Wilkinson v. Pinnacle Lodging ( 2023 )

Case: 22-30556 Document: 00516921837 Page: 1 Date Filed: 10/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 5, 2023
No. 22-30556 Lyle W. Cayce
____________ Clerk
Shane M. Wilkinson,
Plaintiff—Appellant,
versus
Pinnacle Lodging, L.L.C.; My Hospitality Services,
L.L.C.; Laura Rosa; Russell Block; Yogesh Patel,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-3427
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
This civil case arises out of an employment dispute at a Hampton Inn
between the hotel’s former manager, his supervisors, and the owner. The
district court granted summary judgment to the defendants on all the former
manager’s claims. We reverse in part, affirm in part, and vacate in part.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
A.
Yogesh Patel owns and operates a hotel conglomerate through two
companies: Pinnacle Lodging, LLC, and My Hospitality Services, LLC
(“MHS”). Russell Block is the Director of Operations overseeing Patel’s
hotel conglomerate. One hotel owned and operated by Patel’s conglomerate
is the Hampton Inn in Covington, Louisiana.
In 2017, Shane Wilkinson, a white male, was hired as a front-desk clerk
at the Covington Hampton Inn. In 2018, Block promoted Wilkinson to
general manager of the hotel. Wilkinson received a significant pay raise along
with the promotion.
In August 2019, Laura Rosa, a white female, was promoted to regional
manager for Louisiana and became Wilkinson’s direct supervisor. Rosa
reported to Block who reported to Patel.
Four months after Rosa began supervising Wilkinson, in December
2019, Rosa and Block (with permission from Patel) terminated Wilkinson. In
the months leading up to Wilkinson’s termination, Rosa (Wilkinson’s direct
supervisor) made multiple inappropriate comments concerning race and sex
to Wilkinson and others.
During their first meeting, Rosa told Wilkinson—in front of one of
Wilkinson’s subordinates, Chasity Anthony, the head of housekeeping—that
she was going to replace Wilkinson and his staff with “Hispanics” because
they work “cheaper and faster.” ROA.704, 521, 523. Anthony avers that
Rosa “pretty regularly” said she was going to replace the Hampton Inn staff
with “Mexicans” because “Mexicans work better.” ROA.704–05.
During their second meeting, Rosa told Wilkinson that “male GMs
don’t make good general managers and as far as [Rosa] was concerned,
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[Wilkinson] shouldn’t be here.” ROA.513. Anthony, who was present, says
she remembers Rosa saying this and that Rosa “frequently” made these
kinds of comments to the Hampton Inn staff. ROA.846. Separately, Hilton
inspectors came to inspect the property in November 2019 to assess
compliance with Hilton’s corporate standards. Ahead of the inspection,
Wilkinson told Rosa that he had learned the inspector would be a male. In
response, Rosa told Wilkinson that this was disappointing because if the
inspector had been a woman Wilkinson could have worn “tight pants” to
distract her and score higher points. ROA.1038–39.
Paul Lanclos, a Hispanic man, further testified that Rosa told him that
she thought “Hispanic workers are better workers” and got “more
accomplished” than non-Hispanics; that she preferred Hispanic workers to
anyone else; and that she said to him (in Wilkinson’s presence) that
Wilkinson was a “pioneer” in the hotel industry because “females are more
capable” than men. ROA.1059–60. Wilkinson, Anthony, and Lanclos each
testified that Rosa made these comments routinely over the four-month
period that she supervised Wilkinson. Rosa denied making any of these
comments.
Wilkinson testified in his deposition that he complained to Block
about Rosa’s racist and sexist comments before his termination. Block said
he would deal with the matter, but Wilkinson never saw evidence that he did.
Further, Anthony testified that she was present at a meeting between Block
and Wilkinson where Wilkinson complained about Rosa’s racist comments
regarding replacing Wilkinson and his staff with Mexicans. Anthony testified
that Block just “laughed and changed the subject.” ROA.847. Additionally,
the Hampton Inn’s assistant manager also testified that Wilkinson told her
he complained to Block that Rosa was “targeting” him because of his race
and sex around September or October 2019. ROA.874. Rosa approached
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Wilkinson after he complained to Block about her and said, “[y]ou’re not
getting rid of me.” ROA.1041–42.
