United States Court of Appeals

for the Fifth Circuit

No. 21-30203

David Scott Vidrine; Steven P. Bozeman; Zachary 

Stewart; Larry F. Witmore, 

Plaintiffs—Appellants,

versus

Chad Guillot, As Interim EMS Administrator for 

Department of Emergency Medical Services for the 

City of Baton Rouge, Parish of East Baton Rouge; Stacy 

Simmons, As Communications Chief and in her 

Individual Capacity; Sharon Weston Broom, Mayor 

President for the Parish of East Baton Rouge, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:18-CV-538

Before Smith, Elrod, and Oldham, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 18, 2022

Lyle W. Cayce

Clerk

Case: 21-30203 Document: 00516438413 Page: 1 Date Filed: 08/18/2022
No. 21-30203

2

Employees in Baton Rouge’s EMS Department allege they suffered

sex discrimination. They sued under Title VII and Louisiana law. The district 

court granted summary judgment to defendants. We AFFIRM.

I.

Appellants are one current and three former male employees of the 

City of Baton Rouge/Parish of East Baton Rouge Department of Emergency 

Medical Services (“EMS”). They were (or are) Emergency 

Communications Officers—basically, EMS dispatchers. They allege that 

their supervisor, Communications Chief Stacy Simmons, subjected them to 

sex discrimination and created a hostile work environment.

Appellants point to six specific instances of alleged discrimination 

recounted by the district court. First, they allege that on one occasion, 

Simmons stated “there are too many men in communications.” Next, they 

allege five incidents where male employees were disciplined and female 

employees who engaged in similar conduct were not. Appellees contest all of 

these allegations.

Beyond these specific incidents, appellants provide a string of record 

citations they say show regular harassment and unequal treatment. For 

example, they point to allegations that women were allowed to take longer 

breaks than men for lunch or to run personal errands, that Simmons did not 

speak to male employees, and that Simmons said “I don’t like men” some 

number of times between 2003 and 2017.

Appellants Bozeman, Witmore, and Stewart all resigned from EMS 

following some form of discipline against them. Bozeman was suspended 

following an argument with a colleague. He was scheduled to return to work 

on October 9, 2017, following his suspension and counseling. He resigned 

three days before his scheduled return.

Case: 21-30203 Document: 00516438413 Page: 2 Date Filed: 08/18/2022
No. 21-30203

3

Witmore was suspended for viewing sexually offensive material at 

work. When he returned from his suspension, he was assigned to work with 

a female colleague and refused to do so. After he was instructed he must work 

with her, he had a panic attack and took leave under the Family and Medical 

Leave Act. Then he resigned when that leave was exhausted.

Stewart faced termination for sexual harassment and inappropriate 

conduct. After a disciplinary process, Stewart signed an agreement with EMS 

whereby his proposed termination was reduced to a 30-day suspension. In

that agreement, Stewart “waived, compromised, released and otherwise 

discharged EMS from any suit, claim or cause of action specifically included 

but not limited to any claim of wrongful termination or violations of 42 

U.S.C. § 1983 or Title VII of the Civil Rights Act, resulting from, created by, 

or relating to” his employment with EMS. When he later resigned, there was 

no pending discipline against him.

Appellant Vidrine is still employed at EMS and alleges he “continues 

to suffer retaliation for his part in bringing suit against EMS and Simmons.”

The four dispatchers brought claims of sex discrimination under the 

Louisiana Employment Discrimination Law (“LEDL”), La. Rev. Stat. 

Ann. §§ 23:301, et seq., and Title VII of the Civil Rights Act of 1964, 42 

U.S.C. §§ 2000e, et seq. The district court granted summary judgment to 

defendants. Plaintiffs timely appealed. Our review is de novo. Playa Vista 

Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 (5th Cir. 2021).

II.

Appellants raise three issues on appeal. The first two are inadequately 

briefed and therefore forfeited. The third fails.

Case: 21-30203 Document: 00516438413 Page: 3 Date Filed: 08/18/2022
No. 21-30203

4

A.

First, appellants argue the district court erred in analyzing their claims 

under both Title VII and LEDL under federal precedents.

Appellants have forfeited this argument by failing to adequately brief 

it on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021); 

Fed. R. App. P. 28(a)(8)(A). A party inadequately briefs an argument

when it fails to “offer any supporting argument or citation to authority” or 

to “identify relevant legal standards and any relevant Fifth Circuit cases.” 

