IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40162

PAUL D. BROOKS; ERICK GUILLORY; RICKY RUFFIN; SAMUEL W. 

JOHNSON; ELLIS E. BYRD; MICHAEL SPENCER; JONATHAN E. 

GREENWAY1; WAYNE E. JOHNSON,

 Plaintiffs – Appellants

v.

FIRESTONE POLYMERS, L.L.C., also known as Firestone; BRIDGESTONE 

AMERICAS HOLDING, INCORPORATED,

 Defendants – Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:12-CV-325

Before CLEMENT and HAYNES, Circuit Judges, and GARCIA 

MARMOLEJO, District Judge.*

PER CURIAM:**

 

1 Various documents in the record spell this plaintiff’s name as “Greenaway.” 

However, our caption and the district court’s caption spell it “Greenway.” 

* District Judge of the Southern District of Texas, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2016

Lyle W. Cayce

Clerk

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Plaintiffs in this case, African-American employees or former employees

of Firestone Polymers, L.L.C. (“Firestone”), appeal the dismissal of their claims 

against Firestone for employment discrimination, brought pursuant to Title 

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000h-6; 

42 U.S.C. § 1981; the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§ 12112(a); the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5(e); 

and Executive Order No. 11246.2 Plaintiffs allege that while employed by 

Firestone, racial discrimination resulted in, among other things, the denial of 

training and overtime opportunities for Plaintiffs and that abusive conditions 

created a hostile work environment. The district court dismissed these claims 

on Firestone’s motions for summary judgment and entered final judgment 

against Plaintiffs, which they timely appealed. For the following reasons, we 

AFFIRM.

I. 

We review the grant of summary judgment de novo. United States v. 

Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011). Summary judgment is 

appropriate 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). 

Where the nonmoving party would have the burden of proof at trial, the 

nonmoving party “must identify specific facts within the record that 

demonstrate the existence of a genuine issue of material fact.” CQ, Inc. v. TXU 

Mining Co., 565 F.3d 268, 273 (5th Cir. 2009). The nonmoving party must 

 

2 The Plaintiffs in this case include Paul D. Brooks, Erick Guillory, Ricky Ruffin, 

Samuel W. Johnson, Ellis E. Byrd, Michael Spencer, Jonathan E. Greenway, and Wayne E. 

Johnson. We will refer to them collectively as “Plaintiffs.” The original complaint included 

Bridgestone Americas, Inc., as a defendant, but the district court dismissed Bridgestone from 

the case, and the employees do not seek review of this order. See Hughes v. Johnson, 191 

F.3d 607, 613 (5th Cir. 1999).

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“articulate the precise manner in which the submitted or identified evidence 

supports his or her claim” to survive summary judgment. Id. (citation omitted). 

II.

Plaintiffs challenge the district court’s grant of summary judgment 

because they claim the district court erred by: (1) concluding that Plaintiffs’ 

failure to train claims did not involve adverse employment actions as required 

to plead a prima facie case for employment discrimination; (2) concluding that 

Plaintiffs did not meet their burden to highlight specific evidence supporting 

their denial of overtime claims; and (3) failing to consider Plaintiffs’ aggregate 

experiences in dismissing Plaintiffs’ hostile work environment claims.3

Although Plaintiffs do not challenge the district court’s conclusion that many 

of Plaintiffs’ claims are time-barred, they contend that the district court should 

have granted their motion for reconsideration, in which they attempted to 

submit additional evidence regarding when Plaintiffs’ claims were submitted 

to the Equal Employment Opportunity Commission (“EEOC”).4 

 

3 Plaintiffs do not challenge the dismissal of their claims under the ADA, the Lilly 

Ledbetter Fair Pay Act, Executive Order 11246, or for discriminatory demotion and failure 

to promote under Title VII and Section 1981. We will not review these claims. See Hughes, 

191 F.3d at 613 & n.13. Likewise, Plaintiffs abandoned any challenge to the district court’s 

dismissal of their Title VII hostile work environment claims for failure to exhaust those 

claims before the Equal Employment Opportunity Commission, although their Section 1981 

claims remain before us. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 

2005) (noting that Section 1981 does not contain an exhaustion requirement). 

