author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    Lionel ALEXANDER, Plaintiff-Appellant v. CITY OF ROUND ROCK, a Municipal Entity; Officer Marciano Garza, Individually and in His Official Capacity; Sergeant Greg Brunson, Individually and in His Official Capacity; Sergeant Sampson Connell, Individually and in His Official Capacity; Officer Tracy Staggs, Individually and in His Official Capacity; John Does, City of Round Rock Police Officers, Individually and in Their Official Capacity, Defendants-Appellees
    No. 16-50839
    United States Court of Appeals, Fifth Circuit.
    FILED April 18, 2017

      Karen Elisabeth Oprea, Law Office of Oprea & Weber, Austin, TX, for Plaintiff-Appellant.
    Mike Thompson, Jr., Esq., Archie Carl Pierce, Esq., Wright & Greenhill, P.C., Austin, TX, for Defendants-Appellees.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

Officer Marciano Garza pulled over Lionel Alexander in a hotel parking lot after observing what he perceived as suspicious activity. Alexander refused to answer Garza’s questions. After waiting for backup to arrive, Garza and other officers forcibly removed Alexander from his car, handcuffed him, and ultimately arrested him for resisting a search. Alexander sued the officers and the city under 42 U.S.C. § 1983, alleging .violations of his First, Fourth, Fifth, and Fourteenth Amendment rights. The district court granted the officers’ motion to dismiss all claims. Alexander appeals. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I

We stress at the outset that, because this appeal is from a grant of a motion to dismiss, all of the following facts are drawn exclusively from the allegations in Alexander’s complaint.

Alexander was staying at a hotel in Round Rock, Texas. At approximately 9:15 p.m. he returned to the hotel from a trip to the grocery store and saw a stray cat in the hotel parking lot. He stopped his car, exited, and peered into the grass near his vehicle looking for the cat, intending to feed it. He could not find the cat and so turned to get back into his car, planning to park it in a spot nearer his hotel room. Upon turning to reenter his car, he noticed a police car in the parking lot but, not knowing why the police car was there and assuming it was unrelated to him, Alexander got back in his vehicle and proceeded to drive toward his room.

While Alexander was moving his car, Garza, who was driving the police car in the parking lot, activated his emergency lights and pulled Alexander over. Garza approached Alexander’s vehicle and told Alexander that he was curious as to what Alexander had been doing. Alexander gave Garza his driver’s license and informed Garza that he would not answer any of the officer’s questions. At this point, Garza radioed for backup, citing “noncompliance.” While he was waiting for backup to arrive, Garza stood by the window of Alexander’s car, told Alexander to keep his hands on the steering wheel, and continued to question him.

After some time, backup arrived in the form of Sergeant Greg Brunson, Sergeant Sampson Connell, Officer Tracy Staggs, and unidentified John Does (together with Garza, the “officers”). Garza then asked Alexander to exit his car. Alexander responded by asking Garza why he wanted him to get out of the car, and Garza responded, “Because I asked you to.” Alexander began to reply that he did not believe he was legally required to exit. Before he finished, Garza and the other officers pulled Alexander from the car and pinned him face down onto the ground. One officer pressed a boot or knee on the back of Alexander’s neck as his face was “mashed into the concrete.” Alexander felt at least three officers on top of his body, “manipulating his limbs and putting pressure on his torso, neck, and head.”

The officers handcuffed Alexander and sat him on a curb. Garza asked Alexander, “[a]re you ready to talk to me now?” Alexander refused, using an unidentified expletive. The officers then shackled Alexander’s legs. At some point, either during the forcible removal from his car or while he was on the curb, Alexander sustained “injuries to his body ... including injuries to his mouth.” He “sustained emotional and psychological injuries as well.” Throughout this ordeal, Alexander did not physically resist the officers in any way.

Garza informed Alexander that he was under arrest “for uttering an expletive where the public could hear him, which [Garza] asserted was a violation of the [Texas] disorderly conduct statute.” The officers then searched Alexander’s person and vehicle, finding nothing illegal or suspicious. Alexander was placed handcuffed into the back of one of the officers’ police cars and taken to the Round Rock police station. He was then transported to the Williamson County Jail, where he remained for approximately twenty hours. In his formal police report, Garza wrote that Alexander was arrested not for disorderly conduct, but for resisting a search in violation of Texas Penal Code (“TPC”) § 38.03(a). Alexander was eventually released. No criminal charges were brought.

Alexander sued the City of Round Rock, Garza, and the other officers in federal district court, asserting claims under 42 U.S.C. § 1983 and various provisions of the Texas Constitution. Alexander argued, among other things, that: (1) there was no reasonable suspicion supporting his detention; (2) there was no probable cause supporting his arrest; (3) he was retaliated against for exercising his constitutional rights; and (4) the officers used excessive force when pulling him from his vehicle. The officers moved to dismiss all claims, asserting that they were entitled to qualified immunity. The district court granted the officers’ motion to dismiss, holding that, with regard to some of Alexander’s claims, he had not alleged any violations of his constitutional rights, and with regard to the others, Alexander was unable to overcome the qualified immunity defense. Alexander now appeals.

II

We review “a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo,” Thompson v. City of Waco, Tex., 764 F.3d 500, 502 (5th Cir. 2014) (emphasis omitted), “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007). Dismissal is appropriate only when a plaintiff has not alleged “enough facts to state a claim to relief that is plausible on its face” and has failed to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

When a government official asserts a qualified immunity defense, the burden is on the plaintiff to “show that he pleaded facts showing ... that the official violated a statutory or constitutional right. If the plaintiff makes this ... showing, then [we must] determine whether the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of.” United States ex rel Parikh v. Brown, 587 Fed.Appx. 123, 127-28 (5th Cir. 2014) (internal quotation marks, citations, and alteration omitted); see also Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). When engaging in the qualified immunity analysis, we are “permitted to exercise [our] sound discretion in deciding which of the two prongs ... should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We “review a grant of qualified immunity de novo.” Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016) (quoting Bishop v. Arcuri, 674 F.3d 456, 460 (5th Cir. 2012)).

Ill

Alexander argues on appeal that Garza and the other officers are liable for: (1) unlawfully detaining him; (2) arresting him without probable cause; (3) retaliating against him for exercising his First and Fifth Amendment rights; and (4) using excessive force against him. We address each argument in turn.

A. Unlawful Detention

‘Warrantless searches and seizures are ‘per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The Supreme Court carved out one such narrow exception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Under Terry, if a law enforcement officer can point to specific and articulable facts that lead him to reasonably suspect that a particular person is committing, or is about to commit, a crime, the officer may briefly detain — that is, ‘seize’ — the person to investigate.” Hill, 752 F.3d at 1033 (citing United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000)); see also United States v. Sanders, 994 F.2d 200, 203 (5th Cir. 1993) (“[A]fter the Supreme Court’s opinion in Terry v. Ohio, it is now axiomatic that the police are allowed to stop and briefly detain persons for investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity may be afoot.”) (internal quotation marks and footnote omitted). “While ‘reasonable suspicion’ is a less demanding standard than probable cause ... the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or hunch’ of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry, 392 U.S. at 27, 88 S.Ct. 1868).

Both this court and the Supreme Court have dealt frequently with reasonable suspicion or its absence. The Supreme Court case with the most salience is Wardlow, in which the Court had to determine whether an individual who “fled upon seeing police officers patrolling an area known for heavy narcotics trafficking” had provided the police with reasonable suspicion to detain him. Id. at 121, 120 S.Ct. 673. The Court ultimately concluded that he had. Id. at 126, 120 S.Ct. 673. In so doing, it distinguished between “headlong flight ... the consummate act of evasion” and the right of the individual to “ignore the police and go about his business.” Id. at 124-25, 120 S.Ct. 673. “Nervous, evasive behavior [was] a pertinent factor in determining reasonable suspicion,” id. at 124, 120 S.Ct. 673, but continuing to go about one’s business was not.

Our circuit has further interpreted Wardlow, we held in Hill that Wardlow did not establish a “bright-line rule that flight by itself establishes reasonable suspicion.” Hill, 752 F.3d at 1036. In Hill, police officers approached a car parked in an apartment complex; as they neared the car, the defendant’s girlfriend “exited the car and moved towards the apartment building in a manner that officers said was ‘quick,’ ‘brisk,’ and ‘hurrying.’ ” Id. We noted that the girlfriend “could have exited the car out of a desire to flee the police; or, she could have simply exited the car because Hill drove her home, they finished saying their ‘goodbyes,’ and she was preparing to go inside.” Id. at 1037. The officers “lacked a reasonable basis to infer much of anything about the girlfriend exiting the car and taking a few steps towards the apartment during the same time as their arrival.” Id. In other words, circumstances that could equally be interpreted as flight from officers or as continuation of previously-undertaken actions do not create reasonable suspicion.

We have identified additional factors for determining reasonable suspicion. An informant’s tip is a factor weighing in favor. See United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (“An informant’s tip may, in certain cases, provide reasonable suspicion.”). A suspect’s presence in a high crime area is also relevant. See, e.g., United States v. Rideau, 969 F.2d 1572, 1575 (5th Cir. 1992) (en banc). So too the time of day. See id.-, see also, e.g., Hill, 752 F.3d at 1036 (noting that the suspect was not doing anything “unusual for the ... hour”); United States v. Michelletti, 13 F.3d 838, 845 (5th Cir. 1994) (en banc) (DeMoss, J., concurring) (noting that at 2 a.m. “the overwhelming majority of law-abiding citizens are at home in bed,” unlike the defendant).