JTB Tools & Oilfiled Servs., L.L.C. v. United States, 831 F.3d 597, 601 (5th 

Cir. 2016) (quotation omitted). The same is true when a party fails to explain 

how the district court’s analysis went awry. See Brinkmann v. Dallas Cnty. 

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Here, the district court analyzed plaintiffs’ Title VII and LEDL claims 

together. Consistent with our precedent, the district court concluded that 

“the outcome of Plaintiffs’ claims will be the same under the federal and state 

statutes.” See McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir. 

2007) (noting LEDL “is substantively similar to Title VII” and it is 

appropriate to analyze both “only under the applicable federal precedents”). 

Appellants claim the district court should have “used a burden that 

allowed the Plaintiffs the opportunity to be heard at trial on the State issues 

that are continuing in nature.” But they do not cite any authorities suggesting

a different standard was appropriate. Nor do they explain how the district 

court went wrong. This argument is forfeited.

B.

Second, appellants argue the district court should not have dismissed 

Stewart’s claims as voluntarily waived. This argument is likewise 

inadequately briefed.

Case: 21-30203 Document: 00516438413 Page: 4 Date Filed: 08/18/2022
No. 21-30203

5

The district court identified the correct legal standard for waivers of 

Title VII claims. The court explained that a release of Title VII claims is valid 

if it is “knowing and voluntary.” Rogers v. Gen. Elec. Co., 781 F.2d 452, 454 

(5th Cir. 1986). Once an employer establishes a knowing and voluntary 

waiver, the district court further noted, it is the employee’s burden to 

demonstrate the release was “invalid because of fraud, duress, material 

mistake, or some other defense.” Williams v. Phillips Petroleum Co., 23 F.3d 

930, 935 (5th Cir. 1994).

The district court correctly applied that standard. Stewart signed an 

agreement that “waived, compromised, released and otherwise discharged 

EMS from any suit, claim or cause of action specifically included but not 

limited to any claim of wrongful termination or violations of 42 U.S.C. § 1983 

or Title VII of the Civil Rights Act, resulting from, created by, or relating to” 

Stewart’s employment with EMS. As the district court noted, Stewart was 

represented by counsel when he negotiated this agreement, and his attorney 

was the one who presented the waiver—thus suggesting that Stewart 

knowingly and voluntarily signed it. Appellants “provide[d] no evidence that 

Stewart was coerced into signing the Resolution, that he did so without 

knowledge of its contents, that the Resolution was fraudulent, or that there 

was some other legally valid reason” to disregard it. So the court found 

Stewart waived his claims.

Here, appellants do not provide “even the slightest identification of 

any error in [the district court’s] legal analysis.” Brinkmann, 813 F.2d at 748. 

They again cite no cases and provide no reason to doubt the district court’s 

reasoning. They merely assert that Stewart’s claims “should not be 

dismissed” because the waiver was “not consensual.” They imply that 

Stewart’s waiver was entered into without consideration or that the loss of a 

month’s pay created duress. But those objections are incoherent given that 

EMS gave Stewart his thirty-day suspension as a concession; he would 

Case: 21-30203 Document: 00516438413 Page: 5 Date Filed: 08/18/2022
No. 21-30203

6

otherwise have faced termination. This argument is inadequately briefed and 

therefore forfeited on appeal.

C.

Finally, appellants argue the district court failed to “consider[] the 

totality of circumstances” and wrongly granted summary judgment to 

appellees on their Title VII claims. We disagree.

1.

Appellants ask us to reverse the grant of summary judgment on their

hostile work environment claim. To survive summary judgment on this

claim, appellants must show a genuine dispute of material fact regarding 

whether they were subject to “severe or pervasive” harassment that 

“create[d] an abusive working environment.” West v. City of Houston, 960 

F.3d 736, 741–42. (5th Cir. 2020) (quotation omitted).

As appellants correctly note, courts must look “at all the 

circumstances” to determine whether “an environment is ‘hostile’ or 

‘abusive.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). To that end, 

courts consider (1) the frequency of the discriminatory conduct, (2) its 

severity, (3) whether it is physically threatening or humiliating, or a mere 

offensive utterance, and (4) whether it unreasonably interferes with an 

employee’s work performance. West, 960 F.3d at 742. “[N]o single factor is 

determinative.” Id.

