Lemonia v. Westlake Management ( 2023 )

Case: 22-30630 Document: 00516936334 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 18, 2023
No. 22-30630 Lyle W. Cayce
____________ Clerk
Glenn M. Lemonia,
Plaintiff—Appellant,
versus
Westlake Management Services, Incorporated,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:20-CV-1593
______________________________
Before Duncan and Wilson, Circuit Judges, and Mazzant, District
Judge. *
Per Curiam: †
This employment discrimination action arises from a series of events
that took place at the facilities of Westlake Management Services (Westlake)
from March 2017 to November 2020. Glenn Lemonia, then a Westlake
employee, alleges that numerous employment actions were taken against him
because of his race, his age, and in retaliation for his protected employment
_____________________
*
District Judge of the Eastern District of Texas, sitting by designation.
†
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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activities. The district court granted Westlake summary judgment on all
claims. We affirm.
I.
A.
Lemonia began his employment with the company that is now
Westlake in 1989. He is an African American man and was over the age of 40
when Westlake allegedly began to discriminate against him. Lemonia was a
member of a union, and his employment was subject to a collective bargaining
agreement.
In spring 2017, Lemonia’s supervisor Leon Campbell, a white man,
transferred Lemonia and other electricians from Westlake’s Plant A to Plant
B. Lemonia resented this transfer and stated, “where they put me was like a
sh** job.” He was so displeased that he filed a union grievance, alleging that
Campbell had moved minority electricians to a less desirable worksite in
violation of the collective bargaining agreement. Westlake denied the claim
and asserted the transfers were not discriminatory.
Lemonia then filed a Charge of Discrimination with the EEOC in
relation to the transfer. He alleged that Campbell violated Title VII by
discriminating against him based on his race and for retaliating against him
for filing a prior Charge of Discrimination. Ultimately, Lemonia received a
Notice of Right to sue letter from the EEOC but did not bring suit.
In August 2018, Lemonia applied for an electrical maintenance
supervisor position. The position, one of three openings, would report to
Campbell, who in turn reported to Bryan Thompson, the Instrumentation
and Electrical Controls Manager, who is also white. Lemonia was
interviewed for the position in October 2018 by a team comprised of
Campbell, Thompson, and other individuals with ages ranging from 34 to 55.
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One of the interviewers was African American. Lemonia received low ratings
from each team member—never scoring higher than three out of ten. The
interviewers found that he “did not give clear answers” and “went off on
tangents with each question.” They also concluded that Lemonia could not
provide examples of leadership experience or qualities and only gave basic
examples of “things a helper would do.” He was not selected. The three
open positions were filled by white men under the age of 40.
In September 2018, prior to his interview for the supervisor position,
Lemonia had several negative interactions at Westlake. First, Lemonia
complained about a new chair provided to him in the break room. When
Lemonia raised this issue with Campbell, Campbell allegedly “berated,
yelled at, and cursed at Lemonia.” Lemonia then discussed the chair and
Campbell’s comments with Thompson. Thompson offered to let Lemonia
keep his old chair, and Thompson counseled Lemonia about raising
“frivolous” complaints and urged him to try to resolve minor complaints
with his supervisors before going to Human Resources (HR). Lemonia then
went to multiple HR employees and further complained about his
interactions with Campbell and Thompson.
In November 2018, Campbell transferred Lemonia from Plant B to
Plant C. The transfer occurred around the same time that Campbell was
interviewed by HR about Lemonia’s complaints. Thus, Lemonia was
dubious about the purported reasons behind his transfer, even though he had
previously described his assignment to Plant B as a “sh** job.”
Workplace tension continued into December 2018. After a vacation,
Lemonia returned to work on December 4 to find “that someone had
intentionally tied the end of his solder wire in the shape of a hangman’s
noose.” Lemonia immediately reported the offending wire to his temporary
supervisor and a union employee. Westlake security personnel came to
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investigate the incident and took a picture of the wire. The personnel then
took statements from both Lemonia and his temporary supervisor. Lemonia
also reported the noose incident as an alleged hate crime to the local sheriff’s
department. And he filed a formal grievance through his union relating to
the transfer to Plant C.
