throbber
Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 1 of 17 PageID #: 687
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`




`§ CIVIL ACTION NO. 6:15-CV-681

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`

`



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`EAN HOLDINGS, LLC, et al.
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`
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendants’ Motion for Summary Judgment (ECF 85). For the
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`
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`reasons set forth below, the Court GRANTS the motion for summary judgment.
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`BACKGROUND
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`Plaintiff Donald J. Isaac, proceeding pro se, filed this case on July 14, 2015 seeking relief
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`pursuant to Title VII of the Civil Rights Act of 1964. The original complaint named Enterprise
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`Holdings E2209 and Chris Ivey as defendants. Plaintiff amended the complaint on September 9,
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`2015 to replace Defendant Enterprise Holdings E2209 with EAN Holdings, LLC.
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`In his pleadings, Plaintiff alleges that Defendants wrongfully terminated his employment
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`due to “retaliation and religion.”1 Plaintiff asserts that Defendants took adverse action against
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`him because of his religious beliefs and did not have proper procedures in place to prevent
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`harassment. Plaintiff alleges that a manager harassed him and he was retaliated against for
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`reporting the harassment to human resources. Plaintiff states that he has suffered high blood
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`pressure from work related stress. He seeks to recover monetary compensation in the amount of
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`1 See Amended Complaint, ECF 19, at *3.
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`
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`1
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`DONALD J. ISAAC
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`
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`
`
`v.
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 2 of 17 PageID #: 688
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`$985,000.00 for his emotional distress and mental anguish. He also seeks to recover an
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`additional $450,000.00 for lost wages.2
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`
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`With his Original Complaint, Plaintiff attached copies of the Charge of Discrimination
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`that he filed with the EEOC and the Dismissal and Notice of Rights that he received from the
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`EEOC. In his charge, signed by Plaintiff on May 4, 2015, Plaintiff alleges discrimination based
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`on religion, retaliation and harassment from February 14, 2015 to February 27, 2015. Plaintiff
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`states that he began working for Enterprise Rental Car as a Title Service Agent on August 20,
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`2014 under the supervision of Jose Flores, Branch Manager. He asserts that a Manager Trainee,
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`Kelly Williams, mocked him and made jokes about his Christian faith on February 14, 2015 that
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`offended him. Plaintiff states that he then received a memorandum re-emphasizing the
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`company’s Business Ethics and Policy on professionalism on February 27, 2015. The EEOC
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`issued the Dismissal and Notice of Rights on May 12, 2015.
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`
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`Defendants filed a Motion for Summary Judgment (ECF 85) seeking dismissal of all
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`claims asserted by Plaintiff. Defendants assert that Plaintiff has not shown an adverse
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`employment action to support a claim of discrimination or retaliation. Further, he has not shown
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`that any similarly situated non-Christian employees or employees that did not undertake
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`protected activities were treated more favorably. Defendants assert that Plaintiff voluntarily
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`resigned his employment, but even if he could establish that he was terminated, his termination
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`would have been supported by legitimate, non-retaliatory reasons. Namely, Plaintiff violated
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`EAN’s attendance policy. Plaintiff does not have evidence showing a causal connection to
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`support a claim of retaliation. Finally, Defendants allege that Plaintiff does not have a cause of
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`2 Plaintiff states that this amount additionally includes court costs and attorney’s fees; however, Plaintiff is
`proceeding pro se and in forma pauperis. See Original Complaint, ECF 1, at *5.
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`
`
`2
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 3 of 17 PageID #: 689
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`action against Chris Ivey, a Regional Manager of EAN, because Title VII does not impose
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`personal liability on individuals.
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`
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`Defendants’ summary judgment evidence shows that Plaintiff started working directly for
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`EAN on August 20, 2014, after initially working for EAN through a staffing company.
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`Plaintiff’s job duties as a Service Agent included washing, detailing and inspecting rental
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`vehicles between rentals and performing other necessary services to prepare the vehicle for the
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`next rental customer. Plaintiff’s immediate supervisor was Branch Manager Jose Flores.