Here, appellants highlight six specific instances of alleged sex 

discrimination. They argue these incidents were “not isolated.” But every 

example they provide is a minor incident alleged to have occurred only once

over a period of many years. Where the “complained-of actions were isolated 

or infrequent,” appellants “cannot show that [their] harassment was 

frequent or pervasive.” West, 906 F.3d at 742; see also Faragher v. City of Boca 

Case: 21-30203 Document: 00516438413 Page: 6 Date Filed: 08/18/2022
No. 21-30203

7

Raton, 524 U.S. 775, 788 (1998) (“isolated incidents” will not suffice “unless 

extremely serious”). None of these incidents were physically threatening or 

humiliating, nor did any of them unreasonably interfere with appellants’ 

work performance.

Other than those specific incidents, appellants point to some allegedly 

discriminatory conduct they say happened regularly. For example, they claim 

that female employees were allowed to take slightly longer breaks. And they 

allege that male employees were disciplined when female employees who 

engaged in the same conduct were not. Even assuming the truth of these

allegations, and that they happened as frequently as appellants say they did, 

they are insufficient to demonstrate a hostile working environment. See 

Harris, 510 U.S. at 21–22 (“Conduct that is not severe or pervasive enough 

to create an objectively hostile or abusive work environment—an 

environment that a reasonable person would find hostile or abusive—is 

beyond Title VII’s purview.”).

Appellants fault the district court for “looking at the facts alleged in a 

piecemeal manner.” But it was appropriate for the district court to evaluate 

the frequency of the alleged discriminatory conduct. And the court properly 

determined that, even taking all the allegations as true, the conduct described 

could not support a claim for harassment because it was “relatively 

infrequent” and “not severe or pervasive.”

Appellants failed to show a genuine dispute of material fact regarding 

whether they were subject to severe or pervasive harassment. Accordingly, 

the district court did not err in granting summary judgment on the hostile 

work environment claim.

2.

Appellants also ask us to reverse the grant of summary judgment on 

their disparate treatment and retaliation claims. 

Case: 21-30203 Document: 00516438413 Page: 7 Date Filed: 08/18/2022
No. 21-30203

8

To succeed on these claims, appellants must first establish a prima 

facie case of discrimination. For disparate treatment, appellants must show

(1) they were members of a protected class; (2) they were qualified for their 

positions; (3) they suffered an adverse employment action, and (4) that 

others similarly situated were treated more favorably. Willis v. Coca Cola 

Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). For retaliation, they must 

establish (1) they participated in an activity protected by Title VII; (2) EMS 

took an adverse employment action; and (3) there is a causal connection 

between the protected activity and the adverse employment action. McCoy, 

492 F.3d at 557. If appellants can establish a prima facie case, then the burden 

shifts to EMS “to articulate some legitimate, nondiscriminatory or 

nonretaliatory reason” for its action. Id.

Our analysis starts and ends with appellants’ alleged “adverse 

employment action.” Appellants cannot establish such an action for either 

their disparate-treatment claims or their retaliation claims. That means they 

cannot establish a prima facie case, and therefore, the district court did not 

err in dismissing their claims. 

In the disparate-treatment context, an “adverse employment action” 

is an “ultimate employment decision[] such as hiring, granting leave, 

discharging, promoting, or compensating.” McCoy, 492 F.3d at 559

(quotation omitted). That includes a constructive discharge, which occurs 

when “an employer discriminates against an employee to the point such that 

his working conditions become so intolerable that a reasonable person in the 

employee’s position would have felt compelled to resign.” Green v. Brennan, 

578 U.S. 547, 555 (2016) (quotation omitted). 

The three dispatchers who resigned from EMS argue they were 

constructively discharged. As already discussed, they have not alleged 

conduct that amounts to severe and pervasive harassment. And constructive 

Case: 21-30203 Document: 00516438413 Page: 8 Date Filed: 08/18/2022
No. 21-30203

9

discharge requires showing a greater degree of harassment than isrequired to 

establish a hostile work environment. See Matherne v. Ruba Mgmt., 624 F. 

