Case: 23-20131     Document: 00517004222        Page: 1    Date Filed: 12/15/2023




           United States Court of Appeals
                for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                               ____________                                 FILED
                                                                    December 15, 2023
                                 No. 23-20131                          Lyle W. Cayce
                               ____________                                 Clerk

   Craig Price, II,

                                                          Plaintiff—Appellant,

                                      versus

   Valvoline, L.L.C.,

                                            Defendant—Appellee.
                  ______________________________

                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:21-CV-3683
                  ______________________________

   Before Clement, Southwick, and Ho, Circuit Judges.
   Edith Brown Clement:
         Craig Price, II, claims that Valvoline, LLC terminated his
   employment on account of his race and subjected him to a hostile work
   environment at its La Porte, Texas plant. The district court granted summary
   judgment to Valvoline. Because we find that Price’s employment was
   terminated due to his repeated absenteeism and that the allegedly race-
   motivated comments directed towards him were not objectively severe or
   pervasive enough to create a hostile work environment, we AFFIRM.
Case: 23-20131     Document: 00517004222           Page: 2   Date Filed: 12/15/2023




                                    No. 23-20131


                                         I.
          Price, a Black man, was employed as a loader/unloader at Valvoline’s
   plant in La Porte, Texas. Valvoline maintained an attendance policy under
   which it assessed “points” for attendance-related issues. For example,
   employees who were late or left their shift early would be assessed a half
   point, and employees who missed their shift entirely without providing 24-
   hours’ notice would be assessed a full point. Under this policy, Valvoline
   imposed progressive discipline once an employee obtained a certain number
   of points within a twelve-month period: five points would result in a verbal
   warning; six, a written warning; seven, a three-day suspension; and eight,
   termination. During the COVID-19 pandemic, Valvoline informed its
   employees that they should not come to work, and would not be issued
   attendance points, if they reported that they were experiencing COVID-19-
   related symptoms. But absences caused by non-COVID illnesses would still
   be assessed attendance points under the policy.
          On December 30, 2019, Price was issued a verbal warning regarding
   his attendance and signed an acknowledgement that further attendance
   issues would “result in further disciplinary action, up to and including
   termination.” On February 10, 2020, Price received a written warning
   regarding his attendance—the next level of discipline under the policy—and
   again signed an acknowledgement that further attendance issues would
   “result in further disciplinary action, up to and including termination.” On
   May 4, 2020, Price was suspended for three days and issued a final written
   warning concerning his attendance issues. Price again signed an
   acknowledgement that further attendance issues would “result in further
   disciplinary action, up to and including termination.” Finally, on October 26,
   2020, Price called the plant manager to inform him that he would need to
   miss his shift that day due to food poisoning. Because this was a non-COVID
   illness and Price was absent without providing 24-hours’ notice, he was



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                                           No. 23-20131


   assessed a point under the attendance policy, and his employment was
   therefore terminated. 1
           Price filed a lawsuit against Valvoline under Title VII of the Civil
   Rights Act of 1964 on November 9, 2021, and amended his complaint on
   January 28, 2022. Price alleged that his race, not his violations of the
   attendance policy, was the real reason for his termination, and asserted
   claims of race discrimination, retaliation, and hostile work environment. In
   support of these claims, Price pointed to various allegedly discriminatory
   statements made by his supervisors. Specifically, Price claimed that
   supervisor Dalan Motz once said to him that “you people always want
   something for free” when Price asked Motz about an incentive bonus t-shirt
   that he was due to receive, and that assistant plant manager Jamie Langston
   called Price a “lazy boy” when he was unable to get a forklift to work.
           Price later submitted a declaration from Jeffrey Brown, the only Black
   supervisor at Valvoline’s La Porte plant, that claimed plant manager Frank
   Harris had repeatedly used the full N-word when telling Brown that the Black
   workers on the floor were using the epithet to refer to each other and asking
   him what should be done about it. Brown’s declaration also alleged that
   Harris had told Brown that Valvoline “needed more diversity in the
   workplace”—a comment which Brown “understood as Mr. Harris wanting
   to reduce the number of African Americans working at the plant, given that
   the workforce [was] predominantly African American.”

           _____________________
           1
              Between his May 4 suspension and October 26 termination, Price was also
   disciplined for his on-the-job performance. On May 27, 2020, Price was issued a written
   warning for failure to follow instructions and failure to follow safety guidelines when he did
   not carry his radio, as required, and therefore missed a call to shelter-in-place during a
   tornado warning. And on June 2, 2020, Price received another three-day suspension and
   final written warning for wearing earbuds in the warehouse in violation of company policy
   and raising his voice to his supervisor.