Westlake investigated the noose incident through January 2019, but
the company was unable to determine who had left the solder wire at
Lemonia’s workstation. Westlake’s HR director, who was based in Texas,
traveled to Louisiana to meet with Lemonia twice in January 2019; Lemonia
did not show for their first scheduled meeting. The HR director described
the second:
When Lemonia and I met on January 29, 2019, Lemonia
thanked me for meeting with him. I noted that a majority of
Lemonia’s concerns could and should be handled through the
[collective bargaining agreement]’s grievance process. I also
specifically addressed the Company’s position in regarding
Lemonia’s 2018 application for a supervisor position.
Regarding the spool of wire, I told Lemonia that based on my
own prior experience, the end of the spool of wire appeared to
me to be how I would have safely secured the end of the wire.
Nevertheless, I told Lemonia that the Company thoroughly
investigated the issue, Westlake was unable to identify the
person who left the spool on Lemonia’s workstation, and was
concluding the matter. I also confirmed with Lemonia that no
other incidents had occurred, and Lemonia verified that fact. I
also told Lemonia that Lemonia could call me on my cell if
Lemonia had any new information to share.
In February 2019, Lemonia received a negative performance review
for the previous year. As a result, he was placed on a six-month Performance
Improvement Plan (PIP). Lemonia viewed the PIP as retaliatory and filed
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another union grievance, accusing Campbell and Thompson of engaging in
“unlawful activity, discriminatory practices, harassment, and retaliation[.]”
In June 2019, Lemonia filed another Charge of Discrimination with
the EEOC. This charge related to the noose incident, his failure to be
promoted, and his PIP.
Campbell died on July 4, 2019, and Keith Willis, a white man, replaced
Campbell as Lemonia’s supervisor. Lemonia had an improvement plan
meeting with Willis at the end of July, during which Willis told Lemonia to
stop socializing during work and to do so only during breaks or his lunch time.
After the improvement plan meeting, Lemonia went to the on-site medical
office because he was feeling dizzy. He was later diagnosed with situational
anxiety.
Lemonia then took medical leave from July 25 to October 29, 2019.
He returned to work at the end of October and attended training regarding
whistleblowers. This training caused him to experience shortness of breath
and chest pains, and he went back to the on-site medical office. Lemonia then
went on medical leave again from November 5 to November 15, 2019. Upon
his second return, Westlake asked Lemonia to execute an updated Code of
Conduct, which he signed “under duress.”
Lemonia then went on medical leave for the third time and never
returned to work. According to Lemonia, he continued to experience
apprehension and distress over the alleged hate crime he experienced at
work. Westlake continued to approve his requests for continued leave until
Lemonia resigned in November 2020.
B.
Lemonia filed suit against Westlake in federal district court in
December 2020. He alleged claims under Title VII, the Age Discrimination
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in Employment Act, and 42 U.S.C. § 1981. The parties conducted discovery,
and Westlake moved for summary judgment.
The district court granted Westlake’s motion as to all claims. First,
the district court held that the hostile work environment claim could not
proceed because it failed on the fourth element—that the harassment
complained of did not affect a term, condition, or privilege of his
employment. Second, the court dismissed the failure to promote claim
because Lemonia failed to demonstrate that the interview process was tainted
by discriminatory animus. Third, the district court held that Lemonia’s
failure-to-promote retaliation claim should be dismissed because his 2017
EEOC charge failed to show a causal nexus, and his 2018 HR complaint about
the chair was not a protected activity. Fourth, the district court dismissed
Lemonia’s retaliation claim based on his performance improvement plan and
the verbal warning from Willis not to socialize because they did not rise to
the level of adverse employment actions. Finally, the district court held that
Lemonia failed to state a prima facie case of retaliatory hostile work
environment, which also doomed his constructive discharge claim.
The district court entered judgment in September 2022, and Lemonia
timely appealed.
II.
We review a summary judgment de novo, applying the same legal
standards as the district court. Certain Underwriters at Lloyd’s, London v.
Axon Pressure Prods. Inc., 951 F.3d 248, 255 (5th Cir. 2020). Summary
judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A genuine dispute of material
fact exists ‘if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.’” Ahders v. SEI Priv. Tr. Co., 982 F.3d 312, 315
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(5th Cir. 2020) (quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477
(5th Cir. 2000) (per curiam)). “We construe all facts and inferences in the
light most favorable to the nonmov[ant] . . . .” Murray v. Earle, 405 F.3d 278,
284 (5th Cir. 2005). “We may affirm the district court’s grant of summary
judgment on any ground supported by the record and presented to the district
court.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 430 (5th Cir.
