Arredondo v. Elwood Staffing Svc ( 2023 )

Case: 22-50502 Document: 00516872346 Page: 1 Date Filed: 08/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 25, 2023
No. 22-50502 Lyle W. Cayce
____________ Clerk
Frances Arredondo; Sage Coleman,
Plaintiffs—Appellants,
versus
Elwood Staffing Services, Incorporated,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CV-200
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Edith B. Clement, Circuit Judge:
Frances Arredondo and Sage Coleman1 are two women Elwood
Staffing Services, Inc. placed at a job site working for Schlumberger, Ltd. A
senior coworker at their site was a lesbian who sexually assaulted Arredondo
and harassed Coleman. Coleman submitted a complaint about sexual
harassment, and Schlumberger terminated her. Arredondo later resigned.
Together, the women filed suit in federal court alleging violations of Title
_____________________
1
Coleman married after she initiated this lawsuit and changed her last name to
Scott. We use her maiden name for clarity.
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VII. The district court entered a mixed summary judgment order, finding the
women had viable claims against Schlumberger but releasing Elwood from
the suit. Schlumberger subsequently settled with Arredondo and Coleman at
mediation. The women now challenge the order to the extent it granted
summary judgment in Elwood’s favor on appeal. We AFFIRM the district
court’s judgment.
I
A
What follows are the facts presented in the light most favorable to
Coleman and Arredondo. Elwood is a staffing agency that contracted with
Schlumberger to provide workers for oil field operations in the Permian
Basin. Arredondo and Coleman worked for Elwood, and the staffing
company placed them both with Schlumberger. Arredondo is a woman of
Latin American descent. Coleman is a black woman.
Both worked in the gun shop, a facility that creates explosive charges
for hydraulic fracturing.2 Elwood placed Arredondo with Schlumberger as a
gun loader and Coleman as a gun loader trainee. A woman named Maritza
Carrasco, who relevantly is a lesbian, served as the gun shop’s manager.
Another woman, also relevantly a lesbian, Brenda Mitre, was a senior
employee whom Carrasco labeled a supervisor in the gun shop.
_____________________
2
Hydraulic fracturing, commonly called fracking, is a method of obtaining oil used
across the country. When fracking, roughnecks inject water, sand, and chemicals at high
pressure into the bedrock to release oil and natural gas. The process creates improved
permeability in rock formations by cracking or enlarging natural cracks in the rock, allowing
the fossil fuel products to be brought to the surface. See generally, Water Resources Mission
Area, Hydraulic Fracturing, U.S. Geological Surv., https://www.usgs.gov/mission-
areas/water-resources/science/hydraulic-fracturing (last visited May 10, 2023).
2
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Carrasco and Mitre are of Latin American descent, and the gun shop
team was primarily comprised of Hispanic Americans. Coleman and another
person were the only black people in the shop. Arredondo and Coleman
attended onboarding, receiving Elwood’s Associate Handbook and
Schlumberger’s Harassment-Free Workplace Policy. Schlumberger
scheduled both women for fourteen days of work with seven days off and
provided them with housing and transportation. Shortly after Coleman and
Arredondo started their work, Mitre targeted both women.
1
We first describe Coleman’s situation. After Coleman started working
at Schlumberger, Mitre told Coleman that she liked strip clubs and strippers
with bodies similar to Coleman’s. Mitre also propositioned Coleman, stating
that she would “know what to do” with a woman with Coleman’s body, and
Mitre asked Coleman twice if she was bisexual. Mitre also touched Coleman
consistently and informed Coleman that she went to strip clubs and slept with
coworkers.
Uncomfortable with Mitre’s behavior, Coleman requested that
Carrasco move her to the night shift on her next fourteen-day work cycle. At
first, Carrasco agreed, but after she returned from her seven days off,
Coleman was placed back on the day shift without explanation. Around this
time, Coleman decided to submit a complaint to Schlumberger’s human
resources team. In her complaint, Coleman reported Mitre’s sexual
harassment and added that she believed Carrasco and Mitre discriminated
against her and the other black employee. Coleman later elaborated in her
deposition that such discrimination included the use of racial epithets. Mitre
called black people “pinche mayates” and “cara de changos,” both
translating to severe racial slurs. Coleman also later explained that black
workers were ordered to do dirtier jobs, not given training opportunities,
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subject to other insults, including being told they smell, and not invited to
team lunches. Schlumberger launched an investigation into Coleman’s
allegations.
In response to the complaint, Carrasco, Mitre, and even Arredondo,
among others, provided statements to Schlumberger’s HR investigator, Ali
Mendha. They claimed that it was Coleman who was bigoted and that
Coleman disparaged Carrasco’s physique and sexuality. When all was said
and done, Mendha concluded that Coleman’s claims could not be verified
and recommended firing her for violating Schlumberger’s policies.
Ultimately, Schlumberger terminated Coleman and gave Mitre a written
warning for inappropriate conduct.
