# United States Court of Appeals **for the Fifth Circuit**

No. 22-20260 Summary Calendar

Doreatha Walker, Plaintiff—Appellant ,

versus Harmony Public Schools, also known as Cosmos Foundation, Defendant—Appellee

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-3872

Before Smith, Dennis, and Southwick, Circuit Judges

. Per Curiam: * In this employment discrimination action, the district court granted summary judgment to defendant, Harm ony Public Schools. Reviewing the record de novo and in a light most fa vorable to Walker, we agree with the

* This opinion is not designated for publication. See 5th Cir. R. 47.5

. United States Court of Appeals Fifth Circuit 

### FILED February 22, 2023 Lyle W. Cayce Clerk Case: 22-20260 Document: 00516652634 Page: 1 Date Filed: 02/22/2023No. 22-20260

2 district court that there was no genuine dispute of fact. We affirm the district court’s judgment.
I. In August 2018, Harmony Public Sc hools hired Doreatha Walker as a science teacher. Walker is an Africa n American woman. In Late February 2019, Walker began efforts to celebrat e Black History Month with a parade. The principal informed Walker that du e to testing the school did not have time for a parade that year. Walker then sent an email filing a discrimination grievance against the principal. The following day the principal called a meeting with all teachers involved in the parade. While Walker voiced her concerns, she was told about the sch ool’s three prong approach to Black History Month and provided with an alternative of hanging posters around the school. Walker accused the principal of calling the meeting in response to her grievance the day prior. Grievanc es were then filed against Walker. Harmony Public Schools then placed Walker on paid leave while they investigated the grievances. Walker returned to work two days later. Thereafter, Harmony Public Schools received additional grievances regarding Walker. These grievances stat ed that other teachers felt harassed and alleged that Walker was creating a hostile work environment. Harmony Public Schools placed Walker on leave for a second time while they investigated the grievances made by and against Walker. As a result of the investigation, the area superintende nt terminated Walker’s employment, stating that Walker was “unnecessarily confrontational, threatening, and with the intent/effect of bullying and intimating coworkers,” and that her conduct “created a toxic work environ ment, which was unacceptable” to the school. Harmony Public Schools formally terminated Walker on April 12, 2019 due to “misconduct.” Case: 22-20260 Document: 00516652634 Page: 2 Date Filed: 02/22/2023No. 22-20260

3 Walker, proceeding pro se , sued Harmony Public Schools for racial discrimination and retaliation in viol ation of Title VII and 42 U.S.C. § 1981, as well as for violations of the American s with Disabilities Act. The district court dismissed Walker’s § 1981 clai ms and ADA claims as barred by sovereign immunity. Following discover y, both parties filed motions for summary judgment on Walker’s rema ining Title VII claims, which the district court granted as to Harmony Pu blic Schools and denied as to Walker. Walker timely appealed the district court’s summary judgment order. On appeal, she only challenges the disposi tion of her Title VII claims, of which there are three: racial discriminati on, hostile work environment, and retaliation.
II. We review the district court’s gr ant of summary judgment de novo and affirm if “there is no genuine dispute as to any material fact and the movant is entitled to ju dgment as a matter of law.” Fed. R. Civ. P. 56(a); Renfroe v. Parker , 974 F.3d 594, 599 (5th Cir. 20 20). A fact is material if it “might affect the outcome of the suit under governing law,” while a dispute about a fact is genuine “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 1986. We construe all th e evidence and make all reasonable inferences in the light most favorable to Walker. Scott v. Harris , 550 U.S. 372, 378 (2007). If the record “could not lead a rational trier of fact to find for [Walker], there is no genuine [dispute] for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp , 475 U.S. 574, 587 (1986) (cleaned up).
III.
We first consider Walker’s claims of discrimination under Title VII. It is unlawful to terminate an employee “because of” her “race..., sex, or national origin.” 42 U.S.C. § 2000e-2( a)(1). Since Walker does not present Case: 22-20260 Document: 00516652634 Page: 3 Date Filed: 02/22/2023No. 22-20260