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`
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`In his deposition, Plaintiff testified concerning two incidents that occurred on February
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`14, 2015. First, Plaintiff stated that Kelly Williams, a manager trainee for EAN, made
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`inappropriate comments to him and another employee concerning Indian customers. Plaintiff
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`asserts that Williams did a “comedy skit insulting Indian people and their culture” and then
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`commented that they are “a bunch of stinking niggers.”3 Plaintiff agreed in his deposition that
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`Williams’ statement was only directed to Indian people and that the statement was not directed to
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`him.4 Next, Plaintiff testified in his deposition that Williams mocked his Christian faith.
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`Plaintiff stated that he was having a private conversation with a co-worker in which he was
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`expressing how blessed he felt that an employee next door found his lost wallet. Plaintiff
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`testified that he made statements to his co-worker such as “oh, thank God” and “[a]ll praises and
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`love and glory to God.”5 Williams allegedly interrupted their conversation and pretended to be
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`an exuberant pastor saying things like “oh, thank you, Lord Jesus.”6 Plaintiff characterized
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`3 See Defendants’ Motion for Summary Judgment, Oral Deposition of Donald J. Isaac, ECF 85-1 at *89 (Deposition
`Exhibit 10).
`4 Id. at *40.
`5 Id. at *38.
`6 Id.
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`
`
`3
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 4 of 17 PageID #: 690
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`Williams’ behavior like “a big comedy skit” and “extremely over-exaggerating the normal
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`effects of a pastor.”7
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`
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`Plaintiff submitted a one-page document to human resources complaining of these
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`incidents and he verbally reported it to his supervisor, Flores. He also called and spoke to Ivey.
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`According to Plaintiff, Ivey stated that he did not condone Williams’ behavior and that “he [felt]
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`bad that that happened” to Plaintiff.8
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`
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`Miranda Harrell, a Generalist Manager for Human Resources, gathered statements from
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`Williams, Plaintiff and Plaintiff’s co-worker, Edgardo Palencia, regarding the complained-of
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`February 14, 2015 incident. The statements from Williams and Palencia are not signed and refer
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`only to the incident concerning the Indian customers. Both Williams’ and Palencia’s statements
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`relay that Williams made an inappropriate comment or joke after work about the smell or
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`hygiene of the couple and that Williams apologized to Plaintiff when Plaintiff stated that he was
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`offended by Williams’ language.9 Plaintiff asserts that Palencia’s statement is “watered down”
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`to minimize Williams’ actions.10
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`
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`Harrell met personally with Plaintiff on February 27, 2015, together with Amy O’Byrne,
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`a Human Resources Generalist. Harrell asserts that she gave Plaintiff a memorandum at the
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`meeting expressing that EAN takes disrespectful conduct seriously and that any further behavior
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`from Williams or other employees would result in disciplinary action for the responsible person.
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`In addition, memorandums were sent to both Flores and Assistant Branch Manager Heather
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`Grubbs from Ivey reiterating managerial responsibility for maintaining a positive and
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`professional working environment in accordance with the company’s Business Ethics and Policy
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`7 Id.
`8 Id. at *43.
`9 See Defendants’ Motion for Summary Judgment, ECF 85-3, at *4–5.
`10 See Plaintiff’s Response to Motion for Summary Judgment, ECF 96, at *2–3.
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`4
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 5 of 17 PageID #: 691
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`Guide. The memos additionally warned against any retaliation against employees. All three
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`memos contain language stating, “I have confidence that this behavior will not happen again . . .
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`[a]ny future occurrences and/or failure to abide will result in disciplinary action up to and
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`including discharge.”11 Ivey counseled Williams and also presented him with a memorandum
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`warning him that he could face disciplinary action, up to and including discharge, if he did not
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`speak to customers and co-workers with respect and professionalism.12
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`
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`Plaintiff testified in his deposition that Mondays are the busiest days for service agents
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`and all service agents work 11 hours on Mondays. Plaintiff testified that “we had to work 11
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`hours, from 7:00 in the morning until 6:00 in the evening.”13 He also stated that he received a
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`verbal warning from Flores about his attendance and tardiness sometime prior to March 9, 2015.
