Cole v. First Warren Corp.

Filing 37

Memorandum Opinion and Order granting 26 MOTION for Summary Judgment of defendant. A separate judgment will be entered dismissing this case with prejudice. Signed by District Judge Tom S. Lee on 10/13/15 (*copy mailed to plaintiff at 4313 Common Circle, Vicksburg, MS 39180)(LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MATTIE M. COLE

PLAINTIFF

VS.

CIVIL ACTION NO. 3:14CV844TSL-RHW

FIRST WARREN CORP. d/b/a
HERITAGE HOUSE RETIREMENT CENTER

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
First Warren Corp. d/b/a Heritage House Retirement Center
(Heritage House), for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.

Plaintiff Mattie M. Cole, who

is now proceeding in this cause pro se, has responded in
opposition to the motion.

The court, having considered the

memoranda of authorities, together with attachments, submitted by
the parties, concludes that defendant’s motion is well taken and
should be granted.
Heritage House is an assisted living and residential living
facility where plaintiff Mattie Cole has been employed as a
resident attendant since 1993.

Cole, who is African-American,

filed the present action against Heritage House under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981, alleging claims of retaliation and hostile work
environment based on race.
on both claims.

Heritage House seeks summary judgment

Background
Cole’s complaint in this cause centers on alleged
discrimination and harassment by Kim Carr, who was hired by
Heritage House in May 2013 to fill the newly-created position of
Administrative Director.

According to Cole, the harassment

started soon after Carr’s installment as Administrative Director
and following an incident in June 2013 in which Cole accused Carr
of having committed a racist act.

According to Cole, on that

occasion, Carr approached her and an African-American co-worker as
they were eating their meal at a table in the library and told
them that employees were no longer allowed to eat in the library.
Cole, who explains she had been eating at that same table in the
library for more than fifteen years, complained to Carr that this
was a racist act, since just two days earlier, she had seen Carr
and another white employee sitting and eating at the same table.
Carr responded that this was a new rule and asked Cole whether she
was calling her a racist; Cole stated she was not but that Carr’s
actions were racist.

Following this confrontation, the two

immediately went to talk to the facility’s administrator, Joyce
Hubbard.

Hubbard confirmed that there was a new rule against

employees eating in resident-only areas, but she told Carr that
the rule had to be applied equally.
Cole alleges that following this incident, Carr regularly
intimidated and harassed her.

Eventually, on May 6, 2014, Cole
2

filed a charge with the Equal Employment Opportunity Commission
(EEOC) complaining of race discrimination and retaliation,
alleging that since being accused of a racist act, Carr had
harassed and intimidated her on a continuing basis.

After

concluding its investigation, the EEOC issued a notice of right to
sue on August 29, 2014.

EEOC documents reflect that the Agency

concluded that Cole’s allegation regarding the alleged racist act
relating to the June 2013 library incident was untimely, and,
beyond that, its investigation failed to disclose incidents that
rose to the level of a hostile work environment.

Cole, through

counsel, filed the present action on October 29, 2014, alleging
she has been subjected to a racially hostile work environment and
has been harassed and intimidated in retaliation for her complaint
of race discrimination relating to the library incident.

Since

that time, Cole, who remains employed by Heritage House, has filed
a second EEOC charge, in May 2015, in which she alleges she has
been subjected to retaliation for filing her prior EEOC charge.
Title VII Defenses
Cole has brought both her claims – for hostile work
environment based on race and for retaliation – under Title VII
and § 1981.

Title VII and § 1981 prohibit employers from taking

adverse employment actions against employees on the basis of

3

race.1

They also prohibit retaliation against an employee who has

engaged in protected activity, which includes complaining of
alleged discrimination.2

In general, in the employment context,

the same standards that apply to race discrimination and
retaliation claims under Title VII apply to such claims under
§ 1981.