The district court concluded that Alexander failed to state a claim that Garza lacked reasonable suspicion to detain him. The district court did not provide great detail on what led to its conclusion, but it did hold that, “[b]ased on the totality of the circumstances alleged, Officer Garza had reasonable suspicion to stop Plaintiff and inquire as to why Plaintiff was peering into the grass in the dark and appeared to flee upon spotting the police car.” In reaching this conclusion, the district court erroneously failed to draw all inferences in favor of the nonmovant, i.e. Alexander. There is nothing in the complaint indicating whether the parking lot was dark or well-lit, for example. Nor is there any basis to conclude that Alexander appeared to flee — according to the complaint, he was already getting into the car before he looked up and noticed Garza’s police vehicle.

Taking all of Alexander’s well-pleaded allegations as true and drawing all inferences in his favor — as we must at this stage of the litigation — we cannot conclude as a matter of law that he has failed to state a Fourth Amendment claim for unlawful detention. According to Alexander’s allegations, the most Garza could have ob-seryed was a man (Alexander) briefly looking around a vehicle in the parking lot, turning to get into a car, noticing a police car, continuing to get into the car, and beginning to drive further into the parking lot. This is not “headlong flight” as discussed in Wardlow, this is a man “go[ing] about his business.” Wardlow, 528 U.S. at 125, 120 S.Ct. 673. It was not “evasive” behavior. Id. at 124, 120 S.Ct. 673. Garza had no prior tip or information that could have led him to suspect Alexander of criminal activity. Cf. Martinez, 486 F.3d at 861. This stop did not take place late at night; Garza pulled Alexander over at approximately 9:15 p.m., in a parking lot-we are required to infer was welllit. Cf. Hill, 752 F.3d at 1036; Rideau, 969 F.2d at 1575. Nor is there any suggestion in the complaint that this was a high crime area. Cf. id. Indeed, the circumstances in Hill were much more suspicious than they were here; in Hill it was a high crime area, later at night, and Hill’s girlfriend actively altered her behavior to move away from pólice officers when they got near her, Hill, 752 F.3d at 1035-36, but we still did not find reasonable suspicion.

We do not suggest that officers in this circuit have faced this precise factual situation before. But that is not a condition precedent to denying qualified immunity— “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Based on these facts alone, we cannot conclude as a matter of law that Garza had reasonable suspicion to detain Alexander pursuant to the Fourth Amendment. Moreover, taking the facts as alleged, the lack of reasonable suspicion was clearly established — the factors we laid out as relevant in Hill, Martinez, Ri-deau, and Michelletti, as well as the Supreme Court’s decision in Wardlow, do not support reasonable suspicion here. We therefore reverse the district court’s dismissal of Alexander’s unlawful detention claim.

B. Probable Cause

According to Garza’s formal report, Alexander was ultimately arrested for resisting a search under TPC § 38.03(a). TPC § 38.03(a) provides that a person commits an offense “if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.” (emphasis added). Texas courts have stressed that this section “applies only .to resistance by the use of force.” Washington v. State, 525 S.W.2d 189, 190 (Tex. Crim. App. 1975).. Thus, under Texas law, simply “refusing to cooperate with being arrested” is not sufficient to support an arrest for resisting a search — there must be some' use of force. Sheehan v. State, 201 S.W.3d 820, 823 (Tex. App.— Waco 2006); see also Martin v. State, No. 03-08-00400-CR, 2009 WL 1980951, at *4 (Tex. App. — Austin July 10, 2009) (“Noncooperation with an arrest is not by itself an act of the ‘use of force against’ a peace officer under [TPC § 38.03(a) ].”) (Mem. Op., not designated for publication).

Here, Alexander alleges that at all times — while being removed from his car, manhandled on the concrete, handcuffed on the curb, and then placed in the police car — he was entirely passive and did not physically resist the officers in any way. The district court nevertheless found that Garza’s decision to arrest Alexander for resisting a search “was reasonable,” especially “given [Alexander’s] refusal to [answer] Officer Garza’s questions, coupled with his questioning of Officer Garza’s authority to direct [Alexander] to exit the vehicle.” On these grounds, the district court held that the officers were entitled to qualified immunity and dismissed Alexander’s claim for false arrest. At no point did the district court identify what allegations in the complaint supported a finding that Alexander had used force against the officers such that they could arrest him for resisting a search.

The only argument the officers make as to the use of force requirement under TPC § 38.03(a) is that, “to the extent that physical force is required to establish resisting arrest, or search, the use of a car as a barrier to avoid the efforts of an officer to conduct their search acts to constrain the search and may provide another building block of probable cause.” This argument both strains credulity and runs counter to Texas precedent on the issue. As noted above, Texas courts have repeatedly held that merely using tactics to delay an arrest does not satisfy TPC § 38.03(a)’s use of force requirement. See Dobbs v. State, 434 S.W.3d 166, 173 (Tex. Crim. App. 2014) (defendant who attempted to avoid being arrested by putting a gun to his own head and threatening to commit suicide did not violate § 38.03 because, “although appellant’s refusal to put down the gun when ordered to do so had the likely effect of delaying his arrest, that refusal [could not] reasonably be understood as constituting a use of force against the officers by virtue of its being opposed to the officer’s goal of making an arrest”). On the facts alleged, there was no probable cause to arrest Alexander for resisting a search under Texas law.

The district court granted the officers qualified immunity from Alexander’s false arrest claim. There can be no doubt that the right not to be arrested absent probable cause was clearly established at the time of Alexander’s arrest. See Club Retro, 568 F.3d at 206 (“The Fourth Amendment right to be free from false arrest — arrest without probable cause— [is] clearly established.... ”); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (“The right to be free from arrest without probable cause is a clearly established constitutional right.”). “[E]ven law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to” qualified immunity, however. Club Retro, 568 F.3d at 206 (internal quotation marks omitted) (quoting Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)). We must therefore determine whether it was objectively reasonable for Garza and the officers to conclude that probable cause existed to arrest Alexander for resisting a search. “Objective reasonableness is assessed in light of legal rules clearly established at the time of the incident.” Mangieri, 29 F.3d at 1016. The plain meaning of Section 38.03(a)’s text and the ample and longstanding Texas case law interpreting the statute’s use of force element indicate that, absent some physical force directed at a law enforcement official, there can be no violation for resisting a search or arrest. It is telling that, in their brief, the defendants point to no Texas case interpreting the statute otherwise.

Because, on the facts alleged, the officers did not have probable cause to arrest Alexander for resisting a search under Texas law, and because no objectively reasonable officer would conclude that such probable cause did exist, we hold that: (1) Alexander has stated a Fourth Amendment claim; and (2) the officers are not entitled to qualified immunity from that claim at the motion to dismiss stage.

C. Retaliation

Alexander argues that the officers retaliated against him for exercising his constitutional rights (1) not to answer police questions during a Terry stop, and (2) to utter an expletive in public. He contends that the officers arrested him only because he exercised these rights, in violation of the First and Fifth Amendments. The district court held that Alexander’s allegations were merely formulaic and concluso-ry and did not state a valid claim for retaliation under either the First or Fifth Amendments. It therefore did not reach the qualified immunity issue.

1. Fifth Amendment

Alexander’s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza’s questions is easily disposed of. As this court has noted on multiple occasions, “[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F.Supp.2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated.

2. First Amendment

As the district court explained, “[t]o prevail on a First Amendment retaliation claim, Plaintiff must demonstrate that (1) he was engaged in constitutionally-protected activity, (2) the officers’ action caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the officers’ adverse actions were substantially motivated against Plaintiff’s exercise of constitutionally protected conduct.” Alexander v. City of Round Rock, No. A-15-CA-00617-SS, 2016 WL 3360530, at *6 (W.D. Tex. June 14, 2016) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)). Alexander argues that Garza and the officers retaliated against him for exercising his First Amendment right of free expression in two distinct ways: (1) using an expletive in public; and (2) being silent and not answering an officer’s questions.

The claim that the officers retaliated against Alexander for using an expletive in public is not supported by the facts as alleged in the complaint. As the district court correctly explained, by the time A-exander used the expletive, he had already been removed from his car and handcuffed on the curbside. Furthermore, any adverse action that was taken once the arrest was effected cannot be reasonably attributed to Aexander’s alleged use of an expletive, as Aexander was ultimately arrested for resisting a search and not for any unfortunate word choice. Thus, Aexander’s First Amendment retaliation claim fails as far as his use of an expletive is concerned.

Aexander also argues that the officers retaliated against him for exercising his First Amendment right to be silent and not answer their questions. This argument was not addressed straight-on by the district court. We hold that Aexander’s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer’s questions during a Terry stop.” Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011). Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly ón point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer’s questions during a stop like the one at issue here. One court summarized the issue well:

Plaintiffs contend that they can state such a First Amendment retaliation claim because Defendants retaliated against them for exercising their right not to speak.... However, this right not to speak has been limited to the context of government-compelled speech with respect to a particular political or ideological message. See United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)[;] ... Kania v. Fordham, 702 F.2d 475, 478 n. 6 (4th Cir. 1983). Plaintiffs cite no authority to support the application of the First Amendment protection against government-compelled ideological or political speech into the context of police interviews....

McFadyen v. Duke Univ., 786 F.Supp.2d 887, 949 (M.D.N.C. 2011) (internal quotation marks omitted), ajfd in part, rev’d in part on other grounds sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). It is instructive that Alexander points to no case supporting the contention that there is a clearly established First Amendment right not to answer an officer’s questions during a traffic stop. We therefore conclude that the officers are entitled to qualified immunity on Alexander’s First Amendment retaliation claim.