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                                     No. 23-20131


          The district court granted summary judgment to Valvoline. First, the
   court concluded that Price had not presented direct evidence of race-based
   discrimination, finding that the alleged comments by plant manager Harris
   were only “stray remarks.” Second, the court held that Price had not
   presented circumstantial evidence of race-based discrimination either
   because he had not identified any similarly situated non-Black coworker who
   had been treated more favorably. Third, the court determined that Price had
   not established a hostile work environment claim because the comments by
   Motz and Langston were only “offensive utterance[s].” And fourth, the
   court found that Price’s retaliation claim failed because he could not prove a
   causal link between any protected activity and his termination. Price only
   appeals the district court’s judgment that he had not presented direct
   evidence of race-based discrimination and failed to establish a hostile work
   environment claim.
                                         II.
          We review the district court’s grant of summary judgment de novo,
   viewing all factual inferences in the light most favorable to Price. Caldwell v.
   KHOU-TV, 

 (5th Cir. 2017). We may affirm on any
   adequate ground supported by the record, even if it is different than the one
   on which the district court actually relied. Montgomery v. Brookshire, 

 (5th Cir. 1994). 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.’” Davidson v. Fairchild Controls Corp., 

 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
                                         III.
          First, we address Price’s race-discrimination claim. “In employment
   discrimination cases, a plaintiff may rely on direct or circumstantial evidence,
   or both.” Jackson v. Cal-W. Packaging Corp., 

 (5th Cir.




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                                     No. 23-20131


   2010). “A statement or document which shows ‘on its face that an improper
   criterion served as a basis—not necessarily the sole basis, but a basis—for the
   adverse employment action is direct evidence of discrimination.’” Clark v.
   Champion Nat’l Sec., Inc., 

, 579 (5th Cir. 2020) (alteration
   adopted) (quoting Herster v. Bd. of Supervisors of La. State Univ., 

 (5th Cir. 2018)). Statements that do not meet this standard “without
   inference or presumption” are considered “only ‘stray remarks.’” Etienne v.
   Spanish Lake Truck & Casino Plaza, LLC, 

 (5th Cir. 2015)
   (quotation marks and citation omitted). Price’s appeal focuses almost
   exclusively on whether the district court properly determined that plant
   manager Harris’s comments were “stray remarks” rather than direct
   evidence of discrimination. But we find it unnecessary to resolve this issue
   because, even if Price had presented direct evidence of racial discrimination,
   his discrimination claim would still fail.
          Once a plaintiff presents direct evidence of race-based discrimination,
   “the burden of proof shifts to the employer to establish by a preponderance
   of the evidence that the same decision would have been made regardless of
   the forbidden factor.” Etienne, 

 (quotation marks and citation
   omitted). Here, the evidence makes clear that Price was fired due to his
   repeated violations of Valvoline’s attendance policy. Price concedes that he
   was aware of Valvoline’s attendance policy, how the points system worked,
   and the progressive discipline imposed, characterizing it as “pretty
   straightforward.” And we have repeatedly found that violation of a
   company’s attendance policy is a valid, non-discriminatory reason for
   termination. E.g., Powers v. Woodlands Religious Cmty. Inc., 

 (5th Cir. 2009); Davis v. Moore Wallace, Inc., 

, 315–16
   (5th Cir. 2007).
          Price does not meaningfully contest the fact that he was terminated
   due to his absenteeism. Instead, Price argues on appeal that Valvoline’s



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                                          No. 23-20131


   “same decision” argument was an affirmative defense that Valvoline
   forfeited by failing to raise it below. But Valvoline did raise it below—first, as
   an affirmative defense in its answer to Price’s amended complaint, and then
   again in its motion for summary judgment. 2
           Because, even if Price had presented direct evidence that his race
   factored into his termination, Valvoline established that Price would have
   made the same termination decision due to Price’s violations of the
   company’s attendance policy, we AFFIRM the district court’s decision to
   grant Valvoline summary judgment on Price’s race-discrimination claim. See
   Montgomery, 

 (“[T]his Court may affirm a grant of summary
   judgment on grounds other than those relied upon by the district court when
   the record contains an adequate and independent basis for the result.”).
                                               IV.
           Next, we turn to Price’s hostile work environment claim. To establish
   a Title VII hostile work environment violation, Price was required to show
   that he was subjected to “unwelcome harassment . . . based on race” that
   “affected a term, condition, or privilege of employment,” and that Valvoline
   “knew or should have known of the harassment in question and failed to take
   prompt remedial action.” Hernandez v. Yellow Transp., Inc., 

 (5th Cir. 2012) (quoting Ramsey v. Henderson, 

 (5th Cir.
   2002)). Here, the dispositive question is whether any race-based harassment
   Price experienced affected the conditions of his employment.
           For harassment to alter the conditions of a person’s employment,
   “the conduct complained of must be both objectively and subjectively

           _____________________
           2
           We therefore express no view on the question of whether a “same decision”
   argument is an affirmative defense, as Price contends, or merely part of the burden-shifting
   framework.