2022) (quoting Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d
270, 273 (5th Cir. 2015)).
III.
A.
To establish a hostile work environment claim, a plaintiff must prove
that he:
(1) belongs to a protected group; (2) 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.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
The parties do not contest, and the district court did not address, the
first three elements. And because the district court concluded that the noose
incident was not, in isolation, sufficiently severe to rise to the level of
harassment that affected Lemonia’s employment (the fourth element), the
court did not reach whether Westlake knew or should have known about it
yet failed to take appropriate remedial action (the fifth element). But
Lemonia must also satisfy that last element to overcome summary judgment
on his hostile work environment claim. See Williams-Boldware v. Denton
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County, 741 F.3d 635, 641–42 (5th Cir. 2014); see also Brooks v. Firestone
Polymers, L.L.C, 640 F. App’x 393, 400 (5th Cir. 2016) (per curiam) (no
hostile work environment where Plaintiff “found a miniature hangman’s
noose placed inside his hard hat at work” because “there [was] no evidence
[his employer] knew or should have known about the incident”); Anderson v.
YRC, Inc., 742 F. App’x 27, 27–28 (5th Cir. 2018) (per curiam) (no hostile
work environment where employer “opened an investigation the day after
the . . . noose was reported”); Tolliver v. YRC, Inc., 729 F. App’x 332, 333
(5th Cir. 2018) (per curiam) (same).
Even setting to the side the district court’s determination that
Lemonia failed to substantiate the fourth element of his claim, the record
here easily shows that Westlake promptly took appropriate action, such that
this claim fails at the fifth element as well. See Williams-Boldware, 741 F.3d
at 641. As soon as Lemonia reported the incident, his supervisor contacted
Westlake security personnel, who immediately came to Lemonia’s worksite
and took photos and witness statements. Over the next couple days, Lemonia
met with Westlake’s HR Director and the plant manager, who both assured
him that they were investigating the incident. That investigation continued
for two months, as Westlake’s HR Department interviewed everyone with
access to Lemonia’s work area.
Lemonia counters by disputing that Westlake took appropriate actions
to remedy the alleged harassment. But in doing so, he only “reincorporates”
arguments he made to the district court. This is insufficient to join the issue
in this court, and he has accordingly waived his arguments on this point. See
Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (declining to
consider arguments the plaintiff “incorporate[d] by reference” from his
original federal suit).
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At bottom, Westlake’s remedial actions were not deficient simply
because Westlake’s investigation failed to determine who tied the solder wire
and left it at Lemonia’s workstation. We affirm summary judgment for
Westlake on Lemonia’s hostile work environment claim because, regardless
of whether the noose incident was itself sufficient to meet the fourth element,
Lemonia has likewise failed to establish the fifth element of his claim. 1
B.
Lemonia next contends that the district court erred in dismissing his
failure to promote claim. To establish discrimination based on a failure-to-
promote theory, Lemonia must show:
(1) he is a member of a protected class; (2) he sought and was
qualified for a position for which applicants were being sought;
(3) he was rejected for the position; and (4) the employer either
(a) hired a person outside of the plaintiff’s protected class, or
(b) continued to seek applicants with the plaintiff’s
qualifications.
Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 406 (5th Cir. 2021) (citing
McMullin v. Miss. Dep’t of Pub. Safety, 782 F.3d 251, 258 (5th Cir. 2015)).
Once Lemonia demonstrates a prima facie case, the burden shifts to Westlake
to “articulate a legitimate, non-discriminatory reason for its decision not to
promote [Lemonia],” and, if Westlake can meet that burden, Lemonia must
_____________________
1
Lemonia also asserts that the district court failed to consider his failure to promote
claim in conjunction with the noose incident in evaluating his hostile work environment
claim. We are dubious that a failure to promote constitutes “harassment” to substantiate
such a claim, and in any event, the failure to promote claim fails on other grounds, as
discussed infra.
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come forward with evidence that Westlake’s reasons for not promoting him
are pretext for race-based discrimination. McMullin, 782 F.3d at 258.
