treatment of another black employee.
The district court adopted the magistrate judge’s recommendation
and granted summary judgment in favor of the defendants on all of
Forbes’s claims. We agree and affirm the district court’s
judgment.
The district court granted summary judgment on Forbes’s
hostile work environment claim because the harrassing conduct that
Forbes identifies was not sufficiently severe or pervasive to give
rise to liability. To support her claim, Forbes points to several
instances of offensive behavior at her workplace: (1) derogatory
comments by co-workers concerning black employees and Jamaicans,
(2) an ambiguous remark about school busing and other assorted
mean-spirited conduct by her supervisor, (3) discriminatory
treatment of a black male employee who failed a drug test, (4)
inappropriate sexual comments by a male co-worker, (5) CRI
International’s refusal to consider her for a position in the
accounting department, and (6) inadequate investigation of Forbes’s
complaints about the above conduct.
To survive summary judgment on her hostile work environment
claim, Forbes must produce evidence of conduct by her employer
“that is so severe and pervasive that it destroys a protected
classmember's opportunity to succeed in the workplace.” Weller v.
Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). The
conduct alleged by Forbes was largely episodic and does not rise to
the level required for liability as a hostile work environment
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under Title VII. Cf. Indest v. Freeman Decorating, Inc., 164 F.3d
258, 264 (5th Cir. 1999) (“Incidental, occasional or merely playful
sexual utterances will rarely poison the employee's working
conditions to the extent demanded for liability. Discourtesy or
rudeness, ‘offhand comments and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
terms and conditions of employment.’” (internal quotation marks and
citation omitted)). As a consequence, the district court did not
err in granting the defendants summary judgment on this claim.
The district court granted summary judgment on Forbes’s claim
of compensation discrimination because Forbes presented
insufficient evidence that Catalyst Technology’s nondiscriminatory
reason for paying her less than her predecessors was a pretext for
discrimination. Catalyst Technology contends that it paid Forbes
less because, unlike her predecessors, Forbes did not have a
college degree. Forbes responds that she has the required
qualifications for her position,1 including the “equivalent” of a
college degree (namely, 106 of the 126 hours required for a degree)
and five years of relevant experience. As a result, she argues
that she was entitled to the same compensation as her predecessors.
Relying on a comment by a Catalyst Technology employee, Forbes
further argues that Catalyst Technology’s proffered explanation
1
The position requires “a four year degree in a related field
or equivalent and five plus years personnel experience in catalyst
handling or petrochemical/refining/maintenance service industry.”
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contradicts its “policy” of paying employees according to their
duties and not according to their qualifications.
We agree with the district court that Forbes has not presented
sufficient evidence to create a genuine question of fact concerning
the legitimacy of Catalyst Technology’s nondiscriminatory
explanation for Forbes’s lower salary. Even assuming that Forbes
possessed the minimum qualifications required for the position,
Catalyst Technology could properly choose to pay her less because
she had not yet received a college degree and had less experience
than her predecessors. Furthermore, there is no support in the
record for the proposition that Catalyst Technology has a policy
prohibiting consideration of qualifications in setting salaries.
We also note that the evidence of racial animus discussed above is
insufficient to raise an issue of material fact concerning whether
the proffered explanation is pretexual. In sum, the district court
did not err in granting the defendants summary judgment on Forbes’s
discriminatory compensation claim.
Finally, the district court granted summary judgment on
Forbes’s retaliation claim because Forbes could not prove that she
was the subject of an adverse employment action, which is required
to establish a prima facie case of retaliation under Title VII.
See Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001)
(outlining elements of prima facie case). Forbes argues that she
received a lower raise and was constructively discharged because
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she complained about the discriminatory treatment of another black
employee.
Forbes first argues that she suffered an adverse employment
action based on the amount of the raises she received. Six months
after she was hired as a human resources administrator, Catalyst
Technology awarded her a $2000 raise. Six months after that, she
received a $1500 raise. Forbes argues that Catalyst Technology
reduced the amount of the second raise because she complained about
the discriminatory treatment of a black co-worker. Forbes has not
produced any evidence, however, that she would have received a
higher raise absent the alleged retaliation or that she was
otherwise entitled to the higher amount. Indeed, Catalyst
Technology presented evidence that it is unusual for an employee to
receive two raises in one year because salary reviews typically
occur only once per year.
Second, Forbes argues that Catalyst Technology constructively
discharged her by means of the harassment described above. To show
a constructive discharge, Forbes “must offer evidence that the
employer made the employee's working conditions so intolerable that
a reasonable employee would feel compelled to resign.” Barrow v.
New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). The
plaintiff must demonstrate a “greater severity or pervasiveness of
harassment than the minimum required to prove a hostile work
environment claim.” Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998).
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Relying on the evidence of harassment discussed above, Forbes
argues that she has raised a genuine issue of fact whether Catalyst
Technology’s conduct constitutes a constructive discharge. As we
noted above, however, the harassment described by Forbes is not
sufficiently pervasive or severe to satisfy the requirements for
a hostile work environment claim. Because the standard for
constructive discharge claims is higher than that for hostile work
environment claims, Forbes cannot show that she was constructively
discharged by Catalyst Technology.
We therefore agree with the district court that Forbes’s
retaliation claim fails because she has not suffered an “adverse
employment action.”
Accordingly, we hold that the district court did not err in
granting summary judgment in favor of the defendants on all of
Forbes’s claims, and its judgment is
AFFIRMED.
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