* Pursuant t o 5t h Cir. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 26, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-31179

(Summary Calendar)

CATHERINE ALLEN; TEQUILLA ADAMS; BARBARA

AMBROSE; RONALD P. BAZILE; RUTH BORDEN;

WILLARD J. CASTLE; ROBERT COLLINS; ALVIN

DANIEL; JOHNNY GREEN; DIANE JONES; MYRTLE

JONES; GLENN R. JOURNEE; CARMEN MCCRAY;

GAIL MCGRAW; TRAVELLA NEWSOME; YOULANDA

PREVOST; and GAIL SIMMONS,

Plaint iffs-Appellants,

versus

JOHN E. POTTER, Postmaster General,

Defendant-Appellee.

Appeal from the United States District Court

for the Easter District of Louisiana

(2:03-CV-2453-B)

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Catherine Allen and sixteen others appeal from the district court’s grant of summary judgment

to John Potter, Postmaster General, pursuant to Fed. R. Civ. P. 56 on their Title VII hostile work2

environment claims. Because we conclude Appellants cannot show that management had knowledge

of the harassment and failed to promptly respond, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Catherine Allen filed the underly ing employment discrimination complaint against John E.

Potter, the Postmaster General, pursuant to Title VII of the Civil Rights of Act of 1964, 42 U.S.C.

§ 2000(e) et seq., on August 28, 2003. In her original complaint, Allen alleged that while working

for the United States Postal Service in New Orleans, she and several coworkers were required to

work in a metal enclosure–a cage–for one and one half hours. She alleged that only darker skinned

African-American employees were required to work in the cage and that lighter skinned AfricanAmericans and whites were not required to do so. She also alleged that while she and others were

working in the cage, coworkers threw peanuts and bananas at them. Further, she alleged that

someo ne put up signs that read “Do not feed the animals.” Finally, she alleged that at least two

supervisors laughed at her while she was working in the cage.

Two mo nt hs later, Allen filed an amended complaint seeking to add the claims of sixteen

additional plaint iffs, who, along with Allen, are appellants here. The additional plaintiffs averred

claims similar to Allen’s, but they were required to work in the cage from one to four days. In

response to the complaint, Appellee Potter filed a motion to dism iss for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1); a motion to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6); and, in the alternative, a motion for summary judgment under Fed. R. Civ.

P. 56(c) as to the disparate treatment and hostile work environment claims.

The district court granted the motions to dismiss with regard to the Appellants’ intra-racial

color discrimination and disparate treatment claims. The court determined that Allen properly stated3

a hostile work environment claim and that the sixteen additional plaint iffs were allowed to piggyback

their claims t o Allen’s timely filed complaint; however, the court granted Potter’s motion for

summary judgment as to the hostile work environment claims concluding that management promptly

responded when a complaint was made. Allen and the other plaintiffs appeal from the district court’s

grant of summary judgment.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, applying the same standards

as the district court. P egram v. Honeyw ell, Inc.

, 361 F.3d 272 , 278 (5th Ci r. 2004). Sum m ary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of la w.” Fed. R. Ci v. P. 56(c); C elotex

Corp. v. Catrett

, 477 U.S. 317, 322-23 (1986) . If t he moving party meets the initial burden of

showing there is no genuine issue of material fact, the burden shift s t o t he nonmoving party to

produce evidence or designate specific facts showing the existence of a genuine issue for trial.

Pegram , 361 F.3d at 278. Doubts are to be resolved in favor of the nonmoving party, and any

reasonable inferences are to be drawn in favor of that party. I d. Even if we disagree with the reasons

given by the district court to support summary judgment, we may affirm the district court’s ruling on

any grounds supported by the recor d. Lifecare Hosps., Inc. v. Health Plus of La., Inc. , 418 F.3d

436, 439 (5th Cir. 2005).

DISCUSSION

To establish a prima facie case for a Title VII violation based on race discrimination creating

a hostile work environment, Appellants must prove: (1) they belong to a protected group; (2) they4

were subject to unwelcome harassment; (3) the harassment complained of was based on race; (4) the

harassment complained of affe ct ed a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment in question and fail ed to take prom pt

remedial action. R amsey v. Henderson

, 286 F.3d 264, 268 (5th Cir. 2002). “For harassment on the

basis of race to affect a term, condition, or privilege of employment

. . . it must be ‘sufficiently severe

or pervasive to alter the co ndit io ns of the victim’s employment and create an abusive working

environment.’” Ramsey , 286 F.3d at 268 (internal quotati ons omitted) (quoting Harris v. Forklift

Sys., Inc.

, 510 U.S. 17, 21 (1993)). In determining whether a workplace constitutes a hostile work

environment, the court must consider the following fact o rs: “t he frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliat ing, or a mere offensive utterance;

and whe t her it unreasonably interferes with an employee’s work performance.” I d. (internal

quotations omitted) (quoting Walker v. Thompson , 214 F.3d 615, 625 (5th Cir. 2000).