4 The district court did not abuse its discretion in declining to reopen its final 

judgment dismissing Plaintiffs’ failure to train claims. Plaintiffs do not explain their failure 

to submit relevant evidence of timeliness to the district court for these claims, although they 

had the evidence when Defendants contested the timeliness of Plaintiffs’ claims. The district 

court properly considered whether its judgment should be reconsidered due to previously 

omitted evidence under the test in Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 

2004), and found that the limited importance of the omitted evidence, Plaintiffs’ unexplained 

tardiness in submitting it, and the likelihood of prejudice to Firestone all weighed in favor of 

declining to reopen the case, see id. at 478–80. We defer to the district court’s “considerable 

discretion” in making this decision, id. at 479–80, and leave in place the district court’s 

unchallenged determinations that only certain claims remain for our review because many 

are time-barred.

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A. Plaintiffs’ Failure to Train Claims

Employment discrimination based upon race is unlawful under Title VII 

and Section 1981.5 To survive summary judgment, each Plaintiff in this case 

had to make a prima facie showing that he: (1) is a member of a protected class; 

(2) was qualified for his position; (3) was subjected to an adverse employment 

action; and (4) that similarly situated employees outside the protected class 

were treated more favorably. See Nasti v. CIBA Specialty Chems. Corp., 492 

F.3d 589, 593 (5th Cir. 2007); see also McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802 (1973). Here, the controversy as to the failure to train claims

centers on the third prong, for which we require an “ultimate employment 

decision” or its factual equivalent. See McCoy v. City of Shreveport, 492 F.3d 

551, 560 (5th Cir. 2007); Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 

2014). 

In similar cases involving only tangential evidence of a potential effect 

on compensation, we have held that a failure to train does not constitute an 

ultimate employment decision or an adverse employment action. See, e.g.,

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406–07 (5th Cir. 1999) 

(holding a denial of training was not an adverse employment action covered by 

Title VII and affirming dismissal of the claim on summary judgment); 

Hollimon v. Potter, 365 F. App’x 546, 549 (5th Cir. 2010) (similar); Roberson v. 

Game Stop/Babbage’s, 152 F. App’x 356, 361 (5th Cir. 2005) (similar).6 

Plaintiffs argue that a failure to train may constitute an adverse employment 

action and that these cases are distinguishable on their facts. 

 

5 Analyses for employment discrimination under Title VII and Section 1981 are often 

the same; therefore, absent relevant differences, we will consider these claims together. See 

Jones, 427 F.3d at 992.

6 Although Hollimon and Roberson are not “controlling precedent,” they “may be [cited 

as] persuasive authority.” Ballard, 444 F.3d at 401 n.7 (citing 5TH CIR. R. 47.5.4).

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Plaintiffs have failed to show that the denial of training in this case 

constituted an ultimate employment decision or its factual equivalent. 

Plaintiffs argue that the record shows their lack of training relative to nonAfrican-American employees affected their compensation by decreasing their 

opportunity to earn overtime. We have found such evidence insufficient

because it only shows a potential, tangential effect on increased compensation. 

See, e.g., Dollis v. Rubin, 77 F.3d 777, 781–82 (5th Cir. 1995) (affirming the 

dismissal of a plaintiff’s denial-of-training claims, finding it insufficient that 

the denial “arguably might have [had] some tangential effect upon [an] 

ultimate decision[]”), abrogated in part on other grounds by Burlington N. & 

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Shackelford, 190 F.3d at 406–

07 (noting the plaintiff “produce[d] no significant evidence that a denial of such 

training [related mostly to her back-up duties] would ‘tend to affect’ her 

employment status or benefits” (emphasis added)). 

Plaintiffs have also failed to specify facts that make the crucial link 

between each Plaintiff in this case and reduced overtime—and therefore 

reduced compensation—due to the lack of training, as compared to nonAfrican-American counterparts. Cf. Roberson, 152 F. App’x at 361 (“[I]f the 

alleged potential demotion itself did not rise to the level of an adverse 

employment action, a refusal to provide training that allegedly led to the 

potential demotion could not either.”). We affirm the district court’s dismissal

of Plaintiffs’ failure to train claims. See CQ, Inc., 565 F.3d at 273.