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`Plaintiff stated that he was often sick on Mondays, feeling nauseated and sick with anxiety and
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`panic attacks. He would frequently ask Flores if he could come in later when he felt better.14 In
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`a memo to Plaintiff, Flores documented six Mondays between March 9, 2015 and May 11, 2015
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`when Plaintiff arrived between ten minutes and three hours late for his shift or did not come to
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`work.15 Flores instructed Plaintiff that future tardiness would not be tolerated and that absences
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`without prior approval would require a doctor’s note immediately upon return to work. Plaintiff
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`was warned that the failure to comply would result in immediate termination.16 Plaintiff signed
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`the memo on May 19, 2015. Despite his deposition testimony that service agents worked 7:00
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`a.m. to 6:00 p.m. on Mondays, Plaintiff states in his response to the motion for summary
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`11 See Defendants’ Motion for Summary Judgment, ECF 85-3, at *3 and *6–7.
`12 See Defendants’ Motion for Summary Judgment, ECF 85-2, at *2 and *4.
`13 See Defendants’ Motion for Summary Judgment, ECF 85-1, at *18.
`14 Id. at *70.
`15 Id. at *90.
`16 Id.
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`5
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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 6 of 17 PageID #: 692
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`judgment that he was only available from 10:00 a.m. to 6:00 p.m. and that Flores was aware of
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`that when he transferred to the 5102 location.17
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`
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`Plaintiff did not show for work on June 1, 2015. He sent a text to Flores that morning
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`stating that he had a dead battery. Flores responded, “I’ll have to call you later to discuss.”18
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`Plaintiff asserts in his response that he was never “told to come in and work” and he was not
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`“told that [he] still had a job there.”19 Plaintiff testified that Flores attempted to call his cell
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`phone and left a voice mail. Plaintiff sent a text in response to Flores on June 2, 2015 stating,
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`“Got your mssg, I can’t come by but I know I’m terminated, I have you saying it on Audio
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`remember, but thanks.”20 Plaintiff then sent another message to Flores stating, “Just heard your
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`VM, Jose ur on Record Sayin if I’m late another MONDAY I would be Terminated for
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`sure..And you did not tell me to come in anyway and work. Which means I’m terminated. I Did
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`Not Resign.”21
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`
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`Plaintiff testified that he did not have a copy of the voice mail left by Flores, but stated
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`that Flores asked him to come to work around 4:00 or 4:30 to discuss the situation with him and
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`Ivey. Plaintiff asserted that he was scared and uncomfortable going there at closing time because
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`of everything that took place and he did not see the point because his “termination had already
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`been established.”22 When asked to explain why he was scared, Plaintiff stated that he thought
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`they wanted to negotiate something with him and he did not know what to expect.23
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`
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`Flores denies stating that Plaintiff’s employment was terminated in the voice mail and
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`Plaintiff acknowledges that he does not have anything in writing stating that his employment was
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`17 See Plaintiff’s Response to Motion for Summary Judgment, ECF 96, at *2.
`18 See Defendant’s Motion for Summary Judgment, ECF, 85-1, at *94.
`19 See Plaintiff’s Response to Motion for Summary Judgment, ECF 96, at *3.
`20 See Defendants’ Motion for Summary Judgment, ECF 85-1, at *95.
`21 Id.
`22 Id. at *64.
`23 Id.
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`
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`6
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 7 of 17 PageID #: 693
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`terminated. Plaintiff testified that he later applied for work at Dollar General. In his application,
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`Plaintiff stated that his employment with Enterprise was terminated because he was late for
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`work. Plaintiff opined that he did not get hired because he was “being truthful in saying that [he]
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`was terminated” and Enterprise told them that he resigned his employment.24
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`SUMMARY JUDGMENT STANDARD
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`
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`The Court may only grant a motion for summary judgment when there is no genuine
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`dispute of material fact and the moving party is entitled to summary judgment as a matter of law.