See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007)

(“Claims of racial discrimination in employment, pursuant to 42
U.S.C. § 1981, are governed by the same analysis as that employed
for such claims under Title VII.”); Cobb v. Singing River Health
Sys., No. 1:11CV32–LG–RHW, 2012 WL 1155246, at *4 (S.D. Miss. Apr.
5, 2012) (“The same analysis is utilized for retaliation claims
asserted pursuant to Title VII [and] 42 U.S.C. § 1981....”).
There is, however, one substantive difference between the two

1

See 42 U.S.C. § 2000e-2(a)(1) (making it “an unlawful
employment practice for an employer ... to discriminate against
any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual's ... race”); 42 U.S.C. § 1981(a) (prohibiting racial
discrimination in the “making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship”).
2

See 42 U.S.C. § 2000e-3(a) (making it unlawful to
discriminate against any individual “because he has opposed any
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter”); CBOCS West, Inc. v. Humphries,
553 U.S. 442, 445, 128 S. Ct. 1951, 170 L. Ed. 2d 864 (2008)
(holding that § 1981 prohibits not only racial discrimination but
also retaliation against those who oppose it).
4

statutes, namely, their respective statute of limitations and the
requirement under Title VII that the employee exhaust
administrative remedies.

Jones v. Robinson Prop. Group, L.P., 427

F.3d 987, 992 (5th Cir. 2005).

In this regard, Title VII requires

an individual to file a complaint with the EEOC within 180 days of
the occurrence of the discriminatory or retaliatory act.3

In

addition, a Title VII plaintiff must exhaust all administrative
remedies.

E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444,

466 (5th Cir. 2013) (citation omitted).

“Ordinarily, an employee

may not base a Title VII claim on an action that was not
previously asserted in a formal charge of discrimination to the
EEOC, or that could not ‘reasonably be expected to grow out of the
charge of discrimination.’”

Filer v. Donley, 690 F.3d 643, 647

(5th Cir. 2012) (quoting Pacheco v. Mineta, 448 F.3d 783, 795 (5th
Cir. 2006)).
In its motion, Heritage House argues with respect to Cole’s
Title VII claim that a number of the incidents about which she
complains are not properly before the court as they occurred more
than 180 days prior to her EEOC charge.

It further contends that

she has not exhausted her claims as to alleged incidents which
occurred after the EEOC concluded its investigation and issued its

3

See 42 U.S.C. § 2000e–5(e).
5

notice of right to sue and that accordingly, those incidents may
not be considered by the court in evaluating her claims.
Cole’s claim for race discrimination is based on a hostile
work environment theory.

The Supreme Court has held that a party

must file a claim based on a discrete retaliatory or
discriminatory act within 180 days of such act or lose the ability
to recover for it, since a discrete act will have “occurred” on
the day that it “happened.”

National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 110, 122 S. Ct. 2061, 153 L. Ed. 2d 106
(2002).

However, “[h]ostile environment claims are different in

kind from discrete acts.

Their very nature involves repeated

conduct” so that “[t]he ‘unlawful employment practice’ ... cannot
be said to occur on any particular day.

It occurs over a series

of days or perhaps years and, in direct contrast to discrete acts,
a single act of harassment may not be actionable on its own.”
at 115, 122 S. Ct. 2061.

Id.

Thus, “[u]nlike in a case alleging

discrete violations, a hostile environment plaintiff is not
limited to filing suit on events that fall within this statutory
time period because her claim ‘is comprised of a series of
separate acts that collectively constitute one “unlawful
employment practice.”’”

Stewart v. Miss. Transp. Comm'n, 586 F.3d

321, 328 (5th Cir. 2009) (quoting Morgan, 536 U.S. at 116, 122 S.
Ct. 2061).

“It does not matter ... that some of the component

acts of the hostile work environment fall outside the statutory
6

time period.

Provided that an act contributing to the claim

occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the purposes
of determining liability.”
2061.

Morgan, 536 U.S. at 117, 122 S. Ct.

For this continuing violation doctrine to apply, though,

the “separate acts” must be related and the violation must be
continuing, without any intervening action by the employer to
sever the connection.

Stewart, 586 F.3d at 328.

