August 6, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Johnson v. PRIDE Industries, Inc., 19-50173, appeal from W.D. Tex.
    • Dennis, J. (Dennis, Elrod, Costa), employment discrimination
    • Affirming in part, reversing in part, and remanding summary judgment dismissal of plaintiff’s § 1981 employment discrimination and retaliation claims against former employer.
    • The Court held that the plaintiff raised a genuine issue of material fact as to his hostile work environment claim. “The first three elements of the claim are easily established; Johnson is black and his evidence makes clear he was harassed based on his race. The dispute here centers on the fourth element. Harassment is sufficiently ‘severe or pervasive enough’ to create a hostile work environment when it is ‘objectively hostile or abusive’— meaning ‘an environment that a reasonable person would find hostile or abusive’—and is subjectively perceived by the victim as abusive.” (Internal citations omitted). The Court reviewed the evidence of the multiple directing of racial epithets at the plaintiff. “The magnitude of the offensiveness of being referred to as ‘mayate’ or ‘n’ by a fellow employee cannot be understated—particularly when used by a fellow employee who outranked Johnson in the carpentry shop in which the two labored. Our court has observed that the term ‘n’ is ‘[t]he most noxious racial epithet in the contemporary American lexicon.’ Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th Cir. 2015). … Far from ‘a mere offensive utterance,’ this slur is inherently and deeply ‘humiliating.'” The Court held that these were not isolated incidents, and also looked to the use of the terms “mijo” and “manos” as directed toward the plaintiff, and held that, while the words may not be intrinsically derogatory, they must be looked at in context. “In American English, there is a long and sordid history of people using diminutives like ‘boy’ to refer to adult black men in a racially invidious manner. … Accordingly, we conclude that Johnson has established a genuine issue of material fact as to whether Palomares used ‘mijo’ or ‘manos’ in an objectively offensive manner. After all, Palomares allegedly used the vilest of racial epithets in Johnson’s presence. The interactions between the two are inescapably colored by those epithets, and even seemingly innocuous ‘nicknames’ like ‘mijo’ or ‘manos’ can take on a racially insulting, bullying, or belittling cast when viewed within the full breadth of the relationship between Palomares and Johnson.”
    • The Court held that the district court did not err in dismissing his failure-to-promote discrimination claim, because the plaintiff failed to offer evidence that he was qualified for the position he had sought promotion to.
    • The Court held that the district court did not err in dismissing the plaintiff’s constructive discharge claim, because the plaintiff “adduced no evidence that he was demoted or suffered a reduction in salary or job duties. Additionally, there is only a minimal temporal nexus between the alleged harassment and Johnson’s resignation.” As a result of upholding the dismissal of the constructive discharge claim, the Court also upheld the dismissal of the retaliation claim.
  • Parada-Orellana v. Garland, 19-60645, petition for review of BIA order
    • Wilson, J. (Higginbotham, Stewart, Wilson), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for appeal of BIA order dismissing appeal of IJ order denying motion to rescind in absentia order of removal or, alternatively, to reopen her removal proceedings to allow her to apply for cancellation of removal.
    • The Court first held that it had jurisdiction to review the petitioner’s argument that the BIA had failed to establish the correct legal standard to its review of the IJ’s denial of the motion to reopen, as it was a legal issue rather than a resolution of a factual dispute. The Court then held that the petitioner failed to show that the BIA articulated any incorrect standard, but correctly stated it was applying a standard that evaluates whether the petitioner had established prima facie eligibility for relief. “The BIA’s failure expressly to denote the standard of review does not make the BIA’s ruling incorrect. Indeed, failure to expound upon the law and failure to apply the law (or failure to apply the law correctly) are not the same.”
    • The Court then held that it did not have jurisdiction to review whether the BIA abuses its discretion in finding that petitioner had not established a prima facie eligibility for cancellation of removal; i.e., that she had failed to establish a prima facie case that her removal would result in an extraordinary hardship for her U.S. citizen husband.
  • Storey v. Lumpkin, 20-70014, c/w 20-70016, 20-70017, 20-10805, appeal from N.D. Tex.
