Friend, et al v. Interior Systems Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 30, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-10741
Summary Calendar
_______________
WILLIAM FRIEND; MICHELLE HUCKABY; ETHEL CARTER; GLORIACOLAS;
CHERRY POPE; PAUL SAMPLES; DIAN ROLAND; DEBORAH BEASLEY; LARRY KING;
MELODY KING; COREY HUCKABY; AND JANE JONES,
Plaintiffs-Appellants,
VERSUS
INTERIOR SYSTEMS, INC.,
ALSO KNOWN AS ISI PROFESSIONAL SERVICES, INC.,
AND
CUSHMAN & WAKEFIELD NATIONAL CORPORATION,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:00-CV-2170-P
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Plaintiffs William Friend, Michelle Hucka-
by, Ethel Carter, Gloria Colas, Cherry Pope,
Paul Samples, Dian Roland, Deborah Beasley,
Larry King, Melody King, Corey Huckaby,
and Jane Jones, who are black former employ-
ees of defendants Interior Systems, Inc.
(“ISI”), and Cushman & Wakefield, Inc.
(“Cushman”), appeal a summary judgment on
their claims of discrimination under 42 U.S.C.
§ 1981. Finding no error, we affirm.
I.
Plaintiffs were employed at different times,
and in various capacities, by Cushman and ISI
at a mail sorting facility on Alpha Road in Dal-
las, Texas (“Alpha Road Facility”).2 The
Alpha Road Facility provided customers with
various mail sorting services. In particular, be-
cause the United States Postal Service
(“USPS”) offers a discount in postal rates to
customers who sort their own bulk mail, cli-
ents had their mail sorted at the facility before
sending it to the USPS. To cover the costs of
postage, clients were required to deposit mon-
ey into a trust fund controlled by the USPS.
Alpha Road Facility employees were
responsible for reporting to the USPS,
submitting postage reports based on the
postage required for the bulk mail sorted at the
facility. From the reports, the USPS
determined the amounts due from various
clients and withdrew payment from the trust
funds.
In November 1999, ISI learned that the
USPS was conducting a criminal investigation
into the operation of the Alpha Road Facility.
Morton Taubman, ISI’s general counsel, was
informed by USPS investigators that Roger
Ebert, the general manager of the facility, was
the target of the investigation, which
concerned an alleged payroll fraud scheme and
the possible embezzlement of funds from client
trust accounts.
Ebert, a white male, was suspended from
his position as general manager while ISI con-
ducted its own internal investigation. That in-
vestigation uncovered evidence of additional
employee wrongdoing. Specifically, Taubman
concluded that Friend, Michelle Huckaby, and
Martha Litton, an ISI employee not party to
this suit, were either involved with Ebert’s
scheme, or responsible for severe
mismanagement of the second shift. Based on
these conclusions, ISI terminated Ebert,
Litton, Friend, and Huckaby.
The remaining plaintiffs were terminated or
quit for various reasons not directly related to
the Ebert affair. Five were either laid off or
fired in April and May 2000. Another, Jones,
quit voluntarily but claims she was
constructively discharged.
II.
On appeal, plaintiffs challenge the summary
judgment on their claims of employment
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2 From October 1997 to July 1999 they were
employed by Cushman. At that time, ISI assumed
control of the Alpha Road Facility, and all workers
at the facility became ISI employees. Cushman
eventually resumed responsibility for the operation
of the Alpha Road Facility in October 2000, and
Jones, the sole plaintiff still working at the facility
at that time, became a Cushman employee again.

