Dyer v. New Orleans City
CourtCourt of Appeals for the Fifth Circuit
Date FiledOctober 21, 2026
Docket26-30012
StatusUnpublished
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Full Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 26-30012 October 21, 2026
____________
Thomas B. Plunkett, III
Clerk
Varrick Dyer,
Plaintiff—Appellant,
versus
New Orleans City; Roman Nelson, in his official capacity as
Superintendent of New Orleans Fire Department,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:24-CV-1702
______________________________
Before Smith, Haynes, and Engelhardt, Circuit Judges.
Per Curiam: *
Captain Varrick Dyer, describing himself as a dark-skinned African
American male, asserted several claims based on workplace discrimination
against the City of New Orleans and Roman Nelson in his official capacity as
superintendent of the New Orleans Fire Department (collectively, “the
City”). Dyer brought these claims under Title VII of the Civil Rights Act of
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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1964, Louisiana state law, and 42 U.S.C. §§ 1981, 1983, and 1985, noting that
he is an African American man. The magistrate judge dismissed most of
Dyer’s claims for failure to state a claim, dismissed his remaining claims at
the summary judgment stage, and then denied Dyer leave to amend. We
affirm the district court’s summary judgment order, vacate the district
court’s dismissal of Dyer’s hostile work environment claim, reverse the
district court’s dismissal of Dyer’s retaliation claim, and remand for further
proceedings.
I. Background
The Equal Employment Opportunity Commission issued Dyer a
notice of right to sue in April 2024. Subsequently, Dyer filed suit against the
City in the Eastern District of Louisiana. The parties consented to
proceeding before the magistrate judge. See 28 U.S.C. § 636(c). Shortly after
filing suit, Dyer filed an amended complaint, which serves as the operative
complaint here.
Dyer’s complaint asserts claims under: Title VII, for hostile work
environment, retaliation, and disparate treatment; the Louisiana
Employment Discrimination Act, La. Rev. Stat. Ann. § 23:332, et seq.,
for retaliation and discrimination based on race and gender; La. Rev.
Stat. Ann. § 51:2256, for conspiracy to violate human rights; 42 U.S.C.
§ 1985(3), for conspiracy to interfere with civil rights; 42 U.S.C. § 1981; and
42 U.S.C. § 1983, for deprivation of a vested property right.
The City moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). The magistrate judge determined that Dyer had
plausibly pleaded a race-based disparate treatment claim under Title VII,
Louisiana law, and § 1981, but granted the motion to dismiss as to Dyer’s
remaining claims. Specifically, the magistrate judge pointed to two instances
to support Dyer’s race-based disparate treatment claims: Dyer’s being
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charged with a more severe rule violation than his white counterpart involved
in the same incident and Dyer’s being denied a promotion in favor of a white
coworker.
The City later moved for summary judgment on Dyer’s remaining
race-based disparate treatment claims. As the parties were exchanging briefs
on the City’s motion for summary judgment, Dyer moved for leave to file a
second amended complaint. The magistrate judge, however, denied Dyer’s
motion, reasoning that Dyer’s proposed amendments would be futile. A
month later, the magistrate judge partially granted the City’s motion for
summary judgment and dismissed Dyer’s disparate treatment claim as to the
discipline-related incident but allowed the promotion-related disparate
treatment claim to proceed. Considering the City’s second motion for
summary judgment, however, the magistrate judge granted it and dismissed
Dyer’s remaining disparate treatment claim. Dyer promptly appealed.
II. Jurisdiction & Standard of Review
The district court had federal question and supplemental jurisdiction
over this case. 28 U.S.C. §§ 1331, 1343, 1367. We have jurisdiction to
consider this appeal under 28 U.S.C. § 1291.
We review grants of a motion to dismiss or for summary judgment de
novo. United States ex rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir.
2014) (discussing motions for summary judgment); Martone v. Robb, 902
F.3d 519, 523 (5th Cir. 2018) (discussing motions to dismiss). We also “apply
a de novo standard of review” when reviewing the “denial of leave to
amend . . . based solely on futility.” City of Clinton v. Pilgrim’s Pride Corp.,
632 F.3d 148, 152 (5th Cir. 2010).
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III. Discussion
Dyer argues on appeal that the magistrate judge erred by:
(1) dismissing his Title VII hostile work environment and retaliation claims
as well as his § 1985 and state law conspiracy claims; (2) granting summary
judgment on his Title VII disparate treatment claim; and (3) denying his
motion for leave to amend. We address each motion in turn.
