### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-30750 Summary Calendar

SHELTON L. FRAZIER, Plaintiff-Appellant
v. SABINE RIVER AUTHORITY STATE OF LOUISIANA, Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:11-CV-778

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Shelton L. Frazier, pr o c e eding pro se , brought suit against his former employer complaini n g of race discrimination, retaliation, and a hostile work environment. The district court granted summary j udgment in favor of the employer. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary30 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30750 Document: 00512130054 Page: 1 Date Filed: 01/30/2013No. 12-30750 FACTS Frazier, an African-American, began employment w ith Sabine River Authority State of Louisiana (“Sabine”) a s a n unclassified park attendant on May 21, 2008. Frazier earned $6.70 per hour and did not receive state benefits. Two months later, Sab i n e promoted Frazier to the classified position of Civil Service Park Buildings and Grounds Attendant with a raise to $7.56 per hour and eligibility for state benefits. In January 2009, Sabine awarded Fr a z i er a merit increase to $7.86, and in 2010, he received another raise to $8.17 per hour. Frazier alleged that in October 2010, a co-worker told Frazier that Sabine had hired a white unclassified park attendant, Seth Sebastian, before hiring Frazier and that Sebastian received $10.00 per hour. Sebastian never became a classified worker. Frazier also alleged that in February 2011, he talked to his supervisor, Daniel Jones, about a co-worker using the word “nigger” in Frazier’s p r e s e n ce and about various other concerns. According to Frazier, Jones stated a meeting should be held with the individual who used the word. Jones referred the matter to Mike Carr, the maintenance manager and a supervisor over both Jones and Frazier. On March 16, 2011, Carr called Frazier into his office. Fr a z i er alleged Carr did not like that Frazier had e-m ail e d his concerns to the executive director, thus bypassing Carr. The parties agree that the conversation became heated when they discussed Frazier’s use of his cellular phon e o n th e job. Frazier told Carr the accusation that Frazier “was the biggest cell phone user on the job” was “the biggest lie from the pits of hell.” Carr replied, “[D]on’t ever call

me a li[ar] again.” When Frazier asked if Carr was threa t e ni n g h im, Carr responded, “[Ye]s, sir.” Sabine contends that Carr qualified this by stating, “I’m not

. . . I’m saying that’s a lie. [D]on’t call m e a li ar . ” The executive director resolved the matter by sending Carr an d Frazier home for the day with pay.

2 Case: 12-30750 Document: 00512130054 Page: 2 Date Filed: 01/30/2013No. 12-30750

Frazier filed a threat-of-violence claim against Carr; the executive director subsequently determined there was no threat of violence. Frazier also contends that in additi o n to the co-worker’s use of the word “nigger” discussed above, three other instances of racial discrimination occurred at Sabine. First, he heard a co-worker refer t o a town in Sabine Parish called “Negreet,” but according to Frazier, the co - w o rker meant “nigger.” Second, Frazier was told by a co-worker that an o th e r co-worker had used the word “nigger” before. And third, he alleged a co-worker made a noose and gestured

as though he was hanging it around another co-worker’s neck. This was done in Frazier’s presence, though it was not directed at him. Frazier filed an EEOC charge on August 16, 2011, and resigned from his position on August 25, 2011. After receiving a righ t

- t o - s u e-letter, he filed the complaint that is the subject of this appeal, all e gi n g race discrimination, retaliation, and a hostil e work environment. The district court granted summary judgment in favor of Sabine. DISCUSSION Th e di s trict court’s grant of summary judgment is reviewed de novo . Davis-Lync h, Inc. v. Moreno , 667 F.3d 539, 549 (5th Cir. 2012). Summary judgment is appropriately granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists if the evidence is such that a reasonable juror could find for the non-moving party. Davis-Lynch , 667 F.3d at 549. Questions of fact must be “view e d i n th e light most favorable to the nonmovant and questions of law are reviewed de novo .” Stewart v. Miss. Transp. Comm’n , 586 F.3d 321, 327 (5th Cir. 200 9). Frazier’s arguments on appeal challenge the district court’s resolution of questions of law and fact. To address his arguments, we examine his race discrimination, retaliation, and hostile work environment claims separately.