D. Excessive Force

Alexander alleges that the officers used excessive force in violation of his Fourth Amendment rights when they “mashed” his face “into the Concrete,” “pinned him by pressing [a] boot or knee on the back of his neck,” and “manipulate[ed] his limbs and put[] pressure on his torso, neck, and head.” Alexander further alleges that, as a result, he “sustained injuries to his body as a result of this attack, including injuries to his mouth.” He also alleges that he “sustained emotional and psychological injuries as well.” The district court found that Alexander did not plead his injuries with enough specificity to overcome the de minimis requirement.

We disagree. “[Although a de minimis injury is not cognizable, the extent of injury necessary to satisfy the injury requirement is ‘directly related to the amount of force that is constitutionally permissible under the circumstances.’ ” Brown v. Lynch, 524 Fed.Appx. 69, 79 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996)). “Any force found to be objectively unreasonable necessarily exceeds the de minimis threshold, and, conversely, objectively reasonable force will result in de minimis injuries only.” Id. (emphasis added) (footnote omitted). Consequently, “only one inquiry is required to determine whether an officer used excessive force in violation of the Fourth Amendment.” Ikerd, 101 F.3d at 434 n.9. In-short, “as long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer’s unreasonably excessive force.” Brown, 524 Fed.Appx. at 79 (footnotes omitted) (quoting Ikerd, 101 F.3d at 434).

On the facts alleged, we conclude that the officers’ use of force was objectively unreasonable. Nothing in Alexander’s statements or actions indicated that he posed any risk of harm to the officers. Nor did he pose any flight risk — indeed, he stayed in his vehicle and made no attempt to leave while Garza awaited backup. Perhaps Alexander’s refusal to exit his vehicle on Garza’s command warranted physical removal from the car, but it did not warrant throwing Alexander onto the ground, kneeing him in the back, and pushing his face into the concrete. The officers’ use of force once Alexander was safely removed from the vehicle was not objectively reasonable. Consequently, Alexander’s alleged injuries — though perhaps not sufficient on their own to satisfy the de minimis requirement — are enough to support a claim for excessive force at the motion to dismiss stage.

IV

We have only heard one side of the story. After discovery is complete, the district court may well correctly determine that none of Alexander’s claims can survive summary judgment. But at the motion to dismiss stage, we are bound to accept his allegations as true. And on the facts alleged, Alexander has stated several constitutional claims.

We (1) REVERSE the district court’s dismissal of Alexander’s unlawful detention claim, (2) REVERSE the district court’s dismissal of Alexander’s false arrest claim, (3) AFFIRM the district court’s dismissal of Alexander’s retaliation claims, and (4) REVERSE the district court’s dismissal of Alexander’s excessive force claim. We REMAND for further proceedings as appropriate. We place no limitation on the matters the district court may address and decide on remand.

      . Alexander raised other arguments in the district court as well, but these four are the only contentions he presses on appeal. Furthermore, Alexander's briefing on appeal makes no argument regarding the culpability on the part of Round Rock itself. Consequently, Alexander has waived his appeal as to any claims against the City of Round Rock.

      . We recognize that the alleged flight from officers in Hill was that of Hill’s girlfriend, not Hill himself, whereas here the alleged flight from officers was Alexander’s. Nevertheless, this is no reason to distinguish the cases entirely — as we noted in Hill, "the girlfriend's quick movements might reflect to some extent on Hill too." Id.

      . For the first time in a Rule 28(j) supplemental letter the week of oral argument, counsel for the defendants argued that the officers had probable cause to arrest Alexander under a different provision of the TPC, namely, Section 38.15. It is true that a police officer is entitled to qualified immunity if he had probable cause to arrest the plaintiff for any crime — not just the crime that the officer stated at the time of arrest. See Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). In stark contrast to the defendants here, however, appellees in previous cases applying Devenpeck in our circuit have pointed to alternative grounds supporting probable cause in their briefing to this court. See, e.g., Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (defendant officers offered four alternative bases for arrest supported by probable cause). Were ap-pellees under no obligation to raise such alternative grounds during briefing, this court would be put in the position of having to prove a negative — analyzing every criminal statute to be sure that no other plausible grounds for probable cause exist. There is nothing in Devenpeck or any of our precedents that requires such an absurd result. The defendants here did not point to Section 38.15 until after briefing was complete. Their contentions fail for that reason.

      . The parties spill much ink on the issue of whether Miranda rights attach during noncustodial interrogations. That argument is a red herring in this case, because any incriminating statements Alexander might have theoretically uttered had he answered Garza’s questions could not have been used against him in court anyway- — there was no trial.

      . Because we conclude that Alexander cannot overcome the officers’ qualified immunity on this claim, we do not rule as to whether he stated a First Amendment retaliation claim in the first instance.


source: Caselaw Access Project

author: PRISCILLA R. OWEN, Circuit Judge:

license: Public Domain

text:
    Kenneth James GUILBEAU, Plaintiff-Appellant, v. HESS CORPORATION, Defendant-Appellee.
    No. 16-30971
    United States Court of Appeals, Fifth Circuit.
    FILED April 18, 2017

      Victor L. Marcello, Esq., Diane Adele Owen, Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiff-Appellant.
    Jonathan Andrew Hunter, Kelly Bre-chtel Becker, Esq., Kathryn Zainey Gon-ski, Elizabeth S. Wheeler, Esq., Liskow & Lewis, P.L.C., New Orleans, LA, for Defendant-Appellee.
    Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

Hess Corporation’s predecessors obtained several mineral leases and conducted oil and gas operations on property for many years, ceasing operations in 1971, and the oil and gas leases expired in 1973. In 2007, Kenneth Guilbeau purchased property on which these operations had been conducted. At that time, all wells had been plugged and abandoned. The sale did not include any assignment of rights to sue for pre-purchase damages. Guilbeau then brought suit against Hess, asserting claims for damages stemming from contamination caused by the oil- and gas-related activities on the tract. Hess moved for summary judgment, arguing that Louisiana law bars Guilbeau’s claims for damages occurring prior to Guilbeau’s purchase of the property. The district court granted Hess’s motion, concluding that the subsequent purchaser rule barred Guil-beau’s claims. Guilbeau appealed. We affirm.

I

‘We review a grant of summary judgment de novo, applying the same standard that the district court applied.” In this diversity action, Louisiana law controls. Federal courts applying state law “look to the final decisions of that state’s highest court.” When, as here, the state’s highest court has not decided an issue, this court must make an “Erie guess” as to how the state supreme court would decide the issue. In doing so, this court should “defer to intermediate state appellate court decisions, unless convinced by other persuasive data that the highest court of the state would decide otherwise.”

A

In its recent decision in Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., the Louisiana Supreme Court undertook a comprehensive review of the legal principles undergirding the subsequent purchaser rule as well as the rule’s development in Louisiana case law. The court stated:

The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.

We see no need to repeat the entirety of the court’s thorough analysis of the doctrine here. However, we note its explanation that:

injury to property must be understood as damage to the real rights in the property. A tortfeasor who causes injury or damage to a real right in property owes an obligation to the owner of the real right. This relationship arises as a matter of law and provides to the owner of the real right a personal right to sue the tortfeasor for damages.

The court clarified that damage to property creates a personal right to sue, which unlike a real right, does not transfer to a subsequent purchaser “[i]n the absence of an assignment or subrogation.” The court concluded that a current property owner has no right to recover from a third party for property damages caused prior to his purchase. Though Eagle Pipe provided extensive guidance on the purposes and principles underlying the subsequent purchaser rule, it also noted in a footnote that “because not factually relevant [to the case at issue], we express no opinion as to the applicability of our holding to fact situations involving mineral leases or obligations arising out of the Mineral Code.” Guilbeau claims that this footnote has created uncertainty about the applicability of the subsequent purchaser rule to mineral leases and has resulted in a “mishmash of appellate jurisprudence.” We disagree. Gu-ilbeau is correct that some earlier appellate decisions determined the rule was inapplicable to mineral leases. However, a clear consensus has emerged among all Louisiana appellate courts that have considered the issue, and they have held that the subsequent purchaser rule does apply to cases, like this one; involving expired mineral leases.

B

The Louisiana First Circuit Court of Appeal considered the applicability of 'Eagle Pipe to expired mineral leases in Global Marketing Solutions, L.L.C. v. Blue Mill Farms, Inc. The purchaser in that case learned after it purchased the surface rights without an assignment of personal rights that prior drilling operations had contaminated the land. Applying the reasoning of Eagle Pipe, the court held that the right to sue for damage to the property was a personal right held by prior owners at the time the defendants caused the damage and did not transfer to the purchaser without a specific assignment.

The court also rejected claims based on the rights and obligations “between owners of adjacent immovable property” and the Mineral Code’s “correlative rights” doctrine, whereby a landowner and the mineral rights owner are required to exercise their rights with reasonable regard for each other. Because the leases had expired prior to purchase, the parties had never been either “neighbors” or contemporaneous owners. The court concluded they had no reciprocal rights or obligations under either theory.

The Second Circuit Court of Appeal has consistently applied the subsequent purchaser rule to mineral leases. Most recently, in Walton v. Exxon Mobil Corp., that court held that the subsequent purchaser doctrine precluded claims for damages arising prior to the date on which the surface owners acquired the land, even though the leases were still in effect at the time of the acquisition. Though the purchasers could assert claims for damages caused after their acquisition of the property, the court held that any claims for pre-purchase damages “were the personal rights and claims of the former surface owners.”

