*Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-31121

Summary Calendar

_____________________

JAMES E GRANT, JR,

Plaintiff-Appellant,

v.

U O P, INCORPORATED,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CV-1240)

_________________________________________________________________

July 23, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

James Grant appeals the district court’s grant of summary

judgment in favor of UOP, Inc. Finding no error, we affirm.

I. BACKGROUND

A. Statement of Facts

Grant, an African-American male, began working at Universal
2

Oil Products (“UOP”) in the labor department in June 1992. 

Claude Clary was Grant’s supervisor from September 1992 until

March 3, 1994.

Grant claims that in a conversation with Clary in September

1992, Clary referred to two other black employees as “cotton

field niggers.” Clary also referred to Grant as “boy” and “kid”

on several occasions and told white co-workers that he could

“dress Grant up” but that he could not “take him to town.” 

Clary assigned tasks to Grant that Grant felt were onerous. 

For example, Clary required Grant to use a gasoline trimmer to

cut grass around a pond for approximately two weeks. On a

different occasion, Clary required Grant to use a swing blade to

cut weeds, instead of an automated weed trimmer. Grant alleges

that Clary stated that he would “break” Grant before he retired

and make him into a “good hand” yet. Also, Grant and a white coworker were required to spend several days digging a ditch with

shovels to find a leak. Grant thought a backhoe was the more

appropriate tool for the job.

Throughout the time period that Clary supervised Grant,

Grant thought that Clary was very critical of his work. However,

Grant does not complain of any conduct occurring between December

1993 and March 1995.

On April 11, 1995, Grant made a written complaint to Vernon

Chance, the Plant Manager, regarding three alleged instances of

racial discrimination that had occurred in the prior two weeks. 
3

Grant’s allegations are as follows: First, on March 30, 1995,

Larry Bell, a co-worker with no supervisory authority over Grant,

told Grant that “niggers can’t weld” and used the phrase “nigger,

please” in Grant’s presence. Second, on April 3, 1995, Jimmy Don

Blaine, also a co-worker of Grant’s, told Grant that Grant’s

opponent in a recent karate match was probably thinking to

himself that “this damn nigger is gonna whip my ass.” Third, on

April 11, 1995, Clary, who was no longer Grant’s supervisor at

the time, explained to Grant what he viewed as the difference

between a nigger and a black man.

Chance and Harlan Phelps, UOP’s Human Resources Manager,

investigated the alleged incidents. Following their

investigation and discussion with the individuals involved, they

placed a written warning notice in Bell’s file and orally warned

Bell, Blaine, and Clary that the use of racial slurs was a

serious offense and that any future incident would be grounds for

dismissal. There were no further complaints against the three

men. 

On April 18, 1995, Grant was suspended for three days

pursuant to UOP’s policy regarding excessive absenteeism. Grant

had received both an oral and a written warning prior to his

suspension advising him that his absenteeism rate -- at the times

of the warnings as high as 17.8% and 15.9% respectively -- was

unacceptable and would result in a disciplinary layoff if it

continued.
4

On May 16, 1995, Phelps was made aware of additional claims

by Grant against Clary, based on earlier statements made by Clary

-- such as the reference to “cotton field niggers” -- and work

assignments from Clary that Grant deemed onerous. On May 19,

1995, Clary was suspended until his forced retirement on May 31,

1995.

B. Procedural History

Grant filed claims with the Louisiana Human Rights

Commission and the Equal Employment Opportunity Commission on

April 18, 1995, and April 20, 1995, respectively. On July 7,

1995, Grant filed suit against UOP and Clary alleging racial

discrimination in violation of 42 U.S.C. § 1981 and Title VII of

the Civil Rights Act of 1964. Grant also asserted state law

claims for discrimination and intentional infliction of emotional

distress.

Grant alleged that he had been subjected to a hostile

environment because of the racial remarks and harassment by Clary

and other employees at UOP. Grant further claimed that he and

other black employees had been subjected to disparate treatment

based on their race. Grant also asserted a claim for retaliation

based on UOP’s placing him on disciplinary leave for excessive

absences within days of his complaint of discrimination.

Both UOP and Clary filed motions for summary judgment on the

ground that there was no genuine issue as to any material fact. 
 

1Grant does not appeal the district court’s ruling to the

extent that it dismisses Clary from personal liability. 