The district court determined, and we agree, that Lemonia established
a prima facie case of discrimination. The only questions we need to consider,
therefore, are whether Westlake provided sufficient non-discriminatory
reasons for failing to promote Lemonia and whether Lemonia sufficiently
demonstrated that those reasons were pretextual. As to the first question,
Westlake provided evidence that Lemonia interviewed poorly for the
supervisor position. All the interviewers gave Lemonia low ratings. He “did
not give clear answers” in his interview “and went off on tangents with each
question.” And the interviewers concluded that Lemonia could not provide
leadership examples and only gave basic examples of “things a helper would
do.”
Basically, Lemonia had a bad interview, and the panel of interviewers
did not score him as the best person for the supervisor position by a clear
margin. The detailed interview score sheets, comments, and affidavits from
the interviewers were sufficient to meet Westlake’s burden to show a non-
discriminatory reason for failing to promote Lemonia. Cf. Alvarado v. Tex.
Rangers, 492 F.3d 605, 617–18 (5th Cir. 2007) (holding employer failed to
meet its burden when interview score sheet contained no notes or
explanation, and no testimony was provided from interviewers regarding
their decision), abrogated on other grounds by Hamilton v. Dallas County, 79
F.4th 494, 502–06 (5th Cir. 2023) (en banc).
As to the second question, pretext, Lemonia again failed properly to
raise his argument on appeal, merely referencing his briefing at the district
court. See Turner, 481 F.3d at 295 n.1. In any event, to the extent Lemonia
subjectively believed his interview went well or that his lack of promotion was
due to racial animus, such a subjective belief offers little probative value. See
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Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997) (“To
establish pretext, a plaintiff cannot merely rely on his subjective belief that
discrimination has occurred . . . .”). The district court thus did not err when
it held that Lemonia “failed to show that the interview process and the
ratings of the members were tainted by any discriminatory animus, or to rebut
the objective evidence that he did not interview well.” Westlake, therefore,
is correct that Lemonia did not establish a failure-to-promote claim, and
summary judgment was proper.
C.
Lemonia alleges that Westlake also violated Title VII by retaliating
against him. Title VII’s antiretaliation provision prohibits an employer
from discriminating against an employee “because he has ‘opposed’ a
practice that Title VII forbids or has ‘made a charge, testified, assisted, or
participated in’ a Title VII ‘investigation, proceeding, or hearing.’”
Saketkoo v. Adm’rs of the Tulane Educ. Fund, 31 F.4th 990, 999 (5th Cir.
2022) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006)). To establish retaliation a plaintiff must show that (1) he
participated in an activity protected by Title VII, (2) he suffered an adverse
employment action, and (3) a causal connection exists between the
protected activity and the adverse employment action. Id. at 1000 (quoting
Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020)).
1. Failure to Promote and Temporary Transfer
Westlake declined to promote Lemonia in the fall of 2018 and then
transferred him to a different plant. Lemonia contends these actions were
taken in retaliation for his engaging in protected activity. The district court
disagreed. On appeal, Lemonia contests the district court’s analysis of the
allegedly protected activity and the temporal proximity between the
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protected activity and the adverse employment actions. But Lemonia has
failed to establish this retaliation claim for other reasons.
First, Lemonia has not demonstrated that Westlake discriminated
against him when he did not receive the supervisor position. See supra Part
III.B. Both discrimination and retaliation claims are analyzed under the
McDonnell Douglas burden-shifting framework. Saketkoo, 31 F.4th at 997–
1000. As discussed, Westlake provided sufficient, non-discriminatory
reasons for declining to promote Lemonia, and he failed to show pretext.
Therefore, Westlake’s failure to promote Lemonia cannot form the basis for
a discrimination or a retaliation claim.
Lemonia likewise cannot succeed on his retaliation claim based on his
temporary transfer in November 2019. Relying on the same arguments he
utilized for his failure-to-promote claim, Lemonia urges that his temporary
transfer from Plant B to Plant C in 2018 was in retaliation for protected
conduct under Title VII. But that fails because Lemonia has not
demonstrated that the temporary transfer from Plant B to Plant C was an
adverse employment action.
Whether asserting a discrimination claim or a retaliation claim, a
plaintiff must show that he suffered an “adverse employment action” to state
a cognizable claim under Title VII. See Welsh v. Fort Bend Indep. Sch. Dist.,
941 F.3d 818, 823, 826 (5th Cir. 2019), abrogated on other grounds by Hamilton,
79 F.4th at 502–06. “[A] plaintiff seeking to establish a retaliatory adverse
employment action ‘must show that a reasonable employee would have
found the challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.’” Id. (quoting Burlington, 548 U.S. at 67–68).