The Third Circuit Court of Appeal, which previously suggested that it would not apply the subsequent purchaser doctrine to mineral leases, now agrees with the other appellate courts. In Boone v. Conoco Phillips Co., it addressed whether the subsequent purchaser doctrine applied to bar tort and contract claims by landowners against a prior mineral rights lessee for pre-purchase land damage. The court noted that under the reasoning of Eagle Pipe, a “former owner retains the right to recover the damages caused by the former owner’s lessee during the former owner’s ownership of the property.” It held that, though a purchaser may have a cause of action in redhibition against the seller, the new owner “does not have a right of action against the seller’s lessee” without a valid assignment.

Finally, in Bundrick v. Anadarko Petroleum Corp., the same court applied the subsequent purchaser doctrine to a mineral lease under facts similar to those in this case: the parties agreed that the plaintiffs acquired the property after the expiration of the mineral leases without obtaining a specific assignment of the prior owner’s rights of action. The plaintiff-purchasers asserted that the defendant’s activities under various expired mineral leases had contaminated the property in violation of the lessee’s obligations under the Mineral Code. The court explicitly acknowledged “that the subsequent purchaser rule applies in matters involving mineral leases.”

The court also squarely addressed and rejected the argument that the purchaser had a cause of action in remediation based purely on the fact that mineral rights are categorized as real rights under Louisiana’s Mineral Code. It concluded that while mineral rights in the lessee are real rights, a lessor’s rights, including the right to sue for damages, are personal and do not automatically transfer with the property.

II

The above cases demonstrate a consensus supporting the application of the subsequent purchaser doctrine to cases involving mineral leases. Because this case presents no occasion to depart from the above-described precedent, we “defer to [these] intermediate state appellate court decisions” and hold that the subsequent purchaser doctrine bars Guilbeau’s claims.

We also note that although the denial of a writ is not necessarily an approval of the appellate court’s decision nor prece-dential, the Louisiana Supreme Court has had multiple opportunities to consider this issue and has repeatedly declined to do so. Guilbeau engages in extensive analysis of Louisiana’s Civil and Mineral Codes but fails to present “persuasive data that the highest court of the state would decide [this case] otherwise.”

Finally, as this court has previously explained, “[a]lone, the absence of a definitive answer from the state supreme court on a particular question is not sufficient to warrant certification.” “Rather, we must ‘decide the case as would an intermediate appellate court of the state in question if ... the highest court of the state has not spoken on the issue or issues presented,’ ” and we are “reluctant” to certify “absent genuinely unsettled matters of state law.” When, as here, the appellate decisions are in accord, the law is not unsettled, and certification is unwarranted.

For the foregoing reasons, we AFFIRM the judgment of the district court dismissing the case.

      . Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016).

      . See Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

      . Temple v. McCall, 720 F.3d 301, 307 (5th Cir. 2013) (quoting Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010)).

      . Id. (quoting Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954 (5th Cir. 2009)). This court looks to various sources of law in making an Eñe guess, including "(1) decisions of the [Louisiana] Supreme Court in analogous cases, (2) the rationales and analyses underlying [Louisiana] Supreme Court decisions on related issues, (3) dicta by the [Louisiana] Supreme Court, (4) lower state court decisions, (5) the general rule on the question, (6) the rulings of courts of other states to which [Louisiana] courts look when formulating substantive law and (7) other available sources, such as treatises and legal commentaries.” Gulf & Miss. River Transp. Co. v. BP Oil Pipeline Co., 730 F.3d 484, 488-89 (5th Cir. 2013) (alterations in original) (quoting Am. Int'l Specialty Lines Ins. Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 564 (5th Cir. 2010)).

        . Temple, 720 F.3d at 307 (quoting Mem'l Hermann Healthcare Sys., Inc. v. Eurocopter Deutschland, GMBH, 524 F.3d 676, 678 (5th Cir. 2008)).

      . 79 So.3d 246, 256-75 (La. 2011).

      . Id. at 256-57.

      . Id. at 279.

      . Id. at 262, 279.

      . Id. at 279; see also id. at 279-83 (rejecting, in addition, claims based on the continuing tort doctrine, civil trespass, and contract and noting that there were no ongoing acts causing damage and that the plaintiff was neither a party to nor a third-party beneficiary of the lease).

      . Id. at 281 n.80.

      . See Marin v. Exxon Mobil Corp., No. 2008 CA 1724, 2009 WL 7004332, at **12-14 (La. Ct. App. Sept. 30, 2009) (declining to apply the subsequent purchaser rule), aff'd. in part and rev’d in part, 48 So.3d 234, 239, 262 (La. 2010) (dismissing all claims by plaintiffs who did not have current leases, but determining that some plaintiffs were entitled to damages for breach of current leases); Duck v. Hunt Oil Co., 134 So.3d 114, 119, 122 (La. Ct. App. 2014) (declining, based on the Eügle Pipe footnote, to apply the subsequent purchaser rule to a mineral lease, but remanding on other grounds).

      . 153 So.3d 1209 (La. Ct. App. 2014). The Supreme Court of Louisiana had previously remanded the case to the trial court specifically to reconsider "its rulings in light of Eagle Pipe.” Glob. Mktg. Sols., L.L.C. v. Blue Mill Farms, Inc., 84 So.3d 540, 540 (La. 2012).

      . Id. at 1211, 1215.

      . Id. at 1214-15.

      . Id. at 1215.

      . Id.

      . Id.

      . See Wagoner v. Chevron USA Inc., 55 So.3d 12, 23 (La. Ct. App. 2010) on reh’g (Nov. 24, 2010) (determining, pre-Eagle Pipe, that "[t]he right to damages conferred by a lease, whether arising under a mineral lease or a predial lease, is a personal right, not a property right; and, as a personal right, it does not pass to the new owners of the land when there is no specific conveyance of that right in the instrument of sale”).

      . 162 So.3d 490 (La. Ct. App. 2015).

      . Id. at 495, 498-99.

      . Id. at 498.

      . Duck v. Hunt Oil Co., 134 So.3d 114, 119, 122 (La. Ct. App. 2014) (stating that "[b]y its own terms, Eagle Pipe does not apply to situations involving mineral leases,” but remanding the case because the lease contained a third-party beneficiary provision on which plaintiff's might base a claim).

      . See Bundrick v. Anadarko Petrol. Corp., 159 So.3d 1137, 1143 (La. Ct. App. 2015) (noting the Louisiana Supreme Court’s instruction in Global Marketing Solutions, L.L.C. v. Blue Mill Farms, Inc., 84 So.3d 540 (La. 2012) that the trial court reconsider a prior decision in light of Eagle Pipe and interpreting that instruction as "recognition that the subsequent purchaser rule applies in matters involving mineral leases”).

      . 139 So.3d 1047 (La. Ct. App. 2014).

      . Id. at 1050-51.

      . Id. at 1053.

      . Id. at 1053-54; id. at 1055-56 (considering and rejecting plaintiff-purchaser's assertion that he had obtained assignment of the right to sue after the sale, finding the assignments did not provide the party with a right of action in either contract or tort).

      . 159 So.3d at 1138, 1140.

      . Id. at 1139.

      . Id. at 1143.

      . Id. at 1143-44.

      . Id.

      . Temple v. McCall, 720 F.3d 301, 307 (5th Cir. 2013) (quoting Mem’l Hermann Healthcare Sys., Inc. v. Eurocopter Deutschland, GMBH, 524 F.3d 676, 678 (5th Cir. 2008)).

      . White v. La. W. Ry. Co., 174 La. 308, 140 So. 486, 488 (1932); see also Ehrlicher v. State Farm Ins. Co., 171 F.3d 212, 214 n.1 (5th Cir. 1999) (stating that a denial of writ does not create precedent or constitute approval of the decision for which the writ is sought).

      . Walton v. Exxon Mobil Corp., 184 So.3d 25 (La. 2015) (denying writ); Bundrick v. Anadarko Petrol. Corp., 184 So.3d 24 (La. 2015) (denying writ); Glob. Mktg. Sols., L.L.C. v. Blue Mill Farms, Inc., 173 So.3d 1164 (La. 2015) (denying writ); LeJeune Bros. v. Goodrich Petrol. Co., 978 So.2d 327 (La. 2008) (denying writ).

      . See Temple, 720 F.3d at 307 (quoting Mem’l Hermann, 524 F.3d at 678).

      . Jefferson v. Lead Indus. Ass’n, 106 F.3d 1245, 1247 (5th Cir. 1997) (per curiam).

      . Id. (alteration in original) (quoting Transcon. Gas Pipeline Corp. v. Transp. Ins. Co., 958 F.2d 622, 623 (5th Cir. 1992) (per curiam)).

      . Id.


author: COOK, Circuit Judge.

text:
    Carlin ROBBINS; Rebecca Lutz, Plaintiffs-Appellants, v. NEW CINGULAR WIRELESS PCS, LLC, dba AT & T Mobility, Defendant-Appellee.
    Case No. 16-5524
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: January 30, 2017

      ON BRIEF: W. Henry Graddy, IV, W.H. GRADDY & ASSOCIATES, Versailles, Kentucky, Randal A. Strobo, DOW-NEY STROBO, PLLC, Louisville, Kentucky, for Appellants. David A. Pike, F. Keith Brown, PIKE LEGAL GROUP, PLLC, Shepherdsville, Kentucky, for Ap-pellee AT & T Mobility.
    Before: DAUGHTREY, ROGERS, and COOK, Circuit Judges.

