Scott v. U.S. Bank National Assn ( 2021 )

Case: 21-10031 Document: 00516078929 Page: 1 Date Filed: 11/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 2, 2021
No. 21-10031
Lyle W. Cayce
Clerk
Paul Scott,
Plaintiff—Appellant,
versus
U.S. Bank National Association, doing business as U.S. Bank,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-2380
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:
Paul Scott appeals the judgment of the district court dismissing his
civil rights action. For the following reasons, the judgment is affirmed in part,
reversed in part, and remanded for further proceedings.
I.
Plaintiff-appellant Paul Scott brought this civil rights action against his
former employer, defendant-appellee U.S. Bank. Scott alleges that U.S. Bank
violated 42 U.S.C. § 1981 by taking retaliatory employment actions against
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him because he opposed racial discrimination occurring within his
department.
Scott is an African American male. U.S. Bank hired Scott in March
2016 as a Default Management Support Specialist in its underwriting
department. Between March 2016 and January 2018, Scott received
exclusively positive reviews as well as one merit increase. Scott was also
encouraged to apply for management positions by his Human Resources
Business Partner, Lakisha Carman.
In January 2018, Scott overheard a manager in his department, Craig
Seward, a white male, tell Scott’s direct supervisor, Damarris Triggs, an
African American male, that he “intended to terminate four (4) African
American employees.” Scott then warned those employees. One of those
employees complained to the human resources department, which led to
Carman’s requesting that Scott provide a statement about the incident. Scott
agreed, but he expressed concern that U.S. Bank may retaliate against him
because of the statement. Carman assured Scott that he would not face
retaliation.
Despite such assurance, Scott claims that U.S. Bank then started to
retaliate. In February 2018, Bennie Wyatt, Triggs’s boss, began failing
Scott’s loans despite those loans’ alleged passing under the policy and
procedure guide. On February 22, 2018, Scott complained to Triggs that
Wyatt was failing his loans in retaliation for Scott’s statement. Then, on the
following day, Wyatt and Triggs gave Scott a verbal warning about his
purportedly poor performance. Throughout March 2018, Scott also
experienced issues with his work badge that Triggs did not assist him with.
Around April 30, 2018, Scott called Carman and left a message
expressing his belief that these occurrences were in retaliation for his
statement. Carman emailed Scott and informed him that “she was no longer
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his HR professional,” directing him instead to HR Business Partner Molly
Werner. Scott met with Werner, but he found that she “was antagonistic and
dismissive of Scott’s complaints.”
In May 2018, Wyatt told Scott that, due to Scott’s poor April
production numbers, Scott was required to attend a refresher course. at that
course, the trainer used Scott’s loan documents to teach the class, describing
them “as a perfect example of how to write up a loan” and telling Scott that
“he did not need a refresher course because he was an expert.”
The day after the training, May 24, 2018, Triggs and Wyatt gave Scott
a second verbal warning for poor performance based on Scott’s April
production. Scott responded that he received a 97 percent score for the
month of May, the highest of his floor, but Wyatt told Scott that his “peaks
and valleys” were unacceptable. Scott said to Triggs, “really man this is
harassment.” Triggs then “hit the desk with his fist so hard that it could be
heard outside of the room,” and exclaimed “boy Mr. Paul!” Wyatt then
stood up and said, “hold on, don’t say no more.” Scott said to Wyatt, “this
is harassment are you trying to terminate me?” Wyatt replied, “no, but you
can give me your resignation, if you want to.” Wyatt then suggested that
Scott take an “ad hoc vacation day” and that they would “start fresh” the
next day. Finally, Wyatt told Scott, “by the way, before you leave you can
call HR if you want to. I have her number for you.” Scott interpreted this to
be a veiled threat regarding his prior complaints.
The next morning, Scott was terminated. Wyatt told Scott that he was
“one good underwriter, but we have to terminate you because you are a
threat to 20 underwriters.” Scott asked what Wyatt meant by that, but Wyatt
did not provide an explanation. Scott then reminded Wyatt that on February
13, 2018, a white female coworker had yelled and cursed at Seward and Triggs
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but was not terminated. He asked why his conduct was more threatening than
hers, but Wyatt did not respond.
Scott filed suit against U.S. Bank for unlawful retaliation under 42
U.S.C. § 1981. U.S. Bank moved to dismiss the complaint for failure to state
a claim, which the district court granted with prejudice. The court found that
Scott could not state a claim for retaliation because he failed to allege that he
participated in a protected activity under § 1981. The district court correctly
explained that to have participated in a protected activity, Scott must have
opposed his employer’s unlawful practice. The court then found that Scott’s
statement to the human resources department and follow-up complaints
constituted opposition. But, while Scott’s conduct was opposition, the
district court concluded it could not qualify as a protected activity because
Scott could not demonstrate that he had a reasonable belief that the employer
was engaged in unlawful employment practices. Further, the court denied
Scott leave to amend his complaint, finding that any amendment would be
futile due to “[t]he complete lack of corroborating circumstantial facts
regarding Seward’s alleged racial discrimination.”
