* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 22, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

))))))))))))))))))))))))))

No. 05-50238

Summary Calendar

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Peter Vallecillo,

Plaintiff-Appellant,

versus

United States Department

of Housing & Urban Development,

Defendant-Appellee,

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:03-CV-1120

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM: *

The question presented in thi s case is whether the district

court erred in granting summary ju d gment for Defendant-Appellee

United States Department of Housing & Urban Development (“HUD”) on

Plaintiff-Appellant Peter Vallecillo’s hostile work environment and

constructive discharge claims under 4 2 U.S.C. § 2000(e) et seq.

(“Title VII”). Because we find that summary judgment was properly2

granted, we AFFIRM the district court’s ruling.

I. BACKGROUND

HUD hired Peter Vallecillo as a Community Builder (“CB”) Fellow

in September 1998. The CB program employed 400 professionals from

an applicant pool of over 8,000 in order to provide out-reach

services and foster community and economic development in

approximately 81 HUD regions. After candidates were selected, HUD’s

Human Resources Departme nt, pursuant to Office of Personnel

Management guidelines, reviewed each contender’s prior experience

and recommended a salary grade level of either GS-13, GS-14, or GS15.

HUD offered Vallecillo a CB fellowship position, which he

accepted, starting at the GS-13 level. Beginning early in his

te nure, and continuing throughout the duration of his employment,

Plaintiff-Appel lant complained that Hispanics were under-represented

in the CB program a nd that they were paid less than Caucasian and

African-American employees. Vallecillo argues that after he

questioned HUD’s employment practices, he experienced problems with

his own employment with the department.

On two occasions, in November 1998, two supervisors in the San

Antonio office complained to Cynthia Leon, Vallecillo’s immediate

supervisor, that Plaintiff-Appellant had behaved inappropriately and

had been verbally abusive during meetings. In February 1999, Leon

accus ed Vallecillo of unprofessional conduct associated with his3

office hours. In March 1999, Plaintiff-Appellant received a

performance appraisal of “fully successful,” a rating that was lower

than the rest of his co-workers. Additionally, in March 1999,

Vallecillo received a “memorandum of counseling” admonishing him for

several incidents of unprofessional conduct including verbal

confrontations with supervisors, his alleged misuse of the email

system, and his attitude towards Le on. The memorandum did not

affect Plaintiff-Appellant’s compensation or benefits. Vallecillo

also contends that, on one occasion, one of his supervisors referred

to him as Che Guevara, and that in a small meeting, another

supervisor referred to him as an “aggressive Hispanic” while

commenting on the need for him to transfer to the Ft. Worth branch

of the CB program. Plaintiff-Appellant alleges that he was also

sent an email notifying him that he would be transferred to the Ft.

Worth territory. Vallecillo resigned from the CB program on October

29, 1999.

II. PROCEDURAL HISTORY

Vallecillo filed a claim with the EEOC alleging hostile work

environment based on his national origin and constructive discharge

in violation of Title VII. On August 8, 2003, the EEOC issued its

decision affirming the administrative judge’s determination that

there was insufficient evidence to support Appellant’s cl aims.

Vallecillo, arguing the same claims, then filed suit against HUD in1 Defendant-Appellee argues that Vallecillo has abandoned

any challenge to the order granting summary judgment by failing

to specifically address the district court’s rationale. See,

e.g.

, McKethan v. Texas Farm Bureau , 996 F.2d 734, 739 n.9 (5th

Cir. 1993)(failure to sufficiently brief an issue constitutes

waiver of the issue); Cousin v. Trans Union Corp. , 246 F.3d 359,

373 n.22 (5th Cir. 2001)(quoting Cinel v. Connick , 15 F.3d 1338,

1345 (5th Cir. 1994))(“Normally, ‘[a]n appellant abandons all

issues not raised and argued in its initial brief on appeal.’”).

Pursuant to Rule 28 of the Federal Rules of Appellate Procedure,

“[t]he argument shall contain the contentions of the appellant

with respect to the issues presented, and the reasons therefor,

with citations to the authorities, statutes, and parts of the

record relied on.” F ED

. R. A PP

. P. 28(a)(5). While Vallecillo

does not specifically address the enumerated reasons the district

court gave for granting Defendant-Appellee’s motion, we determine

that through his broad objections to the court’s findings

4 the United States District Court for the Western District of Texas

on November 10, 2003, and Defendant-Appellee filed a motion for

summary judgment on November 12, 2004. On January 27, 2005, the

district court granted HUD’s Motion for Summary Judgment, holding

that Vallecillo failed to establish issues of fact (1) on whether

the complained of harassment was on the basis of race, nationality

or a protected activity; and (2) that the harassment was

sufficiently severe or pervasive. Additionally, because the court

found that Plaintiff’s hostile work environment claim failed, it

summarily denied Vallecillo’s constructive discharge claim.