App’x 835, 841 (5th Cir. 2015) (citing Benningfield v. City of Houston, 157 F.3d 

369, 378 (5th Cir. 1998)).Appellants cannot make that showing here. Because 

there was no constructive discharge, there was no adverse employment 

action, and they cannot establish a prima facie case of disparate treatment.

In the retaliation context, an “adverse employment action” is “any 

action that might well have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” McCoy, 492 F.3d at 559 (citing 

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). In their 

briefs before this court, appellants claim Vidrine “suffer[s] retaliation for his 

part in bringing suit,” but they have not identified any action that would have 

dissuaded a reasonable employee from suit. Even taking all of Vidrine’s 

allegations as true, none rises to that level. So again, appellants’ prima facie 

case fails.

The district court did not err in granting summary judgment on 

appellants’ disparate treatment and retaliation claims.

AFFIRMED.

Case: 21-30203 Document: 00516438413 Page: 9 Date Filed: 08/18/2022
No. 21-30203

10

Jennifer Walker Elrod, Circuit Judge, concurring in part and 

dissenting in part:

1

The majority holds that summary judgment was proper because 

appellant-employees failed to show a genuine dispute of material fact 

regarding whether they were subjected to severe or pervasive harassment

based on their sex in violation of Title VII. Ante at 6–8. Because I believe 

that there was a genuine dispute of material fact regarding the claims of all 

four employees, I would hold that summary judgment was improper. 

Accordingly, I respectfully dissent from Section II.C.1. of the majority’s 

opinion.

I.

For a hostile workplace claim to succeed under Title VII, 

discriminatory behavior must so thoroughly permeate the work environment 

that it is “sufficiently severe or pervasive to alter the conditions of the 

victim’s employment and create an abusive working environment.” Harris 

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (emphasis added) (quoting Meritor 

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).2

Whether there was such a work environment depends on the totality 

of the circumstances. Id. at 23. We consider four factors: (1) how often 

1 I concur in parts II.A., II.B., and II.C.2. of the majority’s opinion regarding, 

respectively, the employees’ claims that the district court: (1) failed to use “a burden that 

allowed the Plaintiffs the opportunity to be heard at trial on the State issues that are 

continuing in nature”; (2) should not have dismissed of one of the employee’s claims as 

voluntarily waived; and (3) improperly granted summary judgment on the employees’ 

disparate treatment and retaliation claims. 2 To violate Title VII, the offending employee need not engage in conduct that is 

severe and pervasive. Rather, as we have emphasized, either “severe or pervasive” 

discriminatory conduct is sufficient. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 483 (5th

Cir. 2002); see also E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 453 (5th Cir. 

2013) (en banc) (“To affect a term, condition, or privilege of employment, the harassing 

conduct ‘must be sufficiently severe or pervasive to alter the conditions of [the victim’s] 

employment and create an abusive working environment.’” (alteration in original) (citation 

omitted)).

Case: 21-30203 Document: 00516438413 Page: 10 Date Filed: 08/18/2022
No. 21-30203

11

discriminatory conduct occurred; (2) how severe the conduct was; (3) 

whether the conduct involved physical threats or humiliation, or was “a mere 

offensive utterance”; and (4) whether the conduct unreasonably interfered

with an employee’s job performance. West v. City of Houston, 960 F.3d 736, 

742 (5th Cir. 2020) (citing Harris, 510 U.S. at 23)).

Further, we employ an objectively reasonable person standard when 

assessing workplace hostility. E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 

F.3d 444, 453 (5th Cir. 2013) (en banc). We must consider “[c]ommon sense, 

and an appropriate sensitivity to social context” so that Title VII does not 

become “a general civility code for the American workplace.” Oncale v. 

Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 80 (1998). The inquiry is 

therefore fact intensive. Boh Bros., 731 F.3d at 460.

In Boh Bros., we held en banc that there was enough evidence for the 

jury to conclude that the harassment was “sufficiently severe or pervasive.” 

Id. at 461. There, one employee “hurled raw sex-based epithets uniquely at 

[the victim] two-to-three times a day, almost every day, for months on end.” 

Id. The offending employee also exposed his genitals to the victim about ten 

times (often while smiling and waving), once suggested that he would put his 

penis in the victim’s mouth, and would “approach [the victim] from behind 

and ‘hump’ him two to three times per week” for months. Id. at 449–50, 

459. 