4 direct evidence of discrimina tion, she must satisfy the McDonnell Douglas burden shifting framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-804 (1973); Sanders v. Christwood , 970 F.3d 558, 561 (5th Cir. 2020). Under that framework, Walker must make out a prima facie case of discrimination. Watkins v. Tregre , 997 F.3d 275, 281 (5th Cir. 2021). If she succeeds, Harmony Public Schools mu st respond with a “legitimate, nondiscriminatory reason” for terminating Walker. Id . at 282. The burden then shifts back to Walk er who must counter with substantial evidence that Harmony Public School’s proffered reason is pretextual. Id . To establish a prima facie case of discri mination, Walker must show that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) that others similarly situated were treated more favorably. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 512 (5th Cir. 2001). Within the fourth element, Walk er contends that another white teacher was similarly situated and trea ted more favorably in that Ms. Huff was retained despite similar miscondu ct. To prevail under this theory, Walker must raise a question of fact as to whether the disparate employment actions were taken under “nearl y identical” circumstances. See Lee v. Kan. City S. Ry. Co. , 574 F.3d 253, 259 (5th Cir. 2009). While each employee’s track record does not need to comprise an identical number of infractions, the records must be comparable. Walker presents no evidence that Ms. Huff holds a comparable track record. Walk er also fails to show any history of grievances against Ms. Huff as to caus e the superintendent to open a similar investigation to that opened agains t Walker. Rather, the sole complaint against Ms. Huff was by Walker herself. Turning now to the hostile work en vironment claim, to establish a prima face case of a hostile work environment, Walker must show (1) she is a Case: 22-20260 Document: 00516652634 Page: 4 Date Filed: 02/22/2023No. 22-20260

5 member of a protected class; (2) she suffered unwelcomed harassment; (3) the harassment was based on her membership in a pr otected class; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have kn own about the harassment and failed to take prompt remedial action. Ramsey v. Henderson , 286 F.3d 264, 268 (5th Cir. 2002). The court considers the to tality of employment circumstances in evaluating whether an environment is objectively hostile, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mer e offensive utterance and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys. , 510 U.S. 17, 23 (1993). Although Walker subjec tively felt bullied and harassed, she fails to specify any objectively offensive conduct attributable to her race that was sufficiently severe or pervasive to al ter the conditions of her employment. The record contains no evidence that Walker was subjected to race-based comments, slurs, or derogatory remarks. Occasional workplace critiques and banter between two teachers who did no t get along are not evidence of the type of hostile workplace environment th at is proscribed by Title VII. There is nothing in the record that would allo w a reasonable juror to conclude that Walker has put fort h summary judgment evidence of actual instances of racially motivated harassment. Finally, to establish a prima facie ca se of retaliation Walker must show (1) she participated in a protected acti vity; (2) her employer took an adverse employment action against her; and (3 ) a causal link exists between the protected activity and the adverse employment action. Taylor v. United Parcel Serv., Inc. , 554 F.3d 510, 523 (5th Cir. 2008). Walker presented no summary judgment evidence that “but for” her complaint of discrimination she would have not been terminated. To the contrary, summary judgment evidence supports the superintendent’s findin g that Walker created a toxic work Case: 22-20260 Document: 00516652634 Page: 5 Date Filed: 02/22/2023No. 22-20260

6 environment by being confrontational and threatening, with the intent and effect of bullying her co-workers. Thus, Harmony Public Schools is entitled to summary judgment on Walk er’s retaliation claim.
IV. Because Walker failed to present any evidence establishing prima facie cases of a hostile work environment, ra cial discrimination, or a retaliatory motive, Harmony Public School is entitled to summary judgment. We AFFIRM the district court’s judgment. Case: 22-20260 Document: 00516652634 Page: 6 Date Filed: 02/22/2023