Full Opinion (html_with_citations)

Case: 24-50185          Document: 41-1   Page: 1     Date Filed: 11/08/2024




        United States Court of Appeals
             for the Fifth Circuit
                              ____________
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                No. 24-50185
                              ____________                                FILED
                                                                   November 8, 2024
Taiwo Ayorinde,                                                      Lyle W. Cayce
                                                                          Clerk
                                                        Plaintiff—Appellant,

                                    versus

Team Industrial Services Incorporated,

                                         Defendant—Appellee.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                          USDC No. 7:23-CV-12
               ______________________________

Before Elrod, Chief Judge, and Dennis and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:
       Appellant Taiwo Ayorinde sued his former employer, Appellee Team
Industrial   Services     Incorporated   (“Team”),     asserting     numerous
employment discrimination claims. The parties cross-moved for summary
judgment. The district court granted Team’s motion, denied Ayorinde’s
motion, and entered judgment for Team on all counts. Ayorinde now
appeals. Because summary judgment for Team is warranted on all counts,
we AFFIRM.
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                                 No. 24-50185


                                       I
       Team initially employed Ayorinde from 2016 to 2018, at which time
Team terminated Ayorinde. Although Team had designated Ayorinde as
ineligible for rehire due to “job abandonment,” Kevin Jarrett, a Team
District Manager, received approval to rehire Ayorinde in April 2022 as a
Level II Technician at an hourly rate of $32.
       According to Team’s records, Ayorinde’s supervisor Israel Ortega
expressed concerns about the quality of Ayorinde’s welds, his failure of a
necessary practical exam, his compliance with safety protocols, and his
professionalism. Ortega reportedly spoke with Ayorinde about his concerns
and told Ayorinde that he would be demoted to an assistant role for a one-
month training period, during which time his pay would be cut from $32 per
hour to $24 per hour.
       In early August 2022, Ayorinde took approved bereavement leave to
travel to Africa for his father’s funeral. Ayorinde asserts that he was unaware
of the pay cut and only discovered that his pay rate had been reduced while
he was on leave. Ayorinde raised the issue of his decreased pay with Jarrett,
who later learned that Ortega had not received the required approval from
Team’s human resources department to cut Ayorinde’s pay. Consequently,
Team reinstated Ayorinde’s original pay rate and, on August 19, 2022, paid
Ayorinde what he was owed from prior pay periods.
       Nonetheless, Ayorinde resigned from Team shortly thereafter. In a
resignation letter dated August 20, 2022, Ayorinde asserted that he was
leaving Team due to a hostile work environment and discrimination, as
evidenced by the pay cut, a supervisor’s delay in readministering his practical
exam, and Ortega’s failure to schedule Ayorinde for any work after his return
from Africa. One month later, Ayorinde filed a Charge of Discrimination
with the United States Equal Employment Opportunity Commission and the




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                                 No. 24-50185


Civil Rights Division of the Texas Workforce Commission, and then filed an
Amended Charge of Discrimination two weeks thereafter. In his amended
charge, Ayorinde alleged age, national origin, and race discrimination.
         In late November 2022, the EEOC issued a Determination and Notice
of Rights with respect to Ayorinde’s charge, allowing Ayorinde to file suit
within 90 days. Ayorinde timely filed a complaint against Team in federal
district court, asserting five causes of action: (1) race discrimination in
violation of Title VII of the Civil Rights Act of 1964; (2) race discrimination
in violation of the Equal Pay Act of 1963; (3) race discrimination in violation
of the Lilly Ledbetter Fair Pay Act of 2009; (4) age discrimination in violation
of the Age Discrimination in Employment Act of 1967; and (5) race
discrimination and retaliation in violation of
42 U.S.C. § 1981
. Ayorinde later
filed an amended complaint consisting of six additional paragraphs of alleged
facts.
         In December 2023, Ayorinde moved for partial summary judgment as
to liability, and Team cross-moved for summary judgment on all claims
shortly thereafter.    The district court granted Team’s motion, denied
Ayorinde’s motion, and entered judgment for Team on all claims. Ayorinde
timely appealed.
                                       II
         We review grants of summary judgment de novo. Ross v. Judson Indep.
Sch. Dist.,
993 F.3d 315, 321
 (5th Cir. 2021).         Summary judgment is
appropriate where “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). Although we “view all facts and draw all reasonable
inferences in favor of the nonmovant,” Ross,
993 F.3d at 321
, “a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence,” Turner v. Baylor Richardson Med.