A. Motion to Dismiss
Dyer contends that the magistrate judge erred when dismissing four
of his claims at the pleading stage. We agree with Dyer in part. The
magistrate judge erred, but only with respect to Dyer’s hostile work
environment and retaliation claims.
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation modified).
We discuss below Dyer’s (1) hostile work environment claim;
(2) retaliation claim; (3) § 1985 conspiracy claim; and (4) state law
conspiracy claim.
1. Title VII Hostile Work Environment
To establish a Title VII hostile work environment claim, a plaintiff
must demonstrate that he:
(1) belongs to a protected group; (2) 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
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knew or should have known of the harassment in question and
failed to take prompt remedial action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citation
omitted). “Harassment affects a term, condition, or privilege of employment
if it is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. (citation
modified). In evaluating workplace conduct, it “is not measured in
isolation.” Id. (citation omitted). Rather, “to deem a work environment
sufficiently hostile, all of the circumstances must be taken into
consideration.” Id. (citation modified). In making such a determination,
courts must 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. (citation omitted).
Dyer’s alleged incidents of a hostile work environment were
impermissibly evaluated individually. Dyer asserted seven incidents to
support his hostile work environment claim. The magistrate judge, however,
did not consider these incidents as a whole but instead looked at them
individually, reasoning that “[t]he instances of harassment alleged by Dyer
are hardly severe or pervasive.” Because the magistrate judge did not
consider the City’s conduct as a whole, we remand for further consideration
as appropriate. 1
2. Title VII Retaliation
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1
Previously, the magistrate judge noted that Dyer’s complaint “fail[ed] to make
any plausible connection between the[] incidents of harassment and Dyer’s race or color.”
After Dyer sought to amend the complaint, the magistrate judge determined, based on the
allegations of the proposed second amended complaint, such an amendment would be
futile. On remand, Dyer must amend his complaint to adequately connect his claims to race.
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Dyer also argues that the magistrate judge erred in dismissing his Title
VII retaliation claim. For Dyer to establish a retaliation claim under Title VII,
he must show that he (1) engaged in protected activity, (2) he suffered an
adverse employment action, and (3) there was a causal link between the
protected activity and the adverse employment action. Wright v. Union Pac.
R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021). To survive at the pleading stage,
Dyer “only needed plausibly to allege facts going to the ultimate elements of
the claim.” Id. (citation modified). Dyer plausibly pleaded each element.
The City does not dispute that Dyer engaged in a protected activity
when he filed the EEOC charge in 2023. Therefore, the first element does
not warrant further discussion.
As to the second element, an adverse employment action is a
“materially adverse” action. Burlington N. & Santa Fe R.R. Co. v. White, 548
U.S. 53, 68 (2006). An action is materially adverse if it would “dissuade[] a
reasonable worker from making or supporting a charge of discrimination.”
Id. (citation omitted). Here, forty-two days after Dyer filed his Charge of
Discrimination with the EEOC, the Fire Department charged Dyer with a
rule violation, claiming Dyer lent, sold, or gave away Department property,
and suspended Dyer for 36 hours. Suspension, even for a short period of time,
is an adverse employment action. See LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383, 390 (5th Cir. 2007) (“LeMaire’s suspension is an adverse
employment action, as a two-day suspension without pay might have
dissuaded a reasonable employee from making a charge of discrimination.”).
Dyer’s suspension, as short as it was, constitutes an adverse employment
action.
Third, “[i]f an adverse employment action occurs within close
temporal proximity to protected activity known to the employer, a plaintiff
will have met h[is] burden to establish a prima facie case of retaliation.”
