Filed: Nov. 03, 2016
Latest Update: Mar. 03, 2020
Summary: Case: 16-60171 Document: 00513745214 Page: 1 Date Filed: 11/03/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60171 FILED Summary Calendar November 3, 2016 Lyle W. Cayce Clerk BENTON ALEXANDER "ALEX" BYRNES, Plaintiff - Appellant v. CITY OF HATTIESBURG, MISSISSIPPI, Defendant - Appellee Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:15-CV-19 Before HIGGINBOTHAM, PRADO, and HAYN
Summary: Case: 16-60171 Document: 00513745214 Page: 1 Date Filed: 11/03/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60171 FILED Summary Calendar November 3, 2016 Lyle W. Cayce Clerk BENTON ALEXANDER "ALEX" BYRNES, Plaintiff - Appellant v. CITY OF HATTIESBURG, MISSISSIPPI, Defendant - Appellee Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:15-CV-19 Before HIGGINBOTHAM, PRADO, and HAYNE..
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Case: 16-60171 Document: 00513745214 Page: 1 Date Filed: 11/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60171 FILED
Summary Calendar November 3, 2016
Lyle W. Cayce
Clerk
BENTON ALEXANDER "ALEX" BYRNES,
Plaintiff - Appellant
v.
CITY OF HATTIESBURG, MISSISSIPPI,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:15-CV-19
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Alex Byrnes appeals the grant of summary judgment in favor of his
employer, the City of Hattiesburg, Mississippi (“Hattiesburg”), on his
discrimination claims under Title VII of the Civil Rights Act of 1964, 28 U.S.C.
§ 1981, the Rehabilitation Act, and the Americans with Disabilities Act
(“ADA”). Byrnes claims that he was discriminated against and suffered a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-60171
hostile work environment because of his race and disability. Because Byrnes’s
evidence does not support a finding that the alleged discriminatory conduct
was based on his race or disability, we AFFIRM.
I. Background
Byrnes is a Caucasian with cerebral palsy. He works as a recreational
specialist with the Hattiesburg Recreation Department, and, according to
Byrnes, everyone he works with is African American. Byrnes alleges that in
March of 2013, Michael Means, an African American employed by Hattiesburg,
began harassing Byrnes because of his race and disability. Byrnes testified
that Means threatened to steal his car, wreck his car, and, on at least one
occasion, “straighten out” Byrnes’s father because he was a racist. According
to Byrnes, Means would sometimes sit in Byrnes’s office for around thirty
minutes or more blocking the pathway to his door and refusing to leave.
Byrnes admits that Means never said anything about Byrnes’s race or
disability when harassing him.
Byrnes alleges that he complained to his immediate supervisor about the
harassment, but things did not improve. Finally, in April of 2013, the
harassment reached its peak. Means allegedly walked into Byrnes’s office
without saying anything, put his hands on Byrnes’s chest, and pushed him.
Byrnes stumbled backward but was able to brace himself with his cane to avoid
falling to the ground. Following the pushing incident, Byrnes made an official
complaint to the Director of Parks and Recreation about the harassment, and
the harassment stopped. Nevertheless, Byrnes developed severe anxiety
because, he contends, Hattiesburg still allowed Means to work in his building
for two hours a day, and Byrnes feared that Means might physically accost him
again. The anxiety became so severe that Byrnes eventually took a six-month
leave of absence. Byrnes returned to his job with Hattiesburg in January of
2014, and there were no additional problems with Means.
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No. 16-60171
Byrnes filed a discrimination suit against Hattiesburg in February of
2015. The district court granted summary judgment in favor of Hattiesburg.
Byrnes timely appealed.
II. Standard of Review
We review “an order granting summary judgment de novo, applying the
same standard as the district court.” Cooley v. Hous. Auth. of City of Slidell,
747 F.3d 295, 297 (5th Cir. 2014). Summary judgment is appropriate when
“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). “We construe all facts
and inferences in the light most favorable to the nonmoving party when
reviewing grants of motions for summary judgment.” Murray v. Earle,
405
F.3d 278, 284 (5th Cir. 2005). However, “conclusory allegations, speculation,
and unsubstantiated assertions are inadequate to satisfy the nonmovant’s
burden.” Ramsey v. Henderson,
286 F.3d 264, 269 (5th Cir. 2002) (quotation
marks and citation omitted). “If the record, taken as a whole, could not lead a
rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial.” Harvill v. Westward Commc’ns, L.L.C.,
433 F.3d 428, 433 (5th
Cir. 2005) (quotation marks and citation omitted).