Scott appeals both the denial of his request for leave to amend his
complaint and the finding that he was not engaged in a protected activity
under Title VII.
II.
We begin by determining whether the district court erred in denying
Scott leave to amend his complaint.
A.
A district court’s denial of leave to amend is ordinarily reviewed for
abuse of discretion. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152
(5th Cir. 2010). That said, when a district court’s “denial of leave to amend
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was based solely on futility, we apply a de novo standard of review identical,
in practice, to the standard used for reviewing a dismissal under Rule
12(b)(6).” Id. When reviewing a dismissal under Rule 12(b)(6), “[w]e accept
all factual allegations in the pleadings as true.” Aldridge v. Miss. Dep’t of
Corr., 990 F.3d 868, 873 (5th Cir. 2021). The plaintiff must plead specific
facts that support a facially plausible claim for relief. Powers v. Northside Indep.
Sch. Dist., 951 F.3d 298, 305 (5th Cir. 2020).
B.
A court should freely give leave to amend when justice so requires,
Fed. R. Civ. P. 15(a)(2), but a movant must give the court at least some
notice of what his or her amendments would be and how those amendments
would cure the initial complaint’s defects. Thomas v. Chevron U.S.A., Inc.,
832 F.3d 586, 590 (5th Cir. 2016). If the plaintiff does not provide a copy of
the amended complaint nor explain how the defects could be cured, a district
court may deny leave. McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315
(5th Cir. 2002) (affirming denial of leave to amend where plaintiffs “failed to
amend their complaint as a matter of right, failed to furnish the district court
with a proposed amended complaint, and failed to alert both the court and
the defendants to the substance of their proposed amendment”).
Here, Scott argued in full: “Plaintiff asserts that his original complaint
is sufficient to state a claim and should survive Defendant’s 12(b)(6) motion.
Should this Court disagree, Plaintiff requests the opportunity to amend his
complaint in accordance with the federal and local rules.” Scott failed to offer
any grounds as to why his leave should be granted or how deficiencies in his
complaint could be corrected. Therefore, the district court did not commit
error when it denied Scott’s request.
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III.
We now turn to whether the district court erred in finding Scott failed
to state a claim under 42 U.S.C. § 1981 when it concluded that Scott did not
engage in a protected activity. It did.
A.
“We review a district court's ruling on a motion to dismiss de novo,
‘accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.’ ” Anderson v. Valdez, 845 F.3d 580, 589 (5th
Cir. 2016) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th
Cir. 2008)). “A claim will not be dismissed unless the plaintiff cannot prove
any set of facts in support of his claim that would entitle him to relief.”
Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 249 (5th Cir.
2017). To prevail against a motion to dismiss, “a plaintiff's complaint ‘must
contain sufficient factual matter, [if] accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Anderson, 845 F.3d at 589 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B.
Section 1981 makes it unlawful to discriminate on the basis of race in
“mak[ing] and enforc[ing] contracts.” 42 U.S.C. § 1981(a). It encompasses
“complaint[s] of retaliation against a person who has complained about a
violation of another person’s contract-related ‘right.’ ” CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 445 (2008). We examine retaliation claims under
Section 1981 using the “same rubric of analysis” as Title VII. Johnson v.
PRIDE Indus., Inc., 7 F.4th 392, 399 (5th Cir. 2021) (quoting Johnson v.
Halstead, 916 F.3d 410, 420 (5th Cir. 2019)).
An employee engages in a protected activity under Section 1981 when
“he has opposed any practice made unlawful by [Title VII].” 42 U.S.C. §
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2000e-3(a). In other words, to qualify as a protected activity, the employee’s
conduct must have “opposed” the employer’s practice and that opposed
practice must have been unlawful. Here, the district court found that Scott
opposed his employer’s practice. So, the only issue before this court is
whether Scott’s complaint plausibly alleged that the practice Scott opposed
was unlawful.1 Importantly, a plaintiff need not demonstrate that the practice
was actually unlawful for his opposition to be a protected activity; rather, it is
enough that the plaintiff reasonably believed the practice was unlawful. EEOC
v. Rite Way Serv., Inc., 819 F.3d 235, 242 (5th Cir. 2016).