This requirement is intended to separate “significant from trivial harms.”
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008) (quoting
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Burlington, 548 U.S. at 68). In that vein, Title VII’s antiretaliatory provisions
“do not protect employees from ‘petty slights, minor annoyances, and
simple lack of good manners.’” Welsh, 941 F.3d at 827 (quoting Burlington,
548 U.S. at 67–68).
To determine if an employer’s action is materially adverse, the court
looks to indicia such as whether the action affected job title, grade, hours,
salary, or benefits or caused “a diminution in prestige or change in standing
among [] co-workers.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332
(5th Cir. 2009). A mere reassignment, standing alone, does not constitute
a materially adverse employment action. See id. (holding reassignment to a
new supervisor with a heavier workload was not a materially adverse
employment action); see also Anthony v. Donahoe, 460 F. App’x 399, 404
(5th Cir. 2012) (per curiam) (temporary transfer due to emergency
circumstances that did not result in change to salary or benefits was not a
retaliatory employment action). Whether a reassignment “is materially
adverse depends upon the circumstances of the particular case,” and the
reassignment should be evaluated from the perspective of a reasonable
person in the plaintiff’s position. Anthony, 460 F. App’x at 404 (quoting
Burlington, 548 U.S. at 71).
With these standards in mind, Lemonia’s transfer to Plant C in 2018
did not constitute an adverse employment action. The record indicates that
Lemonia was transferred to Plant C due to an emergency outage at the
facility, and the move was on a temporary basis to address that issue. There
is also no indication that his position at Plant C was less desirable than his
previous position at Plant B—especially given that Lemonia complained
that he believed his work at Plant B was a “s*** job.” While Lemonia’s
duties changed at Plant C because he and other workers had to remedy
certain mechanical issues to restore the facility’s operations, there is no
evidence that others perceived this work in a negative fashion, or even that
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Lemonia himself believed the nature of his work was unpleasant. Cf.
Burlington, 548 U.S. at 71 (holding reassignment qualified as adverse
decision because previous position had more prestige and new duties were
“more arduous and dirtier”).
Even drawing all inferences in Lemonia’s favor, a reasonable person
would not view this temporary, emergency reassignment as dissuading
protected activity, especially when the employee’s original work assignment
may well have been worse. See Paul v. Elayn Hunt Corr. Ctr., 666 F. App’x
342, 347 (5th Cir. 2016) (per curiam); see also Anthony, 460 F. App’x at 404.
A temporary reassignment, without more, is simply not ground for a Title
VII violation. Summary judgment was proper on Lemonia’s retaliation
claim relating to the Plant C transfer.
2. Performance Improvement Plan
Lemonia challenges the district court’s conclusion that a PIP cannot
be an adverse employment action. To an extent, Lemonia’s position has
merit: We have held that a PIP can support a retaliation claim. See Ray v.
Tandem Computs., Inc., 63 F.3d 429, 435–36 (5th Cir. 1995). But a PIP does
not constitute an adverse employment action unless it “affect[s] ‘job title,
grade, hours, salary, or benefits’ or cause[s] ‘a diminution in prestige or
change in standing among . . . coworkers.’” Welsh, 941 F.3d at 827 (quoting
Paul, 666 F. App’x at 346); cf. Fields v. Bd. of Educ. the City of Chi., 928 F.3d
622, 626 (7th Cir. 2019) (stating that negative performance reviews and
performance improvement plans do not constitute adverse employment
actions); Fiero v. CSG Sys., Inc., 759 F.3d 874, 880 n.2 (8th Cir. 2014)
(concluding that plaintiff’s “placement on [a] PIP alone does not constitute
an adverse employment action and cannot support her claim of retaliation”).
Here, there is no evidence that Lemonia’s placement on a PIP
otherwise affected his employment, so it cannot constitute an adverse
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employment action in support of his retaliation claim. Lemonia points to
Ray, 63 F.3d at 435–36, to contend that “[we] ha[ve] found a PIP to be a
materially adverse action on which a plaintiff may absolutely base his
retaliation claim.” But in Ray the plaintiff was placed on a PIP and her
employment was ultimately terminated. See id. at 435. In other words, the
PIP affected her “job title, grade, hours, salary, or benefits.” Welsh, 941 F.3d
at 827. Accordingly, Ray is distinguishable, and the district court did not err
to the extent the court concluded that Lemonia’s placement on a PIP,
without more, did not constitute an adverse employment action. 2
3. 2019 Reprimand
Lemonia also takes issue with the district court’s finding that Willis’s
verbal reprimand in 2019 did not qualify as an adverse employment action.
