Arredondo v. Elwood Staffing Svc
Citation81 F.4th 419
Date Filed2023-08-25
Docket22-50502
Cited21 times
StatusPublished
Full Opinion (html_with_citations)
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 25, 2023
No. 22-50502 Lyle W. Cayce
____________ Clerk
Frances Arredondo; Sage Coleman,
PlaintiffsâAppellants,
versus
Elwood Staffing Services, Incorporated,
DefendantâAppellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CV-200
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Edith B. Clement, Circuit Judge:
Frances Arredondo and Sage Coleman1 are two women Elwood
Staffing Services, Inc. placed at a job site working for Schlumberger, Ltd. A
senior coworker at their site was a lesbian who sexually assaulted Arredondo
and harassed Coleman. Coleman submitted a complaint about sexual
harassment, and Schlumberger terminated her. Arredondo later resigned.
Together, the women filed suit in federal court alleging violations of Title
_____________________
1
Coleman married after she initiated this lawsuit and changed her last name to
Scott. We use her maiden name for clarity.
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VII. The district court entered a mixed summary judgment order, finding the
women had viable claims against Schlumberger but releasing Elwood from
the suit. Schlumberger subsequently settled with Arredondo and Coleman at
mediation. The women now challenge the order to the extent it granted
summary judgment in Elwoodâs favor on appeal. We AFFIRM the district
courtâs judgment.
I
A
What follows are the facts presented in the light most favorable to
Coleman and Arredondo. Elwood is a staffing agency that contracted with
Schlumberger to provide workers for oil field operations in the Permian
Basin. Arredondo and Coleman worked for Elwood, and the staffing
company placed them both with Schlumberger. Arredondo is a woman of
Latin American descent. Coleman is a black woman.
Both worked in the gun shop, a facility that creates explosive charges
for hydraulic fracturing.2 Elwood placed Arredondo with Schlumberger as a
gun loader and Coleman as a gun loader trainee. A woman named Maritza
Carrasco, who relevantly is a lesbian, served as the gun shopâs manager.
Another woman, also relevantly a lesbian, Brenda Mitre, was a senior
employee whom Carrasco labeled a supervisor in the gun shop.
_____________________
2
Hydraulic fracturing, commonly called fracking, is a method of obtaining oil used
across the country. When fracking, roughnecks inject water, sand, and chemicals at high
pressure into the bedrock to release oil and natural gas. The process creates improved
permeability in rock formations by cracking or enlarging natural cracks in the rock, allowing
the fossil fuel products to be brought to the surface. See generally, Water Resources Mission
Area, Hydraulic Fracturing, U.S. Geological Surv., https://www.usgs.gov/mission-
areas/water-resources/science/hydraulic-fracturing (last visited May 10, 2023).
2
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Carrasco and Mitre are of Latin American descent, and the gun shop
team was primarily comprised of Hispanic Americans. Coleman and another
person were the only black people in the shop. Arredondo and Coleman
attended onboarding, receiving Elwoodâs Associate Handbook and
Schlumbergerâs Harassment-Free Workplace Policy. Schlumberger
scheduled both women for fourteen days of work with seven days off and
provided them with housing and transportation. Shortly after Coleman and
Arredondo started their work, Mitre targeted both women.
1
We first describe Colemanâs situation. After Coleman started working
at Schlumberger, Mitre told Coleman that she liked strip clubs and strippers
with bodies similar to Colemanâs. Mitre also propositioned Coleman, stating
that she would âknow what to doâ with a woman with Colemanâs body, and
Mitre asked Coleman twice if she was bisexual. Mitre also touched Coleman
consistently and informed Coleman that she went to strip clubs and slept with
coworkers.
Uncomfortable with Mitreâs behavior, Coleman requested that
Carrasco move her to the night shift on her next fourteen-day work cycle. At
first, Carrasco agreed, but after she returned from her seven days off,
Coleman was placed back on the day shift without explanation. Around this
time, Coleman decided to submit a complaint to Schlumbergerâs human
resources team. In her complaint, Coleman reported Mitreâs sexual
harassment and added that she believed Carrasco and Mitre discriminated
against her and the other black employee. Coleman later elaborated in her
deposition that such discrimination included the use of racial epithets. Mitre
called black people âpinche mayatesâ and âcara de changos,â both
translating to severe racial slurs. Coleman also later explained that black
workers were ordered to do dirtier jobs, not given training opportunities,
3
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subject to other insults, including being told they smell, and not invited to
team lunches. Schlumberger launched an investigation into Colemanâs
allegations.
In response to the complaint, Carrasco, Mitre, and even Arredondo,
among others, provided statements to Schlumbergerâs HR investigator, Ali
Mendha. They claimed that it was Coleman who was bigoted and that
Coleman disparaged Carrascoâs physique and sexuality. When all was said
and done, Mendha concluded that Colemanâs claims could not be verified
and recommended firing her for violating Schlumbergerâs policies.
Ultimately, Schlumberger terminated Coleman and gave Mitre a written
warning for inappropriate conduct.