Scott contends that the district court erred by requiring that he satisfy
the McDonnell Douglas standard at the pleading stage.2 If the district court
applied the appropriate pleading standard, he argues, it would have found
Scott adequately alleged facts supporting a reasonable belief that an unlawful
practice occurred.
It is true that the Supreme Court has held that the McDonnell Douglas
standard does not govern at the motion-to-dismiss stage. Swierkiewicz v.
1
U.S. Bank argues that we should also consider whether Scott failed to plead the
other elements of a retaliation claim, but since the district court did not address these
elements, we decline to decide them in the first instance. Montano v. Texas, 867 F.3d 540,
546 (5th Cir. 2017) (“ ‘As a court for review of errors,’ we do ‘not . . . decide facts or make
legal conclusions in the first instance,’ but ‘review the actions of a trial court for claimed
errors.’ ” (quoting Browning v. Kramer, 931 F.2d 340, 345 (5th Cir. 1991))).
2
McDonnell Douglas concerned the order of proof in an employment-
discrimination action when the employee submits no direct evidence of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). It explained: “The
complainant in a Title VII trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may be done by showing (i) that
he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant's qualifications.” Id. at 802.
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Sorema N.A., 534 U.S. 506, 510 (2002) (explaining that McDonnell Douglas is
“an evidentiary standard, not a pleading requirement”); see also Raj v. La.
State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (“Inasmuch as the district court
required Raj to make a showing of each prong of the prima facie test for
disparate treatment at the pleading stage, the district court erred by
improperly substituting an ‘evidentiary standard’ for a ‘pleading
requirement.’ ” (quoting Swierkiewicz, 534 U.S. at 512)). That said, we have
recognized that McDonnell Douglas may still be used to frame the motion-to-
dismiss inquiry. E.g., Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767
(5th Cir. 2019) (“[I]t can be ‘helpful to reference’ [the McDonnell Douglas]
framework when the court is determining whether a plaintiff has plausibly
alleged the ultimate elements of the disparate treatment claim.” (quoting
Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016))). Applying
that framework must be done with care, however, as a court errs when it
“require[es] a plaintiff to plead something more than the ‘ultimate elements’
of a claim,” id. (quoting Chhim, 836 F.3d at 470), or “inappropriately
heightens the pleading standard by subjecting a plaintiff’s allegations to a
rigorous factual or evidentiary analysis under the McDonnell Douglas
framework in response to a motion to dismiss.” Id.
The district court plainly relied on McDonnell Douglas. It concluded
that “[a]s there is no direct evidence that Seward acted with racially
discriminatory intent, the burden-shifting standard established in [McDonnell
Douglas] controls.” Thus, we must determine whether, when the court found
that Scott could not have had a reasonable belief, it merely framed its inquiry
with the standard or prematurely engaged in a rigorous factual analysis better
reserved for a later stage of the proceedings.
Fortunately, we have much precedent to light the way. When
examining whether an employee’s belief that his employer engaged in an
unlawful act was reasonable, a court must ask whether a person, “not
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instructed on Title VII law as a jury would be, [could] reasonably believe that
she was providing information about a Title VII violation[.]” EEOC v. Rite
Way Serv., Inc., 819 F.3d 235, 242 (5th Cir. 2016) (citation omitted). This
inquiry is informed by the nature of the statement forming the base of the
alleged discrimination, whether the statement was directed at a particular
person or group of persons, whether it came from a person with supervisory
authority, and the setting where the employee’s complaint was voiced. Id. at
243-44.
In Rite Way, the employee, Tennort, who was a general cleaner for
Rite Way Service, Inc., witnessed a supervisor make two inappropriate
comments regarding the appearance of her co-worker. 819 F.3d at 238. Her
co-worker complained to a police officer that she was sexually harassed by
the supervisor, and she named Tennort as an eyewitness. Id. Rite Way began
an internal investigation about the incident and asked for Tennort’s
statement, though the human resources representative “tried to talk her out
of reporting what she had seen.” Id. at 238. Tennort gave a statement in spite
of that advice, and over the next five weeks, she received two written
warnings and two oral warnings about her job performance before ultimately
being terminated. Id. at 238-39. The district court granted summary
judgment to Rite Way, finding Tennort could not have reasonably believed a
Title VII violation occurred, id. at 239, and this court reversed. We found
that Tennort’s belief that an unlawful employment practice occurred could
be reasonable because those two statements were directed at a specific
employee and were made by someone in a supervisory position. Id. at 243-44.
This court also highlighted the importance of the fact that Tennort made her
statement in response to her employer’s investigation. Id. at 244. Because the
human resources department reached out to Tennort for her statement and
indicated her statement could result in consequences for the supervisor, how
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her employer handled the incident could have informed her reasonable belief.
Id.