These

requirements are easily met here as to each of the alleged
incidents which occurred prior to Cole’s May 2014 EEOC charge and
while that charge was pending:

each incident involved alleged

harassment by the same individual, Kim Carr; and there was no
intervening act to sever the connection between the incidents.
Regarding defendant’s exhaustion argument, it appears that
plaintiff cannot be found to have exhausted her administrative
remedy as to alleged incidents which post-dated the conclusion of
the EEOC’s investigation and issuance of a notice of right to sue.
A Title VII complaint “‘may encompass any kind of discrimination
like or related to the allegations contained in the charge and
growing out of such allegation during the pendency of the case
before the Commission.’”

Moody v. East Miss. State Hosp., Civ.

Action No. 4:08–cv–48–DPJ–FKB, 2010 WL 3359549, at *3 (S.D. Miss.
Aug. 23, 2010) (quoting Nat’l Ass’n of Gov’t Employees v. City
Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 711 (5th Cir.
7

1994)); id. at *4 (stating that “events allegedly occurring after
the EEOC concluded its brief investigation ... would not
reasonably be expected to grow out of this Charge or
investigation”); see also O'Neal v. Roadway Express, 181 F. App'x
417, 419–20 (5th Cir. 2006) (holding that in absence of evidence
that EEOC either was constructively or actually aware of incidents
that occurred after the plaintiff filed his EEOC charge, it was
not reasonable to expect that the EEOC would have investigated
those incidents and they were thus unexhausted).
However, assuming for the sake of argument that events which
post-dated the EEOC process but were part of an alleged continuing
violation could be considered, in this case plaintiff has
identified only a few alleged incidents that post-dated conclusion
of her original EEOC proceeding which are arguably related to the
earlier incidents; and those incidents, even if considered, add
nothing of substance to her hostile work environment claim.4

4

That

Plaintiff’s list of alleged incidents of harassment set
forth in an interrogatory response includes an assertion that in
October 2014, she reported to Administrator Hubbard that Carr had
engaged in serious misconduct relating to a resident; and that on
October 31, 2014, her nursing supervisor asked Hubbard whether she
had reported this misconduct to the appropriate authorities.
These allegations do not involve any actions taken against or
concerning Cole and accordingly are not even relevant to, much
less related to, her hostile work environment claim.
Cole also testified by deposition that in May 2015, Hubbard
issued her a disciplinary warning relating to alleged resident
complaints. Cole subsequently filed an EEOC charge claiming that
the disciplinary warning was unwarranted and was discriminatory
and retaliatory. A disciplinary warning from Hubbard, in which
8

is, in the court’s opinion, as a matter of law, these incidents
did not create or contribute to a hostile work environment.
Summary Judgment Standard
Summary judgment is proper “if 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).

A genuine dispute as to a material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

In

evaluating a summary judgment motion, the court must construe “all
facts and inferences in the light most favorable to the nonmoving
party.”

McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)

(quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)).
However, “[s]ummary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only a
scintilla of evidence.”

Id.

Racially Hostile Work Environment
Title VII prohibits the creation of “a discriminatorily
hostile or abusive environment.”

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

See

also Vance v. Ball State Univ., ––– U.S. ––––, 133 S. Ct. 2434,

Carr had no involvement, would not be related to earlier
harassment by Carr.
9

2455, 186 L. Ed. 2d 565 (2013) (Thomas, J., concurring) (“The
creation of a hostile work environment through harassment ... is a
form of proscribed discrimination.”).