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Badgerow v. REJ Props., Inc., 974 F.3d 610, 619 (5th Cir. 2020). The temporal
proximity—forty-two days—between Dyer’s EEOC charge and the
Department’s decision to charge him for a rule violation is close enough to
establish a causal connection. See Brown v. Wal-Mart Stores E., L.P., 969 F.3d
571, 578 (5th Cir. 2020) (“Because the approximately six-to-seven-week gap
between Brown’s protected activity and her termination is shorter than gaps
that we have previously found sufficient to show a causal connection, Brown
has met her prima facie burden based on timing alone.”), as revised (Aug. 14,
2020). The fact that the City’s Civil Service Commission eventually reversed
the suspension does not alter our conclusion. See Burlington, 548 U.S. at 73
(“[A]n indefinite suspension without pay could well act as a deterrent, even
if the suspended employee eventually received backpay.”).
Based on the above, the magistrate judge erred in dismissing Dyer’s
retaliation claim.
3. 42 U.S.C. § 1985 Conspiracy
Dyer challenges the magistrate judge’s conclusion that Dyer’s
complaint failed to “plausibly establish a conspiracy.” To state a claim under
§ 1985(3), we have explained that:
a plaintiff must allege: (1) a conspiracy involving two or more
persons; (2) for the purpose of depriving, directly or indirectly,
a person or class of persons of the equal protection of the laws;
and (3) an act in furtherance of the conspiracy; (4) which
causes injury to a person or property, or a deprivation of any
right or privilege of a citizen of the United States.
Hillard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994). Dyer has not
plausibly pleaded a conspiracy.
To support his conspiracy claim, Dyer alleges that firefighters
“conferred when drafting special reports” about a confrontation involving
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Dyer and Captain Martin and that his coworkers spread rumors about him.
Specifically, Dyer alleged that “[s]everal firefighters conferred when drafting
special reports about the incident, some of whom were never instructed to
write a special report but took it upon themselves to insert their opinion via
special report,” and he has been “plagued with false rumors that he has a
history of violence.” These rumors included Dyer’s son, while in training for
the Department, being told that Dyer had “a history of workplace violence,”
and that his platoon would “give [him] hell” for being Dyer’s son.
Dyer’s allegations are insufficient to plausibly plead a § 1985
conspiracy. Here, even if Dyer’s claims are taken as true and viewed in the
light most favorable to him, they do not allow us to “draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Martone,
902 F.3d at 523 (citation omitted). Conspiracy under § 1985 “requires some
form of class-based discrimination” and there must be some “kind of
agreement” between the accused parties. Cantú v. Moody, 933 F.3d 414, 419–
20 (5th Cir. 2019). Dyer, in his complaint, does not point to any agreement
between the parties. The fact that Dyer’s coworkers spread rumors about
him or conferred in drafting special reports about an incident do not lend
themselves to the reasonable inference that members of the Department
conspired to discriminate against Dyer and deprive him of a right or privilege.
Therefore, the magistrate judge did not err in dismissing Dyer’s
§ 1985 claim for failure to state a claim.
4. State Law Conspiracy
Dyer filed a state law conspiracy claim in the district court where the
magistrate judge concluded he failed to state a plausible claim for relief under
La. Rev. Stat. Ann. § 51:2256. We conclude that he has failed to
adequately brief, and therefore forfeited, the appeal of his state law
conspiracy claim. “A party forfeits an argument . . . by failing to adequately
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brief the argument on appeal.” Rollins v. Home Depot USA, Inc., 8 F.4th 393,
397 (5th Cir. 2021). If a party presents “a laundry list of grievances,” but
does not “explain them and often does not cite the record or relevant law,”
then the “matters are waived for inadequate briefing.” United States v.
Stalnaker, 571 F.3d 428, 439–40 (5th Cir. 2009). Dyer briefed his state law
conspiracy claim in a single paragraph. That paragraph does not contain a
single citation to case law, nor does it explain the applicable legal standards.
Because Dyer has failed to adequately explain or cite relevant authority, his
state law conspiracy claim is forfeited.
B. Motion for Summary Judgment
We now turn to Dyer’s contention that the magistrate judge erred by
granting the City’s second motion for summary judgment and dismissing his
race-based disparate treatment claim. We conclude that this was not error.
Title VII bars covered employers from discriminating against an
employee based on his race. 42 U.S.C. § 2000e-2(a)(1). When a party lacks
direct evidence of discrimination, we apply the McDonnell Douglas 2 burden-
shifting framework. Watkins v. Tregre, 997 F.3d 275, 281 (5th Cir. 2021).