B. Plaintiffs’ Claims for Denial of Overtime

The district court granted summary judgment on the overtime claims 

because it determined that Plaintiffs failed to produce evidence “that specific 

overtime positions were available that they were qualified for, that they were 

denied those positions, and that others outside the class who were similarly 

situated were treated more favorably.” We have no precedential authority in 

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our circuit establishing whether a denial of overtime constitutes an adverse 

employment action.7 We need not decide that question here. Even assuming 

arguendo that a denial of overtime can be an adverse employment action, 

Plaintiffs fail to demonstrate issues of material fact supporting a prima facie 

case of disparate treatment for the denial of overtime. See Nasti, 492 F.3d at

593. 

Without relevant citations to the record, Plaintiffs state in a conclusory 

fashion that employment records and summary charts show that non-AfricanAmerican employees received greater training than Plaintiffs, leading to better 

overtime and employment opportunities. Plaintiffs do not cite evidence that 

Plaintiffs were qualified for specific overtime opportunities or evidence that 

similarly situated, non-African-American individuals were treated 

differently.8 Again relying on generalities, Plaintiffs did not compare each 

Plaintiff with an individual who received more training. Plaintiffs therefore 

failed to raise a fact issue as to whether these individuals were truly similarly 

situated with respect to any denial of training or overtime as compared to 

Plaintiffs. See id.; cf. Haire v. Bd. of Supervisors of La. State Univ. Agric. & 

Mech. Coll., 719 F.3d 356, 363–64 (5th Cir. 2013) (closely analyzing various

characteristics of two employees before concluding they were similarly 

situated); Shackelford, 190 F.3d at 405–06 (similar).

 

7 Compare Johnson v. Manpower Prof’l Servs., Inc., 442 F. App’x 977, 982 (5th Cir. 

2011) (holding that the “[d]enial of overtime pay is an adverse employment action because it 

relate[d] to [the plaintiff’s] compensation” when the plaintiff’s status was changed from 

“overtime non-exempt” to “overtime exempt” and he stopped receiving overtime pay), with

Hart v. Life Care Ctr. of Plano, 243 F. App’x 816, 818 (5th Cir. 2007) (holding that denying a 

request for overtime did not constitute an adverse employment action).

8 We are not obligated “to sift through the record in search of evidence” to support 

Plaintiffs’ case. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

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In sum, in response to Firestone’s motion for summary judgment on their 

denial of overtime claims,9 Plaintiffs failed to proffer sufficient evidence to 

make a prima facie case that any Plaintiff suffered an adverse employment 

action. Plaintiffs therefore failed to meet their burden to show a genuine issue 

of material fact as to each element of their discrimination claim for denial of 

overtime, and the district court properly dismissed the claim. See Malacara v. 

Garber, 353 F.3d 393, 404 (5th Cir. 2003).

C. Plaintiffs’ Hostile Work Environment Claims

The district court held that the Plaintiffs bringing hostile work 

environment claims failed to make out a prima facie case that Firestone 

created such an environment. Plaintiffs argue the district court erred by 

analyzing each Plaintiff’s claims individually, without aggregating the harm 

also alleged by other Plaintiffs as part of the totality of the circumstances. 

Even assuming arguendo an obligation to do so, we conclude that Plaintiffs 

have failed to establish a hostile work environment.

To establish a hostile work environment, each Plaintiff must prove 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 knew or should have 

known of the harassment in question and failed to take prompt 

remedial action.

See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). 

“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. (quoting 

 

9 The district court did not abuse its discretion in giving Firestone an opportunity to 

file a second motion for summary judgment on the overtime claims in light of the confusion 

over whether Plaintiffs were making claims based on the denial of overtime, standing alone. 

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Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). We analyze the 

hostility of a work environment in the totality of the circumstances, including 

examining “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.” 

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Plaintiffs have largely 

failed to highlight specific evidence supporting a prima facie case of a hostile 

work environment and, where they have, it fails to support recovery under this 

theory. 

1. Plaintiff Brooks

Brooks claimed that on one occasion, he was asked not to use a restroom, 

which he perceived as a racially discriminatory request. Brooks used the 

restroom anyway, did not report the incident despite being asked about it by 

management, and testified that he viewed it as settled and that it did not recur. 

