Isaac Jordan v. Cleco Corporation , 542 F. App'x 337 ( 2013 )

Case: 13-30238 Document: 00512409234 Page: 1 Date Filed: 10/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 16, 2013
No. 13-30238
Summary Calendar Lyle W. Cayce
Clerk
ISAAC JORDAN,
Plaintiff - Appellant
v.
CLECO CORPORATION,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CV-1701
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Isaac Jordan challenges the district court’s grant of summary judgment
to his employer Cleco on claims of failure to promote, discrimination, retaliation,
and hostile work environment in violation of 42 U.S.C. § 1981. Finding no
reason to alter the sound reasoning of the district court, we AFFIRM.
We review grants of summary judgment de novo, applying the same
standard as the district court. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir.
2010). Summary judgment is appropriate when “there is no genuine dispute as
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 13-30238 Document: 00512409234 Page: 2 Date Filed: 10/16/2013
No. 13-30238
to any material fact and the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56. “‘[C]onclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy’ the nonmovant’s burden [on] summary
judgment.” Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)).
Appellant first contests the district court’s ruling on a failure to promote
claim. Jordan alleges he was not selected in 2006 (three years before he filed
this suit) for a promotion from Fuel Handler to a Supervisor-Field Maintenance
position because of his race.1 This claim fails for multiple reasons. The
prescription period here under § 1981 is one year, Taylor v. Bunge Corp.,
775 F.2d 617, 618 (5th Cir. 1985), and Jordan offered the district court only
conclusory statements for an extension to four years under the 1991
Amendments. See generally Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369,
124 S. Ct. 1836 (2004). The same error is repeated on appeal. Moreover, under
the burden-shifting scheme set forth in McDonnell Douglas, Appellant failed to
show pretext after Cleco produced a non-discriminatory basis for its hiring
decision. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316–17 (5th Cir.
2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 1824 (1973)).
Jordan next challenges adverse rulings on his racial discrimination and
retaliation claims. The district court held the discrimination claim—based on
a lack of training/opportunity provided—both prescribed and without merit.
Because prescription was not challenged on appeal, that claim is waived. The
district court also rejected the related claim of retaliation due to a lack of
evidence. To state a retaliation case, a plaintiff must demonstrate he engaged
in a protected activity and suffered an adverse employment action as a result.
1
Jordan also makes a brief statement concerning not being promoted in 2002 from Fuel
Handler to Senior Fuel Handler. The district court treated this claim as prescribed and that
holding is not appealed here. The Senior Fuel Handler argument is waived.
2
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No. 13-30238
McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). Jordan
argues the lack of training constituted an adverse employment action, but his
appellate brief does not indicate the protected activity for which he claims
retaliation. His deposition testimony indicates the activity was the filing of his
lawsuit. Because the alleged adverse employment action—lack of
training—occurred prior to the protected activity—filing of the lawsuit—there
is no evidence of a materially adverse employment consequence, and the
retaliation claim fails.
Appellant’s final argument is that he was subjected to a hostile work
environment. To succeed on this contention, a plaintiff must show (1) he is a
member of a protected group; (2) was subjected to unwelcome harassment;
(3) based on race; (4) that was so severe as to affect his employment; and (5) the
employer knew/should have known about the harassment and failed to take
prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.
2002). Appellant correctly notes that an on-going violation may extend the
limitation window for considering evidence concerning the hostile work
environment. Jordan fails, however, to link the past activities with a present
violation against him and does not account for the affirmative actions taken by
Cleco to correct alleged violations. Anecdotal evidence of coarse racial jokes and
generally inappropriate behavior is offered, but the district court correctly held
that the isolated incidents failed to show an effect on his employment. See
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998).
While certain incidents could have given rise to a claim, the only interference
with work performance mentioned on appeal is the denial of opportunity for
advancement. This argument merely seeks to revive the previous claim and
there is no indication that it affected Jordan in the performance of his duties.
Appellant cannot, therefore, make out a successful claim for a hostile work
environment. See EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007).
3
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In sum, Appellant offers this court little more than untimely and
conclusory allegations unable to survive summary judgment. The judgment of
the district court is AFFIRMED.
4