Coleman submitted an incident report once Elwood notified her about
Schlumberger’s decision. A supporting witness corroborated Coleman’s
description of events. Coleman requested a new work assignment with
similar benefits to the Schlumberger Permian Basin placement. After some
phone tag, Elwood asked Coleman to apply to roles on its website so it could
place her. Coleman did not apply to another placement through Elwood.
2
Sadly, Arredondo’s situation was even worse. Starting around the
same time, Mitre began sexually harassing her, culminating with sexual
assault. After working at the gun shop for a bit, Carrasco and Mitre began
inviting Arredondo to lunch every day. During these lunches, Mitre would
attempt to touch Arredondo’s leg and hold her hand. Arredondo tried to
decline the lunch invitations, but ultimately Carrasco and Mitre would
pressure her into getting a meal. Lunch evolved into dinner, and at one meal,
Mitre pinned Arredondo and kissed her against her will. Mitre threatened
Arredondo’s position with Schlumberger if she reported the incident or their
4
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“sentimental relationship,” as Mitre phrased it. Arredondo only told
Carrasco about Mitre’s behavior.
About a week later, Arredondo finished work early but didn’t have
transportation back to her housing unit. Mitre offered her a ride but took
Arredondo to lunch instead, over Arredondo’s objections. At lunch, the two
had a drink, and Arredondo excused herself to go to the bathroom. When she
returned, Arredondo finished her drink, and she blacked out. When she came
to, Mitre told her that she had raped Arredondo with a sex toy and taken
pictures. Mitre warned Arredondo that if she told anyone about the rape,
Mitre would circulate the pictures of her and threatened Arredondo’s
daughter. Arredondo, again, never reported this incident to Schlumberger or
Elwood.
Following the rape, Mitre continued to assault and harass Arredondo
sexually. At work, Mitre attempted to touch and kiss Arredondo against her
will. Mitre also blackmailed Arredondo into going on dates with her by
threatening to release pornographic pictures of her. On one date at an Olive
Garden, Mitre fought Carrasco before attempting to kiss Arredondo forcibly.
After these events, Arredondo told Carrasco that she was not in a relationship
with Mitre. She also told Carrasco about the rape and subsequent blackmail.
Carrasco told Arredondo that her job was safe but could lose it if she reported
these incidents to HR. Instead, Carrasco recommended that Arredondo take
some time off. Arredondo took two weeks off from work.
While Mitre was on vacation, she called Arredondo and told her to
delete her text message history or risk losing her job. Arredondo, in a panic,
complied. Around the same time, also during Arredondo’s vacation, Mitre
discovered that Arredondo might be pregnant and demanded that she get a
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pregnancy test. Mitre told Arredondo that if she was pregnant, she would
beat the unborn child out of her.
When Arredondo returned to work, things did not improve. Mitre
verbally abused Arredondo, calling her a whore openly in the gun shop. Mitre
also began throwing items at Arredondo. Arredondo asked if she could be
sent on assignment elsewhere, but Carrasco denied her request. Arredondo
then resigned from her position with Schlumberger, but the company’s HR
declined to hear her complaints. Instead, it simply accepted her resignation.
Carrasco attempted to convince Arredondo to rescind her resignation to no
avail.
Arredondo notified Elwood of her decision and the reason for it.
Elwood’s employee, who received Arredondo’s call, expressed frustration
that Schlumberger workers harassed another one of Elwood’s placements.
Elwood then forwarded a copy of Arredondo’s sexual harassment complaint
to Schlumberger. Schlumberger began an investigation with Mendha again in
charge. He concluded that Arredondo and Mitre had a consensual
relationship. But he also found that Mitre’s behavior was inappropriate and
recommended termination. Mitre never returned to Schlumberger for her
termination meeting, so Schlumberger fired her for job abandonment.
B
Coleman and Arredondo sued Schlumberger and Elwood in federal
court for violations of Title VII. Specifically, the women’s complaint alleged
that the companies had (1) created a hostile work environment based on sex
and race; (2) intentionally discriminated against Coleman and Arredondo
because of their sex; and (3) retaliated against both women for their
allegations of discrimination. Specific to Elwood, Coleman and Arredondo
alleged that the staffing company knew or should have known about the
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harassment, discrimination, and retaliation they experienced, yet failed to
act. The women also contended that Elwood conspired with Schlumberger
to harass, discriminate, and retaliate against them and that Elwood failed to
protect Coleman and Arredondo from such harm.
The district court delivered a mixed decision on summary judgment.
First, it addressed Coleman’s sex-based discrimination claims. The district
court held that Coleman failed to raise a genuine dispute of material fact
regarding whether the sexual harassment she experienced was pervasive or
severe enough to establish a triable sexual harassment claim under Title VII.
It also found that because Mitre was not a supervisor, Coleman could not
sustain a triable quid pro quo sexual harassment cause of action. Next,
regarding Coleman’s discrimination based on sex claim, the district court
held that she failed to demonstrate that the companies had replaced her with
a man. Nor did she identify a comparator that the companies treated more
favorably.