We reached the same conclusion in Farpella-Crosby v. Horizon Health 

Care, in which the offending employee questioned the victim’s sexual 

activities or made comments that were “offensive” or “egregious” two or 

three times per week. 97 F.3d 803, 806 (5th Cir. 1996). The comments were 

Case: 21-30203 Document: 00516438413 Page: 11 Date Filed: 08/18/2022
No. 21-30203

12

“so frequent that [the victim] could not possibly remember each instance.” 

Id. at 805.3

Conversely, we have held that allegations of workplace discrimination 

were not “sufficiently severe or pervasive” to survive summary judgment

when the victim alleged a sole “offensive joke concerning condoms.” Long v. 

Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996).

II.

Given the abundance of evidence provided by the employees, there is 

a genuine dispute of fact whether Appellee’s conduct amounted to a hostile 

workplace. Looking to the four factors from West—frequency, severity, 

physical threat or humiliation, and interference with work performance—the 

employees allege sufficient facts to raise a genuine dispute about a hostile 

workplace.

Although the timeline of this case is marked by discrete incidents over 

a period of years (like supervisor Stacy Simmons allegedly saying that she 

“does not like men”), the employees allege many ongoing discriminatory 

3 We have made similar decisions in cases of workplace discrimination based on 

race. See, e.g., Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 400–04 (5th Cir. 2021) (holding 

that there was a fact issue because employees referred to the victim by racial epithets twice,

addressed the victim using arguably offensive terms, there were other occasions when 

similarly offensive language was used when the victim was not present, and the victim’s 

efforts at work were sabotaged on more than one occasion); E.E.O.C. v. WC&M Enters., 

Inc., 496 F.3d 393, 400–01 (5th Cir. 2007) (holding that there was a fact issue regarding 

whether harassment was “severe or pervasive” when the victim was called racial epithets 

“on a regular basis for a period of approximately one year” (often several times per day),

and when employees “mocked [the victim’s] diet and prayer rituals,” made several 

comments indicating that he was a terrorist, and “frequently banged on the glass partition 

of [his] office[] in order to startle him”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 

2000) (holding that there was a fact issue stemming from offensive racial remarks toward

the victim that began when she was hired and continued regularly for three years until she 

resigned).

Case: 21-30203 Document: 00516438413 Page: 12 Date Filed: 08/18/2022
No. 21-30203

13

behaviors. And, at this stage, we must accept those allegations as true. For 

example, male employees were supposedly routinely denied leave during the 

workday, but female employees were allegedly rarely, if ever, denied leave to 

handle personal business, even if it was for social activities like church 

functions or shopping. Female employees were allegedly often permitted to 

take leave without using their predetermined leave hours. In addition to 

leave, female employees allegedly were frequently permitted to take longer 

breaks and lunches. Female employees allegedly were permitted to take 

additional smoke breaks without using leave. And when a male employee was 

dispatched to pick up lunch for the group, he was given 30 minutes. But 

female employees were allegedly regularly given 60 to 90 minutes. Although 

all employees received the same number of breaks per day on paper, female 

employees allegedly were often given priority on when to take those breaks.

Moreover, the employees allege routine disparities in punishment

between male and female employees for the same infraction. Granted, these 

were often minor—Larry Whitmore claims that he was reprimanded for 

changing the font settings on his computer and for being five minutes late to 

a shift when female employees were not—but that makes them no less 

pervasive. There was also apparently a double standard for watching videos 

and movies during down time on a shift.

As the Supreme Court noted in Harris, Title VII prohibits employers 

from discriminating on the basis of “compensation, terms, conditions, or 

privileges of employment” because of an employee’s gender. 510 U.S. at 21

(citing 42 U.S.C. § 2000e–2(a)(1)). This includes “the entire spectrum of 

disparate treatment of men and women.” Id. (quoting Los Angeles Dept. of 

Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). This court has 

indicated that discriminatory treatment in breaks and punishment may 

contribute to a hostile workplace. In Whitlock v. Lazer Spot, Inc., we noted 

that a black employee’s claim for a hostile work environment because he was 

Case: 21-30203 Document: 00516438413 Page: 13 Date Filed: 08/18/2022
No. 21-30203

14

punished for violations that white employees were not punished for failed 

because of insufficient facts and only conclusory allegations. 657 F. App’x 

284, 287 (5th Cir. 2016). And in Peterson v. Linear Controls, Inc., we held that 

a black employee’s claim for a hostile work environment on the grounds that 

only black employees were routinely denied water breaks failed only because 

the conduct was not pervasive as it occurred during a ten-day period. 757 F. 