Similarly, in Long v. Eastfield College, this court found that a fact issue
regarding reasonable belief precluded summary judgment. 88 F.3d 300, 306
(5th Cir. 1996). There, Long complained “to college officials about a sexually
explicit joke told by [another employee] in Long’s presence.” Id. at 305.
Thereafter, she was required to provide a report that was never previously
required, was “belittled . . . in front of male co-workers,” and ultimately had
her performance rating downgraded. Id. Long made additional complaints
claiming these were acts of retaliation. Id. We concluded that Long presented
sufficient evidence to support a reasonable belief that the employer violated
Title VII for the purposes of her retaliation claim. Id.Construing the facts in the light most favorable to Scott, as we must at
this stage of the proceedings, he has successfully pleaded facts that could
support a reasonable belief. Scott alleged that he overheard a supervisor state
that “he intended to terminate four (4) African American employees.” A
supervisor’s considering of the race of an employee when deciding to
terminate that employee is an unlawful employment practice. 42 U.S.C. §
2000e-2(m) (“[A]n unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though
other factors also motivated the practice.”); cf. Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130, 1139-41 & n.2 (5th Cir. Unit A. Sept.
1981) (noting a reasonable belief of discrimination was established “by virtue
of McLemore’s failure to hire blacks in or promote blacks to certain
employment positions”). In addition, Scott gave his statement reactively. A
human resources investigator approached him to give a statement regarding
the incident and assured him that he would not face retaliation for his
statement.
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This situation parallels Rite Way, where this court found reasonable
belief sufficiently established so as to preclude summary judgment. Rite Way,
819 F.3d at 245. Like in Rite Way, Scott overheard a supervisor make a
comment indicative of unlawful behavior; Scott then made his statement in
response to an investigator’s request and assurance of protection, which may
have informed his belief. After giving his statement, he alleges that the
company began to retaliate against him by denying his loans, giving him
multiple warnings, sending him to unnecessary training, and ultimately
terminating him. Considering Scott’s statement together with its
surrounding context, we find that he has successfully alleged facts that could
support a reasonable belief that his employer engaged in unlawful conduct.
The district court acknowledged these facts but discounted them by
taking note of other facts that could, but do not necessarily, make the initial
statement by Seward more innocuous. It explained that Scott’s belief could
not be reasonable because Seward made the statement to Triggs, who was
also African American and thus a member of the same protected class as the
employees. This was error. Analyzing facts to this extent at the motion-to-
dismiss stage mirrors the rigorous scrutiny that Cicalese prohibits. 924 F.3d
at 768 (finding a district court erred by determining whether a derogatory
statement was merely a “stray remark” at the motion-to-dismiss stage).
Moreover, it is not clear that the district court could give much weight to that
fact. See Castaneda v. Partida, 430 U.S. 482, 499 (1977) (“Because of the
many facets of human motivation, it would be unwise to presume as a matter
of law that human beings of one definable group will not discriminate against
other members of their group.”); Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 78 (1998) (“[W]e have rejected any conclusive presumption that
an employer will not discriminate against members of his own race.”).
The district court also noted that Scott did not allege Seward intended
to replace those four employees with members of an unprotected class, as
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may be required by McDonnell Douglas. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). But since McDonnell Douglas cannot be dispositive
at this stage—and it is not guaranteed McDonnell Douglas will ultimately
apply, as discovery may reveal direct evidence—that requirement was
premature. Swierkiewicz, 534 U.S. at 511-12. Finally, the district court
observed that Scott failed to “allege[ a] pattern of disparate hiring, firing, or
promotions, [and] points to no additional racially charged remarks.” But
Scott did not need to allege a pattern or practice, because what he opposed
was the alleged discrete unlawful act of race-based termination. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002) (distinguishing
between an unlawful employment practice that arises from a discrete
unlawful act, such as termination or refusal to hire, and the more continuous
conduct required to create a hostile work environment). Simply put, the
district court imposed on Scott a heavier burden than he was required to meet
at the pleading stage.
In summary, Scott sufficiently alleged facts that, interpreted in the
light most favorable to him, supported a reasonable belief that his employer
engaged in an unlawful practice. The district court erred when it engaged in
a factual analysis akin to McDonnell Douglas and discounted these facts.3
Therefore, we AFFIRM the judgment of the district court as to the
denial of leave to amend the complaint but REVERSE the judgment of the
district court granting U.S. Bank’s motion to dismiss. We REMAND for
further proceedings.
3
Scott also contends that the district court erred by finding that Scott failed to state
a claim under the “participation clause” of 42 U.S.C. § 2000e-3(a). Because we find the
district court erred when it found Scott failed to state a claim based on opposition grounds,
we do not reach this question.
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