We first address Appellants’ argument t hat t he district court should have considered the

declarations made by the sixteen added plaint iffs as equivalent to affidavits pursuant to 28 U.S.C. §

1746. In general, an unsworn affidavit is incompetent to raise an issue of fact to preclude summary

judgment; however, 28 U.S.C. § 1746 provides an exception that permits unsworn declarations to

substitute for an affiant’s oath if the statement is made “under penalty of perjury” and verified as “true

and correct.” N

issho-Iw ai Am. Corp. v. Kline

, 845 F.2d 1300, 1306 (5th Cir. 1988). In the instant

case, Appel lant s submitted a declaration, to which they attached their amended complaint, in

opposition to Appellee’s motion for summary judgment that satisfied the statutory requirements. The

declaration stated that the facts in the amended complaint were true and correct and that Appellants

signed under penalty of

perjury. Fifteen of the sixteen added plaintiffs signed and dated the5

declaration. The declaration meets the requirements of the statute and is therefo re co mpetent

summary judgment evidence. S ee Hart v. Hairston

, 343 F.3d 762, 765 (5th Cir. 2003) (holding that

a declaration signed under penalty of perjury and verifying the allegations set forth in the complaint

were true and correct was competent summary judgment evidence).

In their amended complaint, Appellants alleged that they were required to work in the cage

between one and four days. Appellants alleged coworkers made offensive comments such as “Look

at the monkeys” and “Don’t feed the Monkeys;” these statements constitute more than teasing and

offhand comments. S ee Sheperd v. Comptroller of Pub. Accounts

, 168 F.3d 871, 874 (5th Cir.

1999). They alleged that someone posted signs that read “Don’t feed the animals.” They also

alleged peanuts were thrown into the cage all four days. Appellee argued that the plaintiffs could not

satisfy the severe or pervasive requirement because of the short duration, but Appellants were only

required to raise an issue of fact as to the severity or pervasiveness. In his brief, Appellee does not

deny that Appellants were required to work in a heavy wire mesh enclosure nor that it remained up

for four days. Nevertheless, the district court concluded that Appellants failed to go beyond the

pleadings and by affidavits, or other evidence, present genuine issues for trial. A llen v. Potter

, 2004

U.S. Dist. LEXIS 21966 at *32 (E.D. La. 2004). We disagree. Examining the evidence in the light

most favorable to the plaint iffs, as we are require d t o do on a motion for summary judgment,

Appellants raised genuine issues of fact as to the severity or pervasiveness of the experience.

Our conclusion is bolstered by the district court’s statement that “[w]hile Allen is a member

of a protected class, who worked in a cage which affected the condition of her employment, Allen

still has difficult

y establishing a prima facie case because the fift h requirement is missing.” Allen v.

Potter

, 2004 U.S. Dist. LEXIS 21966 at *29 (E.D. La. 200 4). Implicit in the district court’s6

conclusion

t hat the cage affected the condition of Allen’s employment is a finding that the

environment was severe or pervasive. For harassment to affect a condition of employment it must

be sufficiently severe or pervasive. S ee Ramsey

, 286 F.3d at 268. Thus, although the district court

found that Allen’s having to work in the cage for one and one half hours was not severe or pervasive,

the court appears to have concluded that the cage, coupled with the throwing of peanuts and posting

of offensive signs, was sufficiently severe or pervasive. Accordingly, the other plaintiffs allegations

that they worked in the cage on as many as four days raises an issue of fact as to the severity and

pervasiveness of their experience. Nevertheless, t he fifth prong remains the Achilles’ heel in

Appellants’ case; they cannot show that management had knowledge of the harassment and failed to

promptly respond and thus, they cannot establish a prima facie case for a Title VII violation based

on race discrimination creating a hostile work environment.

Relying on Faragher v. City of Boca Raton

, 524 U.S. 775, 807 (1998), Appellants contend

they were not required to show that management failed to take remedial action because management

was involved in the harassment. “[W]here the harassment is allegedly committed by a supervisor with

immediate (or successively higher) authority over the harassment vict im, the plaint iff employee needs

to satisfy only the first four of the elements

. . . .” C elestine v. Petroleos De Venezuella SA

, 266 F.3d

343, 353-54 (5th Cir. 2001) (citing Faragher

, 524 U.S. at 807). Tho ugh they allege supervisors

walked by, smiled or laughed, Appellants do not allege that their supervisors made offensive

co mment s, t hrew food, or posted signs. Appellants failed to raise a fact issue as to whether their

superviso rs created a hostile work environment; accordingly, they were required to show that the

supervisors had notice and failed to take prompt remedial action.

None of the appellants alleged that he or she complained to anyone about the experience. On7

the fourth day, an employee who is not a party complained to the District Manager and he

immediately had the cage dismantled and apologized to the employees. Further, in their reply brief,

Appellants admit the signs were removed by the second day and sp eculate that the si gns were

removed by a supervisor who admonished employees for making offensive comments. Therefore,

we conclude that Appellants cannot show that management had not ice and failed to respond

promptly.

CONCLUSION

For the foregoing reasons we affirm the district court’s grant of summary judgment.

AFFIRMED.