Coleman submitted an incident report once Elwood notified her about
Schlumbergerâs decision. A supporting witness corroborated Colemanâs
description of events. Coleman requested a new work assignment with
similar benefits to the Schlumberger Permian Basin placement. After some
phone tag, Elwood asked Coleman to apply to roles on its website so it could
place her. Coleman did not apply to another placement through Elwood.
2
Sadly, Arredondoâs situation was even worse. Starting around the
same time, Mitre began sexually harassing her, culminating with sexual
assault. After working at the gun shop for a bit, Carrasco and Mitre began
inviting Arredondo to lunch every day. During these lunches, Mitre would
attempt to touch Arredondoâs leg and hold her hand. Arredondo tried to
decline the lunch invitations, but ultimately Carrasco and Mitre would
pressure her into getting a meal. Lunch evolved into dinner, and at one meal,
Mitre pinned Arredondo and kissed her against her will. Mitre threatened
Arredondoâs position with Schlumberger if she reported the incident or their
4
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âsentimental relationship,â as Mitre phrased it. Arredondo only told
Carrasco about Mitreâs behavior.
About a week later, Arredondo finished work early but didnât have
transportation back to her housing unit. Mitre offered her a ride but took
Arredondo to lunch instead, over Arredondoâs objections. At lunch, the two
had a drink, and Arredondo excused herself to go to the bathroom. When she
returned, Arredondo finished her drink, and she blacked out. When she came
to, Mitre told her that she had raped Arredondo with a sex toy and taken
pictures. Mitre warned Arredondo that if she told anyone about the rape,
Mitre would circulate the pictures of her and threatened Arredondoâs
daughter. Arredondo, again, never reported this incident to Schlumberger or
Elwood.
Following the rape, Mitre continued to assault and harass Arredondo
sexually. At work, Mitre attempted to touch and kiss Arredondo against her
will. Mitre also blackmailed Arredondo into going on dates with her by
threatening to release pornographic pictures of her. On one date at an Olive
Garden, Mitre fought Carrasco before attempting to kiss Arredondo forcibly.
After these events, Arredondo told Carrasco that she was not in a relationship
with Mitre. She also told Carrasco about the rape and subsequent blackmail.
Carrasco told Arredondo that her job was safe but could lose it if she reported
these incidents to HR. Instead, Carrasco recommended that Arredondo take
some time off. Arredondo took two weeks off from work.
While Mitre was on vacation, she called Arredondo and told her to
delete her text message history or risk losing her job. Arredondo, in a panic,
complied. Around the same time, also during Arredondoâs vacation, Mitre
discovered that Arredondo might be pregnant and demanded that she get a
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pregnancy test. Mitre told Arredondo that if she was pregnant, she would
beat the unborn child out of her.
When Arredondo returned to work, things did not improve. Mitre
verbally abused Arredondo, calling her a whore openly in the gun shop. Mitre
also began throwing items at Arredondo. Arredondo asked if she could be
sent on assignment elsewhere, but Carrasco denied her request. Arredondo
then resigned from her position with Schlumberger, but the companyâs HR
declined to hear her complaints. Instead, it simply accepted her resignation.
Carrasco attempted to convince Arredondo to rescind her resignation to no
avail.
Arredondo notified Elwood of her decision and the reason for it.
Elwoodâs employee, who received Arredondoâs call, expressed frustration
that Schlumberger workers harassed another one of Elwoodâs placements.
Elwood then forwarded a copy of Arredondoâs sexual harassment complaint
to Schlumberger. Schlumberger began an investigation with Mendha again in
charge. He concluded that Arredondo and Mitre had a consensual
relationship. But he also found that Mitreâs behavior was inappropriate and
recommended termination. Mitre never returned to Schlumberger for her
termination meeting, so Schlumberger fired her for job abandonment.
B
Coleman and Arredondo sued Schlumberger and Elwood in federal
court for violations of Title VII. Specifically, the womenâs complaint alleged
that the companies had (1) created a hostile work environment based on sex
and race; (2) intentionally discriminated against Coleman and Arredondo
because of their sex; and (3) retaliated against both women for their
allegations of discrimination. Specific to Elwood, Coleman and Arredondo
alleged that the staffing company knew or should have known about the
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harassment, discrimination, and retaliation they experienced, yet failed to
act. The women also contended that Elwood conspired with Schlumberger
to harass, discriminate, and retaliate against them and that Elwood failed to
protect Coleman and Arredondo from such harm.
The district court delivered a mixed decision on summary judgment.
First, it addressed Colemanâs sex-based discrimination claims. The district
court held that Coleman failed to raise a genuine dispute of material fact
regarding whether the sexual harassment she experienced was pervasive or
severe enough to establish a triable sexual harassment claim under Title VII.
It also found that because Mitre was not a supervisor, Coleman could not
sustain a triable quid pro quo sexual harassment cause of action. Next,
regarding Colemanâs discrimination based on sex claim, the district court
held that she failed to demonstrate that the companies had replaced her with
a man. Nor did she identify a comparator that the companies treated more
favorably.