3 Case: 12-30750 Document: 00512130054 Page: 3 Date Filed: 01/30/2013No. 12-30750

A. Race Discrimination Frazier claims Sebastian’s higher pay rate was race di s c ri mination and violated the Fair Pay Act. A claim of race discrimination is analyzed using the traditional burden-shifting rules of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). To survive summary judgment in a race discrimi n ati o n case, a plaintiff must first establish a prima facie case showing he (1) is a member of a protected class, (2) was qualified for the p o s iti on held, (3) was subject to an adverse employment action, and (4) was “treated differently f r o m others similarly situated.” Abarca v. Metro. Transit Auth ., 404 F.3d 938, 941 (5th Cir. 2005). Because Frazier offered Sebastian as a comparator employee to show that Fr a zier was treated differently, Frazier has the burden of demonstrating th at “the employment actions at issue were taken under nearly identical circumstances.” Turner v. Kan. City S. Ry. , 675 F.3d 887, 893 (5th Cir. 2012). “The emplo y m e nt a ctions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor, o r h a d their

e m p l oyment status determined by the same person, and have essentially comparable violation histories.” Id. The district court held that Frazier failed to offer competent summary judgment evidence that he and Sebastian had “nearly identical circumstances,”

as required to establish a comparator for purposes of Frazier’s prima facie case. Id. Frazier first argues on appeal that he and Sebastian were equally qualified and neither had a ny c e rtif i cations prior to being hired by Sabine for the same position. Frazier contends he provided the district c o u rt with a copy of the Louisiana workers’ websit e showing that he and Sebastian both were hired as

u nc lassified park attendants. This fact is not in dispute, and it do e s n o t demonstrate that they were equally qualified or that they had “nearly identical

4 Case: 12-30750 Document: 00512130054 Page: 4 Date Filed: 01/30/2013No. 12-30750

circumstances,” particularly for an unclassified position. Th o u gh the specific qualifications are disputed, Sebastian was trained in plumbing and Frazier had

a background in carpentry. Therefore, the district court correctly held Frazier did not meet his burden of demonstrating that Sebastian was an appropriate comparator to establish his prima faciecase. Second, Frazier contends that the district court erred in holding that his

rac e di s crimination claim was prescribed. Frazier argues his claim was equitably tolled until October 2010 when he became aware of the difference in pay. We need not reach this issue because we hold that the district court was

corr e c t i n finding that Frazier had not demonstrated that Sebastian was a comparator employee and thus had not made a prima facie case. Frazier also contends that the district court err e d i n holding that his discriminatory pay claim under the Fair Pay Act was time-barred. The district court reasoned that “Fr azier was only an unclassified worker for, at most, two and a half m o nth s at the very beginning of his career with Sabine.” Frazier argues time did not begin to run on the prescription period under the Fair Pay Act until the date he resigned. The Fair Pay Act provides different points in time in which the charging period will be triggered:

a n u nlawful employment practice occurs, with respect to discrimination in compensation in violati o n of this title, when a discriminatory compensation decision or other practice is adopted, when an individual bec omes subject to a discriminatory compensation decision or other practi c e , or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in wh o le or in part from such a decision or other practice. 42 U.S.C. § 2000e-5(e)(3)(A). Following Frazier’s July 2009 promotion, he was