To establish a claim of

hostile work environment, a plaintiff must prove:
(1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment
complained of was based on sex; (4) the harassment
complained of affected a term, condition, or privilege
of employment; and (5) the employer knew or should have
known of the harassment in question and failed to take
prompt remedial action.
Matherne v. Ruba Mgmt., – Fed. App’x, 2015 WL 5155624, 3 (5th Cir.
Sept. 3, 2015) (citations omitted).5

Title VII does not reach

“conduct that is merely offensive”—it proscribes only “an

5

Where the alleged harasser qualifies as a supervisor
under the statute, the plaintiff is not required to satisfy the
fifth element to make out a prima facie case of hostile work
environment. Matherne v. Ruba Mgmt., – Fed. App’x, 2015 WL
5155624, at *3 (5th Cir. Sept. 3, 2015)(citations omitted).
The
Supreme Court has defined “supervisor” for this purpose as an
employee “empowered by the employer to take tangible employment
actions against the victim.” Vance v. Ball State Univ., ––– U.S.
––––, ––––, 133 S. Ct. 2434, 2439, 186 L. Ed. 2d 565 (2013). A
tangible employment action has been defined as “a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” Vance, 133 S. Ct. at 2442 (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d
633 (1998)). While Carr was obviously Cole’s supervisor in the
limited sense that she had “immediate (or successively higher)
authority over the harassment victim,” Celestine v. Petroleos de
Venezuella, 266 F.3d 343, 353 (5th Cir. 2001), there is nothing in
the record to suggest that Carr had the kind of authority that
would qualify her as a “supervisor” within the definition of
“supervisor” set forth in Vance for purposes of a Title VII claim
for workplace harassment.
10

environment that a reasonable person would find hostile or
abusive.”

Matherne, 2015 WL 5155624, at *3.

Accordingly, “[f]or

harassment to affect a term, condition, or privilege of
employment, it must be ‘sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive
working environment.’”

Smith v. Harvey, 265 Fed. App’x. 197, 202

(5th Cir. 2008) (quoting Harris, 510 U.S. at 21, 114 S. Ct. 367).
To be actionable, the work environment must be “‘both objectively
and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did
perceive to be so.’”

Hernandez v. Yellow Transp., Inc., 670 F.3d

644, 651 (5th Cir. 2012) (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 787, 118 S. Ct. 2275, 141 L. Ed.2 d 662 (1998)).
To determine whether an environment was objectively offensive,
courts consider the totality of the circumstances, including the
frequency of the conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with the employee's work
performance.

Faragher, 524 U.S. at 787–88, 118 S. Ct. 2275.

Heritage House argues that it is entitled to summary judgment
on Cole’s hostile work environment claim because, other than the
fact that she is in a protected class, Cole cannot establish any
of the elements of her hostile work environment claim: she cannot
show she was harassed, or that any alleged harassment was based on
11

her race; she cannot show that the terms and conditions of her
employment were affected; and, at least as to some of the alleged
incidents of harassment, she cannot show that she reported the
harassment to defendant and/or that it failed to take prompt
corrective action.
Cole’s interrogatory responses and the excerpts of her
deposition testimony submitted by defendant in support of its
motion show that she complains of instances of alleged harassment
beginning in August 2013 and continuing through May 2015.

Some of

the incidents about which she complains are based upon nothing
more than suspicion and conjecture.

For example, Cole believes

that on November 14, 2013, Carr hid her time card, which caused a
delay in Cole’s receiving her paycheck.

However, Cole admits she

has no personal knowledge or proof to support this charge.

Cole

similarly suspects that Carr had something to do with the August
11, 2014 disappearance of some personal items belonging to Cole;
but again, she has no proof to support her suspicion.6
A number of the incidents identified by Cole as having
contributed to a hostile work environment involved Cole’s being
questioned by Carr regarding resident complaints.

6

These include

Cole claims that after she discovered the items were
missing, a private sitter reported to her that she had seen Carr
and another attendant looking in her money bag earlier in the day.
This is not competent evidence that Carr or anyone else affiliated
with Heritage House had anything to do with plaintiff’s missing
property.
12

an incident in August 2013 in which Carr called Cole into her
office about a resident’s complaint that Cole was not being
friendly enough, apparently as demonstrated by her not smiling
while bathing the resident;7 a September 19, 2013 incident in
which Carr called Cole into her office in reference to a
resident’s complaint that Cole had awakened the resident by
beating on her door (in response to which Cole explained that it
was her job to wake up the residents but that she was not beating
on the resident’s door); and a January 21, 2014 incident in which
a resident’s daughter contacted Heritage House and complained
about having been called on the phone to encourage the resident to
allow plaintiff and her co-worker to give the resident a shower
after the resident had refused to cooperate with them.