Wilkinson’s termination letter, written by Rosa and Block, includes
four reasons for his termination: Wilkinson purportedly failed to contribute
to rate management; failed to complete some of the tasks required prior to a
corporate inspection in November 2019; threatened to quit twice; and lacked
overall hotel knowledge. Wilkinson testified that he refused to sign the
termination letter because it was inaccurate.
B.
Wilkinson sued Rosa, Block, Patel, Pinnacle Lodging, and MHS
(collectively, “Pinnacle”), alleging the following claims: (1) race, sex, and
national-origin discrimination and hostile work environment under Title VII,
Section 1981, and the Louisiana Employment Discrimination Law
(“LEDL”) against Pinnacle Lodging and MHS; (2) retaliation under Title
VII, Section 1981, and the LEDL against Pinnacle Lodging and MHS;
(3) whistleblower retaliation under the Louisiana Environment
Whistleblower Act (“LEW”) and the Louisiana Whistleblower Act
(“LWA”) against Pinnacle Lodging and MHS; (4) race discrimination,
hostile work environment, and retaliation under Section 1981 against Laura
Rosa; and (5) retaliation under Section 1981 against Patel and Block.
The district court found that Wilkinson proffered direct evidence of
race and sex discrimination. But the court granted summary judgment to
Pinnacle anyway. Wilkinson timely appealed.
We review de novo the district court’s grant of summary judgment to
Pinnacle. See Landmark Am. Ins. Co. v. SCD Mem’l Place II, LLC, 25 F.4th
283, 285 (5th Cir. 2022). And we apply the same summary judgment
standard on appeal that the district court applied below. Id.4
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II.
We (A) reverse on Wilkinson’s discrimination claims, (B) affirm on
Wilkinson’s hostile work environment claims, and (C) vacate on Wilkinson’s
retaliation claims and Louisiana Whistleblower claims.
A.
First, Wilkinson’s discrimination claims. Title VII, § 1981, and LEDL
discrimination claims are all analyzed under the Title VII framework. See
Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir.
2017) (§ 1981); La Day v. Catalyst Tech, Inc., 302 F.3d 474, 477 (5th Cir.
2002) (LEDL).
Title VII makes it unlawful for employers to “fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove
discrimination through either direct or circumstantial evidence. See Wallace
v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). “If the plaintiff
presents only circumstantial evidence, then she must prove discrimination
inferentially using the three-step McDonnell Douglas” burden-shifting
framework. Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 778 F.3d 473,
475 (5th Cir. 2015) (citation and quotation omitted). But if the plaintiff
proffers direct evidence of discrimination, there is no need to resort to
McDonnell Douglas because, by definition, direct evidence “proves the fact
of intentional discrimination without inference or presumption.” Portis v.
First Nat’l Bank of New Albany, 34 F.3d 325, 328–29 (5th Cir. 1994) (citation
and quotation omitted).
Direct evidence discrimination cases are “rare.” Equal Emp.
Opportunity Comm’n v. Ryan’s Pointe Houston, LLC, No. 19-20656, 2022 WL
5
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4494148 at *3 (5th Cir. Sept. 27, 2022) (quoting Rutherford v. Harris Cty., 197
F.3d 173, 180 n.4 (5th Cir. 1999)). That is because it will be the rare case
where “statements or documents” will “show on their face that an improper
criterion served as a basis—not necessarily the sole basis, but a basis—for the
adverse employment action.” Eaglin v. Tex. Children’s Hosp., 801 F. App’x
250, 255 (5th Cir. 2020) (quotation omitted) (emphasis added) (quoting
Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 993 (5th Cir. 2005)).
To determine whether comments in the workplace constitute direct
evidence of discrimination, this Court looks to four factors: “whether the
comments are (1) related to the plaintiff’s protected characteristic;
(2) proximate in time to the challenged employment decision; (3) made by an
individual with authority over the challenged employment decision; and
(4) related to the challenged employment decision.” Etienne, 778 F.3d at 476;
accord Wallace, 271 F.3d at 222. “Comments that do not meet these [four]
criteria are considered ‘stray remarks,’ and standing alone, are insufficient to
defeat summary judgment.” Jackson v. Cal-W. Packaging Corp., 602 F.3d
374, 380 (5th Cir. 2010). A court’s “ultimate focus” in applying this direct-
evidence test “is on whether the comments prove without inference or
presumption that [the protected characteristic] was a basis in employment
decisions’ at [the plaintiff’s workplace].” Herster v. Bd. of Sup. of La. State
Univ., 887 F.3d 177, 187 (5th Cir. 2018) (quotation and citation omitted).