       This decision was originally filed as an unpublished opinion on January 30, 2017. The court has now designated the opinion for full-text publication.

   OPINIION

COOK, Circuit Judge.

Several Kentucky residents sued to stop a company from building a cell-phone tower near their homes. They allege tort claims based on their concern that the tower will harm their health, devalue their properties, and emit excessive light and noise. The district court dismissed their claims and denied their request to amend their complaint. The residents appeal both decisions. We AFFIRM.

I. Background

Defendant New Cingular Wireless, doing business as AT & T Mobility (“AT & T”), applied for a permit from the Lexington-Fayette Urban County Planning Commission (“Commission”) to build a 125-foot cell-phone tower. Plaintiffs are residents (“Residents”) representing a class of individuals who live near the proposed tower location. At the public hearing to discuss the tower’s siting and design, the Residents petitioned the Commission to reject AT & T’s application. They complained that the tower would spoil the view from their properties, disturb the character of the neighborhood, endanger public health and safety, and depress residential property values.

To show that the tower’s design would create an ey'esore, the Residents pointed to the Commission’s staff report that determined the tower would “undoubtedly affect the view from many residential properties.” The report encouraged AT & T to ameliorate the problem by camouflaging the structure as a clock tower attached to an existing building. Even after receiving this recommendation, AT & T still retained its original “monopine” (i.e., fake pine tree) design.

To buttress their claims of harm to public health and property values, the Residents presented an expert report surveying the scientific literature on radio frequency (“RF”) emissions from cellphone towers. The research linked living near cell-phone towers to higher rates of cancer, brain tumors, and a multitude of other health problems. The report also drew on valuation studies to predict a 5% to 54% reduction in property prices upon AT & T’s building the tower.

Despite the Residents’ opposition, the Commission granted AT & T’s application for the site permit. The Residents then challenged the decision by filing an administrative appeal in Fayette County Circuit Court. See Ky. Rev. Stat. Ann. § 100.347 (West 2016). The Fayette court dismissed the appeal with prejudice and denied the Residents leave to amend because they failed to fulfill a jurisdictional requirement — namely, listing the property owner of the cell-tower site as a defendant. Id. § 100.347(4) (West 2016). The Residents have appealed this decision to the Kentucky Court of Appeals and are awaiting judgment.

Before the Fayette court issued its dismissal order, the Residents brought a second suit that forms the basis of this appeal. They filed the suit in state court and, using the expert report as proof of current and future harms, sought damages and an injunction for the following torts: (1) negligence, (2) negligence per se, (3) gross negligence, and (4) nuisance. AT & T removed the suit to federal court based on diversity, then moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In their response brief to AT & T’s motion to dismiss, the Residents requested leave to amend the pleading, but at no point did they amend their complaint as a matter of course or file a separate motion to amend. The district court granted AT & T’s motion to dismiss and denied the Residents’ request to amend. The Residents timely appealed.

II. Motion to Dismiss

‘We review de novo a district court’s dismissal of a plaintiffs complaint for failure to state a claim under Rule 12(b)(6).” Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006) (citing Marks v. Newc- ourt Credit Grp., Inc., 342 F.3d 444, 451 (6th Cir. 2003)). In doing so, “[w]e ‘construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.’ ” Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 456 (6th Cir. 2011) (quoting In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 902 (6th Cir. 2009)). For a plaintiffs claim to survive a motion to dismiss, the complaint must present sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

The district court dismissed the Residents’ claims for three reasons: (1) the Telecommunications Act of 1996 (“TCA” or “the Act”) impliedly preempts claims based on RF emissions that comply with Federal Communications Commission (“FCC”) standards; (2) the claims allege harms that stem solely from the Commission’s decision, which became unreviewable under Kentucky law due to the Residents’ failure to name the owner of the cell-tower site as a defendant; and (3) even if not preempted by federal law or barred by state law, the Residents have not alleged facts sufficient to sustain their tort claims. The Residents argue that the district court erred on all three grounds, but we find the district court’s reasoning persuasive.

(1) Preemption

The Residents argue that the TCA neither expressly nor impliedly preempts their tort claims. The district court held that the TCA impliedly preempts the Residents’ claims based on the tower’s expected radiofrequency emissions. We agree with the district court’s holding and rationale.

Congress can preempt state law either expressly or impliedly. Yates v. Or-tho-McNeil-Janssen Pharm., Inc., 808 F.3d 281, 293 (6th Cir. 2015) (citing Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000)). “Express preemption applies where Congress, through a statute’s express language, declares its intent to displace state law.” Farina v. Nokia Inc., 625 F.3d 97, 115 (3d Cir. 2010) (citing Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)). Where a court deems express preemption inapplicable, it may still find implied preemption when federal and state laws conflict. Yates, 808 F.3d at 293-94 (citing Crosby, 530 U.S. at 372-73, 120 S.Ct. 2288). So-called “conflict preemption” takes two forms: (i) impossibility preemption, “where []‘it is impossible for a private party to comply with both state and federal law,’ ” and (ii) obstacle preemption, where “the state law is ‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. at 294 (quoting Crosby, 530 U.S. at 372-73, 120 S.Ct. 2288).

Although the district court did not specify which form of implied preemption applied — impossibility or obstacle — it generally couched its opinion in terms of obstacle preemption. We agree that obstacle preemption fits the bill.

Congress passed the TCA to foster industry competition in local markets, encourage the development of telecommunications technology, and provide consumers with affordable access to telecommunications services. Telecommunications Act of 1996, Preamble, Pub. L. No. 104-404, 110 Stat. 56 (1996). The TCA furthers those goals by preventing local governments from impeding the siting and construction of cell towers that conform to the FCC’s RF-emissions standards. See 47 U.S.C. § 332(c)(7)(B)(iv). By delegating the task of setting RF-emissions levels to the FCC, Congress authorized the federal government — and not local governments — to strike the proper balance between protecting the public from RF-emissions exposure and promoting a robust telecommunications infrastructure. See id.; In the Matter of Procedures for Reviewing Requests for Relief from, State & Local Regulations Pursuant to Section 332(c) (7) (b)(v) of the Commc’ns Act of 1931 in the Matter of Guidelines for Evaluating the Envtl. Effects of Radiofrequency Radiation, 12 F.C.C. Red. 13494,13505 (1997).

Allowing RF-emissions-based tort suits would upset that balance and impair the federal government’s ability to promote the TCA’s goals. A proliferation of suits similar to the one the Residents brought would tie up companies whenever they tried to build cell towers, leading to construction delays, increased costs, and ultimately, less public access to affordable cell-phone services. Widespread litigation would also shift the power to regulate RF emissions away from the FCC and into the hands of courts and state governments. Stanley v. Amalithone Realty, Inc., 94 A.D.3d 140, 940 N.Y.S.2d 65, 70 (2012).

The Residents respond by invoking an exception to § 332(c)(7)(B)(iv): if the tower’s RF emissions exceed the maximum - level set by the FCC, the Residents can sue. The Residents request discovery to find proof of whether AT & T’s proposed tower would in fact exceed the FCC’s stan-' dards. But they fail to allege facts in their complaint to support such a claim, and our precedent prohibits plaintiffs from turning discovery into a fishing expedition. Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674, 680 (6th Cir. 1988). Furthermore, without an existing tower, it is unclear how the Residents would uncover evidence of excessive RF emissions.

The Residents also insist that Kentucky’s tort law skirts preemption because regardless of the whether RF emissions from the tower exceed the FCC maximum, a plaintiff can bring a tort claim in Kentucky as long as she shows any “contact” with RF emissions. This argument misses the mark; as long as state tort law conflicts with federal law, federal law displaces that application of state law.

(2) Collateral Attack

AT & T argues that the Residents’ claims constitute an improper collateral attack on the Commission’s decision to approve the tower. The Residents attempt to distinguish their tort claims by arguing that they seek redress for harms unrelated to the Commission’s decision, and therefore do not attack the Commission’s decision or authority. Their arguments prove unpersuasive.

Under the relevant statute of repose, Ky. Rev. Stat. Ann. § 100.347(2) (West 2016), an aggrieved party who does not properly appeal a planning board’s final decision within 30 days loses her right to challenge that decision. Id. Although the Residents filed their administrative action on the last allowable day, they failed to name the property owner of the land as a defendant, which the statute requires for perfecting such an appeal. Ky. Rev. Stat. Ann. § 100.347(4) (West 2016); Alcorp, Inc. v. Barton, No. 2002-CA-001806-MR, 2003 WL 22064248, at *2 (Ky. Ct. App. Sept. 5, 2003); see also Triad Dev./Alta dyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004) (requiring strict adherence to § 100.347’s procedures). As a result, the state court lacked jurisdiction to review the Commission’s decision. By the time the Residents realized their error and sought leave to amend, more than 30 days had passed. The Fayette court therefore dismissed their case with prejudice.