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`FED. R. CIV. P. 56(a). A genuine dispute as to a material fact exists “if the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “material fact” is one that
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`might affect the outcome of the suit under governing law. Id. The party seeking summary
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`judgment always bears the initial responsibility of informing the district court of the basis for its
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`motion and identifying those portions of the pleadings, depositions, answers to interrogatories,
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`and admissions on file, together with the affidavits, if any, which it believes demonstrate the
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`absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
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`S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
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`
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`The moving party, however, “need not negate the elements of the nonmovant’s case.”
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`Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is
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`only to point out the absence of evidence supporting the nonmoving party’s case. Stults v.
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`Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996). Once the moving party makes a properly
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`supported motion for summary judgment, the nonmoving party must look beyond the pleadings
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`and designate specific facts in the record showing that there is a genuine issue for trial. Id. All
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`facts and inferences are viewed “in the light most favorable to the nonmoving party.” McFaul v.
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`24 Id. at *83.
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`7
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 8 of 17 PageID #: 694
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`Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). “Summary judgment may not be thwarted by
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`conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence.”
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`Id.
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`I.
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`Claims against Ivey
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`ANALYSIS
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`
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`Plaintiff filed this Title VII lawsuit against both his employer, EAN Holdings, LLC, and
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`his Regional Manager, Chris Ivey. Title VII prohibits unlawful discrimination by an
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`“employer.” See Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir. 1994). An
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`“employer” is defined as “a person engaged in an industry affecting commerce . . . and any agent
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`of such person.” 42 U.S.C. § 2000e(b). Suit against an agent is only permissible in the agent’s
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`official, as opposed to individual, capacity. Garcia, 28 F.3d at 450. To the extent Plaintiff is
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`suing Ivey in his official capacity, however, “a plaintiff is not entitled to maintain a Title VII
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`action against both an employer and its agent in an official capacity.” Smith v. Amesdisys, Inc.,
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`298 F.3d 434, 449 (5th Cir. 2002); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th
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`Cir. 1999). Plaintiff cannot maintain his Title VII claim against both the employer and the agent.
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`Plaintiff has not stated a viable claim against Ivey and the claims against him should be
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`dismissed.
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`II.
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`Religious Discrimination
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`
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`Plaintiff alleges that he was discriminated against because of his Christian faith. The
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`only incident identified by Plaintiff occurred on February 14, 2015. Plaintiff alleges that
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`Williams, a manager trainee, mocked his religious beliefs by pretending to be an exuberant
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`pastor.
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`8
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 9 of 17 PageID #: 695
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`
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`Title VII makes it an unlawful employment practice “to discriminate against any
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`individual with respect to his compensation, terms, conditions, or privileges of employment,
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`because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-
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`2(a)(1). There are essentially two theories of liability for discrimination under Title VII:
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`disparate impact and disparate treatment. In the present case, Plaintiff alleges disparate
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`treatment. Under the disparate treatment theory, Title VII is violated if the employee can show
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`that the employer intentionally treated the employee unfairly because of race, color, religion, sex,
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`or national origin. Frazier v. Garrison I.S.D., 980 F.2d 1514, 1523 (5th Cir. 1993).
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`
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`To succeed, a plaintiff proceeding on a disparate treatment theory of employment
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`discrimination must show both disparate treatment and discriminatory motive. Johnson v.
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`Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir. 1988); Lee v. Conecuh County Board of
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`Education, 634 F.2d 959, 962 (5th Cir. 1981). The plaintiff must show that the protected trait –
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`in this case, Plaintiff’s religion – actually motivated the employer’s decision. The protected trait
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`must have actually played a role in the decision-making process and must have had a
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`determinative influence on the outcome. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113
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`S.Ct. 1701 (1993). Discriminatory motive or intent may be shown by direct or circumstantial
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`evidence. Wheeler v. City of Columbus, Miss., 686 F.2d 1144, 1150 (5th Cir. 1982).