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discrimination.3 We review a summary
judgment de novo, applying the same legal
standards as did the district court and viewing
all factual questions and inferences in the light
most favorable to the nonmoving party. White
v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir.
2003). Summary judgment is appropriate if, in
light of all the evidence, there is “no genuine
issue of material fact, and the moving party is
entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
Mere assertions of a factual dispute,
unsupported by probative evidence, will not
prevent summary judgment.4 Rather, to
demonstrate the existence of a genuine issue of
fact, the nonmovant must provide specific
facts such that a reasonable jury might return
a verdict in his favor. See Anderson, 477 U.S.
at 248. Consequently, “conclusory allegations,
speculation, and unsubstantiated assertions”
will not suffice to defeat a motion for summary
judgment. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en
banc).
Plaintiffs contend that defendants engaged
in employment discrimination in violation of
§ 1981(a), which provides that “[a]ll persons
within the jurisdiction of the United States
shall have the same right . . . to make and
enforce contracts . . . as is enjoyed by white
citizens.” The right to “make and enforce con-
tracts,” in turn, includes the right to
nondiscriminatory enjoyment of all benefits,
privileges, terms, and conditions of the
contractual relationship. § 1981(b).
III.
Plaintiffs contend that defendants engaged
in racial discrimination in terminating their
employment. Claims of racial discrimination
under § 1981 are go verned by the same
evidentiary framework applicable to claims of
employment discrimination brought under title
VII. See Raggs v. Miss. Power & Light Co.,
278 F.3d 463, 468 (5th Cir. 2002) (collecting
cases). Therefore, to determine whether de-
fendants are entitled to summary judgment, we
must apply the McDonnell Douglas burden
shifting analysis. Id.
Even assuming arguendo that plaintiffs met
their burden of establishing a prima facie case,
ISI advanced mult iple legitimate,
nondiscriminatory justifications for its decision
to terminate their employment. Accordingly,
the burden fell to plaintiffs to demonstrate that
these proffered justifications were merely pre-
texts for unlawful discrimination. Id. None of
the plaintiffs has demonstrated the existence of
a genuine issue of material fact with respect to
pretext.
A.
ISI contends that plaintiffs Friend and
Huckaby were terminated for possible criminal
conduct in connecti on with Ebert’s
embezzlement and payroll fraud and for gross
3 Several claims of discrimination pursued in
the district court were not presented in plaintiffs’
brief. Needless to say, we consider only those
claims raised and adequately briefed. See Melton
v. Teachers Ins. & Annuity Ass’n, 114 F.3d 557,
561 (5th Cir. 1997) (“[I]ssues not raised or argued
in the brief are considered waived and thus will not
be noticed or entertained by this Court on ap-
peal.”). Plaintiffs likewise failed to challenge the
denial of their FLSA claims and entirely omitted
any discussion of the entry of judgment against
Beasley, Huckaby, Larry King, and Melody King.
We therefore deem these claims abandoned as well.
4 Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986); Abbott v. Equity Group, Inc.,
2 F.3d 613, 619 (5th Cir. 1993).

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mismanagement of the night shift. Either of
these grounds constitutes a legitimate
nondiscriminatory basis for plaintiffs’
termination.
Friend and Huckaby contend that defen-
dantISI’s proffered justification for their termi-
nation, their possible involvement in Ebert’s
criminal conduct, is pretextual, because Ebert
did not implicate them in statements made
during the ISI investigation and the subsequent
criminal case. Plaintiffs contend that Ebert’s
conflicting statements give rise to a genuine
issue of fact with respect to whether they
participated in the scheme.
This argument misses the point, however.
The question is not whether Friend and Huck-
aby participated in Ebert’s criminal conduct;
rather, t he question is whether ISI had a
reasonable basis for believing they were
involved. Even if ISI’s belief that they
engaged in criminal misconduct was ultimately
incorrect, it may serve as a legitimate, non-
discriminatory reason for their termination “so
long as the belief [was] reasonable, not
arbitrary, and not a likely pretext for unlawful
discrimination.” Bauer v. Albermarle Corp.,
169 F.3d 962, 967 (5th Cir. 1999).
In the course of conducting an internal in-
vestigation, ISI uncovered several indications
that plaintiffs had participated in Ebert’s post-
age fraud and payroll fraud schemes. As night
shift managers, Friend and Huckaby were re-
sponsible for completing and depositing postal
forms for pick-up by the USPS. Indeed, there
is evidence that a high proportion of the forms
wrongfully withheld from the USPS were
prepared either by Friend or Huckaby. They
were likewise responsible for verifying the ac-
curacy of employee time cards and time sheets
and thus implicated in the payroll fraud
scheme. Further, plaintiffs admitted they had
received cash payments from Ebert. These
facts provided a reasonable basis for ISI’s
belief that Friend and Huckaby engaged in
criminal wrongdoing.5
In any event, ISI also concluded that, even
absent criminal malfeasance, the night shift had
been grossly mismanaged. In addition to
reported violations of company policy, the
night shift was considerably less efficient than
the day shift, sorting less mail despite
recording substantially more overtime than the
day shift and frequently calling in additional
temporary help. Friend and Huckaby present
no argument that this justification for their
termination was pretextual. Having shown
adequate nondiscriminatory reasons for the
decision to terminate Friend and Huckaby,
defendants were entitled to summary judgment
5 Friend and Huckaby contend that the ISI in-
vestigation was one-sided and discriminatory. In
particular, they assert that ISI’s failure to investi-
gate allegations that ISI Vice President William
Marcellino also participated in Ebert’s schemes
demonstrates that the investigation served merely to
conceal the discriminatory motive underlying their
termination. Plaintiffs provide no evidence that
any allegations concerning Marcellino were
credible or supported by evidence such as that
which implicated them.
Further, the investigation which culminated in
plaintiffs termination resulted also in the termin-
ation of two white employees, Ebert and Litton.
Plaintiffs’ conclusional assertions of discrimination
in the conduct of the investigation are not suf-
ficient, in the absence of supporting evidence, to
defeat summary judgment. See Douglass, 79 F.3d
at 1429.