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                                       No. 24-50185


Ctr.,
476 F.3d 337, 343
 (5th Cir. 2007) (internal quotation marks and citation
omitted). “Moreover, we may affirm a summary judgment on any ground
supported by the record.” Yates v. Spring Indep. Sch. Dist.,
115 F.4th 414, 419
(5th Cir. 2024) (cleaned up).
                                            III
        Ayorinde’s arguments on appeal challenge only the district court’s
grant of summary judgment to Team. 1 We address each of Ayorinde’s
arguments in turn.
                                             A
        Ayorinde first challenges summary judgment as to his Equal Pay Act
claim. “To establish a prima facie case under the Equal Pay Act, [a plaintiff]
must show that ‘(1) her employer is subject to the Act; (2) she performed
work in a position requiring equal skill, effort, and responsibility under similar
working conditions; and (3) she was paid less than the employee of the
opposite sex providing the basis of comparison.’” Badgerow v. REJ Props.,
Inc.,
974 F.3d 610
, 617 (5th Cir. 2020) (quoting Chance v. Rice Univ.,
984 F.2d 151, 153
 (5th Cir. 1993)). Here, the district court found that Ayorinde’s Equal
Pay Act claim fails as a matter of law because he has not alleged sex
discrimination.
        On appeal, Ayorinde argues only that he was not required to file an
EEOC charge before filing an Equal Pay Act claim in federal court and that
the California Equal Pay Act prohibits pay discrimination on the basis of race,
as well as sex. These arguments are not responsive to the fundamental issue

        _____________________
        1
          Ayorinde has not asked this court to enter summary judgment for him on liability,
as he did in his motion for summary judgment before the district court. Rather, Ayorinde
asks this court to reverse the district court’s ruling that Team is entitled to judgment as a
matter of law on all counts.




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                                       No. 24-50185


identified by the district court and Team—that the federal Equal Pay Act
does not provide a cause of action for race discrimination, and Ayorinde has
not alleged that he was paid less than any female employee, as required to
sustain an Equal Pay Act claim. See id. at 617; see also, e.g., Edwards v. Smitty’s
Supply, Inc., No. 2:15-CV-3223,
2016 WL 3667361
, at *8 (E.D. La. July 11,
2016) (“As a matter of law, the Equal Pay Act does not apply to claims of
race discrimination.”).            Because Ayorinde’s failure to allege sex
discrimination is fatal to his Equal Pay Act claim, the district court’s grant of
summary judgment to Team was appropriate.
                                             B
        Ayorinde also challenges the district court’s disposition of his claims
under Title VII and § 1981. “Because claims brought pursuant to Title VII
and § 1981 are governed by the same evidentiary framework, such that the
analyses under both statutes are substantively the same, we analyze
[Ayorinde’s] Title VII and § 1981 claims together.” Jackson v. Watkins,
619 F.3d 463, 466
 (5th Cir. 2010) (per curiam) (internal quotation marks and
citation omitted).         We address his race discrimination, retaliation,
constructive discharge, and hostile work environment arguments in turn.
                                             1
        A plaintiff “may prove a claim of intentional discrimination or
retaliation either by direct or circumstantial evidence.” McCoy v. City of
Shreveport,
492 F.3d 551, 556
 (5th Cir. 2007), abrogated on other grounds by
Hamilton v. Dallas Cnty.,
79 F.4th 494
 (5th Cir. 2023). Where, as here, the
plaintiff offers no direct evidence of intentional race discrimination, 2 we
        _____________________
        2
          Ayorinde has not challenged the district court’s conclusion that he lacks direct
evidence of race discrimination, arguing only that district court erred in concluding that he
has failed to establish a prima facie case under the McDonnell Douglas framework.
Regardless, we agree with the district court that Ayorinde has not identified any direct