Moving on to Colemanâs racial discrimination claims, the district
court found that her race-based hostile work environment cause of action
failed because the conduct she pointed to was not pervasive nor severe
enough to justify a jury trial. The court was uncertain whether Coleman had
adequately pleaded a race-based disparate treatment cause of action. Still, it
decided that to the extent she had, Colemanâs disparate treatment claim
failed because she did not point to a non-class member who replaced her or
otherwise was a comparator. However, the district court concluded that
Coleman had established a triable Title VII retaliation claim. But it also found
Elwood should be excused from liability under this cause of action because
Coleman had not engaged in protected activity and Elwood did not take an
adverse employment action.
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The district court then engaged with Arredondoâs causes of action.
First, it held that Arredondo established a genuine dispute of material fact
regarding whether Schlumberger adequately trained its personnel on its
antidiscrimination workplace policies. Consequently, the district court
concluded that Arredondoâs hostile work environment sexual harassment
claim should go to a jury. But again the court excused Elwood, determining
that the staffing agency neither knew nor should have known that Arredondo
was experiencing discrimination. Finally, the district court concluded that
Arredondo failed to establish that she had suffered any adverse employment
action and that she could not demonstrate that she was constructively
discharged. So, it determined that Arredondoâs disparate treatment and
retaliation causes of action failed.
Faced with the facts above and the prospect of a jury trial,
Schlumberger settled with Coleman and Arredondo after the district court
entered its summary judgment order. The women now appeal the courtâs
grant of summary judgment in Elwoodâs favor.
II
We review a grant of summary judgment de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184(5th Cir. 2018). âThe court should grant summary judgment when âthere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.ââId.
(quoting Fed. R. Civ. P. 56(a)).
Title VII claims follow the McDonnell Douglas burden-shifting
framework. McCoy v. City of Shreveport, 492 F.3d 551, 556(5th Cir. 2007). If Coleman and Arredondo establish prima facie cases in support of their various theories, the matters shift to Elwood to articulate a legitimate, non-retaliatory reason for its conduct.Id. at 557
. If the employer meets this âburden of
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production,â Arredondo and Coleman must then prove that Elwoodâs
justification is a pretext for discriminatory action. Id.
Elwood bears the burden of demonstrating there is no genuine dispute
of material fact and it can carry that burden if it shows that Coleman or
Arredondo âfailed to prove an essential element of her case.â Owens v.
Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (alteration adopted) (quotation marks and citation omitted). To demonstrate a genuine dispute of material fact, the women must point to âspecific facts showing there is a genuine dispute for trial.âId.
(alteration adopted) (quotation marks and
citation omitted).
III
As a preliminary matter, Elwood argues that Coleman has forfeited
her claims because she did not adequately brief her Title VII retaliation and
quid pro quo causes of action. First, regarding the retaliation claim, Elwood
says that Coleman did not brief the district court on her argument that she
engaged in a protected activity by submitting a discrimination report to
Elwood, resulting in the staffing company retaliating against her by refusing
to staff her. Second, Elwood argues that Coleman likewise failed to argue her
quid pro quo sexual harassment claims before the district court, specifically
that Mitre was Colemanâs supervisor or that Mendha served as Mitreâs catâs
paw. Elwood says that Colemanâs inadequate briefing before the district
court regarding these theories should result in their forfeiture on appeal.
Coleman counters that she did raise and brief these very arguments before
the district court. We address Elwoodâs forfeiture arguments in turn.
A
âA party forfeits an argument by failing to raise it in the first instance
in the district courtâthus raising it for the first time on appealâor by failing
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to adequately brief the argument on appeal.â Rollins v. Home Depot USA, Inc.,
8 F.4th 393, 397(5th Cir. 2021) (quotation marks and citation omitted). â[I]n order to preserve an argument for appeal, the argument (or issue) not only must have been presented in the district court, a litigant also must press and not merely intimate the argument during proceedings before the district court.â Templeton v. Jarmillo,28 F.4th 618, 622
(5th Cir. 2022) (quotation marks and citation omitted). Exceptions to this general rule include jurisdictional challenges and issues âpurely legalâ in nature that would âresult in a miscarriage of justiceâ if we did not address them. Rollins,8 F.4th at 398
.
In her response to the motion for summary judgment, Coleman
couched her argument in the framework this court laid out in Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 229(5th Cir. 2015). In Burton, we found that staffing agencies can be held liable both for their own discriminatory conduct and the conduct of their clients when a staffing agency knew or should have known of its clientâs discriminatory behavior yet failed to take corrective actions within their control.Id.
Following this
reasoning, Coleman argued that Elwood knew that Schlumberger acted
illegally when it fired her, yet Elwood failed to take measures within its
control to rectify the situation by offering her comparable employment
elsewhere. However, in Colemanâs brief supporting her appeal, she
dispenses with the Burton theory. Instead, Coleman argues that she directly
âengaged in a protected activity when she submitted the incident report to
Elwoodâ and that Elwood retaliated against her by not placing Coleman in
comparable employment, which she deems an adverse action.
These are two distinct theories for relief under Title VII. The
argument Coleman made in her response to the motion for summary
judgment is based on the theory of âjoint employerâ liability under Title VII
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(See Burton, 798 F.3d at 228). In contrast, the argument Coleman now presses on appeal is premised on a Title VII retaliation claim made directly against Elwood. See, e.g., Abbt v. City of Houston,28 F.4th 601, 610
(5th Cir.