Moving on to Coleman’s racial discrimination claims, the district
court found that her race-based hostile work environment cause of action
failed because the conduct she pointed to was not pervasive nor severe
enough to justify a jury trial. The court was uncertain whether Coleman had
adequately pleaded a race-based disparate treatment cause of action. Still, it
decided that to the extent she had, Coleman’s disparate treatment claim
failed because she did not point to a non-class member who replaced her or
otherwise was a comparator. However, the district court concluded that
Coleman had established a triable Title VII retaliation claim. But it also found
Elwood should be excused from liability under this cause of action because
Coleman had not engaged in protected activity and Elwood did not take an
adverse employment action.
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The district court then engaged with Arredondo’s causes of action.
First, it held that Arredondo established a genuine dispute of material fact
regarding whether Schlumberger adequately trained its personnel on its
antidiscrimination workplace policies. Consequently, the district court
concluded that Arredondo’s hostile work environment sexual harassment
claim should go to a jury. But again the court excused Elwood, determining
that the staffing agency neither knew nor should have known that Arredondo
was experiencing discrimination. Finally, the district court concluded that
Arredondo failed to establish that she had suffered any adverse employment
action and that she could not demonstrate that she was constructively
discharged. So, it determined that Arredondo’s disparate treatment and
retaliation causes of action failed.
Faced with the facts above and the prospect of a jury trial,
Schlumberger settled with Coleman and Arredondo after the district court
entered its summary judgment order. The women now appeal the court’s
grant of summary judgment in Elwood’s favor.
II
We review a grant of summary judgment de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). “The court
should grant summary judgment when ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Id.(quoting Fed. R. Civ. P. 56(a)).
Title VII claims follow the McDonnell Douglas burden-shifting
framework. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If
Coleman and Arredondo establish prima facie cases in support of their various
theories, the matters shift to Elwood to articulate a legitimate, non-retaliatory
reason for its conduct. Id. at 557. If the employer meets this “burden of
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production,” Arredondo and Coleman must then prove that Elwood’s
justification is a pretext for discriminatory action. Id.Elwood bears the burden of demonstrating there is no genuine dispute
of material fact and it can carry that burden if it shows that Coleman or
Arredondo “failed to prove an essential element of her case.” Owens v.
Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (alteration adopted)
(quotation marks and citation omitted). To demonstrate a genuine dispute of
material fact, the women must point to “specific facts showing there is a
genuine dispute for trial.” Id. (alteration adopted) (quotation marks and
citation omitted).
III
As a preliminary matter, Elwood argues that Coleman has forfeited
her claims because she did not adequately brief her Title VII retaliation and
quid pro quo causes of action. First, regarding the retaliation claim, Elwood
says that Coleman did not brief the district court on her argument that she
engaged in a protected activity by submitting a discrimination report to
Elwood, resulting in the staffing company retaliating against her by refusing
to staff her. Second, Elwood argues that Coleman likewise failed to argue her
quid pro quo sexual harassment claims before the district court, specifically
that Mitre was Coleman’s supervisor or that Mendha served as Mitre’s cat’s
paw. Elwood says that Coleman’s inadequate briefing before the district
court regarding these theories should result in their forfeiture on appeal.
Coleman counters that she did raise and brief these very arguments before
the district court. We address Elwood’s forfeiture arguments in turn.
A
“A party forfeits an argument by failing to raise it in the first instance
in the district court—thus raising it for the first time on appeal—or by failing
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to adequately brief the argument on appeal.” Rollins v. Home Depot USA, Inc.,
8 F.4th 393, 397 (5th Cir. 2021) (quotation marks and citation omitted). “[I]n
order to preserve an argument for appeal, the argument (or issue) not only
must have been presented in the district court, a litigant also must press and
not merely intimate the argument during proceedings before the district
court.” Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022) (quotation
marks and citation omitted). Exceptions to this general rule include
jurisdictional challenges and issues “purely legal” in nature that would
“result in a miscarriage of justice” if we did not address them. Rollins, 8 F.4th
at 398.
In her response to the motion for summary judgment, Coleman
couched her argument in the framework this court laid out in Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 229 (5th Cir. 2015). In Burton, we
found that staffing agencies can be held liable both for their own
discriminatory conduct and the conduct of their clients when a staffing
agency knew or should have known of its client’s discriminatory behavior yet
failed to take corrective actions within their control. Id. Following this
reasoning, Coleman argued that Elwood knew that Schlumberger acted
illegally when it fired her, yet Elwood failed to take measures within its
control to rectify the situation by offering her comparable employment
elsewhere. However, in Coleman’s brief supporting her appeal, she
dispenses with the Burton theory. Instead, Coleman argues that she directly
“engaged in a protected activity when she submitted the incident report to
Elwood” and that Elwood retaliated against her by not placing Coleman in
comparable employment, which she deems an adverse action.
These are two distinct theories for relief under Title VII. The
argument Coleman made in her response to the motion for summary
judgment is based on the theory of “joint employer” liability under Title VII
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(See Burton, 798 F.3d at 228). In contrast, the argument Coleman now
presses on appeal is premised on a Title VII retaliation claim made directly
against Elwood. See, e.g., Abbt v. City of Houston, 28 F.4th 601, 610 (5th Cir.