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on their claims.6
B.
Carter contends that her termination by ISI
was racially discriminatory. ISI, however, pre-
sented internal memoranda establishing that
Carter was terminated for well-documented,
nondiscriminatory reasons, including poor job
knowledge, poor leadership, poor de-
cisionmaking, unprofessional and disruptive
behavior toward other employees, refusal to
work mandatory overtime, and unexcused ab-
senteeism. Although Carter testified that these
documents contained “a bunch of lies,” her
testimony alone does not constitute sufficient
evidence of pretext to defeat summary
judgment.
C.
Samples likewise alleges that his
termination was motivated by racial
discrimination. In response, ISI provided
documentary evidence showing that Samples
was put on probation for leaving work without
permission and that he failed to appear for
work t he very next day. ISI then sent a
termination letter to Samples explaining that
he was terminated for poor work performance
and nonattendance. Samples failed to
introduce any evidence that this legitimate,
nondiscriminatory justification for his firing
was pretextual.
D.
Colas, Roland, and Pope contend their lay-
offs were the result of racial discrimination.
Even assuming plaintiffs have made a prima
facie showing of discrimination, ISI contends
that it decided to lay off the entire second shift
because of the inefficiency of the night shift
and a drop in business after the allegations
concerning Ebert’s mail fraud scheme became
public. None of the laid off plaintiffs
presented evidence that this nondiscriminatory
justification for the termination was a pretext
for racial discrimination.7
IV.
Friend, Huckaby, Colas, and Pope argue
that they were fired in retaliation for their par-
ticipation in a company meeting held by ISI
President Earl Jenkins to address the Alpha
Road employees’ complaints of racial
discrimination. Claims for retaliatory
discharge under § 1981 are governed by the
same rules as are retaliation claims brought
under title VII. Foley v. Univ. of Houston
Sys., 324 F.3d 310, 316 n.7 (5th Cir. 2003).
Therefore, to assert a prima facie claim for
retaliation under § 1981, a plaintiff must
establish (1) that he engaged in conduct
protected by the statute; (2) that his employer
6 Friend and Huckaby contend that summary
judgment is inappropriate in light of Reeves v.
Sanderson, 530 U.S. 133, 147-49 (2000), in which
the Court held that a showing of pretext, once
made, may be powerful circumstantial evidence of
intentional discrimination. That holding is inap-
plicable here, because, as discussed above, Friend
and Huckaby have failed to demonstrate pretext.
Although the Court in Reeves also held that the
lower court had improperly disregarded certain ev-
idence favorable to the plaintiff, id. at 152-53,
plaintiffs have introduced no comparable evidence.
7 The laid off plaintiffs’ principal evidence of
discriminatory intent is Colas’ unsubstantiated al-
legation that Carlos Galvan, an Hispanic super-
visor, remarked that they were going to fire all of
the black employees if given a chance. Even if
admissible, this testimony is not direct evidence
that the layoffs in question were discriminatory.
Nor, taking the record as a whole, does this state-
ment serve as evidence that the proffered justi-
fications for the layoffs were pretextual, especially
in light of the fact that Hispanic employees were
laid off as well.

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took an adverse employment action; and (3)
that the protected conduct and the adverse
employment action were causally linked. Long
v. Eastfield College, 88 F.3d 300, 304 (5th
Cir. 1996).
Even assuming plaintiffs can make a prima
facie showing of retaliation, however,
defendants have pro ffered legitimate,
nondiscriminatory reasons for their
termination. Therefore, “the focus shifts to the
ultimate question of whether the defendant[s]
unlawfully retaliated against the plaintiff.” Id.
at 305. Neither Colas nor Pope has offered
anything more than her own speculation as
evidence of a connection between their
attendance at the meeting and their
subsequent terminations over a month later.
The retaliation claims of Friend and Hucka-
by require additional analysis, however, be-
cause “this circuit has held that where there is
a close timing between an employee’s
protected activity and an adverse employment
action, the employer must offer ‘a legitimate
non-discriminatory reason that explains both
the adverse action and the timing.’” Shackel-
ford v. Deloitte & Touche, LLP, 190 F.3d 398,
408 (5th Cir. 1999) (quoting Swanson v. Gen.
Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.
1997)). In the case of Friend and Huckaby,
the timing is extremely closeSSthey were
terminated on the very day of the meeting.
As discussed above, however, defendants
have asserted legitimate, nondiscriminatory
justifications for terminating Friend and Huck-
aby. Further, the closeness in timing of the
meeting and the terminations does not give rise
in this case to any inference of retaliatory
intent. The meeting was called to address the
Alpha Road employees complaints of racial
discrimination, complaints related to the con-
duct of an investigation into the
mismanagement and fraud occurring on the
night shift. The closeness in timing is
therefore explained by the fact that the meeting
and the terminations arose from the same
events and circumstances.
V.
Several plaintiffs also claim they were sub-
jected to racial harassment while employed at
the Alpha Road Facility. To establish an ac-
tionable claim of racial harassment under
§ 1981, plaintiffs must demonstrate that
(1) they belong to a protected class; (2) they
were subjected to unwelcome harassment;
(3) t he harassment was based on race; and
(4) the harassment affected a term, condition,
or privilege of employment. Felton v. Polles,
315 F.3d 470, 484 (5th Cir. 2002). To affect
a term, condition, or privilege of employment
harassment must be so severe or pervasive that
it creates an abusive work environment. See
id. at 485.
Plaintiffs allege that Hispanic co-workers
made comments to the effect that Hispanics
were superior and that the black employees
should learn to speak Spanish. Such
statements, while obnoxious and offensive, do
not amount to discriminatory conduct so
severe or pervasive that it created an abusive
work environment. It is not enough that
plaintiffs found the comments offensive. See
Shepherd v. Comptroller of Accounts, 168
F.3d 871, 874 (5th Cir. 1999). Teasing and
offhand comments do not by themselves create
an abusive work environment. See id.
Jones, however, alleges additional harassing
conduct that she contends demonstrate a
racially hostile environment. She alleges that
the Hispanic employees were cold and
unfriendly to her and that she felt like an

