Salter v. Cheniere Energy ( 2021 )

Case: 21-20296 Document: 00516132805 Page: 1 Date Filed: 12/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 15, 2021
No. 21-20296 Lyle W. Cayce
Clerk
Thomas Salter; Owen Keith Hendricks,
Plaintiffs—Appellants,
versus
Cheniere Energy, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4749
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Thomas Salter and Owen Keith Hendricks contend that the district
court improperly granted summary judgment on their sexual harassment and
retaliation claims against Cheniere Energy. The district court found
“Hendricks and Salter . . . cannot offer a shred of evidence to support [their]
claim[s]. Legal conclusion and baseless accusations are insufficient.” We
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-20296
agree. Salter and Hendricks also fail to support their arguments on appeal
with adequate briefing. For these reasons, we AFFIRM.
I.
Cheniere is an energy company primarily engaged in the liquified
natural gas business. Salter and Hendricks were employees of Cheniere.
Both worked at Cheniere’s Corpus Christi Liquefaction site in Gregory,
Texas. Hendricks was employed as Cheniere’s Director of Construction
while Salter was a Marine Superintendent. Hendricks “was the highest
authority in that office.” Elizabeth Ruiz was employed by Cheniere as
Hendricks’s office manager.
Cheniere maintained several utility terrain vehicles (UTVs) so
employees could navigate the Corpus Christi worksite. Over the Memorial
Day, Labor Day, or Fourth of July weekends in 2016, 2017, and 2018,
Hendricks and Salter removed a particularly high-powered UTV from the
worksite and took it to Crystal Beach in Galveston, Texas. 1 In addition to
Hendricks and Salter, various friends and family attended the beach trip,
some connected with Cheniere, others not.
In July 2018, Ruiz spoke with Hendricks’s superior at Cheniere, Ed
Lehotsky, the Senior Vice President of Engineering and Construction. She
discussed the need to purchase fire-resistant raincoats for every member of
the office, a purchase that Hendricks had already rejected. In August 2018,
Hendricks and Ruiz had a vocal disagreement over purchasing priorities for
the office. During the argument, Ruiz expressed her frustration about
1
The record indicates that Hendricks and Salter drove multiple UTVs while at the
beach, some of which were their personal property. Deposition testimony focuses on a
single high-powered company UTV, but witnesses also occasionally refer to the use of
multiple company UTVs. For ease of reference, we refer to the single UTV above the line.
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Hendricks’s perceived favoritism toward Salter. Hendricks responded to
Ruiz by asking her, “Why do you have such a hard-on for Salter[?]” In
response, Ruiz loudly said, “I don’t know if you’re sucking Thomas Salter’s
d[***] or he is sucking yours.”
The next day, wholly unaware of Hendricks and Ruiz’s argument,
Lehotsky and Nancy Bui, Cheniere’s Director of Human Resources, arrived
at the Corpus Christi worksite. Ruiz informed Bui of the disagreement, and
over the course of that day Bui interviewed Ruiz, Hendricks, and Salter.
Lehotsky also met with Hendricks regarding the matter. Two weeks later,
Bui, Lehotsky, and others followed up with Hendricks and Ruiz to resolve
any residual issues with their working relationship.
Later that same month, Lehotsky learned about the beach trips that
Hendricks and Salter had taken with the company UTV. Deanna Newcomb,
Cheniere’s Chief Compliance and Ethics Officer, subsequently met with
both Hendricks and Salter. She discussed the UTV usage as well as
Hendricks’s and Salter’s presence at an unapproved hunting trip paid for by
a Cheniere vendor the prior year. Following the ethics investigation,
Lehotsky fired both Hendricks and Salter.
Hendricks and Salter filed suit against Cheniere in federal district
court. They alleged sex discrimination, age discrimination, sexual
harassment, and retaliation in violation of Title VII of the Civil Rights Act,
42 U.S.C. § 2000e, and in violation of Texas law. Hendricks and Salter
alleged that Ruiz’s comment to Hendricks constituted sexual harassment,
that Ruiz had engaged in a pattern of harassing conduct, and that Cheniere
had done nothing to remedy the situation. They alleged that rather than
punish Ruiz, Cheniere fired Hendricks and Salter for lodging legitimate
complaints.
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After limited discovery, Cheniere moved for summary judgment. The
district court granted the motion, finding, inter alia, that Hendricks and
Salter had failed to make a prima facie showing for any of their claims.
Aggrieved, Hendricks and Salter appeal. 2
II.