2022). The former seeks to hold a staffing agency liable for failing to act when
it knows or should have known its employees are suffering discrimination at
the hands of a client. The latter aims to hold the staffing agency directly liable
for its own conduct. Given the stark difference between these theories of
liability, it seems that Elwood has the better of the argument and that
Coleman has forfeited her direct Title VII retaliation claim against Elwood.
But not so fast. Although it did not need to do so, the district court did
evaluate Coleman’s claim against Elwood as an independent act of retaliation
under Title VII. In its order, the district court held “[t]o the extent that
Coleman argues she engaged in protected activity when she submitted the
incident report . . . [she] does not argue or show that an adverse employment
action followed.”
In this circuit, “[a]lthough issues not raised before the district court
are generally waived, an argument is not waived on appeal if the argument on
the issue before the district court was sufficient to permit the district court to
rule on it.” Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 n.5 (5th Cir. 2010)
(quotation marks and citation omitted). Here, the district court had the law
and facts before it to sufficiently evaluate a Title VII retaliation claim directed
at Elwood. After all, in the preceding sections of its order, the court provided
the relevant facts and considered Coleman’s retaliation claim against
Schlumberger. The court has also provided us with sufficient reasoning so
that we may effect review of its decision. See Wildbur v. Arco Chem. Co., 974
F.2d 631, 644 (5th Cir. 1992) (“a district court [must] explain its reasons for
granting a motion for summary judgment in sufficient detail for us to
determine whether the court correctly applied the appropriate legal test.”).
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So, we conclude that Coleman has not forfeited her Title VII retaliation
argument, and we address its merits on appeal.
B
Second, Elwood challenges whether Coleman has forfeited her Title
VII quid pro quo sexual harassment cause of action on appeal. Elwood says
that in her response to the motion for summary judgment filed in the district
court, Coleman failed to adequately address Elwood’s argument that Mitre
was not a supervisor. Therefore, her sexual harassment quid pro quo claim
fails as a matter of law. According to Elwood, Coleman chose instead to assert
her cat’s paw theory of liability3 inadequately, and it says that argument also
relies on facts Arredondo, not Coleman, put forth in response to
Schlumberger’s affirmative defense.
In its order on the motion for summary judgment, the district court
found that Coleman had not forfeited her quid pro quo sexual harassment
claim because the complaint placed Elwood on notice that she was pursuing
that theory. However, the court agreed with Elwood that Coleman could not
show a material dispute of fact that Mitre was Coleman’s supervisor. It then
proceeded to grant summary judgment in favor of Schlumberger and Elwood
regarding Coleman’s quid pro quo sexual harassment cause of action.
On appeal, Coleman provides a litany of evidence that a reasonable
jury could conclude that Mitre was Coleman’s supervisor and a passing
reference to her cat’s paw theory. However, she fails to counter the core of
_____________________
3
Plaintiffs may use a “cat’s paw” theory of liability when they cannot show their
supervisor “harbored any retaliatory animus.” Zamora v. City of Houston, 798 F.3d 326, 331
(5th Cir. 2015). To do so, they must “establish that the person with a retaliatory motive
somehow influenced the decisionmaker to take the retaliatory action.” Id. In our context,
Coleman wishes to show that Mitre used Mendha to fire Coleman. See Id.12
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Elwood’s argument—that she did not raise these theories properly before the
district court. Coleman does not point to where in the record she explained
to the district court how Mitre used another employee as a cat’s paw to fire
Coleman. Looking at Coleman’s response and sur-reply to the motion for
summary judgment, she fails to explain how her cat’s paw theory applies to
her quid pro quo sexual harassment claim. It was incumbent on Coleman to
explain to the district court how Mitre influenced management in a way that
resulted in Coleman’s termination. By failing to do so, we conclude that
Coleman has forfeited her cat’s paw theory of liability regarding her quid pro
quo sexual harassment claim.4
However, on appeal, Coleman also argues that there is a dispute of
material fact regarding whether Mitre was her supervisor. The district court
resolved this matter in its summary judgment order in Schlumberger and
Elwood’s favor. Coleman also adequately pleaded and argued this theory
below. So, we address Coleman’s quid pro quo sexual harassment claim to the
extent she argues that she established a dispute of material fact as to whether
Mitre was her supervisor on appeal.
IV
We move on to the merits of Coleman’s appeal. She argues that the
district court erred by entering judgment in Elwood’s favor regarding her
Title VII retaliation, quid pro quo sexual harassment, and race-based hostile
_____________________
4
Regardless of what was presented to the district court, Coleman failed to brief us
on her cat’s paw theory. She mentions it only twice in her primary brief. Once in the
questions presented section and once in her section challenging the district court’s ruling
regarding her quid pro quo claim. As said above, “[a] party forfeits an argument by failing .
. . to adequately brief [an] argument on appeal.” Rollins, 8 F.4th at 397 (quotations marks
and citation omitted).
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work environment causes of action. We address each of these challenges in
turn.