AT & T contends that the Residents’ instant lawsuit merely reprises the state-court permit appeal and cloaks it in the form of tort claims meant to evade the state court’s dismissal of their suit. See Greater Cincinnati Marine Serv., Inc. v. City of Ludlow, 602 S.W.2d 427, 428 (Ky. 1980). We agree. The Residents allege no actual harms from an existing tower; after all, AT & T has not even started construction. Instead, the Residents ground their claims almost entirely on the “design and siting of the proposed cell tower.” Because Ky. Rev. Stat. Ann. § 100.347 (West 2016) offers plaintiffs an adequate and exclusive remedy (i.e., appeal to a Kentucky court) for grievances related to a planning board’s decision, a court must dismiss any collateral attack that seeks solely to rehash the same complaints. Warren Cty. Citizens for Managed Growth, Inc. v. Bd. of Comm’rs of City of Bowling Green, 207 S.W.3d 7, 17 (Ky. Ct. App. 2006); see also Greater Cincinnati Marine, 602 S.W.2d at 428.

The Residents offer four counterarguments. First, they reply that their torts amount to more than a second shot at appealing the Commission’s decision because they allege harms independent of the Commission’s authority over design and siting. That is, the Residents allege that the harm of decreasing property values stems from the anticipated building of the tower rather than the Commission’s decision. Their proof consists of a general assertion that property owners need to “disclose the nature and proximity of the cellular tower to any potential purchasers.” They also call attention to the expert report, which observed that property values dropped near “similar infrastructure projects from around Kentucky.”

But the Residents have not shown that their harms arise from anything other than the Commission’s decision. Indeed, the local zoning ordinances require the Commission to “provide for cellular telecommunications towers in appropriate locations ... while ... preserving the character and value of surrounding property.” Lexington-Fayette Urban County Zoning Ordinance, Art. 25, https://drive.google. conVfile/d/0B0aBvWAKyfxaZl BQMWRIbmZ5U3c/view (emphasis added). Without an existing tower, the alleged decline in prices results merely from the Commission’s decision encompassing considerations of property value.

Second, the Residents contend that because Ky. Rev. Stat. Ann. § 100.987 (West 2016) — Kentucky’s statute governing cell-tower siting — provides a separate avenue to challenge the Commission’s decision, their claims do not collaterally attack the Commission’s decision, which falls under § 100.347. See § 100.987(10) (allowing an aggrieved party to bring suit “for review [of a planning commission’s final action] in any court of competent appeal”). But regardless of whether the Residents could bring an action under § 100.987, Kentucky’s decisional law would still require dismissal if the Residents simply used § 100.987(10) to recycle and resubmit their already-adjudicated § 100.347 permit appeal. Warren Cty. Citizens for Managed Growth, 207 S.W.3d at 17; see also § 100.347(2); Greater Cincinnati Marine, 602 S.W.2d at 428. Moreover, the statute of repose in § 100.347(2) applies to “any final action of the planning commission.” Id. (emphasis added). Because the decision to approve a tower’s site and design is a “final action of the planning commission,” and § 100.987 contains no independent statute of repose, § 100.347(2) still applies to any § 100.987(10) appeal. With more than 30 days having passed since the Commission’s final decision, the statute of repose would bar a potential § 100.987(10) action.

Third, the Residents insist that because § 100.347 authorizes a court to review planning decisions, but not “property damages and common law tort damages due to an incompatible land use,” their tort claims do not attack the Commission’s decision. Not so; this argument ignores that their tort claims rely entirely on alleged harms resulting from the Commission’s approval of the tower design and siting, and thus attack the Commission’s decision through different means.

Finally, the Residents cite a string of Kentucky cases to support the argument that even after a planning commission approves a certain usage for a site, a plaintiff may bring a nuisance suit against the private party that causes actual damage to neighboring properties. The Residents, however, have suffered no actual damage; they merely allege harms from the planning board’s decision (for which Kentucky law disallows collateral attack).

III. Leave to Amend

The Residents argue that the district court erred by refusing them leave to amend their complaint. When a district court denies a motion for leave to amend on futility grounds, we review that denial de novo. Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). But where, as here, plaintiffs have made a request in a responsive pleading without either formally moving for leave to amend or giving grounds for amendment, we review for abuse of discretion. See Evans v. Pearson Enters., 434 F.3d 839, 853 (6th Cir. 2006).

When evaluating the record, we note that the Residents had ample opportunity to amend. Once AT & T removed the case to federal court, the Residents could have amended the complaint as a matter of course during the 21 days after AT & T filed its motion to dismiss, moved for leave to amend after that period, or sought the written consent of AT & T. See Fed. R. Civ. P. 15(a). Over the span of twelve months — from removal to the district court’s issuance of its dismissal order — the Residents took none of those actions. Instead, they asked in their opposition to the motion to dismiss that the “[district court] identify what, if anything, may need to be cured and afford [the Residents] an opportunity to file an amended [c]omplaint to address such concerns.”

This court has consistently affirmed a district court’s denial of such a request in similar situations where plaintiffs have barely attempted to follow the proper amendment procedures. See, e.g., Pulte Homes, Inc. v. Laborers’ Int'l Union of N. Am., 648 F.3d 295, 304-05 (6th Cir. 2011); Louisiana Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir.2010); Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000). On appeal, the Residents offer no explanation for their failure to adhere to Federal Rule of Civil Procedure 15(a) or reason to diverge from our precedent. Accordingly, the district court did not abuse its discretion.

IV. Conclusion

For these reasons, we AFFIRM the district court’s rulings.

      . Residents admit that § 100.347(2) governs a § 100.987(10) action.

      . Because Kentucky law bars collateral attack on the Commission's decision, and the TCA preempts the Residents' tort claims based on RF emissions, we need not address whether the Residents have stated a plausible claim for relief.


author: McKEAGUE, Circuit Judge. MERRITT, Circuit Judge,

text:
    Tanganeka L. PHILLIPS, Plaintiff-Appellant, v. UAW INTERNATIONAL; Brian Johnson; Dave Kegals, Defendants-Appellees.
    No. 16-1832
    United States Court of Appeals, Sixth Circuit.
    Argued: March 15, 2017
    Decided and Filed: April 12, 2017
    Rehearing En Banc Denied May 30, 2017

      ARGUED: John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellant.
    Patrick J. Rorai, MCKNIGHT, CANZA-NO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Appellees. Susan R. Oxford, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.
    ON BRIEF: Nanette L. Córtese, THE CORTESE LAW FIRM, Bingham Farms, Michigan, for Appellant.
    Patrick J. Rorai, MCKNIGHT, CANZA-NO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, Ava Barbour, UAW INTERNATIONAL, Detroit, Michigan, for Appellees. Susan R. Oxford, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.
    Before: MERRITT, COOK, McKEAGUE, Circuit Judges.

       Judge Merritt would grant rehearing for the reasons stated in his dissent.

   McKEAGUE, J., delivered the opinion of the court in which COOK, J., joined. MERRITT, J. (pp. 328-29; app. 329-32), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Samuel Gompers, founder of the AFL, wrote that “[wjherever trade unions are most firmly organized, there are the rights of the people most respected.” Samuel L. Gompers, Labor anb the Common Welfare (1919). But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race. Specifically, she alleges that UAW International created a hostile work environment, actionable under Title VII and the Michigan Elliot-Larsen Civil Rights Act (ELCRA). The district court granted summary judgment for the defendants on the basis that Phillips’s Title VII hostile work environment claim can only be brought against an employer, not a union, and that UAW International was not Phillips’s employer. We affirm on other grounds.

I

Tanganeka L. Phillips worked at the MGM Grand Detroit casino from June 1999 until September 2015. Beginning in 2001, Phillips belonged to Local 7777, a UAW International affiliate. In 2002, she became the Local’s chairperson. This case largely derives from her interactions in that role with two employees of UAW International, Brian Johnson and Dave Kagels. Phillips, who is African-American, asserts that Johnson’s and Kagels’s conduct created a racially hostile work environment in violation of both Title VII and the ELCRA.

To support her claim, Phillips describes a smattering of offensive conduct committed by Johnson and Kagels from 2012 to 2014. First, Phillips alleges that Kagels listed three union representatives by name and said he would fire them all if he could. All three people Kagels listed were black, so Phillips considered the statement racist. R. 34-2, Phillips Tr., PID 314 (“To me that was racially [sic] because he only singled out the black reps.”). Next, Phillips says Johnson told Phillips “[w]e need to put a black on staff to calm it down, and was [Phillips] interested?” Id. at PID 314. Phillips also describes an occasion when, addressing Dwight Braxton (another union member) in Phillips’s presence, Johnson said “oh, because you’re big and black. You’re her bodyguard, I’m supposed to be afraid of you.” Id. at PID 312. Phillips also alleges that Johnson once said that the “problem with the Union was that there are too many blacks in the union.” R. 39-6, Phillips Aff., PID 919; see also R. 39-5, Braxton Tr., PID 913. Otherwise, the allegations are more general: that Johnson often behaved violently, that he made frequent racial comments, and that he spoke in a condescending tone when dealing with black union members as compared to white members. R. 39-2, Phillips Tr., PID 894; R. 39^, Catinella Tr., PID 910; R. 34-2, Phillips Tr., PID 311-12 (“Well, he said' so many racial remarks to me it’s kind of hard to remember ... he said so many of them.”). But Phillips also testified that she met with Johnson “very rarely.” R. 34-2, Phillips Tr., PID 309.

Additionally, and perhaps most troubling, Phillips claims that, in a 2013 meeting she attended with Braxton, Johnson demanded to know the race of each griev-ant and then separated the grievances into piles based on whether they were filed by “white” or “black” union members. Phillips says that, before abruptly ending the meeting, Johnson rubber-banded the two piles and said he intended to withdraw the grievances filed by African-American union members.

