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