A
For Coleman to prove a claim of retaliation under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2(a), she must first establish a prima facie case
under the McDonnell Douglas burden-shifting framework. McCoy, 492 F.3d at
556. To do so, Coleman needs to demonstrate: (1) she participated in a
protected activity under Title VII; (2) Elwood took an adverse employment
action against her; and (3) that a causal connection exists between the
protected activity and the adverse employment action. Id. at 556–57.
Regarding the second element, it is illegal for employers to engage in
“materially adverse” conduct that would lead the reasonable employee to be
dissuaded from making or supporting a charge of discrimination. Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008) (citation
omitted).
In its order on the motion for summary judgment, the district court
determined that Elwood took no adverse employment action against
Coleman. So, Coleman failed to establish a prima facie case that she had been
the victim of Title VII retaliation. Coleman argues first that the district court
erred in concluding that Elwood did not retaliate against her directly when it
failed to provide her with another job placement after she reported her
treatment at Schlumberger to Elwood. Next, she argues that Elwood knew or
should have known about how Schlumberger treated her and failed to take
actions within its control to alleviate the situation.
In support of her position, Coleman cites first McCoy v. City of
Shreveport, arguing that Elwood made “ultimate employment decisions”
when it did not place her in a new, equivalent role and failed to immediately
call her back after missing Coleman’s calls. 492 F.3d at 559–60. But it is
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unclear what employment action Elwood took that could be considered
adverse. Elwood never fired Coleman. Indeed, when she asked for a new
placement, Elwood asked her to apply to positions that interested her
through its website. Coleman, because none of the available jobs met her
criteria at the time, chose not to apply. Coleman points to no case law that
stands for the proposition that a staffing agency takes adverse action against
an employee under Title VII when that employee refuses to apply for
available jobs. She also points to no authority that requires a staffing company
to do more than comply with its normal assignment process when offering to
reassign a worker. We affirm the district court’s finding that Elwood did not
take adverse employment action against Coleman.
We note that Coleman did posit a theory at oral argument that Elwood
failed to place her because it did not wish to imperil its relationship with
Schlumberger. But she provides no evidence. Coleman cannot point to
anything in the record that hints at the proposition that Schlumberger
pressured Elwood into not reassigning Coleman or effectively terminating
her by not providing a follow-on assignment. So, we are convinced that the
district court correctly entered judgment against Coleman’s Title VII
retaliation claim regarding Elwood.
Coleman’s second theory for holding Elwood liable for retaliation
under Title VII is based on Burton v. Freescale Semiconductor, Inc., 798 F.3d at
229. As mentioned in the forfeiture section above, we determined that
staffing agencies can be held liable for the conduct of their clients when they
knew or should have known of their client’s discriminatory behavior yet
failed to take corrective actions within their control. Id. This circuit
elaborated on how a staffing agency could be held liable under the “knew or
should have known” theory in Nicholson v. Securitas Security Services USA,
Inc., 830 F.3d 186 (5th Cir. 2016). There, we concluded that Burton liability
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requires Coleman to show Elwood had “actual and constructive knowledge”
of Schlumberger’s discriminatory conduct and that it then participated in
that discrimination or failed to take corrective action. Id. at 190.
The district court didn’t directly address Coleman’s Burton argument
in its order on the motion for summary judgment. Instead, it determined that
Coleman did not engage in a protected activity, that Elwood had not taken an
adverse action, and that she could not demonstrate any causal link between
her submission of an incident report and any alleged adverse employment
action. In short, the district court found that Coleman had not demonstrated
any required elements for a Title VII retaliation claim or Burton liability.
On appeal, Coleman argues that internal emails between
Schlumberger and Elwood put Elwood on notice that Coleman had been fired
under suspicious circumstances. Specifically, Coleman argues that Elwood
knew she had submitted a sexual harassment complaint and then been
terminated without explanation. Having provided evidence of the knowledge
requirement, Coleman concludes that Elwood’s failure to place her in
another role demonstrates that it did not take available corrective action as
required by Title VII.
Elwood does not deny that it knew about Coleman’s complaint and
termination after Schlumberger fired her. Instead, it argues that there were
no additional actions it could take within its control to help Coleman. Looking
at the facts of this case, we are convinced Elwood is right. The staffing
company took her report questioned Schlumberger’s decision to fire
Coleman and asked Coleman to apply for another placement. Coleman then
chose not to pursue any further opportunities with Elwood.
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Coleman can’t explain to us what additional actions she believes
Elwood should be legally required to take. And she can’t. After all, anything
more would require Elwood to do the impossible of conjuring up job
placements out of thin air or force Schlumberger to rehire Coleman, which
Coleman does not show it had the authority to do. We are satisfied that
Elwood did all it could under the circumstances to help an employee that a
client discriminated against. So, we reject both of Coleman’s Title VII
retaliation theories.
B
We next address Coleman’s Title VII sexual harassment cause of
action. Title VII prohibits sexual harassment in the workplace. Wallace v.
Performance Contractors, Inc., 57 F.4th 209, 220 (5th Cir. 2023). A plaintiff
may pursue two theories to demonstrate sexual harassment under Title VII.