2022). The former seeks to hold a staffing agency liable for failing to act when
it knows or should have known its employees are suffering discrimination at
the hands of a client. The latter aims to hold the staffing agency directly liable
for its own conduct. Given the stark difference between these theories of
liability, it seems that Elwood has the better of the argument and that
Coleman has forfeited her direct Title VII retaliation claim against Elwood.
But not so fast. Although it did not need to do so, the district court did
evaluate Colemanâs claim against Elwood as an independent act of retaliation
under Title VII. In its order, the district court held â[t]o the extent that
Coleman argues she engaged in protected activity when she submitted the
incident report . . . [she] does not argue or show that an adverse employment
action followed.â
In this circuit, â[a]lthough issues not raised before the district court
are generally waived, an argument is not waived on appeal if the argument on
the issue before the district court was sufficient to permit the district court to
rule on it.â Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 n.5 (5th Cir. 2010) (quotation marks and citation omitted). Here, the district court had the law and facts before it to sufficiently evaluate a Title VII retaliation claim directed at Elwood. After all, in the preceding sections of its order, the court provided the relevant facts and considered Colemanâs retaliation claim against Schlumberger. The court has also provided us with sufficient reasoning so that we may effect review of its decision. See Wildbur v. Arco Chem. Co.,974 F.2d 631, 644
(5th Cir. 1992) (âa district court [must] explain its reasons for
granting a motion for summary judgment in sufficient detail for us to
determine whether the court correctly applied the appropriate legal test.â).
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So, we conclude that Coleman has not forfeited her Title VII retaliation
argument, and we address its merits on appeal.
B
Second, Elwood challenges whether Coleman has forfeited her Title
VII quid pro quo sexual harassment cause of action on appeal. Elwood says
that in her response to the motion for summary judgment filed in the district
court, Coleman failed to adequately address Elwoodâs argument that Mitre
was not a supervisor. Therefore, her sexual harassment quid pro quo claim
fails as a matter of law. According to Elwood, Coleman chose instead to assert
her catâs paw theory of liability3 inadequately, and it says that argument also
relies on facts Arredondo, not Coleman, put forth in response to
Schlumbergerâs affirmative defense.
In its order on the motion for summary judgment, the district court
found that Coleman had not forfeited her quid pro quo sexual harassment
claim because the complaint placed Elwood on notice that she was pursuing
that theory. However, the court agreed with Elwood that Coleman could not
show a material dispute of fact that Mitre was Colemanâs supervisor. It then
proceeded to grant summary judgment in favor of Schlumberger and Elwood
regarding Colemanâs quid pro quo sexual harassment cause of action.
On appeal, Coleman provides a litany of evidence that a reasonable
jury could conclude that Mitre was Colemanâs supervisor and a passing
reference to her catâs paw theory. However, she fails to counter the core of
_____________________
3
Plaintiffs may use a âcatâs pawâ theory of liability when they cannot show their
supervisor âharbored any retaliatory animus.â Zamora v. City of Houston, 798 F.3d 326, 331(5th Cir. 2015). To do so, they must âestablish that the person with a retaliatory motive somehow influenced the decisionmaker to take the retaliatory action.âId.
In our context, Coleman wishes to show that Mitre used Mendha to fire Coleman. SeeId.
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Elwoodâs argumentâthat she did not raise these theories properly before the
district court. Coleman does not point to where in the record she explained
to the district court how Mitre used another employee as a catâs paw to fire
Coleman. Looking at Colemanâs response and sur-reply to the motion for
summary judgment, she fails to explain how her catâs paw theory applies to
her quid pro quo sexual harassment claim. It was incumbent on Coleman to
explain to the district court how Mitre influenced management in a way that
resulted in Colemanâs termination. By failing to do so, we conclude that
Coleman has forfeited her catâs paw theory of liability regarding her quid pro
quo sexual harassment claim.4
However, on appeal, Coleman also argues that there is a dispute of
material fact regarding whether Mitre was her supervisor. The district court
resolved this matter in its summary judgment order in Schlumberger and
Elwoodâs favor. Coleman also adequately pleaded and argued this theory
below. So, we address Colemanâs quid pro quo sexual harassment claim to the
extent she argues that she established a dispute of material fact as to whether
Mitre was her supervisor on appeal.
IV
We move on to the merits of Colemanâs appeal. She argues that the
district court erred by entering judgment in Elwoodâs favor regarding her
Title VII retaliation, quid pro quo sexual harassment, and race-based hostile
_____________________
4
Regardless of what was presented to the district court, Coleman failed to brief us
on her catâs paw theory. She mentions it only twice in her primary brief. Once in the
questions presented section and once in her section challenging the district courtâs ruling
regarding her quid pro quo claim. As said above, â[a] party forfeits an argument by failing .
. . to adequately brief [an] argument on appeal.â Rollins, 8 F.4th at 397 (quotations marks
and citation omitted).
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work environment causes of action. We address each of these challenges in
turn.