Vallecill o timely filed his Notice of Appeal on February 3, 2005,

claiming that the district court erred in granting HUD’s Motion for

Summary Judgment on Plaintiff-Appellant’s hostile work environment

and constructive discharge claims. We will consider each claim in

turn. 1regarding his hostile work environment and constructive discharge

claims, he argues with enough specificity for us to consider all

of his arguments. Moreover, we should note that this is unlike

the more execrable situation where an appellant either raises a

completely new issue in its brief, disadvantaging the appellee,

and for which the procedural bar concerning initial briefs was

developed. It is also unlike the situation in Cinel , where the

insurance company raised an issue with this Court that had no

statutory support, thus, leaving us with no legal basis on which

we could decide the issue.

5 III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review a district court's grant of summary judgment de novo

,

applying the same standard as the di strict court. S hepherd v.

Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999).

Pursuant to Federal Rule of Civil Procedure 56(c) , summary

judgment is proper when the “plea dings, depositions, answers to

interro gatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law. ” F ED. R. CIV. P. 56(c) ; C elotex Corp. v. Catrett

, 477 U.S.

317, 322–23 (1986) ; A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242,

251–52 (1986)

. When making its determination, the court must draw

all justifiable inferences in favor of th e nonmoving party.

Anderson

, 477 U.S. at 255 ; M atsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp.

, 475 U.S. 574, 587-88 (1986) ; Bodenheimer v. PPG

Indus., Inc.

, 5 F.3d 955, 956 (5th Cir. 1993)

.

To defeat a properly supported motion for summary judgment, the6

non-movan t must present more than a mere scintilla of evidence.

Anderson

, 477 U.S. at 251. R athe r, a factual dispute precludes a

grant of summary judgment if the evidence would permit a reasonable

jury to return a verdict for the nonmoving party. See

Merritt-Campbell, Inc. v. RxP Prods., Inc.

, 164 F.3d 957, 961 (5th

Cir. 1999)

.

IV. DISCUSSION

1. Hostile Work Environment

Title VII is violated “[w]hen the workplace is permeated with

‘discriminatory intimidation, ridicule, and insult,’ that is

‘sufficiently severe or pervasive to alter the condit ions of the

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

Harris v. Fo rklift Systems, Inc. , 510 U.S. 17, 21 (1993)(quoting

Meritor Sav. Bank, FSB v. Vinson

, 477 U.S. 57, 65-67(1986))(internal

citations omitted). To prevail on a hostile work environment claim,

Vallecillo must pro ve that: 1) he belongs to a protected group;

2) he was subjected to unwelcome h arassment; 3) the harassment

complained of was based on his race or national origin; and 4) the

harassment affected a term, condition, or privilege of employment.

Frank v. Xeorox Corp. , 347 F.3d 130, 138 (5th Cir. 2003).

In addition to the Plaintiff’s subjective perception of the

abusiveness of the environment, the environment must be such that

a reasonable person would find it hostile or abusive. H arris

, 510

U. S. at 21-22; F rank

, 347 F.3d at 138. Whether an environment is7

hostile or abusive can be determined only by look ing at the

circumstances, including, inter alia

, the frequency of the

discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and whether it unreasonably interferes

with the employee’s work performance. Harris , 510 U.S. at 23.

Most importantly, as the Supreme Court pointed out in Meritor

and re-articulated in Harris

, the “‘mere utterance of an...epithet

which engenders offensive feelings in an employe e’ does not

sufficiently affect the conditions of employment to implicate Title

VII.” I d. at 21. “[S]imple teasing, offhand comments, and isolated

incidents (unless extrem ely serious) will not amount to

discriminatory changes in the terms and conditions of employment.”

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1988)(internal

quotation marks omitted).

We agree with the district court that even if the PlaintiffAppellant demonstrates that he belongs to a protected class and that

he was subjected to unwelcome harassment, he has not raised an issue

of fact that the complained-of harassment was based on his race or

national origin or that the harassment affected a term, condition,

o r privilege of employment. Accepting all of the incidents that

Vallecillo lists as true, none are related to his protected status.

Only two alleged stat ements verge on being related to PlaintiffAppellant’s protected status: 1) his immediate supervisor referring

to him as Che Guevara, and 2) his second-level supervisor referring2 For instance, in Shepherd , Jodie Moore, a co-worker of

Plaintiff Debra Jean Shepherd remarked that “[Shepherd's] elbows

[were] the same color as [her] nipples.” Shepherd v.

Comptroller of Pub. Accounts , 168 F.3d 871, 872 (5th Cir. 1999).

