United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20294

Summary Calendar

____________

Roy Lee Weeks, Jr., 

Plaintiff—Appellant, 

versus

Nationwide Mutual Insurance Company, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:21-CV-4138

______________________________

Before Wiener, Stewart, and Douglas, Circuit Judges.

Per Curiam:*

Plaintiff–Appellant Roy Lee Weeks, Jr. alleges that his former 

employer, Defendant–Appellant Nationwide Mutual Insurance Company, 

discriminated against him on the basis of age and race. The district court 

granted Nationwide’s motion for summary judgment. Weeks appeals. We 

review a grant of summary judgment de novo, “applying the same standards 

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

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2023

Lyle W. Cayce

Clerk

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No. 23-20294

2

as the trial court.” Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (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).

Weeks first challenges the district court’s resolution of his claim of 

race discrimination under 42 U.S.C. § 1981.1 In such cases, the court applies 

the familiar McDonnell Douglas framework, in which the plaintiff must first 

establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802–03 (1973). If the plaintiff does so, the burden then 

shifts to the employer to “articulate a legitimate, nondiscriminatory reason 

for the termination.” Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 

(5th Cir. 2015) (citation omitted). If the employer is successful, the burden 

returns to the plaintiff, who must demonstrate by a preponderance of the 

evidence that “the legitimate reasons offered by the defendant were not its 

true reasons, but were a pretext for discrimination.” Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (citation omitted).

Regardless of Weeks’s ability to establish a prima facie case of 

discrimination, he fails at step three, as he cannot show that Nationwide’s 

proffered non-discriminatory reasons for its challenged employment actions 

are pretextual. For example, in 2018 Nationwide decided to assign Weeks to 

a particular team after conducting an assessment of all managers, which took 

into consideration the employees’ skills, geographic location, and personal 

preference, among other factors. Weeks claims that his performance 

reviews—higher than that of a comparator assigned to an allegedly better 

unit—reveal that Nationwide’s reason for the 2018 reassignment is “false or 

_____________________

1 Before the district court and again here, Nationwide raises various statute of 

limitations defenses. We do not reach those issues because we find that Weeks’s claims fail 

on their merits.

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unworthy of credence.” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th 

Cir. 2011) (citation omitted). But Nationwide did not decide placements 

based only on performance history, but also on other relevant factors such as

geography, preference, technical ability, and platform skills. “Our job as a 

reviewing court conducting a pretext analysis is not to engage in secondguessing of an employer’s business decisions.” LeMaire v. La. Dep’t of 

Transp. and Dev., 480 F.3d 383, 391 (5th Cir. 2007). Similarly, Nationwide’s 

decision to promote an employee other than Weeks in 2020 was reasonably 

based on the other employee’s qualifications, which were stronger than those 

of Weeks. Because Weeks cannot demonstrate that he was “clearly better 

qualified” than the employee selected, he fails to meet his burden on the 

pretext prong. See Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 

2010) (emphasis added) (citation omitted). In sum, Weeks points to no 

evidence in the record, other than his own conclusional allegations, 

suggesting that Nationwide’s legitimate reasons for its actions were instead 

a “coverup” for discrimination. McDonnell Douglas, 411 U.S. at 805. The 

district court was correct in holding that Nationwide is entitled to judgment 

as a matter of law on Weeks’s discrimination claim.

Second, Weeks contends that the district court erred in granting 

summary judgment in favor of Nationwide on his hostile work environment 

claim. To succeed on that claim, Weeks had to show that he was subjected to 

unwelcome harassment based on race. Ramsey v. Henderson, 286 F.3d 264, 

268 (5th Cir. 2002) (citation omitted). Such harassment must be 

“sufficiently severe or pervasive to alter the conditions of the victim’s 

employment and create an abusive working environment.” Nat’l R.R. 

Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)(citation omitted). It must 

also be “both objectively and subjectively offensive.” Faragher v. City of Boca 

Raton, 524 U.S. 775, 787 (1998). Relevant factors include “the frequency of 

the discriminatory conduct; its severity; whether it is physically threatening 

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or humiliating, or a mere offensive utterance; and whether it unreasonably 

interferes with an employee’s work performance.” Ramsey, 286 F.3d at 268 

(citation omitted). Weeks claims that the following events contributed to 

Nationwide’s work environment being hostile: (1) Weeks’s 2017 

reassignment to the field team, (2) his 2018 and 2020 performance ratings of 

“developing,” and (3) his receipt of a job elimination notice in 2019, leading 

to his forced demotion. However, these acts were relatively isolated and 

infrequent, did not physically threaten him, and did not “destroy[ his] 

opportunity to succeed in the workplace.” See West v. City of Houston, Texas, 

960 F.3d 736, 743 (5th Cir. 2020) (internal quotation marks and citation 

omitted). Weeks’s allegations of harassment thus do not constitute the

“extreme” circumstances necessary to support a claim of hostile 

environment. See Faragher, 524 U.S. at 788. For the same reason, Weeks’s 

constructive discharge claim also cannot stand. See Brown v. Kinney Shoe 

Corp., 237 F.3d 556, 566 (5th Cir. 2001) (“Constructive discharge requires a 

greater degree of harassment than that required by a hostile environment 

claim.” (citation omitted)). 

The district court’s grant of summary judgment is AFFIRMED.

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