A
For Coleman to prove a claim of retaliation under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2(a), she must first establish a prima facie case
under the McDonnell Douglas burden-shifting framework. McCoy, 492 F.3d at
556. To do so, Coleman needs to demonstrate: (1) she participated in a protected activity under Title VII; (2) Elwood took an adverse employment action against her; and (3) that a causal connection exists between the protected activity and the adverse employment action.Id.
at 556â57. Regarding the second element, it is illegal for employers to engage in âmaterially adverseâ conduct that would lead the reasonable employee to be dissuaded from making or supporting a charge of discrimination. Aryain v. Wal-Mart Stores Tex. LP,534 F.3d 473, 484
(5th Cir. 2008) (citation
omitted).
In its order on the motion for summary judgment, the district court
determined that Elwood took no adverse employment action against
Coleman. So, Coleman failed to establish a prima facie case that she had been
the victim of Title VII retaliation. Coleman argues first that the district court
erred in concluding that Elwood did not retaliate against her directly when it
failed to provide her with another job placement after she reported her
treatment at Schlumberger to Elwood. Next, she argues that Elwood knew or
should have known about how Schlumberger treated her and failed to take
actions within its control to alleviate the situation.
In support of her position, Coleman cites first McCoy v. City of
Shreveport, arguing that Elwood made âultimate employment decisionsâ
when it did not place her in a new, equivalent role and failed to immediately
call her back after missing Colemanâs calls. 492 F.3d at 559â60. But it is
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unclear what employment action Elwood took that could be considered
adverse. Elwood never fired Coleman. Indeed, when she asked for a new
placement, Elwood asked her to apply to positions that interested her
through its website. Coleman, because none of the available jobs met her
criteria at the time, chose not to apply. Coleman points to no case law that
stands for the proposition that a staffing agency takes adverse action against
an employee under Title VII when that employee refuses to apply for
available jobs. She also points to no authority that requires a staffing company
to do more than comply with its normal assignment process when offering to
reassign a worker. We affirm the district courtâs finding that Elwood did not
take adverse employment action against Coleman.
We note that Coleman did posit a theory at oral argument that Elwood
failed to place her because it did not wish to imperil its relationship with
Schlumberger. But she provides no evidence. Coleman cannot point to
anything in the record that hints at the proposition that Schlumberger
pressured Elwood into not reassigning Coleman or effectively terminating
her by not providing a follow-on assignment. So, we are convinced that the
district court correctly entered judgment against Colemanâs Title VII
retaliation claim regarding Elwood.
Colemanâs second theory for holding Elwood liable for retaliation
under Title VII is based on Burton v. Freescale Semiconductor, Inc., 798 F.3d at
229. As mentioned in the forfeiture section above, we determined that
staffing agencies can be held liable for the conduct of their clients when they
knew or should have known of their clientâs discriminatory behavior yet
failed to take corrective actions within their control. Id. This circuit
elaborated on how a staffing agency could be held liable under the âknew or
should have knownâ theory in Nicholson v. Securitas Security Services USA,
Inc., 830 F.3d 186 (5th Cir. 2016). There, we concluded that Burton liability
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requires Coleman to show Elwood had âactual and constructive knowledgeâ
of Schlumbergerâs discriminatory conduct and that it then participated in
that discrimination or failed to take corrective action. Id. at 190.
The district court didnât directly address Colemanâs Burton argument
in its order on the motion for summary judgment. Instead, it determined that
Coleman did not engage in a protected activity, that Elwood had not taken an
adverse action, and that she could not demonstrate any causal link between
her submission of an incident report and any alleged adverse employment
action. In short, the district court found that Coleman had not demonstrated
any required elements for a Title VII retaliation claim or Burton liability.
On appeal, Coleman argues that internal emails between
Schlumberger and Elwood put Elwood on notice that Coleman had been fired
under suspicious circumstances. Specifically, Coleman argues that Elwood
knew she had submitted a sexual harassment complaint and then been
terminated without explanation. Having provided evidence of the knowledge
requirement, Coleman concludes that Elwoodâs failure to place her in
another role demonstrates that it did not take available corrective action as
required by Title VII.
Elwood does not deny that it knew about Colemanâs complaint and
termination after Schlumberger fired her. Instead, it argues that there were
no additional actions it could take within its control to help Coleman. Looking
at the facts of this case, we are convinced Elwood is right. The staffing
company took her report questioned Schlumbergerâs decision to fire
Coleman and asked Coleman to apply for another placement. Coleman then
chose not to pursue any further opportunities with Elwood.
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Coleman canât explain to us what additional actions she believes
Elwood should be legally required to take. And she canât. After all, anything
more would require Elwood to do the impossible of conjuring up job
placements out of thin air or force Schlumberger to rehire Coleman, which
Coleman does not show it had the authority to do. We are satisfied that
Elwood did all it could under the circumstances to help an employee that a
client discriminated against. So, we reject both of Colemanâs Title VII
retaliation theories.
B
We next address Colemanâs Title VII sexual harassment cause of
action. Title VII prohibits sexual harassment in the workplace. Wallace v.
Performance Contractors, Inc., 57 F.4th 209, 220(5th Cir. 2023). A plaintiff may pursue two theories to demonstrate sexual harassment under Title VII.Id.