Under that framework, Dyer “must first make a prima facie case of race
discrimination, and then the burden of production shifts to [the City] to
proffer a legitimate, nondiscriminatory reason for [its] action.” Id. If the City
satisfies this burden, “the presumption of discrimination disappears, and
[Dyer] must then produce substantial evidence indicating that the proffered
legitimate, nondiscriminatory reason is a pretext for discrimination.” Id. at
282. (citation modified).
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2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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Dyer’s race-based disparate treatment claim rests on Captain Danny
Simon’s promotion over Dyer to the newly created special operations
coordinator position. After the Chief of Special Operations position was
vacated, the City appointed Simon, a white male, to the special operations
coordinator position. The City did not post a job opening for this position and
did not interview anyone else. Instead, Nelson appointed Simon to the
position on the recommendation of the division’s commanding officer, Chief
Armand Bourdais. Nelson did not consider Dyer for the special operations
coordinator position. When asked, Nelson clarified that Simon’s promotion
was based on the preference for “someone that ha[d] experience in all aspects
of special operations.” Simon, at the time of his appointment, had served as
the Urban Search and Rescue task force leader and had significant experience
managing the aftermath of the collapse of the under-construction Hard Rock
Hotel. Dyer, in contrast, did not have experience on the Urban Search and
Rescue team and instead worked as a HazMat captain. Additionally, Simon
had been recommended to Nelson by Chief Armand Bourdais. Finally,
Nelson did not think that Dyer, as one of the highest overtime earners at the
Department, would be interested in a five-day-a-week position for which
overtime pay was not available.
Our analysis focuses on McDonnell Douglas’s final step. That is, the
magistrate judge properly concluded that Dyer presented a prima facie case
of disparate treatment, and the City offered several nondiscriminatory
reasons for promoting Simon and not considering Dyer (i.e., Chief
Bourdais’s recommendation, Simon’s applicable experience, and Dyer’s
being one of the Department’s highest overtime earners). 3 Dyer must now
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3
Dyer asserts that these reasons are contradictory, not to be believed, and that the
magistrate judge made an improper credibility determination in granting summary
judgment. The City, however, needed only to “articulate a nondiscriminatory reason with
sufficient clarity to afford [Dyer] a realistic opportunity to show that the reason is
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proffer “substantial evidence” that the City’s explanations were “pretext for
race discrimination.” Id. at 283. Dyer’s evidence must be considered
substantial if “it is of such quality and weight that reasonable and fair-minded
men in the exercise of impartial judgment might reach different
conclusions.” Id. (citation omitted). Dyer “may establish pretext either
through evidence of disparate treatment or by showing that [the City’s]
proffered explanation is false or unworthy of credence.” Id. (citation
modified).
Dyer’s arguments and supporting evidence fail “to permit an
inference of discrimination.” Owens v. Circassia Pharms., Inc., 33 F.4th 814,
831 (5th Cir. 2022) (emphasis omitted). Important here is the fact that
Nelson never considered anyone else, including other white people, but
Simon for the special operations coordinator position. Chief Bourdais
brought Simon to Nelson’s attention with his recommendation and Simon
had relevant experience. It is not that Nelson considered Dyer and passed
over him, but that Nelson did not consider Dyer at all, or anyone else. This
implies that Nelson did not have a discriminatory intent to exclude Dyer.
Therefore, Dyer has failed to present support for the inference that the City’s
reasons were pretext for discrimination.
Accordingly, the magistrate judge did not err in granting summary
judgment on Dyer’s disparate treatment claim.
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pretextual.” Watkins, 997 F.3d at 282 (citation omitted). The magistrate judge, based on
Nelson’s testimony, correctly determined that the City satisfied its burden of production.
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C. Motion for Leave to Amend
Given our assessment of the district court’s ruling on Dyer’s hostile
work environment claim and amendment directive to Dyer, we forgo further
consideration of Dyer’s prior request to amend.
IV. Conclusion
Accordingly, we AFFIRM in part, VACATE in part, REVERSE in
part, and REMAND for further proceedings. Subject to what we have
directed, we express no view on what actions the magistrate judge should take
on remand or on the ultimate merits of the remaining issues.
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