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outsider. Further, on three separate occasions,
Jones was involved in disputes with Hispanic
coworkers. Jones claims that on one occasion
a Hispanic employee intentionally hit her with
a mail cart and that on another occasion
another employee hit her head with his elbow,
prompting her to push him in response.
Finally, Jones alleges that after she accidentally
hit another employee several times, that
employee, Maria Macias, responded by
intentionally striking her in the leg.
After the last confrontation, her supervisor
told her to take a few days off while they in-
vestigated the incident. A human resources
manager interviewed witnesses but was unable
to resolve the conflicting accounts.
Consequently, neither Jones nor the other
employee was cited for the incident, and Jones
was directed to report for work. When Jones
returned to the Alpha Road facility to collect
some paperwork, she encountered Macias, and
the two women began yelling at each other.
Jones departed shortly thereafter and did not
subsequently come back to work. After Jones
failed to report for five days, Cushman
terminated her employment.
Even accepted as true, this sequence of
events does not constitute actionable racial ha-
rassment. First, the Hispanic employees’ con-
duct in excluding her from conversation can-
not be characterized as having created an abu-
sive work environment.8 Nor do three
separate disputes with other individual
employees, constitute severe or pervasive
harassment. In any event, Jones fails to
provide evidence that any of her disputes with
other employees were motivated by race.
Consequently, Jones has failed to state a claim
for racial harassment under § 1981.9
VI.
Plaintiffs Roland and Carter contend that
the terms of their employment were
discriminatory. Roland asserts that she was
discriminated against with respect to her work
load and pay by virtue of the fact that she
worked on the mostly black second shift.10
She introduces no evidence to support this
claim. Similarly, Carter claims that the
employees on the day shift were treated better
than employees on the night shift. Specifically,
Carter contends that employees on the day
shift received shirts, smocks, beepers, and big
screen TV’s. There is no evidence supporting
her contention that the day shift actually
received such items, much less that these items
were distributed on a racially discriminatory
basis.
Additionally, several plaintiffs claim that ISI
racially discriminated against them by refusing
to grant their requests for transfers to the first
8 See Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (“We have made it clear that
conduct must be extreme to amount to a change in
the terms and conditions of employment . . . .”).
9 Having failed to allege the existence of harass-
ment sufficient to constitute a hostile work
environment, Jones cannot succeed on her claim
that she was constructively discharged. Discrim-
ination alone, without aggravating factors, is not
sufficient for a claim of constructive discharge.
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566
(5th Cir. 2001). Indeed, constructive discharge
requires a greater degree of harassment than that
required by a hostile environment claim. Id.;
Benningfield v. City of Houston, 157 F.3d 369,
378 (5th Cir. 1998).
10 Roland also complains that she was denied a
promotion because she spent time training other
employees, but makes no attempt to explain how
this denial was racially discriminatory.

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shift. These claims provide no basis for a
claim of racial discrimination under § 1981,
however, because failure to transfer does not
rise to the level of an adverse employment
action. Burger v. Cent. Apartment Mgmt.,
Inc., 168 F.3d 875, 879 (5th Cir. 1999).11
AFFIRMED.
11 Because we affirm the summary judgment for
Cushman and ISI on all claims, we need not
address plaintiffs’ contention that the district court
erred in failing to hold them jointly and severally
liable.

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