Cole

contends that being constantly called into Carr’s office regarding
resident complaints constituted harassment.

Clearly, however,

being advised of and asked to respond to complaints by residents
could not reasonably be found to constitute harassment.

Indeed,

Cole herself agreed in her deposition testimony that when a
resident complains about an attendant, the facility should not
ignore the complaint but should talk to the attendant about it.
She also agreed that this is what Carr was doing.

7

Cole indicated in her deposition that she doubted the
resident actually made such a complaint; she believes it was
instigated by Carr. However, she admitted she had no evidence
that Carr fabricated the complaint.
13

Other incidents that Cole counts as harassment involved her
being asked or directed to perform certain work-related tasks
which she believes were not within her job description and/or
should have been done by someone else or not at all.

In this

regard, she complains that in September 2013, Carr, through the
supervising nurse, instructed her to go and check a resident after
the resident’s private sitter had left for the day, which Cole
felt was unnecessary8. In February 2014, after the activities
director had left for the day, Carr told Cole and another
attendant to gather the residents for activities and then to pass
out newspapers to the residents, which Cole thinks Carr should
have done herself, rather than asking the attendants to do it.
And in April 2014, Carr asked Cole to serve in the dining room for
a resident’s birthday party and, when Cole declined on the basis
that her uniform was soiled and she could not serve food in a
soiled uniform, Carr told her to help clean up after the party.
Cole declined again, saying, “What do you have housekeeping for.”9
Carr reported to Administrator Hubbard that Cole had refused to
help with the party.

It certainly does not constitute harassment

for an employer to occasionally require an employee to perform a

8

Cole complained to the charge nurse and ultimately, the
directive to check the resident was rescinded.
9

This is what Cole related in her deposition testimony.
While in her response brief, she denies having said this, the
court is entitled to rely on her sworn deposition testimony.
14

task that is arguably unnecessary or even improvident, or that may
not be strictly within the employee’s job description, or which
could be done by someone else.
In addition to these incidents, Cole has related the
following instances of alleged harassment and intimidation by
Carr:
1.

On December 12, 2013, she overheard Carr tell the

activities director that she did not want any “black” in the
Heritage House Christmas picture.

Cole later learned from talking

to residents that Carr had secretly gone to the residents and told
them to wear red for the Christmas picture.

The picture was taken

and no blacks were in it.
2.

On December 22, 2013, after Carr saw Cole in a

resident’s room, Cole went to Carr to explain that she had been in
the room helping with a resident.

Carr responded by stating in a

mean tone, “And you’re telling me this for what reason?”

The

following day, Carr sent out an “in-service” document which stated
that employees are not allowed to use residents’ rooms for break
times; Cole believes this document was aimed at her.
3.

On January 20, 2014, after Cole refused to speak to

Carr (ostensibly because she thought she could keep out of trouble
with Carr if she remained quiet), Carr got up in her face and
yelled at her that she was being disrespectful and insubordinate
by not speaking to her.

Cole reported Carr’s behavior to Hubbard,
15

and accused Carr of constantly harassing and bullying her.
in turn accused Cole of being a bully.

Carr

Hubbard told Carr she was

not to scream at Cole.
4.

On April 3, 2014, Cole and a co-worker, while making

morning rounds, found a resident in need of cleaning and medical
attention who refused their attempt at assistance.

After

informing their supervising nurse, they continued on their rounds.
Carr arrived while they were passing out breakfast trays.

She

sent the co-worker back to the resident’s room and began assisting
Cole with passing out the food trays.

When Cole attempted to

correct Carr’s work, telling her that if she was going to pass out
trays, then she needed to put the milk, juice and/or coffee with
the trays, Carr responded by throwing a tray back on the cart and
telling Cole, “That’s the last time I try to help you.”