Finally, Phillips also testified that, to her knowledge, Johnson actually did withdraw those grievances. But the record belies that claim. See R. 35-3, McIntosh Aff., PID 686-97 (memorializing that grievances Phillips says Johnson dismissed based on race were not dismissed by the union). For their part, Johnson and Kagels deny all of the alleged misconduct.

Phillips’s complaint alleges that UAW International, Johnson, and Kagels violated Title YII and the ELCRA. The district court granted the defendants’ motion for summary judgment and dismissed the case. This appeal followed in which the EEOC filed a brief as amicus curiae in support of Phillips.

II

We review the district court’s grant of summary judgment de novo. Romans v. Mich. Dep’t of Human Services, 668 F.3d 826, 835 (6th Cir. 2012). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view evidence and draw all inferences in favor of the non-moving party to determine whether the plaintiff has presented sufficient evidence from which a jury could reasonably find in its favor. See Romans, 668 F.3d at 835. We “may affirm a decision of the district court for any reason supported by the record, including on grounds different from those on which the district court relied.” Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 786 (6th Cir. 2016).

A

Title VII prohibits both employers and labor unions from discriminating on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)-(c). Here, Phillips alleges the union violated Title VII by creating a hostile work environment on the basis of race — a claim she brings against the union in its capacity as employer under § 2000e-2(a) and in its capacity as union under § 2000e-2(c). Phillips’ first theory presents a run-of-the-mill agency question: is Phillips an employee of UAW International? But her second theory is novel; this court has never addressed whether § 2000e-2(c) covers hostile work environment claims brought against a union qua union.

And there is a question there — perhaps a close one — because Congress wrote Title VII with different language in the relevant employer and union subsections. Only in the employer subsection is there a specific prohibition on discrimination with respect to “compensation, terms, conditions, or privileges of employment.” Id. § 2000e-2(a). Importantly, that language is the statutory origin of Title VII hostile work environment claims. See Vance v. Ball State Univ., — U.S. -, 133 S.Ct. 2434, 2440-41, 186 L.Ed.2d 565 (2013); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). That this claim-originating language is missing from Title VII’s union subsection was enough for the district court to conclude that unions are not liable for such claims. That is, because Title VII’s “terms and conditions” language is the basis for hostile work environment claims but absent from Title VII’s union subsection, the district court held that unions qua unions are not liable under Title VII for hostile work environment claims. See R. 47, Dist. Ct. Op., PID 1172.

But there are good reasons to question the district court’s reading. For one thing, at least one other circuit has come to the opposite conclusion. See Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1102 (8th Cir. 2001). For another, applying the usual tools of statutory interpretation to § 2000e-2(c)(l)’s text might support a reading that Title VII prohibits unions from creating hostile work environments, just like it does for employers.

However, whether unions can be held liable for a Title VII hostile work environment claim is only at issue if- Phillips has made the adequate showing that there was a hostile work environment. She hasn’t. Thus, we need not reach either the more mundane agency question or the more interesting interpretive question Phillips’ Title VII claims raise. In the interests of judicial economy, we decline to. Cf. Pearson v. Callahan, 555 U.S. 223, 236-37, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

B

A hostile work environment claim requires proof that (1) plaintiff belongs to a protected class; (2) she was subject to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the defendant knew or should have known about the harassment and failed to take action. See Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir.1999). The district court found Phillips had created a genuine issue of material fact as to these showings. See R. 47, Dist. Ct. Op., PID 1167-69. We review de novo. See Clay v. United Parcel Serv., Inc., 501 F.3d 695, 700, 707-08 (6th Cir. 2007). Because it is dipositive, we begin with the fourth factor.

On summary judgment, we look at the totality of the alleged race-based harassment to determine whether it was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Williams v. CSX Transp. Co., 643 F.3d 502, 512 (6th Cir. 2011) (alteration in original) (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). “In determining whether an actionable hostile work environment claim exists, we look to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal citation omitted). Significantly, “isolated incidents (unless extremely 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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Thus, occasional offensive utterances do not rise to the level required to create a hostile work environment because, “[t]o hold otherwise would risk changing Title VII into a code of workplace civility.” Grace v. USCAR, 521 F.3d 655, 679 (6th Cir. 2008) (internal quotation marks omitted).

Accordingly, this court has found even offensive and bigoted conduct insufficient to constitute a hostile work environment if it is neither pervasive nor severe enough to satisfy the claim’s requirements. See, e.g., Williams, 643 F.3d at 506, 513 (finding no hostile work environment where defendant “call[ed] Jesse Jackson and A1 Sharpton ‘monkeys’ and [said] that black people should ‘go back to where [they] came from’ ” among other racist comments); Reed v. Procter & Gamble Mfg. Co., 556 Fed.Appx. 421, 432 (6th Cir. 2014) (no hostile work environment where plaintiff was subjected to race-based comments and his supervisor stood behind him and made a noose out of a telephone cord); Clay, 501 F.3d at 707-08 (fifteen racially-motivated comments and instances of disparate treatment over a two-year period were isolated, not pervasive, and therefore not actionable under Title VII). We find the same here.

Phillips specifically identifies several racially offensive statements made over a period of two years: (1) Kagels listing union reps he would fire; (2) Johnson saying that they needed “another black on staff’; (3) Johnson’s big-black bodyguard comment; and (4) Johnson’s “too many blacks” in the union comment. Phillips also alleges that, in a meeting she attended with Brax-ton, Johnson separated grievances based on race and said he would dismiss them.

These incidents, if true, are offensive and condemnable. But they are not actionable as a hostile work environment. Like in Williams, Reed, Morris, and Clay, the incidents were isolated and not pervasive or severe enough to alter the terms and conditions of Phillips’s employment. As that line of decisions shows, this court has established a relatively- high bar for what amounts to actionable discriminatory conduct under a hostile work environment theory. The misconduct alleged here — a handful of offensive comments and an offensive meeting over a two-year period— does not clear that bar.

In short, no matter who can be held liable for hostile work environment claims under Title VII, Phillips fails to create a genuine issue of material fact that she was subjected to one. Thus, defendants are entitled to summary judgment on her Title VII claims. Her ELCRA claims fail under the same analysis. See Quinto, 451 Mich. at 368-72, 547 N.W.2d 314.

Finally, we affirm the district court’s denial of Phillips’s motion for reconsideration. On appeal, she does not provide any analysis, explanation, or case law in support of reversal. Such conclusory arguments are deemed waived. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013).

Ill

Thus, for the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of the defendants.

DISSENT

MERRITT, Circuit Judge,

dissenting.

My colleagues ignore the fact that the district court found that if the Title VII statute covers unions, plaintiff Phillips has clearly made out a case against the union of creating a hostile, racially discriminatory work place. Based on the Eighth Circuit’s opinion in Dowd v. United Steelworkers of America, 253 F.3d 1093 (8th Cir. 2001), and similar opinions from other circuits, my colleagues are not now asserting that the Title VII statute’s work place environment provisions do not cover labor organizations; but rather they unfairly interpret and distort the facts so as to undermine the protection of racial minorities in the work place that the statute was passed to create. The result of this ploy is to wipe out the work place benefits for racial minorities and the improved work place environment that Congress intended.

In ruling that the Jim Crow-like conduct of the union agents here “would permit a jury to conclude that the defendants created a hostile work environment based on race,” the district court quoted this court’s decision last year that “whether harassment was so severe and pervasive as to constitute a hostile work environment [is] ‘quintessentially a question of fact’ ” that a jury should decide. Smith v. Rock-Tenn Services, Inc., 813 F.3d 298, 310-11 (6th Cir. 2016). My colleagues’ treatment of the issue not as a question of fact but as a question of law not only violates last year’s precedent but precedents created over the entire 220-year history of the Seventh Amendment requiring factual disputes in civil cases to be tried by a jury in cases at law. This is a case at law, not equity, and the jury should hear the testimony of the witnesses in accordance with the legal tradition established by our Founders. It may shield against employers, unions, and judges who may be insensitive to the rights of racial minorities in the work place.

In March 2014, Phillips filed a Title VII charge against the UAW with the Equal Employment Opportunity Commission, and the EEOC, after investigating, issued a right to sue letter to Phillips in January 2015. The EEOC has now filed with this court in the form of an amicus brief a statement of the facts its investigation revealed. The EEOC’s recitation of the facts are attached as an Appendix. Surely if those facts were proved to the jury, a jury verdict for Phillips should not be set aside as based on insufficient evidence, as my colleagues assert. Therefore, I respectfully dissent.

APPENDIX

STATEMENT OF FACTS

The MGM Grand Casino in Detroit hired Plaintiff Tanganeka (Tina) Phillips, who is African American, as a cage cashier in 1999. District Court Record Number (R.) 34-2, PgID#303 (Phillips 11/13/2014 Deposition (Dep.). She became a member of Local 7777 (Local), an affiliate of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW (UAW), in 2001. Id. Members who joined the Local were automatically members of the UAW as well. Soon after joining the union, Phillips became the MGM Casino Chairperson for the Local, serving on the Local’s executive board. R.34-2, PgID#303 (Phillips 11/13/2014 Dep.). She served in the Casino Chairperson role until she resigned from MGM in September 2015. Id.

As the Casino Chairperson, Phillips’s duties included handling grievances, resolving disputes between union members and MGM, and participating in labor negotiations. Id. at PgID#303-04. These responsibilities required her to work closely with other Local executive board members including bargaining member-at-large De-wight Braxton, Local President Venus Jet-er, and Local Vice President Shimeca McClendon-Jackson. R.34-2, PgID#305; R.39-3, PgID#902 (Jeter Affidavit (Aff.)); R.39-12. PgID#936 (McClendon-Jackson Aff.).

