Lira v. Edward Jones Investments ( 2023 )

Case: 22-50141 Document: 00516647485 Page: 1 Date Filed: 02/15/2023
REVISED
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 7, 2023
No. 22-50141
Lyle W. Cayce
Clerk
Emilio Lira,
Plaintiff—Appellant,
versus
Edward Jones Investments, also known as Edward D. Jones &
Company, L.P.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-7
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Per Curiam:*
Plaintiff-Appellant Emilio Lira brings a Title VII retaliation claim
against his former employer, Defendant-Appellee Edward Jones. The district
court granted summary judgment for Edward Jones, holding that Lira failed
to establish the causal link between his termination and his protected
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50141
activities and thus had not established a prima facie case of retaliation. Lira
appeals. We AFFIRM.
I.
In 2016, Emilio Lira, who is Hispanic/Latino, was employed as a
financial advisor by Edward D. Jones & Co., L.P. (“Edward Jones”). That
year, he brought a lawsuit against Edward Jones alleging discrimination and
retaliation based on race and national origin. On March 12, 2019, the district
court in that case granted summary judgment to Edward Jones and taxed
Edward Jones’s costs against Lira.
Lira was required to timely report this 2019 judgment to Edward Jones
pursuant to Edward Jones’s internal policies, which implemented Financial
Industry Regulatory Authority (“FINRA”) reporting obligations. He did
not. An Edward Jones employee from the reportable events team then gave
Lira two deadlines to disclose the 2019 judgment. Lira did not comply with
either deadline.
Lira reported the judgment on May 8, 2019 and also sent an email to
the reportable events team employee accusing Edward Jones and its
employees of “behav[ing] like a white supremacist or a colluder of white
supremacist [sic].” Edward Jones terminated Lira’s employment on May 13,
2019 for unprofessional conduct and failure to provide timely responses to
compliance inquiries. Lira subsequently filed a retaliation charge with the
Equal Employment Opportunity Commission (“EEOC”). On October 18,
2019, the EEOC issued a notice of dismissal and a right-to-sue letter.
On January 6, 2020, Lira again sued Edward Jones for retaliation.
Edward Jones moved to dismiss. On May 26, 2020, Lira filed the operative
amended complaint alleging that his termination was retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). In this
complaint, he proffered five protected activities: (1) complaining internally
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of discrimination at Edward Jones in 2014; (2) filing a charge of
discrimination with the EEOC in 2016; (3) filing his 2016 employment
discrimination lawsuit against Edward Jones; (4) giving a deposition in that
lawsuit; and (5) opposing Edward Jones’s summary judgment motion in that
lawsuit. Edward Jones moved for summary judgment.
In February 2022, the district court granted Edward Jones’s motion
for summary judgment. It held that Lira failed to make a prima facie case of
retaliation because he could not establish the causation requirement of a
retaliation claim. Alternatively, the district court noted that even if Lira had
established a prima facie case, “Edward Jones satisfied its burden by
presenting evidence of legitimate, nonretaliatory reasons supporting Lira’s
termination.” Lira timely appeals.
II.
We review de novo a grant of summary judgment and apply the same
standards as the district court. Yogi Metals Grp., Inc. v. Garland, 38 F.4th 455,
458 (5th Cir. 2022). Summary judgment is proper when “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 the evidence and draw all
inferences in a light most favorable to the nonmovant; however,
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”
Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003).
Because Lira seeks to prove retaliation through circumstantial
evidence, he must satisfy the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Owens v.
Circassia Pharms., Inc., 33 F.4th 814, 825, 834–35 (5th Cir. 2022). Under this
framework, Lira has the burden of making a prima facie case by showing that
(1) he participated in an activity protected by Title VII; (2) the employer took
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an adverse employment action against him; and (3) a causal connection exists
between the protected activity and the materially adverse action. Id. at 835.
The primary issue in this appeal is the third element, often called the “causal
link.” See, e.g., Watkins v. Tregre, 997 F.3d 275, 284 (5th Cir. 2021).
III.
Lira cannot show the requisite casual connection between any of his
proffered protected activities and his termination, i.e., the materially adverse
action. As an initial matter, Lira’s protected activities are too temporally
removed from his May 2019 termination to show causation based on timing
alone. We have previously noted that, at the prima facie stage, “a plaintiff
can meet his burden of causation simply by showing close enough timing
between his protected activity and his adverse employment action.” Brown
v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020) (quoting Garcia
v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019)). Previously, we
have held that periods of two-and-a-half months, Garcia, 938 F.3d at 243, and
six-and-a-half weeks, Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs,
810 F.3d 940, 949 (5th Cir. 2015), were sufficiently close enough to show a
causal connection at this stage. A period of three or four months, on the other
hand, may not be sufficiently close. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273–74 (2001) (citing cases).