Cole

later returned to the resident’s room and, finding him in the same
condition he had been in earlier, cleaned the resident the best
she could and told others present – including her co-worker and
supervising nurse – to call 911.

Carr called a staff meeting a

few hours later, at which she said she was sick of the “old
staff,” that she had had just about enough and that someone had to
be fired.

Cole states she was the only “old staff” present at

this meeting and felt that these comments were directed at her.
5.

On April, 22, 2014, Carr sent Cole out of a mandatory

16

staff meeting, telling her she did not need to be there since she
was not licensed.

After the meeting, Cole went to the RN who held

the meeting and was allowed to sign the meeting form and given
credit for having attended.

Cole states that after reporting

Carr’s conduct to Hubbard, Hubbard responded that Carr had no
right to exclude her from a mandatory staff meeting.
6.

On May 4, 2014, Carr refused Cole’s timely and

proper request for time off while giving time off to other
employees who, unlike Cole, did not have accrued vacation time.
When Cole complained to Hubbard and the office manager, Hubbard
said she would in-service Carr regarding vacation requests and
time off.
7.

On May 27, 2014, Cole had a confrontation with a

resident’s private sitter in which the private sitter refused to
allow Cole to assist the resident and put her hand in Cole’s face
and told her to “zip it and adjust your attitude.”

While Cole

reported the incident to her nursing supervisors, who were later
questioned by Carr regarding the incident, Carr never questioned
Cole about the incident.

When the same private sitter made

another comment to Cole several days later, Cole reported the
original confrontation to Hubbard.

After Hubbard questioned Carr,

who acknowledged she was aware of the incident, Hubbard announced
that the private sitter would not be allowed to return to the
facility.

Cole complains of Carr’s failure to take action against
17

the private sitter sooner and asserts that this incident is
evidence that “[n]ot only does Kim Carr harass and intimidate me,
she allows others to do the same.”
8.

In April 2015, Carr called her or referred to her as a

“black nigger.”
allegation.

Cole has presented no evidence regarding this

Defendant, however, has presented deposition excerpts

which reflect that Cole, in the context of explaining why she
believed that a May 5, 2015 disciplinary warning issued by Hubbard
was contrived, testified that she went to Hubbard prior to May 5,
2015 and told her that Carr had called her a name.

She testified

that the name Carr had called her was “black nigger”; but she also
testified that she had declined to tell Hubbard what name Carr had
called her.

There was nothing in the testimony presented by

defendant to explain any of the circumstances surrounding Carr’s
alleged use of this racial epithet.
Of all these alleged instances of alleged objectionable
conduct, only two can reasonably be tied to Cole’s race: the
Christmas picture incident and the “black nigger” comment.

The

other incidents “might cause offense or indicate strife between
[Cole] and [Carr], but they are not evidence of race-based
harassment.”

Cavalier v. Clearlake Rehabilitation Hosp., Inc.,

306 Fed. App’x. 104, 107 (5th Cir. 2009) (citing Indest v. Freeman
Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (stating that
“[d]iscourtesy or rudeness, offhand comments and isolated
18

incidents (unless extremely serious) will not amount to
discriminatory changes in terms and conditions of employment”)
(internal quotations omitted)).

“Though [Cole] may believe that

all [these] incidents were motivated by racial animus, subjective
belief of racial motivation, without more, is not sufficient to
show a hostile work environment.”

Id.

In fact, however, while

Cole does aver a racial motivation, she testified that all the
Heritage House resident attendants are African-American and yet
she, and she alone, was singled out for mistreatment by Carr.
The two incidents that can be tied to race, considered alone
or in conjunction with the other challenged conduct, plainly do
not rise to the level of severity or pervasiveness required to
support a claim for a hostile work environment.

See Buisson v.