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`
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`Plaintiff does not present direct evidence of discrimination. The so-called McDonnell-
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`Douglas framework, espoused in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93
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`S.Ct. 1817 (1973), is used when evaluating Title VII discrimination cases based upon
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`circumstantial evidence. The initial burden is on the plaintiff to show facts sufficient to warrant
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`recovery. Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993). To recover damages or
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`survive a motion for summary judgment, a Title VII plaintiff has the burden of making a prima
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`
`9
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 10 of 17 PageID #: 696
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`facie showing that: (1) he belongs to a protected class; (2) he was qualified for the position; (3)
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`despite his qualifications, he was dismissed or suffered an adverse employment action; and (4)
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`that his position was filled by someone outside the protected class or that other similarly situated,
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`non-Christian employees, were more favorably treated. McDonnell Douglas Corp. v. Green, 411
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`U.S. 792, 93 S.Ct. 1817, 1824 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S.
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`248, 101 S.Ct. 1089 (1981); Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001),
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`cert. denied, 540 U.S. 1005, 124 S.Ct. 543 (2003); Ward v. Bechtel Corporation, 102 F.3d 199,
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`202 (5th Cir. 1997). To prove discrimination, a plaintiff may use circumstantial evidence that he
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`has been treated differently than similarly situated employees outside of the protected class. See
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`Polano v. City of Austin, Texas, 78 F.3d 968, 977 (5th Cir. 1996). A plaintiff must show that he
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`was treated differently under circumstances that were “nearly identical” to his. See Mayberry v.
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`Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). An “adverse employment action” is an
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`ultimate employment decision such as hiring, granting leave, discharging, promoting, and
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`compensating. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
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`
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`If a plaintiff succeeds in showing facts sufficient to warrant recovery, a rebuttable
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`presumption of discrimination, or inference of discrimination, arises. Armstrong, 997 F.2d at 65.
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`The burden is then on the employer to come forward and show legitimate, nondiscriminatory
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`reasons for the challenged acts. Id. If the employer articulates a legitimate, nondiscriminatory
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`reason for the adverse employment action, the burden shifts back to the plaintiff to demonstrate
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`that the reasons put forth by the employer are a mere pretext—or phony reason—for
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`accomplishing the discriminatory act. Id.; Texas Department of Community Affairs v. Burdine,
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`450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (1981). Alternatively, a plaintiff may show that the
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`employer’s reason, though true, is only one of the reasons for its conduct and that another
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`10
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 11 of 17 PageID #: 697
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`motivating factor is the plaintiff’s protected characteristic. Keelan v. Majesco Software, Inc.,
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`407 F.3d 332, 341 (5th Cir. 2005) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct.
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`2148 (2003)).
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`
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`In the motion for summary judgment, Defendants do not dispute that Plaintiff is a
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`member of a protected group. They argue, however, that Plaintiff cannot show that he was
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`qualified for his position due to his repeated tardiness, he cannot point to any adverse
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`employment action and there is no evidence that similarly situated non-Christian employees were
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`treated more favorably than Plaintiff. In response, Plaintiff asserts that the adverse action was
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`that he “was later discharged in a Retaliatory fashion.”25 He also states that there is documented
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`proof of two non-Christian employees treated more favorably than he was, but he does not
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`identify the employees or provide any facts in the response.
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`
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`Here, even if the Court assumes arguendo that Plaintiff is a member of a protected group,
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`that he was qualified for his position and that he suffered an adverse employment action, there is
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`no evidence before the Court showing that non-Christian employees were treated more
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`favorably. A plaintiff must show that he was treated differently under circumstances that were
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`“nearly identical” to his. Mayberry v. Vought Aircraft Co., 55 F.3d at 1090. Plaintiff asserts in
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`his reply brief that an employee named Isidoro Alvarado is a similarly situated employee who is
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`still employed by EAN. The documents submitted by Plaintiff show that Alvarado was
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`counseled by Flores for not properly cleaning cars. There is no evidence that Alvarado is a non-
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`Christian or that Alvarado had repeated tardiness or absences on Mondays—the busiest day for
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`service agents. Plaintiff has not submitted any evidence showing that he was treated differently
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`than other non-Christian employees under “nearly identical” circumstances. Neither “conclusory
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`25 See Plaintiff’s Response to Motion for Summary Judgment, ECF 96, at *6.
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`
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`11
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 12 of 17 PageID #: 698
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`allegations” nor “unsubstantiated assertions” will satisfy Plaintiff’s burden. Stults v. Conoco,
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`Inc., 76 F.3d at 655.