Here, the first four protected activities occurred from November 2014
to November 2017 and are thus at least one year removed from Lira’s May
2019 termination.1 These activities are clearly outside the range in which
temporal proximity alone can establish the causal link. And the fifth activity,
1
Lira’s (1) internal complaint of discrimination at Edward Jones was filed in
November 2014; (2) his first EEOC charge was filed in February 2016; (3) his employment
discrimination lawsuit was filed in October 2016; and (4) he was deposed in that lawsuit in
November 2017.
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which Lira characterized as “filing a response in opposition to Defendant’s
Motion for Summary Judgment,” occurred in early January 2019, more than
four months before his May 2019 termination. This, too, falls outside the
established range. As such, the timing of these protected activities alone does
not sufficiently show the requisite causal link.
Lira’s arguments do not compel a contrary conclusion. Lira’s primary
argument concerning causation is a novel “big picture” theory purportedly
drawn from Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992). Lira
seems to suggest that we should group the first four activities as part of the
first lawsuit that ended in March 2019 (i.e., plausibly close enough to his
termination) for purposes of identifying causation. This argument is
unsupported by the cited authority. In Shirley, we held that a plaintiff’s firing
14 months after filing an EEOC complaint (and two months after the EEOC
complaint’s dismissal) was retaliation for her bringing said complaint. Id. at
42–43. But our conclusion in that case was supported by additional evidence
beyond just temporal proximity, including her boss’s frequent mentions of
the EEOC complaint and her receiving complaints of “flagrant indiscretions
or violations.” Id. at 43. Lira cites Shirley in arguing that here, what the
district court failed to consider is that the lapse of time did not automatically
absolve Appellee of its responsibility for retaliating against Appellant when
we look at the big picture. Id. at 39. But more accurately read, Shirley stands
for the principle that a 14-month delay between a protected activity and a
termination will not necessarily preclude a finding of causation when the
plaintiff can adduce other evidence suggesting a causal relationship. See id. at
44 (“The district court properly weighed the lapse of time as one of the
elements in the entire calculation of whether Shirley had shown a causal
connection between the protected activity and the subsequent firing.”).
In attempting to show this causal relationship, Lira makes various
arguments and adduces various documents to provide the additional
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evidence required by Shirley. We consider these below but ultimately
conclude that Lira has not met his burden of proof with respect to causation
concerning any of his protected activities. See Owens, 33 F.4th at 835.
First, Lira has presented no evidence that the Edward Jones employee
responsible for his termination decision was aware of Lira’s filing this
opposing motion at the time of Lira’s termination.2 Lira’s only citations to
the record indicate that the employee in question was aware only of Lira’s
first EEOC complaint, the first lawsuit, and the first lawsuit’s dismissal. The
cited testimony does not show that the employee knew of the specific
protected activity Lira proffers: the filing of the opposition to summary
judgment. Without awareness of the specific protected activity at the time of
termination, Lira cannot draw the causal link between this protected activity
and his termination. See Manning v. Chevron Chem. Co., 332 F.3d 874, 883
(5th Cir. 2003) (“[I]n order to establish the causation prong of a retaliation
claim, the employee should demonstrate that the employer knew about the
employee’s protected activity.”); id. at 883 n.6 (“If the decisionmakers were
completely unaware of the plaintiff’s protected activity, then it could not be
said . . . that the decisionmakers might have been retaliating against the
plaintiff for having engaged in that activity.”); Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If an employer is
unaware of an employee’s protected conduct at the time of the adverse
employment action, the employer plainly could not have retaliated against
the employee based on that conduct.”).
2
Lira has also not cited any legal authority or argued that knowledge by the
terminating employee was not required through, e.g., a cat’s paw theory of liability. See
Zamora v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015) (explaining the cat’s paw theory).
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Next, we discuss the various critical emails Lira sent to Edward Jones
after the conclusion of the first lawsuit in March 2019.3 We note that these
emails were not included in the amended complaint.4 The district court
interpreted Lira’s filing these emails as Lira trying to belatedly proffer
examples of additional protected activities for his retaliation claim and ruled
that these emails were “not properly before the court as bases for Lira’s
retaliation claim.” On appeal, Lira argues that these emails were not
introduced “for the purposes of adding more protected activities but to shine
a light on the big picture” that Lira was “a thorn on the side of [Edward
Jones] because of his continued complaints.”