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                                       No. 24-50185


analyze the claim under the burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green,
411 U.S. 792
 (1973). McCoy,
492 F.3d at 556
; see also
Jones v. Overnite Transp. Co.,
212 F. App’x 268, 272-73
 (5th Cir. 2006).
“Under McDonnell Douglas, a plaintiff has the initial burden of establishing a
prima facie case of discrimination. If [he] does so, the burden then shifts to
the defendant to articulate some legitimate, nondiscriminatory reason for its
action. If the defendant can provide a reason, then the burden shifts back to
the plaintiff to prove that the reason is pretextual.” Ross,
993 F.3d at 321
(internal quotation marks and citations omitted).
        To make out a prima facie case of race discrimination at the first step
of McDonnell Douglas, a plaintiff must demonstrate that he: “(1) is a member
of a protected group; (2) was qualified for the position at issue; (3) was
discharged or suffered some adverse employment action by the employer;
and (4) was replaced by someone outside his protected group or was treated
less favorably than other similarly situated employees outside the protected
group.” McCoy,
492 F.3d at 556
 (citation omitted); see also Hamilton,
79 F.4th at 506
 (defining “adverse employment action” for Title VII purposes).
Here, the district court concluded that Ayorinde has failed to establish a
prima facie case for his race discrimination claim because he has provided
“no evidence identifying someone, or anyone, similarly situated who was
treated more favorably because of race.”
        On appeal, Ayorinde asserts in a conclusory fashion that the fourth
element is met because “the adverse action occurred under circumstances
giving rise to an inference of discrimination.” But Ayorinde identifies no
evidence to support the conclusion that he was treated less favorably than any
        _____________________
evidence of race discrimination. See Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,
778 F.3d 473, 476
 (5th Cir. 2015), as revised (Feb. 3, 2015) (describing this court’s analysis
for determining what constitutes direct evidence of race discrimination).




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                                  No. 24-50185


similarly situated, non-Black employee, and this court has not identified any
such evidence in its own review of the summary judgment record. Because
Ayorinde has not met his burden of establishing a prima facie case of race
discrimination, the district court’s grant of summary judgment to Team was
warranted.
                                       2
       “The antiretaliation provision of Title VII prohibits an employer from
discriminating against an employee or job applicant because that individual
opposed any practice made unlawful by Title VII or made a charge, testified,
assisted, or participated in a Title VII proceeding or investigation.” Brown v.
Wal-Mart Stores E., L.P.,
969 F.3d 571, 576-77
 (5th Cir. 2020), as revised
(Aug. 14, 2020) (cleaned up) (quoting Burlington N. & Santa Fe Ry. Co. v.
White,
548 U.S. 53, 56
 (2006) (in turn quoting 42 U.S.C. § 2000e-3(a))).
“Where, as here, a retaliation case is based on circumstantial evidence, we
apply the McDonnell Douglas framework.” Id. at 577 (citation omitted).
“Under this framework, the plaintiff has the burden to prove a prima facie
case of retaliation by showing (1) [he] engaged in a protected activity; (2) [he]
suffered an adverse employment action; and (3) a causal connection exists
between the protected activity and the adverse employment action.” Id.
(internal quotation marks and citation omitted). The district court here
concluded that no evidence in the summary judgment record supported
Ayorinde’s retaliation claim other than Ayorinde’s own conclusory
statements.
       In his briefing before this court, Ayorinde asserts that he “had an
altercation” with his supervisor when Ayorinde “requested his test be
uploaded and his record updated” and that “the [s]upervisor never liked how
the interaction went” and consequently “retaliated by not updating
[Ayorinde’s] records on [Team’s] website” and by cutting Ayorinde’s