We review a grant of summary judgment de novo, applying the same
standard as the district court. Ikossi-Anastasiou v. Bd. of Supervisors of La.
State Univ., 579 F.3d 546, 549 (5th Cir. 2009) (citing Ruiz v. Whirlpool, Inc.,
12 F.3d 510, 513 (5th Cir. 1994)). First, we review Hendricks’s and Salter’s
harassment claim.
For a sexual harassment claim to survive summary judgment,
a plaintiff must show that (1) [he] is a member of a protected
class; (2) [he] suffered unwelcomed harassment; (3) the
harassment was based on [his] membership in a protected
class; (4) the harassment “affected a term, condition, or
privilege of employment”; and (5) “the employer knew or
should have known” about the harassment and “failed to take
prompt remedial action.”
West v. City of Hous., 960 F.3d 736, 741 (5th Cir. 2020) (per curiam) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). The district court
found that Hendricks and Salter offered “no evidence to show why [Ruiz’s]
comment [wa]s based on [their] sex . . . . Because Hendricks and Salter
cannot prove the elements for sexual harassment, their claim fails.” On
appeal, Salter and Hendricks wholly fail to address this finding. Beyond that,
they also fail to provide any argument regarding their membership in a
protected class. On both points, “[f]ailure adequately to brief an issue on
2
Hendricks and Salter abandon their age and sex discrimination claims as well as
their Texas state law claims on appeal.
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appeal constitutes waiver of that argument.” Roy v. City of Monroe, 950 F.3d
245, 251 (5th Cir. 2020) (internal quotation marks omitted) (quoting Procter
& Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)). We
thus decline to address their sexual harassment claim further.
As for the retaliation claim, Hendricks and Salter bear the burden of
demonstrating that (1) they “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.” Ikossi-Anastasiou,
579 F.3d at 551 (internal quotation marks omitted) (quoting Gee v. Principi,
289 F.3d 342, 345 (5th Cir. 2002)). “If an adverse employment action occurs
within close temporal proximity to protected activity known to the employer,
a plaintiff will have met [the] burden to establish a prima facie case of
retaliation.” Badgerow v. REJ Props., Inc., 974 F.3d 610, 619 (5th Cir. 2020)
(citing Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019)).
Once a prima facie case is made, “the burden shifts to the employer
‘to articulate some legitimate, nondiscriminatory reason’ for its actions.” Id.(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “If
the employer proffers a legitimate, nondiscriminatory reason, the burden
then returns to the plaintiff to prove that the employer’s reason is pretext for
unlawful discrimination.” Id. (citing Septimus v. Univ. of Hous., 399 F.3d 601,
607 (5th Cir. 2005)). At that stage, temporal proximity alone will not
“establish that the company’s stated explanation” was pretextual. Garcia,
938 F.3d at 243 (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802,
808 (5th Cir. 2007)).
Hendricks and Salter demonstrate that there was some temporal
proximity between their alleged complaints and their termination of
employment. However, even assuming that this is sufficient to state a prima
facie case, that is the only argument they provide. Cheniere Energy asserts
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that it terminated Hendricks and Salter after it discovered that the two had
been using company property, particularly a high-powered UTV, on annual
beach trips. As this is a legitimate, nondiscriminatory reason, the burden
shifts back to Hendricks and Salter to demonstrate that Cheniere’s proffered
reason for termination was mere pretext for discrimination.
But Hendricks and Salter do not provide any evidence to rebut
Cheniere’s statement beyond temporal proximity and their own testimony.
Without evidence that Cheniere’s reason for terminating them was
pretextual, they have failed to create a genuine issue of material fact on this
point. As the district court observed, “[b]aselessly saying that a genuine
issue of fact exists—without identifying a real disputed fact—does not make
it true.” They have thus failed to carry their burden, and Cheniere was
entitled to judgment as a matter of law.
Finally, Hendricks and Salter allege the district court abused its
discretion by not granting them broader discovery. But the record shows that
they did not ask the district court for any discovery or seek any ruling on
discovery whatsoever. As this issue was not presented in the first instance to
the district court, “we will not address it on appeal.” Nasti v. CIBA Specialty
Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007) (internal quotation marks
omitted) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)).
III.
Hendricks and Salter’s appellate arguments are unavailing, and they
do not meaningfully engage the district court’s conclusion that their
harassment and retaliation claims fail as a matter of law. Therefore, the
district court’s summary judgment is
AFFIRMED.
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