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`
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`Even if Plaintiff met the minimal showing required to establish a prima facie case of
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`discrimination, Plaintiff’s religious discrimination claim would still ultimately fail on the motion
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`for summary judgment. Once a prima facie case is shown, the defendant must come forward
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`with a legitimate, nondiscriminatory reason for the adverse employment action. Through the
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`production of admissible evidence, Defendants must set forth reasons which, if believed by the
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`trier of fact, would support a finding that unlawful discrimination was not the cause of the
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`termination of Plaintiff’s employment. Burdine, 450 U.S. at 254–55. At this step, the employer
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`must produce evidence that, “taken as true, would permit the conclusion that there was a
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`nondiscriminatory reason for the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
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`509, 113 S.Ct. 2742 (1993) (emphasis in original). The question is simply whether a defendant
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`has produced such evidence—not whether that evidence is persuasive or credible. Hicks, 509
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`U.S. at 510–11, 113 S.Ct. at 2749.
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`
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`Defendants produced competent summary judgment evidence that, taken as true, permits
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`or supports a finding that Plaintiff voluntarily terminated his employment. Further, Defendants
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`produced evidence that even if the Court concluded that Defendants terminated Plaintiff’s
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`employment, the termination was the result of Plaintiff’s failure to comply with EAN’s
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`attendance policies. Plaintiff disputes whether he actually violated the attendance policy, but the
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`question here is whether the employer believed that the employee committed the infraction and
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`made the decision to discharge the employee based upon that belief. Waggoner v. City of
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`Garland, Texas, 987 F.2d 1160, 1165–65 (5th Cir. 1993).
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`
`
`12
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`

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`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 13 of 17 PageID #: 699
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`
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`The ultimate burden of showing that he was a victim of intentional discrimination always
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`remains on the plaintiff. Armstrong, 997 F.2d at 65. “On summary judgment, in this third step,
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`the plaintiff must substantiate his claim of pretext through evidence demonstrating that
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`discrimination lay at the heart of the employer’s decision.” Price v. Federal Express Corp., 283
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`F.3d 715, 720 (5th Cir. 2002). A plaintiff may show that there is a genuine issue of material fact
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`concerning pretext by showing either that the employer’s proffered explanation is false or by
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`showing disparate treatment. Wallace v. Methodist Hospital System, 271 F.3d 212, 220 (5th Cir.
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`2001). For summary judgment purposes, the core issue is whether a genuine issue of material
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`fact exists as to whether Defendants intentionally discriminated against Plaintiff. LaPierre v.
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`Benson Nissan, Inc., 86 F.3d 444 (5th Cir. 1996); Armstrong, 997 F.2d at 65. A plaintiff must
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`present evidence that will permit a rational fact finder to infer intentional discrimination. Reeves
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`v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). “[S]ummary
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`judgment is inappropriate if the evidence taken as a whole . . . creates a reasonable inference that
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`[religion] was a determinative factor in the actions of which plaintiff complains.” Pratt, 247
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`F.3d at 606–07 (quotation marks omitted).
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`
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`Plaintiff has not presented competent summary judgment evidence sufficient to create an
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`inference that religion was a determinative factor in the decision to terminate his employment.
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`Plaintiff has not presented evidence from which a rational fact finder could infer intentional
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`discrimination and, therefore, he has not produced evidence sufficient to raise a genuine issue of
`
`material fact for trial on the issue of pretext. Reeves, 530 U.S. at 120.
`
`III. Hostile Work Environment
`
`
`
`Construing Plaintiff’s pro se pleadings liberally, he alleges that he was subjected to a
`
`hostile work environment that caused him to suffer mental anguish and distress. Beyond
`
`
`
`13
`
`

`
`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 14 of 17 PageID #: 700
`
`“economic” or “tangible” discrimination, Title VII also encompasses a discriminatorily hostile or
`
`abusive work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct.
`
`2399, 2404 (1986). Title VII is violated if the workplace is permeated with “discriminatory
`
`intimidation, ridicule, and insult,” that is “sufficiently severe or pervasive to alter the conditions
`
`of the victim’s employment and create an abusive working environment.” Harris v. Forklift
`
`Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (citing Meritor Savings Bank, FSB v.