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                                 No. 24-50185


hourly pay rate. But he again fails to identify any evidence suggesting that he
participated in a protected activity or that his supervisor consequently
retaliated against him. Ayorinde cites the five exhibits to his motion for
summary judgment, along with allegations from his original complaint and an
exhibit that was appended to his amended complaint (but not included in the
summary judgment record).         None of the cited evidence reveals any
retaliatory adverse employment action based on protected activity, and
Ayorinde “cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.” Turner,
476 F.3d at 343
 (internal quotation marks and citation omitted). Because Ayorinde has
not met his prima facie burden, the district court’s grant of summary
judgment to Team on the retaliation claim was appropriate.
                                       3
       Ayorinde also argues that the district court erred in granting summary
judgment to Team on his constructive discharge claim. The district court
concluded that summary judgment for Team was warranted because
Ayorinde failed to exhaust his administrative remedies on this issue. Before
seeking relief under Title VII in federal court, plaintiffs must timely “exhaust
their administrative remedies by filing a charge of discrimination with the
Equal Employment Opportunity Commission.” Davis v. Fort Bend Cnty.,
893 F.3d 300, 303
 (5th Cir. 2018), aff’d,
587 U.S. 541
 (2019). “To determine
whether a Title VII claim has been exhausted, we construe the EEOC charge
in its broadest reasonable sense and ask whether the claim can reasonably be
expected to grow out of the charge of discrimination.” Davenport v. Edward
D. Jones & Co., L.P.,
891 F.3d 162, 167
 (5th Cir. 2018) (internal quotation
marks and citation omitted). Although “the magic words ‘constructive
discharge’” need not appear in the EEOC charge, a plaintiff alleging
constructive discharge must have “include[d] allegations ‘like or related to’
her constructive discharge claim.”
Id.
 (citation omitted).



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                                  No. 24-50185


       Despite challenging the district court’s conclusion, Ayorinde offers
no discussion of his allegations before the EEOC, instead highlighting the
allegations made in his letter of resignation. Ayorinde’s letter of resignation
has no bearing on whether he exhausted his administrative remedies. Neither
Ayorinde’s original EEOC charge nor his amended charge includes
allegations “like or related to” his constructive discharge claim. Although
Ayorinde asserted that he was discriminated against on the basis of his race
and age because his supervisor failed to schedule him for jobs, he did not
allege facts suggesting his “working conditions [became] so intolerable that
a reasonable person in [Ayorinde’s] position would have felt compelled to
resign.” Aryain v. Wal-Mart Stores Texas LP,
534 F.3d 473, 480
 (5th Cir.
2008) (first alteration in original) (quoting Pa. State Police v. Suders,
542 U.S. 129, 141
 (2004)). Indeed, Ayorinde made no reference at all to his resignation
in either of his EEOC charges. We thus conclude that Ayorinde has failed to
exhaust administrative remedies with respect to his constructive discharge
claim and that summary judgment was proper.
                                        4
       Lastly, Ayorinde argues that he has established a prima facie hostile
work environment claim based on “racial harassment.” To establish a prima
facie case for a race-based hostile work environment claim, a plaintiff must
show: “(1) [he] belongs to a protected group; (2) [he] 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.” Arredondo v. Elwood
Staffing Servs., Inc.,
81 F.4th 419, 433
 (5th Cir. 2023) (quoting Ramsey v.
Henderson,
286 F.3d 264, 268
 (5th Cir. 2002)). “Harassment generally takes
the form of ‘discriminatory intimidation, ridicule, and insult’ that rises to the
level of ‘hostile or abusive.’” Clark v. City of Alexandria,
116 F.4th 472
, 479



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                                      No. 24-50185