Bd. of Sup'rs of Louisiana Cmty. & Technical Coll. Sys., 592 F.
App'x 237, 245 (5th Cir. 2014) (supervisor’s use of bigoted term
indicated discriminatory intent but “its one-time utterance [was]
insufficient—even when combined with [his] other behavior—to
create a [race-based] hostile work environment” and “pales in
comparison, both in severity and frequency, to the kinds of verbal
harassment that this Court and other circuits have held would
support a Title VII, hostile-work-environment claim.”).10

10

The court cited the following examples:
Walker v. Thompson, 214 F.3d 615, 619–22 (5th Cir. 2000)
(holding that a hostile work environment claim survived
summary judgment where evidence demonstrated years of
19

Moreover, Cole has offered no evidence that Carr’s conduct,
including her alleged racial comment(s), prevented her from doing
her job, and the facts do not support such an inference.
246.

Id. at

Accordingly, plaintiff’s claim for hostile work environment

based on race will be dismissed.
Retaliation
To succeed on her retaliation claim, Cole must show: (1) she
engaged in a protected activity, (2) an adverse employment action
occurred, and (3) there was a causal link between the protected
activity and the adverse employment action.
at 655.

Hernandez, 670 F.3d

In the retaliation context, to prove an adverse

employment action occurred, “a plaintiff must show that a
reasonable employee would have found the challenged action

inflammatory racial epithets, including “nigger” and
“little black monkey”); Daniels v. Essex Group, Inc.,
937 F.2d 1264, 1266 (7th Cir. 1991) (holding that the
plaintiff survived summary judgment where the plaintiff
was subjected to “nigger jokes” for a ten-year period
and the plaintiff's workstation was adorned with “a
human-sized dummy with a black head”); Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001)
(reversing summary judgment where the plaintiff suffered
“incessant racial slurs” including “nigger” and “dumb
monkey”), with Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 348 (5th Cir. 2007) (finding that the
evidence was insufficient to establish a hostilework-environment claim where a supervisor's comments
about inner-city “ghetto children” ceased upon
plaintiff's request, and the supervisor's other arguably
racially offensive comments were “isolated incidents”).
Buisson v. Bd. of Sup'rs of Louisiana Cmty. & Technical Coll.
Sys., 592 F. App'x 237, 245 (5th Cir. 2014)
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materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 60, 67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).
“The purpose of this objective standard is ‘to separate
significant from trivial harms' and ‘filter out complaints
attacking the ordinary tribulations of the workplace.’”

Stewart,

586 F.3d at 331 (quoting Burlington N., 548 U.S. at 68, 126 S. Ct.
2405).

See also Burlington N., 548 U.S. at 68 (“An employee's

decision to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances that often
take place at work and that all employees experience.”).

“Thus,

even under the more liberal definition of adverse employment
action that applies to retaliation claims, ‘allegations of
unpleasant work meetings, verbal reprimands, improper work
requests, and unfair treatment do not constitute actionable
adverse employment actions.’”

Richardson v. Miss. Dept. of Human

Servs., Civ. Action No. 3:10cv198–DPJ–FKB, 2012 WL 568285, at *6
(S.D. Miss. Feb. 21, 2012) (quoting King v. Louisiana, 294 F.
App'x 77, 85 (5th Cir. 2008)).

See also Earle v. Aramark Corp.,

247 Fed. App’x 519, 524 (5th Cir. 2007) (excluding employee from
training lunch, subjecting her to disciplinary write-ups and
micro-managing her performance are not materially adverse
employment actions); Grice v. FMC Techs, Inc., 216 Fed. App’x 401,
21

404, 407 (5th Cir. 2007) (allegation that plaintiff was watched
more closely than other employees was sort of “trivial” incident
that would not dissuade a reasonable employee from reporting
discrimination).
In the case at bar, the evidence does not support a finding
that Cole suffered any materially adverse employment action.
Cole’s performance was questioned on occasion, but she was never
reprimanded or disciplined.

Moreover, while Cole relates that

Carr’s treatment of her was both unfair and unpleasant, the
treatment she received plainly does not rise to the level of
adverse employment actions.

For this reason, the court concludes

that Heritage House is entitled to summary judgment on her claim
of retaliation.
Conclusion
Based on the foregoing, it is ordered that defendant’s motion
for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 13th day of October, 2015.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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