`
`Vinson, 477 U.S. at 65, 67, 106 S.Ct. at 2405).
`
`
`
`To establish a hostile work environment claim based on a supervisor’s conduct, a plaintiff
`
`must show: (1) he belongs to a protected class; (2) he was subjected to unwelcome harassment;
`
`(3) that the harassment was based on a protected trait; and (4) that the harassment affected a
`
`“term, condition or privilege of employment.” Lauderdale v. Texas Department of Criminal
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`Justice, Institutional Division, 512 F.3d 157, 162-63 (5th Cir. 2007). Harassment affects a term,
`
`condition or privilege of employment if it is “sufficiently severe or pervasive so as to alter the
`
`conditions of employment and create an abusive working environment.” National R.R.
`
`Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 2074 (2002).
`
`
`
`“Conduct that is not severe or pervasive enough to create an objectively hostile or
`
`abusive work environment—an environment that a reasonable person would find hostile or
`
`abusive—is beyond Title VII’s purview.” Harris, 510 U.S. at 21, 114 S.Ct. at 370. By the same
`
`token, an employee’s conditions of employment are not actually altered unless the employee
`
`subjectively finds the environment to be abusive. Id. at 21-22. To be determined to be a hostile
`
`or abusive environment, the work environment must be “both objectively and subjectively
`
`offensive, one that a reasonable person would find hostile or abusive, and one that the victim in
`
`fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275,
`
`
`
`14
`
`

`
`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 15 of 17 PageID #: 701
`
`2283 (1998) (citing Harris, 510 U.S. at 21-22, 114 S.Ct. at 367). Courts look at all of the
`
`circumstances when determining whether an environment is “hostile” or “abusive,” which may
`
`include “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.” Harris, 510 U.S. at 23, 114 S.Ct. at 371. “[N]o single
`
`factor is required.” Id.
`
`
`
`Plaintiff alleges only one incident on February 14, 2015 when Williams allegedly
`
`mocked his Christian faith. He does not identify any other statements by Williams or others
`
`referencing his faith. Allegations of isolated incidents and simple teasing are not sufficient to
`
`survive a motion for summary judgment. Hockman v. Westward Communications, LLC, 407
`
`F.3d 317, 328 (5th Cir. 2004). Plaintiff has not come forward with summary judgment evidence
`
`showing severe and pervasive discriminatory conduct altering the conditions of his employment.
`
`Defendants are entitled to summary judgment on Plaintiff’s hostile work environment claim.
`
`IV. Retaliation
`
`
`
`Plaintiff alleges that Defendants retaliated against him for complaining about how he was
`
`treated by Williams. A plaintiff alleging retaliation must show that: (1) he participated in a Title
`
`VII protected activity, (2) he suffered an adverse employment action by his employer, and (3)
`
`that there is a causal connection between the protected activity and the adverse action. Stewart v.
`
`Mississippi Transportation Commission, 586 F.3d 321, 331 (5th Cir. 2009). While not limited to
`
`ultimate employment decisions, “[t]he antiretaliation provisions protect an individual not from
`
`all retaliation, but from retaliation that produces an injury or harm.” Burlington Northern &
`
`Santa Fe Railway Co., 548 U.S. 53, 67, 126 S.Ct. 2405, 2414 (2006). To be an adverse
`
`employment action for purposes of establishing retaliation, the action must be “materially
`
`
`
`15
`
`

`
`Case 6:15-cv-00681-KNM Document 105 Filed 08/09/16 Page 16 of 17 PageID #: 702
`
`adverse.” Id. at 68, 126 S.Ct. at 2415. A plaintiff 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.
`
`“[P]etty slights or minor annoyances that often take place at work and that all employees
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`experience,” which may include personality conflicts and “snubbing,” are not actionable. Id.
`
`
`
`Plaintiff asserts that he complained to his supervisors about Williams’ conduct and that
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`his employment was later terminated in retaliation for his complaint. Plaintiff has not produced
`
`evidence, however, showing that

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