However, the district court rightfully rejected this argument.
Willis instructed Lemonia to stop socializing with others except when
he was on rest periods or during his lunch period. According to Willis, he did
this because Lemonia was consistently socializing with workers and not
getting his work done. Lemonia asserts this action was in retaliation for his
protected activity, but we have clearly held that “verbal reprimands . . . do
not constitute actionable adverse employment actions as discrimination or
_____________________
2
The district court, citing Welsh, held that “[a]n employer’s decision to place an
employee on a performance improvement plan is not an adverse employment action.” 941
F.3d at 824. But the district court’s analysis was less nuanced and more unequivocal than
our precedent allows, as discussed above the line. The part of the Welsh opinion cited by
the district court was analyzing a discrimination claim, not a retaliation claim. See id. And
to the extent that the district court categorically held that a PIP cannot be an adverse
employment action, that holding conflicts with Ray, 63 F.3d at 435–36. Still, the upshot of
the court’s summary judgment in favor of Westlake on this claim rests on solid footing
because in this case, Lemonia fails to show that his PIP affected his employment.
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retaliation.” Bye v. MGM Resorts Int’l, Inc., 49 F.4th 918, 923 (5th Cir. 2022)
(quoting Welsh, 941 F.3d at 826). This claim was properly dismissed.
4. Constructive Discharge
Lemonia submits that the district court wrongly dismissed his claim
for retaliatory constructive discharge. Such a theory is actionable when an
employee quits his job under circumstances that are treated as an
involuntary termination of employment. Haley v. All. Compressor LLC, 391
F.3d 644, 649 (5th Cir. 2004) (citing Young v. Sw. Sav. & Loan Ass’n, 509
F.2d 140, 144 (5th Cir. 1975)). Generally, if an employer deliberately makes
an employee’s working conditions so intolerable that the employee has no
other choice but to resign, then the employer will be liable for any illegal
conduct involved therein as if the aggrieved employee had been formally
discharged. Id. (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.
1990)). The test that an employee must satisfy is a stringent one—whether,
objectively, a reasonable employee would have felt compelled to resign—
that is decided based on several considerations:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or
(6) offers of early retirement that would make the employee
worse off whether the offer[s] were accepted or not.
Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th Cir. 2014) (quoting
Aryain, 534 F.3d at 481). Furthermore, when evaluating the level of
harassment, a theory of constructive discharge requires a greater degree than
what is required with a hostile work environment claim. Newbury v. City of
Windcrest, 991 F.3d 672, 677 (5th Cir. 2021) (quoting Brown v. Kinney Shoe
Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
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In this case, Lemonia was not demoted; he did not receive a reduction
in his salary; nor was he offered a misleading offer of early retirement at any
point. The facts surrounding Lemonia’s eventual resignation also favor
Westlake. Lemonia was granted medical leave by Westlake for several
extended periods before his ultimate decision to resign. Therefore, he was
not often physically present at Westlake’s facilities in the months leading up
to his resignation, making it exceedingly difficult to show that his working
conditions were so intolerable that a reasonable employee would feel
compelled to resign. See Perret, 770 F.3d at 339. Further, as discussed supra
in Part III.A., Lemonia’s hostile work environment claim fails as a matter of
law, undermining any constructive discharge claim in the process. See
Newbury, 991 F.3d at 677.
We agree with the district court that Lemonia did not meet his burden
to demonstrate that he was constructively discharged. Summary judgment
for Westlake was thus proper as to this claim.
5. Retaliatory Hostile Work Environment
Lemonia lastly avers that he suffered a “retaliatory hostile work
environment.” Such a claim has never been recognized by the Fifth Circuit.
See Heath v. Bd. of Supervisors for the S. Univ. & Agric. & Mech. Coll., 850 F.3d
731, 741 n.5 (5th Cir. 2017). Against the facts in this case, we decline to
entertain such a theory here. The district court correctly dismissed this
claim.
IV.
We agree with the district court that Lemonia’s claims fail as a matter
of law. Summary disposition was thus appropriate, and the district court’s
judgment is
AFFIRMED.
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