The district court properly concluded that these allegations do not support a 

hostile work environment claim. See Butler, 161 F.3d at 269. 

2. Plaintiff Ruffin

Ruffin complained about company video monitors showing images he 

found offensive. Ruffin said he reported the incident and that the images were 

removed shortly thereafter, not to reappear. Plaintiffs Spencer and Samuel 

Johnson also testified to seeing these images and to their removal. The district 

court properly concluded this evidence is not sufficiently severe or pervasive to 

create a hostile work environment under Section 1981. Cf. Frazier v. Sabine 

River Auth. La., 509 F. App’x 370, 374 (5th Cir. 2013) (concluding that 

instances of alleged discriminatory conduct were isolated and neither severe 

nor pervasive enough make a viable hostile work environment claim). Further, 

Plaintiffs’ testimony establishes that, upon learning of the displays,

management took prompt remedial action that ended the display of the 

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images. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th 

Cir. 2004).

3. Plaintiff Samuel Johnson 

Plaintiff Samuel Johnson alleges a hostile work environment based on 

racial slurs and “black faces” drawn in the bathroom stalls in the workplace. 

He testified that the foreman waited some time before painting over the stalls. 

Samuel Johnson further stated that he heard a manager say that as long as he 

was in charge of a certain unit, “there would be no blacks in the control room.” 

These offensive events, while reprehensible, establish only isolated 

incidents and offhand remarks, did not involve physical threats, were not 

apparently directly addressed to Samuel Johnson, and do not appear to have 

interfered with his work. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 

(1993). We affirm the district court’s determination that Samuel Johnson 

failed to make a prima facie case of a hostile work environment based on these 

allegations. See, e.g., Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 

839, 844 (8th Cir. 2002) (determining no severe or pervasive racial harassment 

occurred in circumstances involving frequent drawings in the men’s restrooms, 

a racist poem, and other offensive remarks). 

4. Plaintiff Wayne Johnson

Plaintiff Wayne Johnson apparently claimed a hostile work environment 

based on the American flag being flown upside down outside the Firestone 

plant in 2009 to protest President Obama’s election. As the district court 

noted, no evidence tied this incident to interference with Wayne Johnson’s 

work. We affirm the district court’s dismissal of Wayne Johnson’s hostile work 

environment claim. 

5. Plaintiff Spencer

Spencer alleges that, on a single occasion, “he found a miniature 

hangman’s noose placed inside his hard hat at work.” He testified that no one 

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else was with him when he found it, that he does not recall telling others about 

it or showing others the noose, and that he took it home. He did not report it 

to a supervisor. Spencer testified that he found the incident “pretty upsetting” 

at the time. Yet, he did not testify that the noose incident or others changed 

the terms or conditions of his employment.10 

The district court determined that the noose was not prima facie 

evidence of a hostile work environment because Spencer presented no evidence 

of how it affected the terms and conditions of his employment, it appears to 

have been an isolated incident, and there is no evidence Firestone knew or 

should have known about the incident. See Harris, 510 U.S. at 23; see also

Hockman, 407 F.3d at 329. We agree that, although reprehensible, this 

conduct does not create a hostile work environment in these circumstances.11 

6. Considering the Totality of the Circumstances

We look to the totality of the circumstances in determining whether an 

environment is hostile or abusive. See Harris, 510 U.S. at 23. Evidence about 

discrimination against other members of the protected class in the same 

workplace may sometimes be probative to reinforce allegations that 

harassment affected a plaintiff’s terms and conditions of employment. See 

generally Hernandez, 670 F.3d at 651–54. In this case, even considering the 

incidents each Plaintiff experienced or knew about in the aggregate does not 

“transform what was an otherwise insufficient case of a hostile work 

environment . . . into one that could survive summary judgment.” Id. at 654.

AFFIRMED.

 

10 Spencer also testified that he saw the “black faces” painted on the bathroom stalls. 

He said that he complained and that they were painted over. 

11 Although Scott is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard, 444 F.3d at 401 n.7 (citing 5TH CIR. R. 47.5.4).

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