no longer affected by o r s ubject to the allegedly discriminatory compensation

5 Case: 12-30750 Document: 00512130054 Page: 5 Date Filed: 01/30/2013No. 12-30750

decision because he and Sebastian could no longer have been comparators. See id. ; Turner , 675 F.3d at 893. Therefore, the district court did not err in holding that the claim under the Fair Pay Act was time-barred. B. Retaliation Frazier claims Sabine retaliated against him for complaining about discrimination with regard to his pay rate. To survive summary judgment on a claim of retaliation, Frazier must establish that (1) h e p articipated in a protected activity; (2) he experienced an adverse employment action; and (3) there was a causal link between his protected activity and the adverse employment action. Stewart , 586 F.3d at 331. Preliminarily, the district court held that Fra z i e r did not preserve a retaliation claim by raising it with the EEOC, “a condition precedent to any Title VII suit.” Young v. City of Houston , 906 F.2d 177, 179 (5th Cir. 1990). In Frazier’s EEOC charge, he did not check the “retaliati o n” b o x, and in the particulars section, he failed to mention any claim of retaliation. Frazier argues on appeal that failure to check the appropriate box is not fatal to his retaliation claim. This is true, but Frazier’s description of his charge in the particulars section described only a discrimination claim: “I was subjected to harassment, denied a pay raise and overlooked when wo rk t a sks and assignments were passed out

. . . I believe I have been discriminated [against] because of race.” Wh il e th e court’s scope of inquiry is not limited to the boxes checked, it is limited to th at “which can reasonably be expected to grow out of the charge.” Id. “[T]he crucial element of a charge o f di s c ri m ination is the factual statement contained therein. Everything else entered on the form is, in essence, a mere amplification of the factual allegations.” Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 462 (5th Cir. 1970). Discrimination and retaliation claims are distinct, and the factual statement in Frazier’s EEOC charge did not put Sabine on notice that Frazier w a s a sserting a retaliation claim.

6 Case: 12-30750 Document: 00512130054 Page: 6 Date Filed: 01/30/2013No. 12-30750

Additionally, although Frazier argued his retaliation claim in his opposition to summary judgment, he did not address the issue raised by Sabine that he failed to preserve this claim. Because we hold Frazier did not preserve a retaliation claim, we need not address his argument raised for the first time on appeal that the denial of a pay raise was retaliatory in nature. We also need not reach Frazier’s argument that Sabine’s references in its motion for summary judgment to his excessive use of leave was pretext for retaliation. The district court correctly granted summary judgment on Frazier’s retaliation claim. C. Hostile Work Environment As to his hostile work environment claim, Frazier argues the district court failed to address his allegations that a co-worker plotted “to set h im up for failure” and that his job requ ir e d he work on a lake even though he could not swim. A claim of hostile work environment requires a showing by the plaintiff that he 1) belongs to a p ro t e cted group; 2) was subjected to unwelcome harassment; 3) the harassment complained of was based on race; 4) the haras s m e nt complained of affected a term, condition, or privilege of employment; 5) the employer knew or should h ave known of the harassment in question and fail e d t o t ake prompt remedial action. Septimus v. Univ. of Houston , 399 F.3d 601 , 611 (5th Cir. 2005). For a work

environment to be deemed sufficiently hostile, we consider all relevant circumstances. Ramsey v. Henderson , 286 F.3d 264, 268 (5th Cir. 2002). Such circumstances include “the frequency of the discriminatory conduct; its severity; whethe r it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interf e r e s with an employee’s work performance.” Id.

7 Case: 12-30750 Document: 00512130054 Page: 7 Date Filed: 01/30/2013No. 12-30750

The district court stated it reviewed the “total record.” The district court specifically addressed the alleged threat made by Carr, the co-worker’s use of the word “nigger” in Frazier’s presence, the use of the word “Negreet,” and the noose gesture in the context of these factors. We agree with the district court’s wellreasoned con c l u s i on that these instances were isolated and not severe or pervasive enough t o s u pport a hostile work environment claim. Even considering the allegations that a co-worker intended to set Frazier up to fail and that he had to work near water, we do not conclude that Frazier made the required showing to survive summary j u d gment. Frazier does not provide concrete examples, and he does not show – or even allege – that the co-worker’s allege d p l o t or his work requirements were based on race. See id. at 269. Therefore, as the district court concluded, Frazier has not established a prima facie claim for hostile work environment. AFFIRMED.

8 Case: 12-30750 Document: 00512130054 Page: 8 Date Filed: 01/30/2013