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                                     No. 23-20131


   offensive.” EEOC v. WC&M Enters., 

 (5th Cir. 2007). “To
   determine whether the victim’s work environment was objectively offensive,
   courts consider the totality of the circumstances, including (1) the frequency
   of the discriminatory conduct; (2) its severity; (3) whether it is physically
   threatening or humiliating, or merely an offensive utterance; and (4) whether
   it interferes with an employee’s work performance.” 

 Price has not
   established an objectively offensive work environment under this test.
          First, Price has not shown that the alleged harassment he experienced
   was frequent. Instead, he identifies two unrelated instances of alleged
   harassment by different individuals—Langston calling Price a “lazy boy”
   and Motz saying to Price that “you people always want something for free.”
   As the Supreme Court has explained, such “isolated incidents” “will not
   amount to discriminatory changes in the terms and conditions of
   employment” “unless [they are] extremely serious.” Faragher v. City of Boca
   Raton, 

 (1998) (quotation marks omitted). But Price has not
   demonstrated that these comments were “extremely serious” either.
          As the district court appropriately recognized, the terms “boy” and
   “you people” have historically been used in demeaning ways towards Black
   men. But where, as here, there are only two instances of their use, the terms
   are insufficiently severe to establish a hostile work environment under our
   precedent. In Collier v. Dallas County Hospital District, for example, we found
   that “two instances of racial graffiti and being called ‘boy’” were “not
   sufficiently severe or pervasive to alter the conditions of the victim’s
   employment.” 

, 377–78 (5th Cir. 2020) (quotation marks
   and citation omitted). Similarly, in Frazier v. Sabine River Authority
   Louisiana, we concluded that coworkers’ use of the N-word, the word
   “Negreet,” and a noose gesture “were isolated and not severe or pervasive
   enough to support a hostile work environment claim.” 

   (5th Cir. 2013). And other examples abound. See, e.g., Dailey v. Shintech, Inc.,



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                                    No. 23-20131


   

 (5th Cir. 2015) (finding no hostile work
   environment where a coworker called plaintiff a “black little motherf—r”
   and threatened to “kick his black a–s”); Vaughn v. Pool Offshore Co., 

, 924–25 (5th Cir. 1982) (use of the N-word, “coon,” and “black boy”).
   Moreover, these comments were not physically threatening, and Price does
   not claim that he was humiliated by them, rendering each comment “merely
   an offensive utterance” insufficient to establish a hostile work environment.
   See WC&M Enters., 

.
          As for Price’s contention that the district court should have
   considered Valvoline’s “facially neutral actions”—such as nitpicking
   Price’s work, “being yelled at for asking a question,” or not being forthright
   with him concerning his status in the attendance point system—when
   evaluating the totality of the circumstances for a hostile work environment,
   we disagree. Price presented no evidence beyond his own speculation and
   that of Brown that these “facially neutral actions” were racially motivated.
   And our caselaw is clear that “subjective belief of racial motivation, without
   more, is not sufficient to show a hostile work environment.” Cavalier v.
   Clearlake Rehab. Hosp., Inc., 

, 106–07 (5th Cir. 2009)
   (declining to consider allegations that supervisor “bragged to others that she
   would get [the plaintiff] fired, and repeatedly called him a ‘doofus’ and a
   ‘dunce’” as evidence of race-based harassment supporting a hostile work
   environment claim).
          For these reasons, the district court correctly concluded that Price had
   failed to establish a hostile work environment claim, and therefore the court’s
   judgment on this claim is also AFFIRMED.