Id. The first is a hostile work environment, and the second is quid pro quo. Id.When deciding which theory to apply, we determine whether the plaintiff has
suffered a “tangible employment action.” Casiano v. AT&T Corp., 213 F.3d
278, 283 (5th Cir. 2000) (citation omitted). A tangible employment action is
one where the employee suffers a significant change in employment status,
“such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in
benefits.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir. 2009)
(quotation marks and citation omitted). If the plaintiff has suffered such an
action, we apply the quid pro quo theory of liability. Once a plaintiff has
established that she suffered a tangible employment action, the next step is
that she must demonstrate that the action resulted from her acceptance or
rejection of her supervisor’s alleged sexual harassment. Casiano, 213 F.3d at
283. Finally, because Elwood is a staffing company, Coleman would need to
demonstrate that it either participated in the discrimination or knew or
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should have known about the conduct but failed to take corrective measures
within its control. Burton, 798 F.3d at 229. Here, Schlumberger fired
Coleman, which is obviously a tangible employment action, so quid pro quo
applies.
Coleman argues that the district court erred in entering judgment in
Elwood’s favor regarding her quid quo pro sexual harassment claim. In its
order on the motion for summary judgment, the district court determined
that Mitre was not a supervisor, and, accordingly, Coleman could not hold
Schlumberger, much less Elwood, liable for her conduct under a Title VII
quid pro quo sexual harassment theory. Coleman argues that the district court
erred because she has put forward a dispute of material fact as to whether
Mitre was a supervisor.
As noted above, Schlumberger took a tangible employment action
when it fired Coleman. So, we move on to the second element—that this
action resulted from Coleman’s rejection or acceptance of her supervisor’s
alleged sexual harassment. Casiano, 213 F.3d at 283. The Supreme Court has
defined a “supervisor” as the person the employer has empowered to take
tangible employment actions, explicitly rejecting a more nebulous definition.
Vance v. Ball State Univ., 570 U.S. 421, 431 (2013). Coleman points to
evidence that she (and Arredondo) perceived Mitre as their supervisor.
However, she does not point to evidence that Mitre’s employer,
Schlumberger, empowered her to take tangible employment actions. Nor
could she—the record shows Schlumberger seems to have empowered
Mendha, who investigated Coleman’s harassment claims and recommended
her termination, as Coleman’s supervisor as defined by the Supreme Court.
In short, the district court did not err in entering summary judgment against
Coleman on her quid pro quo sexual harassment cause of action because Mitre
was not her supervisor.
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C
Coleman’s final claim is that Elwood is liable for a racially hostile work
environment. To state a prima facie case for a Title VII hostile work
environment race discrimination cause of action, she must show:
(1) she belongs to a protected group; (2) she was subjected to
unwelcome harassment; (3) the harassment complained of was
based on race; (4) the harassment complained of affected a
term, condition, or privilege of employment; (5) the employer
knew or should have known of the harassment in question and
failed to take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Only “sufficiently
severe or pervasive” behavior that “alter[s] the conditions of the victim’s
employment and create[s] an abusive environment” constitutes a racially
hostile working environment under Title VII. Harris v. Forklift Sys., 510 U.S.
17, 21 (1993) (citation omitted). The Supreme Court has further clarified that
the environment must be objectively and subjectively hostile to the victim of
racial discrimination. Id.We consider “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee’s work performance” when determining if employer behavior is
sufficiently severe or pervasive. Ramsey, 286 F.3d at 268. “Mere utterance of
an epithet which engenders offensive feelings in an employee does not
sufficiently affect the conditions of employment to implicate Title VII.”
Harris, 510 U.S. at 21 (cleaned-up). Further, “second-hand” harassment is
“less objectionable than harassment directed at the plaintiff.” Johnson v.
TCB Constr. Co., 334 F. App’x 666, 617 (5th Cir. 2009) (per curium). Again,
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because Elwood is the only remaining defendant on appeal, Coleman must
demonstrate that it either participated in the hostile work environment or
knew or should have known about the discrimination but failed to take
corrective measures within its control. Burton, 798 F.3d at 229.
The district court found that Coleman’s hostile work environment
claim failed. It reasoned that Coleman’s verbal abuse was not severe or
pervasive enough to render her working environment hostile under Title VII
and that they did not materially affect her employment. The district court
also found it relevant that Coleman failed to provide evidence that racist
comments were ever directed at her or how often they occurred. Finally, the
court concluded that Mitre seems to have been generally unpleasant and
crass with everyone in the gun shop, not just Coleman and the black
employees.
Coleman challenges the district court’s conclusions on appeal. She
recites evidence in her favor, namely racist comments and different working
conditions. Relying on our decision in Johnson v. PRIDE Industries, Inc., 7
F.4th 392 (5th Cir. 2021), Coleman argues that a reasonable factfinder could
determine that Coleman suffered severe and pervasive racist conduct,
constituting a hostile work environment. In short, Coleman concludes that
when the facts are looked at in totality and in her favor, we should see that
Schlumberger’s gun shop was a racially hostile work environment.