The first is a hostile work environment, and the second is quid pro quo.Id.
When deciding which theory to apply, we determine whether the plaintiff has suffered a âtangible employment action.â Casiano v. AT&T Corp.,213 F.3d 278, 283
(5th Cir. 2000) (citation omitted). A tangible employment action is one where the employee suffers a significant change in employment status, âsuch as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.â Alaniz v. Zamora-Quezada,591 F.3d 761, 772
(5th Cir. 2009) (quotation marks and citation omitted). If the plaintiff has suffered such an action, we apply the quid pro quo theory of liability. Once a plaintiff has established that she suffered a tangible employment action, the next step is that she must demonstrate that the action resulted from her acceptance or rejection of her supervisorâs alleged sexual harassment. Casiano,213 F.3d at 283
. Finally, because Elwood is a staffing company, Coleman would need to
demonstrate that it either participated in the discrimination or knew or
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should have known about the conduct but failed to take corrective measures
within its control. Burton, 798 F.3d at 229. Here, Schlumberger fired
Coleman, which is obviously a tangible employment action, so quid pro quo
applies.
Coleman argues that the district court erred in entering judgment in
Elwoodâs favor regarding her quid quo pro sexual harassment claim. In its
order on the motion for summary judgment, the district court determined
that Mitre was not a supervisor, and, accordingly, Coleman could not hold
Schlumberger, much less Elwood, liable for her conduct under a Title VII
quid pro quo sexual harassment theory. Coleman argues that the district court
erred because she has put forward a dispute of material fact as to whether
Mitre was a supervisor.
As noted above, Schlumberger took a tangible employment action
when it fired Coleman. So, we move on to the second elementâthat this
action resulted from Colemanâs rejection or acceptance of her supervisorâs
alleged sexual harassment. Casiano, 213 F.3d at 283. The Supreme Court has defined a âsupervisorâ as the person the employer has empowered to take tangible employment actions, explicitly rejecting a more nebulous definition. Vance v. Ball State Univ.,570 U.S. 421, 431
(2013). Coleman points to
evidence that she (and Arredondo) perceived Mitre as their supervisor.
However, she does not point to evidence that Mitreâs employer,
Schlumberger, empowered her to take tangible employment actions. Nor
could sheâthe record shows Schlumberger seems to have empowered
Mendha, who investigated Colemanâs harassment claims and recommended
her termination, as Colemanâs supervisor as defined by the Supreme Court.
In short, the district court did not err in entering summary judgment against
Coleman on her quid pro quo sexual harassment cause of action because Mitre
was not her supervisor.
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C
Colemanâs final claim is that Elwood is liable for a racially hostile work
environment. To state a prima facie case for a Title VII hostile work
environment race discrimination cause of action, she must show:
(1) she belongs to a protected group; (2) she 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.
Ramsey v. Henderson, 286 F.3d 264, 268(5th Cir. 2002). Only âsufficiently severe or pervasiveâ behavior that âalter[s] the conditions of the victimâs employment and create[s] an abusive environmentâ constitutes a racially hostile working environment under Title VII. Harris v. Forklift Sys.,510 U.S. 17, 21
(1993) (citation omitted). The Supreme Court has further clarified that the environment must be objectively and subjectively hostile to the victim of racial discrimination.Id.
We consider âthe 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
employeeâs work performanceâ when determining if employer behavior is
sufficiently severe or pervasive. Ramsey, 286 F.3d at 268. âMere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII.â Harris,510 U.S. at 21
(cleaned-up). Further, âsecond-handâ harassment is âless objectionable than harassment directed at the plaintiff.â Johnson v. TCB Constr. Co.,334 F. Appâx 666, 617
(5th Cir. 2009) (per curium). Again,
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because Elwood is the only remaining defendant on appeal, Coleman must
demonstrate that it either participated in the hostile work environment or
knew or should have known about the discrimination but failed to take
corrective measures within its control. Burton, 798 F.3d at 229.
The district court found that Colemanâs hostile work environment
claim failed. It reasoned that Colemanâs verbal abuse was not severe or
pervasive enough to render her working environment hostile under Title VII
and that they did not materially affect her employment. The district court
also found it relevant that Coleman failed to provide evidence that racist
comments were ever directed at her or how often they occurred. Finally, the
court concluded that Mitre seems to have been generally unpleasant and
crass with everyone in the gun shop, not just Coleman and the black
employees.
Coleman challenges the district courtâs conclusions on appeal. She
recites evidence in her favor, namely racist comments and different working
conditions. Relying on our decision in Johnson v. PRIDE Industries, Inc., 7
F.4th 392 (5th Cir. 2021), Coleman argues that a reasonable factfinder could
determine that Coleman suffered severe and pervasive racist conduct,
constituting a hostile work environment. In short, Coleman concludes that
when the facts are looked at in totality and in her favor, we should see that
Schlumbergerâs gun shop was a racially hostile work environment.