Turning to the comments at issue in this case, Rosa told Wilkinson
that she wanted to replace him and his staff with “Hispanic” employees
because they “work cheaper and faster”; and Rosa said, “male GMs don’t
make good general managers, and as far as [she was] concerned, [Wilkinson]
shouldn’t be here.” ROA.1100–01.
We agree with the district court that Rosa’s comments to Wilkinson
meet each of this Court’s four direct-evidence criteria. First, the comments
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relate directly to Wilkinson’s race and sex by negative implication. See Eaglin,
801 F. App’x at 255–56 (involving similar comments about replacing
employee with Hispanic employee). Second, Rosa made the comments close
in time to the relevant employment decision—less than four months before
Wilkinson’s termination. Third, Rosa was Wilkinson’s immediate supervisor
who (along with Block) made the decision to terminate him. Fourth, Rosa’s
comments “related to the challenged employment decision” because she
said she wanted to “replace” Wilkinson and that she thought Wilkinson
“shouldn’t be here,” respectively. See Ryan’s Pointe Houston, 2022 WL
4494148 at *5 (concluding that there was sufficient direct evidence of
discrimination where all four factors were met); Jones v. Robinson Property
Group, LP, 427 F.3d 987 (5th Cir. 2005) (same). Just like in Ryan’s Pointe and
Jones, Rosa’s comments—which meet all four of our direct evidence
factors—make this a quintessential “direct evidence” case.
Under this Court’s longstanding approach to direct evidence cases,
where “the plaintiff presents direct evidence of discrimination, ‘the burden
of proof shifts to the employer to establish by a preponderance of the
evidence that the same decision would have been made regardless of the
forbidden factor.’” Etienne, 778 F.3d at 475 (quoting Brown v. E. Miss. Elec.
Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)); accord Ryan’s Pointe, 2022
WL 4494148, at *4 (citing Hamilton v. Dallas Cnty., 42 F.4th 550, 554 (5th
Cir. 2022)).
At this point, we part ways with the district court. After concluding
that Rosa’s comments constituted direct evidence of discrimination, the
district court went on to conclude that Pinnacle met its burden to show by a
preponderance that Wilkinson would have been terminated regardless of the
forbidden factor. For support, the district court pointed to (1) the
“consistent” and “uncontroverted testimony” of Wilkinson’s supervisors
and (2) the termination letter. ROA.1102–05.
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But here is the problem: The supervisors’ testimony as to the
nondiscriminatory reasons Wilkinson was fired was neither consistent nor
uncontroverted.
First, Wilkinson’s supervisors inconsistently testified about why
Wilkinson was fired. All three supervisors (Rosa, Block, and Patel) averred
in their interrogatory answers that Wilkinson was fired for “poor job
performance,” specifically because: (1) the Hampton Inn failed its corporate
inspection in November 2019; (2) he failed to remediate mold in the hotel’s
rooms; (3) he had frequent absences; and (4) he threatened to quit. In her
interrogatory answer, Rosa added (5) “Wilkinson did not act to boost the
morale of Hampton Inn employees.” ROA.714.
In their depositions, however, the supervisors changed their tunes.
Block said the “top” reason Wilkinson was fired was a new one: (6) his
refusal to engage in “rate management.” ROA.327. Rosa flatly contradicted
her earlier interrogatory answer at her deposition when she admitted
Wilkinson was not fired because of the failed inspection in November 2019.
Instead, Rosa testified that her reason for firing Wilkinson was (7) “just
based off of his overall knowledge and his performance as a GM, and that
would make a decision to terminate him.” ROA.714. Patel, for his part, said
Wilkinson’s biggest performance issue was his work absences. But Block
testified in his deposition that he had approved all Wilkinson’s absences and
that this was not the reason Wilkinson was fired. Taken together, these
examples demonstrate that Wilkinson’s supervisors did not testify
consistently throughout the case about why Wilkinson was terminated.