5

The district court granted these motions on October 4, 1996.

Grant timely appealed the grant of summary judgment in favor of

UOP.1

II. DISCUSSION

We review the granting of summary judgment de novo, applying

the same criteria used by the district court. Norman v. Apache

Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). Summary judgment is

proper “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 law.” FED. R. CIV. P. 56(c). 

On appeal, Grant argues that he has presented genuine issues

of fact as to whether there was a racially hostile environment,

whether UOP took prompt remedial action, and whether he was

disciplined in retaliation for making a complaint of racial

discrimination. 

A. Hostile Environment Claim

Title VII of the Civil Rights Act of 1964 makes it unlawful

“for an employer . . . to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
6

2(a)(1). Courts have interpreted the language of Title VII to

provide a cause of action to a person who is subjected to a

discriminatorily hostile work environment. Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993). The Court in Harris

determined that Title VII is violated when “the workplace is

permeated with ‘discriminatory intimidation, ridicule, and

insult,’ that is ‘sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive

working environment.’” Id. (quoting Meritor Sav. Bank v. Vinson,

477 U.S. 57 (1986))(internal citations omitted).

In order to establish a claim against an employer for a

hostile work environment, an employee is required to show that

(1) he belongs to a protected group, (2) he was subject to

harassment, (3) the harassment was based on the protected

characteristic, (4) the harassment affected a term, condition, or

privilege of employment, and (5) the employer knew or should have

known of the harassment and failed to take prompt remedial

action. Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir.

1986), cert. denied, 479 U.S. 1065 (1987). 

Even assuming arguendo that the incidents identified by

Grant establish a valid hostile environment claim, UOP can not be

held liable because it took prompt remedial action that was

reasonably calculated to end the harassment. Garcia v. Elf

Atochem N.A., 28 F.3d 446, 451 (5th Cir. 1994). When Phelps
 

2Grant argues for the first time on appeal that he complained

about the racial harassment he was experiencing to his superior,

Jay Davis, before the April 11 letter. Arguments raised for the

first time on appeal will not be considered by this court. See

James v. McCaw Cellular Communications, Inc., 988 F.2d 583, 585

(5th Cir. 1993).

7

received Grant’s letter on April 11, 1995, he immediately

investigated the complaints and interviewed the three men whose

statements had offended Grant.2 

When confronted about the incident in question, Bell denied

saying “niggers can’t weld,” but admitted saying “nigger,

please.” Phelps informed Bell that the use of the term “nigger”

was a serious offense at UOP and that any future incident would

be grounds for dismissal. Bell apologized to Grant, and a

written warning notice was placed in Bell’s personnel file. 

There were no further complaints against Bell.

UOP management interviewed the employees present when

Blaine’s statement about Grant’s karate opponent was allegedly

made. All of the people present denied hearing the statement. 

Phelps then called both Grant and Blaine into his office. Grant

insisted that Blaine did make the statement at issue, and Blaine

denied it. Based on the evidence before him, Phelps felt that

Blaine had not made the statement. Phelps nevertheless warned

Blaine that it was against company policy to make racial slurs

and that any future incident would be grounds for dismissal. 

Phelps then reported the actions he had taken to Vernon Chance,

the Plant Manager. There were no further complaints against
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Blaine.

Chance ordered an investigation of Clary by Phelps and also

ordered Bill Gasway to become involved because Clary was in his

department. When Gasway met with Clary, Clary expressed surprise

that his comments had offended Grant and offered to apologize,

which he did the next day. Gasway gave Clary a verbal warning. 

There were no further complaints against Clary. 

On May 16, 1995, UOP received a copy of the letter Grant

sent to the Louisiana Human Rights Commission from Grant’s

attorney. The letter detailed the alleged harassment and

discrimination that Grant faced from September 1992 until

December 1993. Phelps questioned Clary regarding each allegation

in the letter, and Clary denied all of them. Regardless of

Clary’s denial, Phelps and Chance decided to suspend Clary. 

Clary was suspended on May 19, 1995, and was ultimately forced

into early retirement on May 30, 1995.

The remedial action taken by UOP was both prompt and

effective. Not only was it reasonably calculated to end the

harassment, but it actually did so. No further complaints were

made against Bell, Blaine, and Clary after the three men were

reprimanded. When further allegations regarding Clary came to

light a month later, UOP immediately suspended Clary, pending his

forced retirement. 