We are unconvinced by Lira’s argument that these emails were not
introduced as additional protected activities. These emails contain criticisms
by Lira of various practices of his employer. These emails are thus squarely
within what we have ruled to be “protected activities.” EEOC v. Rite Way
Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016) (recognizing that “protected
activity can consist of . . . ‘oppos[ing] any practice made an unlawful
employment practice by this subchapter’” (alteration in original) (quoting 42
U.S.C. § 2000e-3(a))). And Lira, under his legally unsupported “big
picture” theory, seems to be introducing these emails as bases for his
retaliation. Thus, despite his language arguing otherwise, Lira elsewhere
attempts to characterize these emails as additional protected activities. To
the extent he is doing so, these emails should have been in the amended
complaint and cannot now serve as bases for a retaliation claim. See Phillips v.
Caris Life Scis., Inc., 715 F. App’x 365, 370 (5th Cir. 2017) (affirming a grant
3
These emails generally criticize Edward Jones’s culture and practices.
4
These emails were included in Lira’s response (filed after the amended
complaint) opposing Edward Jones’s motion for summary judgment.
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of summary judgment for the employer because the plaintiff “completely
failed to plead retaliation claims based on these events in her complaint”).
Even taking Lira at face value and treating these emails as evidence of
causation, he does not make any cognizable argument as to how they show a
causal link between his termination and his filing an opposition to Edward
Jones’s summary judgment motion in the first lawsuit. Instead, he makes
conclusory arguments that the district court “failed to consider other
evidence of retaliation in deciding whether there was a causal connection
between Appellant’s lawsuit and his termination.” He does not explain how
these emails constitute such evidence, and we do not credit this argument.
See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir.
2004) (“Failure adequately to brief an issue on appeal constitutes waiver of
that argument.”). As such, these emails cannot suffice for Lira to meet his
burden of proof on the causation element.
Lira’s attempts to point to other record evidence of retaliation are
similarly unavailing. He presents three sources of “testimony via affidavit
and emails authored by Appellee personnel” purportedly showing
“animosity held by” Edward Jones. The first is Lira’s declaration, the second
is an email discussing Lira’s interest in the Uvalde office, and the third is an
article from a human resources publication announcing Edward Jones’s plans
to combat racism. Because Lira does not further elaborate which portions of
these documents constitute evidence of animosity (or why they do), he has
waived his argument that these documents evince animosity. See Procter &
Gamble Co., 376 F.3d at 499 n.1; Fed. R. App. P. 28(a)(8)(A) (stating that
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appellants must provide reasons for their assertions, including “citations to
the authorities and parts of the record” on which they rely).5
Finally, Lira’s other miscellaneous arguments are without merit.
First, he argues that “[Edward Jones’s] reaction to the email wherein the
phrase ‘white supremacists’ was used” constitutes evidence of retaliation. In
doing so, Lira suggests, without a single citation to legal authority, that
Edward Jones had already admitted that racism existed within its
organization, that his description of Edward Jones as being composed of
white supremacists was accurate, and that he was fired “to deflect this fact.”
We do not credit this argument because nothing in this line of argumentation
provides any additional evidence to suggest a causal link between any of
Lira’s protected activities and his termination. Second, Lira argues that
“there was no evidence presented by [Edward Jones] that [Lira] was
performing poorly in his job.” But Lira bears the burden of proving a causal
link between his protected activities and his termination; accordingly,
identifying a way in which the other party has not proven an alternative
reason for his termination is insufficient for him to meet his burden of proving
the causal connection in the first instance.6
IV.
5
Regarding the article, Lira only rhetorically asks why Edward Jones would
“announce such a plan if racism did not exist within the company.” But nothing in this
article suggests anything about Edward Jones’s retaliation as to Lira’s specific protected
activity. Accordingly, nothing in this article is sufficient for Lira to meet his burden of
proving causation.
6
Because we hold that Lira has not met his burden of showing a prima facie case,
we need not and do not reach the issue of whether Edward Jones has met its burden of
proving legitimate, nonretaliatory reasons for Lira’s termination. See McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (“If the plaintiff makes a prima facie showing,
the burden then shifts to the employer to articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment action.”).
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For the foregoing reasons, we AFFIRM.
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