(5th Cir. 2024) (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21
 (1993)).
The harassing behavior must be “sufficiently severe or pervasive” such that
it “alters the conditions of the victim’s employment and creates an abusive
environment,” and the “environment must be objectively and subjectively
hostile to the victim of racial discrimination.” Arredondo,
81 F.4th at 433
(cleaned up) (citing Harris,
510 U.S. at 21
). When analyzing whether the
behavior is sufficiently severe or pervasive, we “consider 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.”
Id.
 (internal quotation
marks and citation omitted).
        Although Ayorinde asserts on appeal that he has made the requisite
showing to sustain a race-based hostile work environment claim, it is not clear
that this argument was squarely presented to the district court.                    The
argument does not appear in Ayorinde’s motion for summary judgment, and
Ayorinde’s brief in opposition to Team’s motion for summary judgment did
not respond to Team’s argument that Ayorinde failed to administratively
exhaust this issue.         Further, although the phrase “hostile working
environment” appears in the allegations supporting Ayorinde’s Title VII and
§ 1981 counts, his complaint provides no factual allegations of “racial
harassment” distinct from his race discrimination and retaliation claims.
        Regardless, considering this issue de novo, we agree with Team that
Ayorinde failed to administratively exhaust his race-based hostile work
environment claim. 3 See Davenport,
891 F.3d at 167
. Nowhere in either

        _____________________
        3
         Team suggests that Ayorinde failed to administratively exhaust because his
EEOC charges did not include the words “hostile work environment.” But Ayorinde’s
word choice is not alone dispositive. “A plaintiff need not use the magic words ‘hostile
work environment’ to raise this claim.” Portis v. First Nat. Bank of New Albany, Miss., 34




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                                      No. 24-50185


Ayorinde’s original EEOC charge or his amended charge did he allege that
he experienced any harassment while working at Team, whether based on his
race or otherwise. He did not assert that he experienced any “discriminatory
intimidation, ridicule, [or] insult,” or that he was ever subjected “physically
threatening or humiliating” behavior or even to an “offensive utterance.”
Harris,
510 U.S. at 21
 (citation omitted). Instead, Ayorinde’s EEOC charges
asserted only that his supervisor discriminated against him because of his
race and age by refusing to readminister a practical test that Ayorinde had
previously failed, by failing to send Ayorinde’s other assessment results to
Team’s corporate office, and by refusing to call Ayorinde for jobs. A hostile
work environment claim could not “reasonably be expected to grow out of”
these allegations.      Davenport,
891 F.3d at 167
.           Summary judgment is
therefore proper.
                                            C
        Finally, although Ayorinde generally argues that the district court
erred in granting summary judgment to Team on all claims, he has neglected
to brief any specific challenge to the district court’s analysis of his claims
under the Lilly Ledbetter Fair Pay Act and the Age Discrimination in
Employment Act. It is well established that an “appellant abandons all issues
not raised and argued in its initial brief on appeal” and that a “party who
inadequately briefs an issue is considered to have abandoned the claim.”
Cinel v. Connick,
15 F.3d 1338, 1345
 (5th Cir. 1994).
        Ayorinde refers to the Lilly Ledbetter Fair Pay Act only twice in his
briefing before this court, and in both instances, the Act is only mentioned in
a list of Ayorinde’s asserted causes of action. Similarly, Ayorinde refers to

        _____________________
F.3d 325, 332 n.14 (5th Cir. 1994), as amended on denial of reh’g (Nov. 10, 1994) (citation
omitted).




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                                        No. 24-50185


the Age Discrimination in Employment Act only three times: twice in the
same two lists of asserted causes of action and once in a single paragraph in
the body of his reply brief. 4 Because Ayorinde failed to raise or adequately
brief any challenge to the district court’s grant of summary judgment to
Team on these statutory claims, we deem any such challenge to be
abandoned.
                                    *        *         *
        For the foregoing reasons, the judgment of the district court is
AFFIRMED.




        _____________________
        4
          Only the last reference provides any argument, but that argument is nonetheless
conclusory. Ayorinde asserts that he is over 50 years old and that he had not been
scheduled for any work hours for over a month prior to his resignation, while other of his
younger coworkers had been scheduled for overtime hours. Ayorinde argues this is a “total
violation of the ADEA” but does not elaborate further. Regardless, as noted above, an
appellant is deemed to have abandoned any issue not raised in his initial brief on appeal.
Cinel,
15 F.3d at 1345
.




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