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                                    No. 23-20131


   James C. Ho, Circuit Judge, concurring in the judgment:
          I agree that Plaintiff’s record of absenteeism forecloses his racial
   discrimination claim, and that we should affirm. I write separately to
   highlight Plaintiff’s contention that the use of the term “diversity” may be
   evidence of his employer’s discriminatory intent.
          Specifically, Plaintiff alleges that a plant manager told a supervisor
   that the company “needed more diversity in the workplace.” Ante, at 3.
   Plaintiff took the reference to “diversity” to mean that the company should
   hire fewer African Americans in the future, due to the racial composition of
   the existing workforce at the plant.
          Cases like this reflect the growing concern that diversity has
   increasingly become a code word for discrimination.
                                          ***
          Courts have long worried that diversity efforts can lead to
   discrimination in the workplace. See, e.g., Preston v. Wis. Health Fund, 

 (7th Cir. 2005) (noting that “courts take a realistic view of the
   circumstances” and recognize that business leaders are “under pressure
   from affirmative action plans” and “diversity” programs to engage in
   discrimination) (collecting cases); Bless v. Cook Cnty. Sheriff’s Off., 

, 574 (7th Cir. 2021) (same). The same concerns apply to disparate
   impact theory as well. See, e.g., Rollerson v. Brazos River Harbor Navigation
   Dist., 

, 647–50 (5th Cir. 2021) (Ho, J., concurring in part and
   concurring in the judgment).
          Likewise, courts have warned that diversity has become the
   “‘rationale of convenience’ to support racially discriminatory admissions
   programs” at many colleges and universities. Students for Fair Admissions,
   Inc. v. President and Fellows of Harvard College, 

 (2023)




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                                     No. 23-20131


   (Thomas, J., concurring) (quoting Grutter v. Bollinger, 

   (2003) (Kennedy, J., dissenting)). Members of the Supreme Court have
   admonished educational leaders that “[r]acial balancing is not transformed
   from ‘patently unconstitutional’ to a compelling state interest simply by
   relabeling it ‘racial diversity.’” Parents Involved in Cmty. Schs. v. Seattle Sch.
   Dist. No. 1, 

 (2007) (plurality opinion of Roberts, C.J.).
          And for good reason. It’s no defense that a diversity policy may be
   well intended—and that it’s designed, not to disfavor any particular group,
   but to favor other groups. That’s because favoring one race necessarily
   means disfavoring those of another race—whether at a company or on a
   college campus. “When a school offers admission based on a student’s race,
   it denies admission based on a student’s race. For every person you ‘help’
   due to race, you necessarily hurt another person due to race. And only by
   speaking plainly do we ensure fidelity to the Constitution.” Smith v. Sch. Bd.
   of Concordia Par., 

 (5th Cir. 2018) (Ho, J., concurring).
          Nor is it a defense that race is just being used as a crude proxy for
   intellectual diversity. To begin with, evaluating a person “by ancestry
   instead of by his or her own merit” reinforces “pernicious stereotype[s]”
   and “demeans the dignity and worth” of the individual. Students for Fair
   Admissions, 

 (quotations omitted). What’s worse, this
   approach is not only insulting but hypocritical, if it turns out the university
   isn’t actually interested in intellectual diversity. It’s hard to see how
   “schools can justify their DEI efforts if their vision of diversity doesn’t
   include diverse viewpoints, if equity doesn’t encompass equality for people
   of faith, and if inclusion involves excluding politically unpopular beliefs.”
   Hamilton v. Dallas County, 

, 508–9 (5th Cir. 2023) (en banc)
   (Ho, J., concurring). “For schools that tolerate (if not practice) ideological
   discrimination, . . . diversity is nothing more than a pretext for race.” Id. at
   509.



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          These concerns are not unique to the courts.             Scholars and
   commentators have increasingly come to the same conclusion—that
   combating discrimination may require dismantling certain policies
   purportedly devoted to furthering diversity. See, e.g., Steven Pinker, A five-
   point plan to save Harvard from itself, Boston Globe, Dec. 11, 2023 (calling
   for “DEI disempowerment”); Bari Weiss, How to Really Fix American Higher
   Education, The Free Press, Dec. 11, 2023 (“[T]he DEI regime . . . has
   enforced an illiberal (and antisemitic) worldview at nearly every American
   university.”); Niall Ferguson, The Treason of the Intellectuals, The Free
   Press, Dec. 10, 2023 (examining “racism in the name of diversity” in
   higher education); Andrew Sullivan, The Day The Empress’ Clothes Fell Off,
   The Weekly Dish, Dec. 8, 2023 (calling for the elimination of “systemic
   race, sex and gender discrimination” and “[e]nd[ing] DEI in its entirety”);
   John D. Sailer, University of Washington Violated Non-Discrimination Policy,
   Internal Report Finds, Nat’l Ass’n of Scholars, Oct. 31, 2023 (citing
   an internal report concluding that a university’s diversity policy
   “encourage[d] discriminatory practices”).
                                        ***
          In light of the record evidence in this case, the court is correct to
   affirm. But this won’t be the last time someone objects that diversity is being
   used as a license to discriminate.




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