In addition, Moore commented on the size of Shepherd's thighs

while pretending to look under her desk, attempted to look down

Shepherd's clothing, and exclaimed “here’s your seat” while

patting his lap. Id. Although Shepherd involved alleged

discrimination based on sex, and Vallecillo’s claims are based on

race and national origin, at best, Vallecillo’s allegations are

on the same plane as those in Shepherd. Shepherd’s allegations

were insufficient to succeed on summary judgment in that case,

Id., and Vallecillo’s are insufficient here. See also

, Hayatavoudi v. Univ. of Louisiana Sys. Bd. of Tr. , 240 F.3d 1073

(5th Cir. 2000)(holding that a reference to an Iranian-American

employee as being like “the dogs in the desert, howling as the

caravan goes by,” which was interpreted as a reference to an

Arabic proverb was not sufficiently severe or

pervasive)(unpublished).

8 to him as an “aggressive Hispanic,” the type of individual allegedly

needed in the Ft. Worth territory. Even if these statements can be

classified as racially offensive, they are not sufficiently severe

or pervasive to constitute a hostile work environment.

The two statements related to race an d national origin

epitomize the type of utterances, epithets, and offhand comments

that the we have repeatedly stated were beyond Title VII’s purview. 2

In addition, because a reasonable employee would not perceive the

environment as being hostile or abusive, all of the complained-of

acts, together, do not amount to discriminatory changes in the

terms and conditions of employment. Hence, we agree with the

district court that Plaintiff-Appellant fails to establish a genuine

issue of material fact on his hostile work environment claim.9 2. Constructive Discharge

Vallecillo’s constructive discharge claim can be regarded as

an aggravated case of hostile work environment. In addition to the

facts proffered in support of his hostile work environment claim,

he claims that he was t wice given an ultimatum to transfer to Ft.

Worth, and that an internal grievance that he filed was dismissed

and forwarded on for further review. Appellant’s claims are not

persuasive.

A plaintiff who advances a hostile-environment constructive

discharge claim “must show workin g conditions so intolerable that

a reasonable person would have felt compelled to resign.”

Pennsylvania State Police v. Suders

, 542 U.S. 129, 124 S. Ct. 2342,

2354 (2004); s ee also, Faruki v. Parsons

, 123 F.3d 315, 319 (5th

Cir. 1997) ; W ar d v. Bechtel Corp.

, 102 F.3d 199, 202 (5th Cir.

1997) ; B arrow v. New Orleans S.S. Ass'n

, 10 F.3d 292, 297 (5th Cir.

1994)

. The resigning employee bears the burden of proving

constructive discharge

. J urgens v. EEOC

, 903 F.2d 386, 390-391 (5th

Cir. 1990)

. I n determining whether an employee has been

constructively discharged, courts consider the following factors

relevant, singly o r in combination: (1) demotion; (2) reduction

in salary; (3) reduction in job responsibilities; (4) reassignment

to menial or degrading work; (5) badgering, harassment, or

humiliation by the employer calculated to encourage the employee's

resignation; or (6) offers of early retirement that would make the10

employee worse off, regardless of whether the offer was accepted

.

Barr ow

, 10 F.3d at 297 . The test is an objective, “reasonable

employee” test: whether a reasonable person in the plaintiff's

shoes would have felt compelled to resign. I d .; See also Haley v.

Alliance Compressor LLC , 391 F.3d 644, 649-50 (5th Cir. 2004).

While proof that the employer imposed the intolerable

conditions with the specific intent to force the employee to resign

is not required, aggravating factors may be used to support a

constructive discharge claim. These factors include hostile working

conditions or invidious intent to create or p erpetrate the

intolerable conditions compelling the resignation. J urg ens , 903

F.2d at 390-393. F inally, it i s of utmost importance that

“[c]onstructive discharge requires a greater degre e of harassment

than required by a hostile environment claim.” B rown v. Kinney Shoe

Corp. , 237 F.3d 556, 566 (5th Cir. 2001).

We agree with the district court’s reasoni ng that because

Appellant ’s hostile work environment claim has fail ed, his

constructive discharge claim must also fail. S ee id. Furthermore,

conditions were not so intolerable as to compel Vallecillo’s

resignation. HUD did not demote Vallecillo, and his salary was not

reduce d. To the extent that any of his job responsibilities were

reduced, these reductions did not rise to an actionable degree.

See, e.g., Brown v. Bunge Corp.

, 207 F.3d 776, 782–83 ( 5 th Cir.

2000) (affirming the district court's grant of summary judgment to11

the employer on constructive discharge, where the resigning employee

showed he was demoted and had fewer job responsibilities).

Moreover, the meeting and email notifying and reminding

Appellant that he would be tr ansferred to Ft. Worth d o not

constitute badgering, harassment, or humiliation. Finally, the

facts that the meeting notifying Vallecillo of the proposed transfer

occurred almost two-and-one-half months before Appellant resigned

and that he was never actually transferred detract from his claim

of constructive discharge. Hence, Vallecillo was not constructively

discharged.

V. Conclusion

For the foreg oing reasons, we AFFIRM the judgment of the

district court as to all claims.

AFFIRMED.