Grant’s argument that UOP did not take sufficiently drastic

or wide-sweeping action falls in the face of Fifth Circuit
9

precedent. Grant objects to the fact that beyond the warning

that any further incident could result in dismissal, no

disciplinary action was taken against Bell, Blaine, and Clary. 

Grant also complains that UOP limited its reprimand to the three

men reported by Grant, instead of making a point of informing all

the UOP employees that racial slurs would not be tolerated. 

“What is appropriate remedial action will necessarily depend

on . . . the severity and persistence of the harassment, and the

effectiveness of any initial remedial steps. Garcia, 28 F.3d at

451. The court in Garcia ruled that the reprimand of a harasser

and a warning that further harassment would result in termination

was sufficient to protect an employer from liability under Title

VII because the action was not only “prompt and reasonably

calculated to end the harassment, but the harassment actually

ended.” Id. Based on the standard articulated in Garcia, no

issue of material fact exists regarding UOP’s liability for the

alleged hostile work environment.

B. Retaliation Claim

Grant argues that there is a material fact issue as to

whether his three-day suspension for excessive absenteeism was 

retaliatory. The elements of a cause of action for retaliation

are: (1) the plaintiff engaged in a protected activity, (2) the

plaintiff suffered an adverse employment decision, and (3) the

adverse decision was motivated by the protected activity such
10

that there was a causal connection between the two. Mattern v.

Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). The third

element may be established by direct evidence of retaliatory

animus or by indirect evidence of disparate treatment. Mooney v.

Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995)(age

discrimination). 

Grant argues for the first time on appeal that Clary’s use

of racial slurs constitutes direct evidence of retaliatory

animus. See Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858,

861 (5th Cir. 1993)(concluding that “routine use of racial slurs

constitutes direct evidence that racial animus was a motivating

factor in the contested disciplinary decisions” where person

using slurs participated directly in disciplinary decisions). We

need not address this argument because it was raised for the

first time on appeal, but we note in passing that Brown is

inapplicable in this context because Clary did not directly

participate in the disciplinary action taken against Grant. 

Thus, Grant must attempt to establish the third element of

retaliation by indirect evidence of disparate treatment.

When a plaintiff uses the indirect method of proof, the

McDonnell Douglas sequence of proof and Burdine allocation of

burdens apply. Mooney, 54 F.3d at 1216. We set forth this

evidentiary scheme in Rhodes v. Guiberson Oil Tools, 75 F.3d 989

(5th Cir. 1996)(en banc). If the plaintiff establishes a prima

facie case, the defendant must come forward with a legitimate,
 

3Later in his deposition, however, Grant testified that, in

addition to sick days, he missed at least ten days in the fall of

1994 to be at home with his wife, who was having a difficult

pregnancy.

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non-discriminatory reason for the employment action taken. Id.

at 992-93. The burden then shifts back to the plaintiff to prove

that the defendant’s reason is merely a pretext for

discrimination. Id. at 993.

Grant claims that he was suspended in retaliation for filing

a written complaint. UOP contends, however, that Grant was

suspended for excessive absenteeism. At UOP, the absenteeism

rate is not calculated simply upon how many days an employee

missed work, but is calculated by dividing the scheduled hours

missed by the scheduled hours worked. An absenteeism rate above

5% is considered unacceptable. UOP has well-documented evidence

that it followed its standard progressive discipline procedure in

issuing first an oral warning in September 1994 when Grant’s

absenteeism rate was 17.8%, then a written warning in November

1994 when Grant had an absenteeism rate of 15.9%, and then

suspending Grant in April 1995 when Grant had an absenteeism rate

of 10.23%. 

Grant did not object to UOP’s evidence at trial, but on

appeal he points to his deposition, in which he testified that he

“only missed five sick days that entire year.”3 Regardless of

the number of days Grant missed, Grant put on no evidence to
 

4Grant also argues that he was discriminated against because

other white employees violated the absenteeism policy with

impunity; however, Grant introduced no competent evidence to

support this theory before the trial court. 

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challenge the absenteeism rates put forward by UOP.4 Grant did

not meet his burden of proof by showing that UOP’s stated reason

for the three-day suspension was pretextual. Thus, the district

court correctly granted summary judgment on the issue of

retaliation. 

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.