III. Discussion
Byrnes claims that Means harassed him because of his race and
disability and Hattiesburg failed to adequately redress the harassment, which
created a hostile work environment in violation of Title VII, § 1981, the
Rehabilitation Act, and the ADA. 1 To establish a hostile work environment
1 The district court dismissed all additional claims of discrimination asserted in
Byrnes’s response to Hattiesburg’s motion for summary judgment because Byrnes failed to
allege those claims in his complaint, stating: “Plaintiff also attempts to make out additional
claims of discrimination on the part of Defendant, but these claims were not brought in the
original Complaint and cannot be the basis for defeating summary judgment.” Byrnes
reasserts these claims on appeal. Although not entirely clear, Byrnes’s appellate brief
appears to include claims for failure to offer a reasonable accommodation under the ADA,
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claim, a plaintiff must prove (1) he belongs to a protected group; (2) he was
subjected to unwelcome harassment; (3) the harassment was based on a
protected characteristic; (4) the harassment affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known of
the harassment and failed to take prompt remedial action. 2 See Flowers v. S.
Reg’l Physician Servs. Inc., 247 F.3d 229, 234–36 (5th Cir. 2001) (extending
Title VII hostile work environment jurisprudence to disability-based
harassment claims under the ADA); see also Jones v. Robinson Prop. Grp., L.P.,
427 F.3d 987, 992 (5th Cir. 2005) (noting that the discrimination analysis
under both Title VII and § 1981 is the same); Soledad v. U.S. Dep’t of Treasury,
304 F.3d 500, 506 n.8 (5th Cir. 2002) (noting that a hostile work environment
claim under the Rehabilitation Act changes only the third prong by requiring
that the harassment be “based solely on [plaintiff’s] disability or disabilities”
(quotation marks omitted)).
Viewing the facts in a light most favorable to Byrnes, we conclude that
Byrnes failed to create a genuine issue of material fact that he was harassed
because of his race or disability. Byrnes claims that he can show both direct
and indirect evidence of unlawful discrimination. The indirect evidence
negligent hiring, retaliation, and disparate treatment. The allegations in Byrnes’s complaint,
however, do not support these claims, and he never moved to amend his complaint. The only
cause of action identified in the complaint is hostile work environment discrimination, and
the only conduct complained of in the complaint is workplace harassment that Hattiesburg
allegedly failed to adequately redress. “A claim which is not raised in the complaint but,
rather, is raised only in response to a motion for summary judgment is not properly before
the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005).
Accordingly, we do not address these purported claims further.
2 Byrnes does not contend that Means qualified as a supervisor, so we need not
address supervisory liability issues. See, e.g., Vance v. Ball State Univ., 133 S. Ct. 2434, 2442
(2013)(a Title VII case explaining that harassment by a supervisor does not require proving
the fifth element but does allow an affirmative defense for the employer who exercised
reasonable care to prevent and promptly corrected harassment but the employee failed to
take advantage of preventative/corrective opportunities).
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consists of nothing more than an observation that Byrnes is a Caucasian with
cerebral palsy, which also makes him a racial minority at work, and that he
was harassed by an African American. Without more, this evidence does not
support a finding that Byrnes suffered race or disability-based harassment.
See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 652 (5th Cir. 2012)
(concluding that a Caucasian employee threatening a Hispanic employee was
“no[t] evidence that the event had anything to do with race”). Indeed, similar
to Hernandez, Byrnes admitted that Means did not refer to his race or
disability when harassing him. See
id. Byrnes must come forward with more
than speculation of unlawful harassment to survive summary judgment. See
Ramsey, 286 F.3d at 269.
Byrnes also claims that Means called his father a racist and that this is
direct evidence of racial discrimination. We disagree. Harassing someone
because he is a racist (or the son of one) is not the same as harassing someone
because of his race. Race is a physical characteristic, whereas racism is a
prejudicial belief about someone because of his race. Byrnes failed to show that
the alleged harassment based on racism had anything to do with Byrnes’s race.
As already discussed, merely observing that Byrnes is Caucasian and Means
is African American is not enough to support a claim for race-based
harassment. See Hernandez, 670 F.3d at 652.
By failing to create a fact issue about whether the harassment was based
on his race or disability, Byrnes failed to satisfy his summary judgment
burden. See Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (“To survive
summary judgment, the nonmovant must submit or identify evidence in the
record to show the existence of a genuine issue of material fact as to each element
of the cause of action.”). We therefore need not address Byrnes’s remaining
arguments that the harassment was sufficiently severe and pervasive to alter
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the conditions of employment and that Hattiesburg knew of the harassment
but failed to take prompt remedial action.
Accordingly, we AFFIRM the summary judgment in favor of
Hattiesburg.
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