The question of whether the facts of this case, taken in the light most
favorable to Coleman, establish a severe and pervasive racist environment is
a close one. In Johnson v. PRIDE Industries, this court held that two incidents
using the term ân*****â and âmayeteâ combined with other, lesser
demeaning language and conditions provided sufficient evidence for a
factfinder to conclude that a plaintiffâs work environment was racially hostile.
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7 F.4th at 403â04. Coleman claims that Carrasco and Mitre called black
people âcara de changosâ (translated from Spanish as âmonkey facesâ) and
âpinche mayatesâ (a more severe Spanish racial slur). But unlike in PRIDE
Industries, where the black plaintiff knew from his Spanish-speaking wife
what racist Spanish terms directed at him meant, Coleman presents no
evidence that she understood the meaning of these terms when uttered or if
she even heard them herself. Coleman also argues that black employees were
asked to do more menial and dirtier tasks and that Mitre said they âsmelled
like shit.â These seem similar to the minor abusive conduct emphasized by
this court in PRIDE Industries. 7 F.4th at 403â04. It also appears at least a
question for a factfinder regarding whether Mitre and Carrasco ever directed
these comments at Coleman. Although Coleman points to no evidence that
these comments were ever directed at her, as one of two black employees in
the gun shop, it seems a fair inference that they were.
But we need not decide this close question. Coleman failed to argue
why Elwood should be liable regardless of whether the district court erred
regarding Schlumbergerâs conduct. She does not present any evidence that
Elwood participated in, knew or should have known of the hostile work
environment, or that it failed to take corrective actions within its control. See
Burton, 798 F.3d at 229. Elwood did not find out how Schlumberger treated
Coleman until after Schlumberger terminated her and Coleman submitted
her statement. As described above, it responded by taking Colemanâs
statement, questioning Schlumberger, and offering Coleman the opportunity
to apply for new jobs through its portal, which she refused. So, we find thatâ
whether or not the district court erred by granting the motion for summary
judgment on Colemanâs racially hostile work environment claim as to
Schlumbergerâit certainly did not err in entering summary judgment in
Elwoodâs favor.
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V
Finally, we discuss Arredondoâs claims. She challenges the district
courtâs summary judgment order to the extent it entered judgment in
Elwoodâs favor regarding her Title VII hostile work environment and
constructive discharge claims. We address these arguments below.
A
A Title VII hostile work environment based on sex is very similar to
that based on race. For Arredondo to establish a hostile working environment
claim, she must demonstrate the following:
(1) she is [a] member of a protected group; (2) she was the
victim of uninvited sexual harassment; (3) the harassment was
based on sex; (4) the harassment affected a term, condition, or
privilege of [Arredondoâs] employment; and (5) her employer
knew or should have known of the harassment and failed to take
prompt remedial action.
Harvill v. Westward Commcâns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)
(quotation marks and citation omitted). In its order on the motion for
summary judgment, the district court concluded that Arredondo had a viable
hostile work environment cause of action against Schlumberger but that she
could not extend that potential liability to Elwood. It reasoned that Elwood
did not know of Arredondoâs treatment until after she resigned from
Schlumberger. So, the district court concluded that Arredondo could not
establish the fifth element of her hostile work environment claim against
Elwood, and her cause of action failed as a matter of law.
On appellate review, Arredondoâs hostile work environment turns on
whether Elwood had actual or constructive knowledge of how
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Schlumbergerâs employees treated her. She seems to concede in her brief
that Elwood did not have actual knowledge about the working conditions at
the gun shop. Still, Arredondo points to the complaint Coleman submitted to
Elwood as evidence that Elwood knew or should have known about her
plight.
First, Arredondo challenges the district courtâs conclusion that she
violated Elwoodâs stated policies as given to her in its associate handbook
when she failed to report her experiences at Schlumberger. Arredondo relies
on our opinion in Hernandez v. Yellow Transportation, Inc., 670 F.3d 644 (5th
Cir. 2012). She claims that opinion stands for the proposition that, after
Arredondo saw Coleman get fired without recourse from Elwood, she didnât
need to report her working conditions to her staffing agency because she
knew complaining about her hostile work environment would be a wasted
action. So, Elwood both knew or should have known about her treatment
based on what happened to Coleman, and Arredondo had no reason to expect
relief from Elwood by reporting her situation. Put together, Arredondo infers
that Elwood had the requisite constructive knowledge to hold it to account
for her mistreatment.
To have constructive knowledge of Arredondoâs hostile work
environment, she must prove that Elwood should have known what was
happening if it had exercised reasonable care. Sharp v. City of Houston, 164
F.3d 923, 930(5th Cir. 1999). Harassment that is âso open and pervasiveâ that Elwood should have known of it had it âopened its corporate eyesâ can result in us determining that Elwood had constructive notice.Id.
The existence and effectiveness of an anti-harassment policy are relevant but not dispositive, even where, as here, a victim failed to utilize it.Id.
(citation
omitted). Ultimately, a company can only be said to have constructive
knowledge of a hostile work environment where âthe appropriate persons
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withinâ the company, meaning someone with âremedial power over the
harasser[,]â âknew or should have knownâ about the situation. Id.