    • Higginson, J. (Smith, Haynes, Higginson), habeas corpus
    • Affirming district court’s denial of federal habeas relief for capital-convicted inmate who had learned after his first state post-conviction proceeding that the victim’s parents had told the prosecutors prior to trial that they would not support the imposition of the death penalty but that the prosecutors had then told the jury that all of the victim’s family wanted the death penalty imposed.
    • The Court first held that the petitioner needed a certificate of appealability to appeal the district court’s construal of his Rule 60(b) motion as a second or successive habeas petition. The Court specifically held that its precedent on this issue remained undisturbed in the wake of the Supreme Court’s decisions in Gonzalez v. Crosby, 545 U.S. 524 (2005) and Harbison v. Bell, 556 U.S. 180 (2009).
    • The Court then held that the district court was correct to deem his Rule 60(b) motion as a successive habeas petition, because “[a] Rule 60(b) motion cannot afford such relief” as petitioner was seeking–“to use a Rule 60(b) motion not to address any procedural defect in his original federal habeas proceedings, but to attack a state court’s procedural ruling in a wholly separate state habeas proceeding that occurred after the conclusion of the federal proceedings. Storey argues that his Rule 60(b) motion should be granted and that the district court should therefore be instructed to ‘vacate’ the TCCA’s decision applying the state procedural bar to his subsequent state habeas petition and to ‘return the case’ to the TCCA for it to assess the merits of that petition.”
    • The Court also held that the petitioner’s separate motion to invoke the All Writs Act to achieve the same relief was similarly correctly denied as a successive habeas petition. “But just as Storey cannot use Rule 60(b) to evade the strictures of § 2244 and § 2254, he cannot generally invoke the All Writs Act to accomplish the same end.”
    • The Court then held that the district court was correct to transfer the petitioner’s § 2254 petition to the Court of Appeals as a second or successive petition. “[N]one of Storey’s state and federal habeas petitions has disturbed the original state judgment pursuant to which he remains in custody. His latest § 2254 petition is thus the second federal habeas petition to attack his original state judgment in federal court.” But because the petitioner did not seek authorization from the Court to file a successive petition, the Court dismissed his petition for want of jurisdiction.
    • The Court then affirmed the district court’s denial of attorney fees to the petitioner’s appointed attorneys for their work in the successive state habeas proceedings as outside the scope of § 3599.
  • Francois v. Our Lady of the Lake Hospital, Inc., 20-30707, appeal from M.D. La.
    • Southwick, J. (Jones, Southwick, Costa), Affordable Care Act, Rehabilitation Act
    • Affirming summary judgment dismissal of plaintiff patient’s disability discrimination claims under the ACA and the Rehabilitation Act against hospital for failing to provide an on-site ASL interpreter (plaintiff is deaf and “virtually illiterate”) until the sixth day of his hospital stay.
    • “We conclude that Francois failed to make a summary-judgment showing of intentional discrimination because the evidence, viewed in the light most favorable to Francois, is not sufficient for a reasonable jury to determine that the Hospital had actual knowledge of the need for an on-site interpreter.”
  • Jones v. Gulf Coast Restaurant Group, Inc., 21-60053, appeal from S.D. Miss.
    • Jolly, J. (Jolly, Haynes, Oldham), employment discrimination
    • Affirming summary judgment dismissal of employment discrimination claims against employer, finding that, though plaintiff made a prima facie case of discrimination and retaliation, he failed to “offer persuasive evidence that the restaurant’s proffered, permissible reasons for his termination were a pretext for unlawful action.”

Unpublished

  • Bangmon v. Alexander, 18-41043, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Engelhardt), prisoner suit
    • Affirming in part, vacating in part, and remanding for further proceedings after district court’s dismissal of some claims as frivolous and dismissal of other claims on summary judgment.
  • U.S. v. Millien, 19-31034, appeal from M.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gilbert, 20-10315, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sufficiency of evidence
    • Affirming conviction of murder resulting from the use of a firearm during and in relation to a drug trafficking crime, finding sufficient evidence in the record to support the verdict.
  • U.S. v. Gullion, 20-10829, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lopez-Chavez, 20-50882, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Granting summary affirmance of 78-month sentence on conviction for illegal reentry.
  • Pathe v. Garland, 20-60046, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Guinean citizen’s petition for review of BIA order upholding a negative credibility finding made by the Immigration Judge and denying asylum and due process claims.