The question of whether the facts of this case, taken in the light most
favorable to Coleman, establish a severe and pervasive racist environment is
a close one. In Johnson v. PRIDE Industries, this court held that two incidents
using the term “n*****” and “mayete” combined with other, lesser
demeaning language and conditions provided sufficient evidence for a
factfinder to conclude that a plaintiff’s work environment was racially hostile.
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7 F.4th at 403–04. Coleman claims that Carrasco and Mitre called black
people “cara de changos” (translated from Spanish as “monkey faces”) and
“pinche mayates” (a more severe Spanish racial slur). But unlike in PRIDE
Industries, where the black plaintiff knew from his Spanish-speaking wife
what racist Spanish terms directed at him meant, Coleman presents no
evidence that she understood the meaning of these terms when uttered or if
she even heard them herself. Coleman also argues that black employees were
asked to do more menial and dirtier tasks and that Mitre said they “smelled
like shit.” These seem similar to the minor abusive conduct emphasized by
this court in PRIDE Industries. 7 F.4th at 403–04. It also appears at least a
question for a factfinder regarding whether Mitre and Carrasco ever directed
these comments at Coleman. Although Coleman points to no evidence that
these comments were ever directed at her, as one of two black employees in
the gun shop, it seems a fair inference that they were.
But we need not decide this close question. Coleman failed to argue
why Elwood should be liable regardless of whether the district court erred
regarding Schlumberger’s conduct. She does not present any evidence that
Elwood participated in, knew or should have known of the hostile work
environment, or that it failed to take corrective actions within its control. See
Burton, 798 F.3d at 229. Elwood did not find out how Schlumberger treated
Coleman until after Schlumberger terminated her and Coleman submitted
her statement. As described above, it responded by taking Coleman’s
statement, questioning Schlumberger, and offering Coleman the opportunity
to apply for new jobs through its portal, which she refused. So, we find that—
whether or not the district court erred by granting the motion for summary
judgment on Coleman’s racially hostile work environment claim as to
Schlumberger—it certainly did not err in entering summary judgment in
Elwood’s favor.
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V
Finally, we discuss Arredondo’s claims. She challenges the district
court’s summary judgment order to the extent it entered judgment in
Elwood’s favor regarding her Title VII hostile work environment and
constructive discharge claims. We address these arguments below.
A
A Title VII hostile work environment based on sex is very similar to
that based on race. For Arredondo to establish a hostile working environment
claim, she must demonstrate the following:
(1) she is [a] member of a protected group; (2) she was the
victim of uninvited sexual harassment; (3) the harassment was
based on sex; (4) the harassment affected a term, condition, or
privilege of [Arredondo’s] employment; and (5) her employer
knew or should have known of the harassment and failed to take
prompt remedial action.
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)
(quotation marks and citation omitted). In its order on the motion for
summary judgment, the district court concluded that Arredondo had a viable
hostile work environment cause of action against Schlumberger but that she
could not extend that potential liability to Elwood. It reasoned that Elwood
did not know of Arredondo’s treatment until after she resigned from
Schlumberger. So, the district court concluded that Arredondo could not
establish the fifth element of her hostile work environment claim against
Elwood, and her cause of action failed as a matter of law.
On appellate review, Arredondo’s hostile work environment turns on
whether Elwood had actual or constructive knowledge of how
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Schlumberger’s employees treated her. She seems to concede in her brief
that Elwood did not have actual knowledge about the working conditions at
the gun shop. Still, Arredondo points to the complaint Coleman submitted to
Elwood as evidence that Elwood knew or should have known about her
plight.
First, Arredondo challenges the district court’s conclusion that she
violated Elwood’s stated policies as given to her in its associate handbook
when she failed to report her experiences at Schlumberger. Arredondo relies
on our opinion in Hernandez v. Yellow Transportation, Inc., 670 F.3d 644 (5th
Cir. 2012). She claims that opinion stands for the proposition that, after
Arredondo saw Coleman get fired without recourse from Elwood, she didn’t
need to report her working conditions to her staffing agency because she
knew complaining about her hostile work environment would be a wasted
action. So, Elwood both knew or should have known about her treatment
based on what happened to Coleman, and Arredondo had no reason to expect
relief from Elwood by reporting her situation. Put together, Arredondo infers
that Elwood had the requisite constructive knowledge to hold it to account
for her mistreatment.
To have constructive knowledge of Arredondo’s hostile work
environment, she must prove that Elwood should have known what was
happening if it had exercised reasonable care. Sharp v. City of Houston, 164
F.3d 923, 930 (5th Cir. 1999). Harassment that is “so open and pervasive”
that Elwood should have known of it had it “opened its corporate eyes” can
result in us determining that Elwood had constructive notice. Id. The
existence and effectiveness of an anti-harassment policy are relevant but not
dispositive, even where, as here, a victim failed to utilize it. Id. (citation
omitted). Ultimately, a company can only be said to have constructive
knowledge of a hostile work environment where “the appropriate persons
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within” the company, meaning someone with “remedial power over the
harasser[,]” “knew or should have known” about the situation. Id.Arredondo did not report Mitre’s abuse to Elwood until she quit
Schlumberger. Arredondo also acknowledged Elwood and Schlumberger’s
anti-discrimination materials and policies. As correctly argued by Arredondo,
we have found that a victim need not report her harassment if it is
“objectively obvious” that an employer has no “intention of stopping” the
hostile work environment so that the victim’s act would be a “wasted
motion.” Hernandez, 670 F.3d at 655–56 (citation omitted). Even so,
Arredondo has not shown that filing a complaint with Elwood would have
been objectively a waste of her time.