Arredondo did not report Mitreâs abuse to Elwood until she quit
Schlumberger. Arredondo also acknowledged Elwood and Schlumbergerâs
anti-discrimination materials and policies. As correctly argued by Arredondo,
we have found that a victim need not report her harassment if it is
âobjectively obviousâ that an employer has no âintention of stoppingâ the
hostile work environment so that the victimâs act would be a âwasted
motion.â Hernandez, 670 F.3d at 655â56 (citation omitted). Even so,
Arredondo has not shown that filing a complaint with Elwood would have
been objectively a waste of her time.
Taking the facts in Arredondoâs favor and assuming she knew
Coleman had reported her sexual harassment to Elwood, Colemanâs report
would not serve as an objective indication that Arredondoâs complaint would
be futile. Coleman made her report to Elwood after Schlumberger terminated
her. This contrasts with Arredondo, who quit instead of reporting her
situation to Schlumberger or Elwood. Most powerfully, the facts belie
Arredondoâs argument on appeal. Thatâs because Arredondoâs report to
Elwood, made after she quit, wasnât a wasted action. Once Arredondo
submitted a complaint to Elwood, it immediately engaged Schlumberger.
Schlumberger then investigated Mitre, which ultimately resulted in her
termination . So, objectively, filing a complaint with Elwood would not have
beenâand was not in the facts of this caseâa futile action. As such, our
holding in Hernandez does not shelter Arredondo, and she needed to comply
with Elwoodâs employment policies.
Arredondoâs second argument in favor of finding Elwood had
constructive knowledge of her plight is that Elwood received Colemanâs
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complaints before Arredondo quit Schlumberger, placing Elwood on notice
of the misconduct in the gun shop. But contrary to Arredondoâs claims on
appeal, the facts of Colemanâs termination also did not give Elwood any
reason to suspect Arredondo was the victim of similar conduct. In fact,
Arredondo played a role in Colemanâs discriminatory treatment when she
submitted a witness statement that served as evidence Mendha used when
deciding to recommend Colemanâs termination. Without more information,
Arredondoâs conduct in helping Carrasco and Mitre fire Coleman could not
have led Elwood to conclude that Arredondo was a victim of a hostile work
environment she helped create.
Furthermore, Elwood could not draw conclusions about the
conditions Arredondo faced from Colemanâs complaint. Certainly, Coleman
alleged sexual harassment, but it could not verify the truth of these
statements beyond one substantiating witness. Arredondoâs case was also
much more extreme than what happened to Coleman. Although Arredondo
may have suffered some similar lewd comments and inappropriate touching
from Mitre, ultimately, the rape, verbal abuse, and threats Arredondo faced
were extraordinarily worse than anything Coleman reported.
All told, Arredondo does not provide evidence that Elwood knew what
was happening to her in the gun shop. She did not report the discrimination
and abuse she experienced to Elwood. And a report would not have been, and
was not, a wasted action. Nor does she provide evidence that Elwood should
have linked Colemanâs complaints to other employeesâespecially an
employee involved in discriminating against Coleman. At best, she has shown
that Elwood had good reason to ask Schlumberger some questions, which, of
course, it did. But that does not meet the applicable knowledge element in
her cause of action. In short, we conclude that Elwood did not have actual or
constructive knowledge of the hostile work environment experienced by
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Arredondo. Accordingly, Arredondoâs hostile work environment claim
against Elwood fails as a matter of law. We affirm the district courtâs order
regarding Arredondoâs hostile work environment cause of action. 5
B
The district court determined that Schlumberger and Elwood had not
retaliated against or disparately treated Arredondo. Arredondo challenges
these conclusions on appeal.
âA successful claim of constructive discharge entitles an employee
who resigned to recover all damages available for formal discharge.â Aryain,
534 F.3d at 480 (quotation marks and citation omitted). Here, Arredondo
wishes the court to see her decision to quit Schlumberger as a tangible
employment action, opening the door for her to assert retaliation and
disparate treatment claims.
But, assuming that Arredondo could prove that Schlumberger
constructively discharged her, Arredondo makes no argument as to why
Elwood should be held liable. She presents no evidence that Elwood directly
participated in her abuse, nor has she shown that Elwood knew or should
have known about what she was experiencing. Accordingly, the district
_____________________
5
Regardless of whether Elwood knew Arredondoâs situation, itâs unclear if there
were any actions it could have taken that would have resulted in remedial action. Elwood
did not control or manage Mitre. Although we must be careful not to allow employers to
âinsulate [themselves] from liability simply by isolating its units from management[,]â
generally, if an employee with remedial power over the harasser did not have constructive
knowledge, then the employer cannot be deemed to have constructive knowledge. Sharp,
164 F.3d at 930â31. The only remedial steps Elwood could, and did, take were to gather
information about how its employees were treated and relay that information to
Schlumberger. Indeed, it was precisely such actions that resulted in Schlumberger
investigating and later firing Mitre.
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court did not err in dismissing Arredondoâs disparate treatment and
retaliation claims against Elwood.
VI
Arredondo and Coleman seek to hold the wrong party liable for their
injuries. They cannot establish why Elwood should be held responsible for
the misconduct of Schlumbergerâs employees. We AFFIRM the judgment
of the district court.
27