Phillips’s union responsibilities also required her to work with various UAW employees. One such individual was Brian Johnson, UAW International servicing representative assigned to the Detroit area in 2012 to assist local unions with negotiations, contract administration, and grievance-handling. R.34-6, PgID#351 (Isaac-son Aff.); R.39-6, PgID#917 (Phillips Aff.). Another was UAW representative David Kagels, who led negotiations with MGM and other Detroit casinos on behalf of UAW in 2011, 2012, and 2013. R.34-7, PgID#483-84 (Kagels Aff.).

Phillips alleges that she was subjected to a racially hostile environment while performing her union duties. She observed that Johnson generally treated black union members in an aggressive and hostile manner, while treating whites respectfully. R.39-6, PgID#917-19 (Phillips Aff.); see also R.39-12, PgID#937 (McClendon-Jackson Aff.). He would yell at black members and call them incompetent, but speak to whites in a reserved and respectful tone. R.39-6, PgID#918 (Phillips Aff.). He was also violent — Phillips described one incident where he threw a file at her and another where he had to be physically removed from her office. R.39-2, PgID#894 (Phillips 11/13/2014 Dep. at 121-24).

Phillips described several specific incidents of racial hostility. For example, in approximately May 2012, Phillips, Braxton, and Johnson met at the Local to discuss grievances. R.34-2. PgID#312 (Phillips 11/13/2014 Dep. at 133). Johnson kept “cursing at” Phillips, and when Braxton told Johnson “that’s enough,” Johnson asked rhetorically if Braxton was Phillips’s “bodyguard” .because he was “big and black.” Id. Phillips told UAW Region 1 Director Charles Hall about this comment. Id.

From June 2012 until March 2013, UAW and MGM were in negotiations over VIP positions. During one caucus meeting, Ka-gels started naming off union representatives that he would fire if he could, all of whom were black. Id. at PgID#314 (Phillips Dep. at 189-91). To Phillips, this implied that Kagels would fire all the black representatives if he had the authority. Id.

In April or May 2013, Johnson met with Phillips and Braxton at the Local to prepare for a grievance meeting with MGM. R.34-2, PgID#307 (Phillips Dep. at 72). Johnson pulled out a grievance file and asked Braxton and Phillips what the race of the grievant was. Id. at Pg ID#308 (Phillips Dep. at 74-76). Phillips answered, “What does that have to do with anything?” Id.] see also R.34-3. PgID#327-28 (Phillips 10/5/2015 Dep. at 89-90). Johnson replied, “Would you just answer the damn question?” Phillips told him the grievant was black, and Johnson flipped the file over. R.34-2, PgID#308 (Phillips 11/13/2014 Dep. at 75). After Phillips refused to tell Johnson the race of the remaining grievants, Braxton did. Id. at 308-09 (Phillips Dep. at 75, 81). Johnson separated the grievance files based on the race of the grievants, and Phillips concluded that Johnson was withdrawing the grievances of the black members and pushing the grievances of the white members forward to arbitration. R.34-3, PgID#319-20 (Phillips 10/5/2015 Dep. at 44-45); R.39-6, PgID#919 (Phillips Aff.).

Phillips reported Johnson’s conduct to the Local president, Jeter. R.34-3, Pg ID#327-30 (Phillips Dep. at 89-92). Jeter emailed UAW President Bob King a letter dated May 18, 2013 — signed by Jeter and ten Local board members' — complaining about Johnson and Kagels’s “blatant disrespect” for Local members and requesting King’s assistance. R.35-6, PgID#702-04 (5/18/2013 Memo). Kagels responded to Jeter in a June 2013 letter. R.39-9, PgID#929 (6/27/2013 letter). He indicated his belief that he and Jeter, during a March 2013 phone call, had discussed “many of the issues brought up in [Jeter’s] e-mail [to King].” Id. He stated that, not hearing anything further from Jeter, he had “assumed that the issue had subsided.” Id.

In a November or December 2013 meeting, Johnson told Phillips and McClendon-Jackson that the problem with the Local union was “there were too many blacks in the union” and “too many blacks on [the Local] board.” R.39-6, PgID#919 (Phillips Aff.); R.35-1, PgID4542-43 (McClendon-Jackson Dep. at 36-37), R.39-12, PgID#937 (McClendon-Jackson Aff.); R.49-2, PgID#1217 (Phillips 10/5/2015 Dep. at 62-63). Johnson further stated that if the Local “had more whites, [it] wouldn’t have the kind of problems it’s having.” R.49-2, PgID#1217 (Dep. at 63); see also id. at PgID#1217-18 (Dep. at 64-65) (Phillips not sure of “exact dates, but I remember what happened”).

In January 2014, Jeter again wrote to the UAW, this time to UAW Region 1 Director Hall. R.35-7, • PgID#705-06 (1/17/2014 letter). Although Jeter’s May 2013 email to UAW President King had not specifically mentioned race, this letter did. Jeter wrote, “Several members have put in charges with the NLRB against Brother Johnson. Brian asked the Chair and Bargaining Member @ Large ‘WHAT IS THE RACE OF SEVERAL GRIEV-ANTS’. Since when do we represent members by the color of their skin?” Id. at PgID#705.

Hall convened a February 10 meeting attended by at least Hall, Johnson, Phillips, and Jeter to discuss the issues raised in Jeter’s letter. See R.49-2, PgID#1225 (Phillips 10/5/2015 Dep. at 95-96). Before the meeting, Hall conferred with Johnson about the allegations and Johnson denied representing union grievants based on the color of their skin. R.35-9, PgID#709-ll (Hall Dep. at 61-63, 80-83). Hall stated that he did not investigate these allegations closely because, based on his relationship with Johnson and his opinion of Johnson’s character, he believed this was not something Johnson would do. Id. at PgID#711 (Hall Dep. at 83-84).

The day after the meeting, Phillips sent Hall an email listing the reasons she requested the UAW remove Johnson from his assignment to the Local. R.35-8, PgID#707 (2/11/2014 email). Phillips stated that Johnson made an “inappropriate remark toward myself and Dewight (using the color of our skin)” and requested “member’s race when going through the grievances.” Id. Phillips also wrote that she was “in shock to hear [Hall] say that Brian asking a member’s race and separating grievances based on that” information was “common practice.” Id. Jeter also wrote Hall following the meeting. See R.35-10, PgID#713 (2/17/2014 letter).

Hall responded to Jeter, and copied Phillips, on February 17. Id. at Pg ID#713-14. Hall stated that Jeter’s and Phillips’s letters were “filled with inaccuracies,” id., although he later clarified that he was referring only to Phillips’s suggestion that he condoned separating grievances on the basis of race, R.35-9, PgID#710, 712 (Hall Dep. at 77-79, 89). Hall concluded by assuring Jeter that Johnson would treat members of the Local professionally and stating that he expected Johnson to be treated respectfully in return. R.35-10, PgID#714 (2/17/2014 letter).

Phillips sent Hall a February 25 email with the subject line “Final request for removal of Brian Johnson.” R.15-11, PgID#715 (2/25/2014 email). Phillips reported that Johnson “lost control again” and “went into an angry rage yelling and screaming.” Id. She further stated that “it [had] been 10 months” since she met with Hall to complain about Johnson’s behavior “and still the problems continue.” Id. Phillips told Hall that this was her final request for Johnson’s removal and if action was not taken she would “go outside the UAW.” Id.

      . The complaint also included claims against MGM and Rozell Blanks, which have been dismissed by stipulation.

      . The dissent believes we “unfairly interpret and distort the facts,” so it attaches the facts section from the EEOC’s amicus brief. The record shows, however, that instances the EEOC listed as separate occurrences were actually just Phillips’s multiple characterizations of the same event. No matter, our holding would be the same under the EEOC's slightly different retelling.

      . The elements are substantially the same for Phillips’s ELCRA claim. See Quinto v. Cross & Peters Co., 451 Mich. 358, 368-69, 547 N.W.2d 314 (1996).

      . The dissent says that whether the conduct was severe or pervasive enough to constitute a hostile work environment is "quintessentially a question of fact” and so should be left for the jury. It cites Smith v. Rock-Tenn Services, Inc., 813 F.3d 298 310-11 (6th Cir. 2016) for that proposition. But Smith (which affirmed the denial of a defendant’s motion for judgment as a matter of law) did not strip this court’s authority to determine that offensive conduct is not severe or pervasive enough to constitute a hostile work environment at summary judgment nor reverse course on decades of precedent in which the court has done just that. See e.g., Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 878-79 (6th Cir. 2013); Barrett v. Whirlpool Corp., 556 F.3d 502, 518 (6th Cir. 2009); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir. 2005); Akers v. Alvey, 338 F.3d 491, 499 (6th Cir. 2003); Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 836 (6th Cir. 1996);
        see also Graves v. Dayton Gastroenterology, Inc., 657 Fed.Appx. 485, 489 (6th Cir. 2016); Wade v. Automation Pers. Servs., Inc., 612 Fed.Appx. 291, 298 (6th Cir. 2015). That list could go on, but we believe it's sufficient to prove the point: we continue to apply "standards for judging hostility [that] are sufficiently demanding to ensure that Title VII does not become a general civility code.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (1998) (internal quotation marks removed).

      . Additionally, Phillips' testimony that she rarely interacted with Johnson limits any weight afforded her vague allegation that he made "many” offensive comments and the record flatly contradicts her claim that grievances were actually dismissed based on race.