Second, there is record evidence contradicting the supervisor’s
purported nondiscriminatory reasons for firing Wilkinson. Take the reasons
one at a time: (1) As to the November 2019 corporate inspection, Wilkinson
points to testimony from Ashley Vanderhoff, the hotel’s assistant general
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manager, that the Hampton Inn never passed its inspection—either before
Wilkinson’s tenure or after—because the hotel lacked the required internet
infrastructure. (2) As to the mold problem, Patel and Rosa stated Wilkinson
was not to blame for it. (3) As to Wilkinson’s absences, Block testified that
he approved them and that the absences were not the reason Wilkinson was
fired. (4) As to Wilkinson’s threats to quit, Wilkinson testified in his verified
complaint that he made those threats to Block and only after Block refused to
stop Rosa’s “discrimination and harassment.” ROA.81. (5) And as to
Wilkinson’s effect on morale, two Hampton Inn employees, Chasity
Anthony and Demille Topps, testified that Wilkinson “was a very good
General Manager” and was “great to work with” and he always “tried to
keep his people working and—and when they tried to quit, he tried to talk
them out of it.” ROA.592, 841, 846.
Further, Wilkinson counters Pinnacle’s explanations by pointing to
the complete absence of any record of discipline the entire time he served as
general manager. That is so despite the existence of a progressive discipline
policy at Hampton Inn requiring two written warnings prior to termination.
Given the inconsistencies in the supervisors’ testimony about why
Wilkinson was fired and the contradictory evidence undercutting those
reasons, the district court erred in holding that “any reasonable jury would
conclude” that Pinnacle would have fired Wilkinson “absent the
discrimination.” Etienne, 778 F.3d at 477. We therefore conclude Pinnacle
has failed to carry its summary judgment burden and reverse the district
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court’s grant of summary judgment to Pinnacle on Wilkinson’s
discrimination claims.1
B.
Next, the hostile work environment claims. We analyze Wilkinson’s
federal and state hostile-work-environment claims under the Title VII
standard. See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
To survive summary judgment on a hostile work environment claim,
a plaintiff must create genuine dispute of material fact 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.” Wantou v. Wal-Mart Stores Tx., LLC, 23
F.4th 422, 433 (5th Cir. 2022) (quotation omitted).
For harassment to affect a term, condition, or privilege of
employment, it “must be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.” Id. (citation omitted). Here, there is no evidence that Rosa’s
comments negatively affected Wilkinson’s work environment at all. In fact,
the evidence points the other way. Wilkinson himself testified that he
“laughed at” Rosa’s comments and “moved on.” ROA.523. We have
previously held that hostile work environment claims fail even when there
has been severe harassment where there is a lack of evidence indicating that
the alleged harassment interfered with the plaintiff’s work. See Brooks v.
_____________________
1
Because Wilkinson prevails under our longstanding approach to direct evidence
cases, we find it unnecessary to address Wilkinson’s argument in his reply brief that we
should revisit that standard.
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Firestone Polymers, LLC, 640 F. App’x 393, 399–400 (5th Cir. 2016)
(concluding that (1) racial slurs and “black faces” drawn in workplace
bathroom stalls were insufficient to sustain a prima facie case of a hostile
work environment where, in part, there was no evidence that the drawings
interfered with plaintiff’s work; (2) upside-down American flag to protest
President Obama’s election was insufficient to constitute hostile work
environment where “no evidence tied this incident to interference with [the
plaintiff’s] work”; and (3) noose placed inside of plaintiff’s hard hat did not
establish a prima facie case where plaintiff presented no evidence as to how
it affected the terms and conditions of his employment). In the absence of
evidence indicating how Rosa’s comments affected Wilkinson’s ability to
perform his job duties, we affirm the district court’s grant of summary
judgment on Wilkinson’s hostile work environment claim.
C.
Finally, the retaliation claims. Because the district court relied on its
erroneous analysis of Wilkinson’s discrimination claims to conclude that
Wilkinson could not establish pretext on his retaliation claims, we vacate the
district court’s grant of summary judgment on those claims and remand for
the district court to reconduct the pretext analysis for Wilkinson’s retaliation
claims.2
* * *
For the foregoing reasons, we REVERSE the district court’s
judgment in part as to Wilkinson’s discrimination claims, AFFIRM in part as
to Wilkinson’s hostile work environment claims, VACATE in part as to
_____________________
2
For the same reason, we also vacate the district court’s grant of summary
judgment on Wilkinson’s Louisiana Whistleblower claims.
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Wilkinson’s retaliation and Louisiana Whistleblower claims, and
REMAND for further proceedings.
12