App’x 370, 374 (5th Cir. 2019).

In contrast, employees here point to specific facts to support their 

claim. Simmons, the supervisor, allegedly disregarded male employees as a 

matter of course. Both Whitmore and David Vidrine claim that Simmons 

would not, in Whitmore’s words, “talk to male employees unless it was a 

necessity.” And Zachary Stewart claims that Simmons would regularly give 

male employees the “cold shoulder,” making them answer more calls as she 

socialized with female employees.

In any event, the discrimination faced by the employees was just as 

frequent as the “weekly” or “regular” harassment that was adequately 

“pervasive” in Farpella-Crosby, WC&M, and Walker. Just like in FarpellaCrosby, the incidents were so frequent that the workers could not name every 

single instance. 97 F.3d at 805.

The majority holds that the incidents alleged here are too “isolated or 

infrequent” to show that harassment was “frequent or pervasive,” West, 960

F.3d at 742, and that the ongoing discrimination alleged by the employees is 

“insufficient to demonstrate a hostile working environment.” Ante at 6–7. 

Similarly, the district court held that the employees alleged a handful of 

“minor, isolated incidents” of workplace harassment, only two of which 

“span any period of time”—that Simmons would not speak to male 

employees and that female employees were given longer breaks and not 

always required to take leave. But these holdings do not consider the 

Case: 21-30203 Document: 00516438413 Page: 14 Date Filed: 08/18/2022
No. 21-30203

15

voluminous record of additional allegations of discrimination over a long 

period of time, which are sufficient at the summary judgment phase under 

our precedent.

Not only was the harassment frequent, but it was sometimes 

humiliating as well. A female employee supposedly yelled and cursed at 

Whitmore without consequence, and other female employees mocked 

Stewart’s prosthetic leg without repercussion.

Male employees were often expected to do more work, too—and not 

for more reward. Stewart claims, for example, that while male employees 

were sometimes expected to answer 180–250 phone calls in 12 hours, female 

employees answered only 50–70. Whitmore was supposedly reprimanded for 

not answering the phone while female employees sat around doing nothing. 

Vidrine made a similar claim. Female employees were often given more 

opportunities for overtime, training, and promotions. Steven Bozeman 

complained that his own wife, who also worked for Appellee, received 

favorable treatment in the form of a promotion, easier job assignments, and 

access to classes unavailable to him.

The employees’ supervisor, Simmons, also allegedly made many 

remarks regarding the male employees’ ability to succeed in the workplace. 

Simmons allegedly said that “there are too many men in communications,” 

that “men were a liability to the communications office,” and that it was 

“easier to work with females in those positions” because men lack the proper 

temperament and cannot multitask as efficiently as women. Simmons also 

allegedly stated that she “does not like men.” The district court and majority 

hold that “[n]one of these incidents . . . unreasonably interfere[d] with the 

[employees’] work performance.” Ante at 7. However, there are fact issues 

on this point as well—all four employees allegedly had their “opportunity to 

succeed in the workplace” hampered by Appellee’s conduct. See Weller v. 

Case: 21-30203 Document: 00516438413 Page: 15 Date Filed: 08/18/2022
No. 21-30203

16

Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996) (citation omitted). 

In fact, three of the four employees quit their jobs, all citing a discriminatory 

workplace in one form or another.

Taken together, and in the light most favorable to the employees,

these routine practices show that harassment was a “pervasive” element in 

the workplace. All four employees experienced frequent harassment that 

interfered with their work duties, and Stewart and Whitmore also 

experienced harassment that was humiliating.

* * *

For these reasons, there is a genuine dispute of material fact whether

Appellee’s behavior was “sufficiently severe or pervasive to alter the 

conditions of the victim’s employment and create an abusive working 

environment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67). In 

my view, we should vacate the district court’s judgment on the employees’

hostile workplace claims. Accordingly, I respectfully dissent in part.

Case: 21-30203 Document: 00516438413 Page: 16 Date Filed: 08/18/2022