Taking the facts in Arredondo’s favor and assuming she knew
Coleman had reported her sexual harassment to Elwood, Coleman’s report
would not serve as an objective indication that Arredondo’s complaint would
be futile. Coleman made her report to Elwood after Schlumberger terminated
her. This contrasts with Arredondo, who quit instead of reporting her
situation to Schlumberger or Elwood. Most powerfully, the facts belie
Arredondo’s argument on appeal. That’s because Arredondo’s report to
Elwood, made after she quit, wasn’t a wasted action. Once Arredondo
submitted a complaint to Elwood, it immediately engaged Schlumberger.
Schlumberger then investigated Mitre, which ultimately resulted in her
termination . So, objectively, filing a complaint with Elwood would not have
been—and was not in the facts of this case—a futile action. As such, our
holding in Hernandez does not shelter Arredondo, and she needed to comply
with Elwood’s employment policies.
Arredondo’s second argument in favor of finding Elwood had
constructive knowledge of her plight is that Elwood received Coleman’s
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complaints before Arredondo quit Schlumberger, placing Elwood on notice
of the misconduct in the gun shop. But contrary to Arredondo’s claims on
appeal, the facts of Coleman’s termination also did not give Elwood any
reason to suspect Arredondo was the victim of similar conduct. In fact,
Arredondo played a role in Coleman’s discriminatory treatment when she
submitted a witness statement that served as evidence Mendha used when
deciding to recommend Coleman’s termination. Without more information,
Arredondo’s conduct in helping Carrasco and Mitre fire Coleman could not
have led Elwood to conclude that Arredondo was a victim of a hostile work
environment she helped create.
Furthermore, Elwood could not draw conclusions about the
conditions Arredondo faced from Coleman’s complaint. Certainly, Coleman
alleged sexual harassment, but it could not verify the truth of these
statements beyond one substantiating witness. Arredondo’s case was also
much more extreme than what happened to Coleman. Although Arredondo
may have suffered some similar lewd comments and inappropriate touching
from Mitre, ultimately, the rape, verbal abuse, and threats Arredondo faced
were extraordinarily worse than anything Coleman reported.
All told, Arredondo does not provide evidence that Elwood knew what
was happening to her in the gun shop. She did not report the discrimination
and abuse she experienced to Elwood. And a report would not have been, and
was not, a wasted action. Nor does she provide evidence that Elwood should
have linked Coleman’s complaints to other employees—especially an
employee involved in discriminating against Coleman. At best, she has shown
that Elwood had good reason to ask Schlumberger some questions, which, of
course, it did. But that does not meet the applicable knowledge element in
her cause of action. In short, we conclude that Elwood did not have actual or
constructive knowledge of the hostile work environment experienced by
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Arredondo. Accordingly, Arredondo’s hostile work environment claim
against Elwood fails as a matter of law. We affirm the district court’s order
regarding Arredondo’s hostile work environment cause of action. 5
B
The district court determined that Schlumberger and Elwood had not
retaliated against or disparately treated Arredondo. Arredondo challenges
these conclusions on appeal.
“A successful claim of constructive discharge entitles an employee
who resigned to recover all damages available for formal discharge.” Aryain,
534 F.3d at 480 (quotation marks and citation omitted). Here, Arredondo
wishes the court to see her decision to quit Schlumberger as a tangible
employment action, opening the door for her to assert retaliation and
disparate treatment claims.
But, assuming that Arredondo could prove that Schlumberger
constructively discharged her, Arredondo makes no argument as to why
Elwood should be held liable. She presents no evidence that Elwood directly
participated in her abuse, nor has she shown that Elwood knew or should
have known about what she was experiencing. Accordingly, the district
_____________________
5
Regardless of whether Elwood knew Arredondo’s situation, it’s unclear if there
were any actions it could have taken that would have resulted in remedial action. Elwood
did not control or manage Mitre. Although we must be careful not to allow employers to
“insulate [themselves] from liability simply by isolating its units from management[,]”
generally, if an employee with remedial power over the harasser did not have constructive
knowledge, then the employer cannot be deemed to have constructive knowledge. Sharp,
164 F.3d at 930–31. The only remedial steps Elwood could, and did, take were to gather
information about how its employees were treated and relay that information to
Schlumberger. Indeed, it was precisely such actions that resulted in Schlumberger
investigating and later firing Mitre.
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court did not err in dismissing Arredondo’s disparate treatment and
retaliation claims against Elwood.
VI
Arredondo and Coleman seek to hold the wrong party liable for their
injuries. They cannot establish why Elwood should be held responsible for
the misconduct of Schlumberger’s employees. We AFFIRM the judgment
of the district court.
27