Richard v. Cingular Wireless LLC ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 13, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 06-30396
Summary Calendar
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FRANCIS RICHARD; ET AL
Plaintiffs
FRANCIS RICHARD
Plaintiff-Appellant
v.
CINGULAR WIRELESS LLC; CINGULAR WIRELESS EMPLOYEE SERVICES LLC
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:04–CV–2197
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Francis Richard (“Richard”) brought suit
against Defendants-Appellees Cingular Wireless LLC and Cingular
Wireless Employee Services LLC (collectively, “Cingular”),
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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alleging that his demotion and subsequent termination constituted
unlawful retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (2000) (“Title
VII”). The district court granted summary judgment to Cingular
and Richard now appeals. For the reasons that follow, we AFFIRM
the judgment of the district court.
I. FACTUAL AND PROCEDURAL HISTORY
Richard was employed by Cingular as a Radio Frequency
Performance Engineer IV, a position with responsibilities that
included interviewing and recommending applicants for the
position of Radio Frequency Specialist. In September 2003,
Richard interviewed three applicants for an available Radio
Frequency Specialist position. Richard subsequently sent an email
to his superior, Ramiro Peredo (“Peredo”), recommending that
Dwayne Barnes (“Barnes”) be selected for the position. Cingular
alleges that before sending this email, Richard showed it to
Barnes and told Barnes that he was Richard’s “pick.”1
Subsequently, however, Richard met with Peredo, who expressed
several concerns about Barnes’s fitness for the Radio Frequency
Specialist position. Richard then revised his recommendations,
and someone other than Barnes was hired for the open position.
Richard informed Barnes that he would not be getting the position
1
Richard now denies that he voluntarily showed Barnes the
email, though he earlier conceded this.
2
because “upper management did not want him.”
Thereafter, Barnes approached human resources employee Kim
Willey (“Willey”), related to her his conversations with Richard,
and complained about his failure to be offered the Radio
Frequency Specialist position. Willey alerted Richard’s
supervisors to the alleged conversations. When questioned about
whether he had showed Barnes the email or otherwise told Barnes
that Barnes was being recommended, Richard twice denied showing
or telling Barnes anything of the sort. Cingular commenced an
investigation into the matter, led by Susan Horcharik
(“Horcharik”). According to Horcharik, Barnes repeated his
account of his conversations with Richard but later refused to
sign a statement confirming the same. Richard, however, did sign
a statement admitting that he had told Barnes he was being
recommended, showed Barnes the email, and subsequently lied about
both events. In October 2003, Richard was demoted to a non-
managerial position, Radio Frequency Performance Engineer II.
This demotion entailed a salary decrease from $78,000 to $65,000,
which, after an initial oversight, went into effect in February
2004.
On February 24, 2004, Richard called Cingular’s Ethics Line
and complained that he had been “forced to unfairly disregard an
African-American candidate” (Barnes) and that his demotion had
been in retaliation for his initial recommendation of Barnes.
Cingular investigated this complaint and concluded that the facts
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“fully support[ed] the decision and the reasons for which in
their entirety.” On March 24, 2004, Richard filed an EEOC charge
alleging that he was unlawfully demoted in retaliation for
opposing practices made illegal by Title VII. On May 27, 2004,
the EEOC dismissed the charge and issued Richard a right to sue
letter.
On May 28, 2004, Barnes began to receive calls from
Richard’s wife, Maria Richard, on his Cingular-issued cellphone.
Maria Richard left Barnes a voicemail stating, among other
things, that he was evil, arrogant, and had ruined her husband’s
career, and that she wanted to meet him so “she could look him in
the eyes.” On June 1, 2004, Barnes reported the phone calls and
voicemail to Willey. Barnes indicated that he did not welcome the
phone calls and did not want to meet Mrs. Richard, and that
Barnes’s wife had heard the message and feared for Barnes’s
safety. Willey has stated that while Richard initially denied
that his wife made the calls, he then admitted that he had given
her Barnes’s cellphone number. Willey reported Barnes’s complaint
to Horcharik, who began another investigation. Horcharik
discovered that additional calls to Barnes’s cellphone had been
placed from Richard’s home and Richard’s own Cingular-issued
cellphone. On June 8, 2004, Richard met with his superiors,
including Peredo and Horcharik. Richard refused to answer many of
the questions posed to him regarding the phone calls. Following
the meeting, Richard’s employment at Cingular was terminated.
4
On August 5, 2004, Richard and Maria Richard filed suit
against Cingular in the Eastern District of Louisiana, alleging
that Richard’s demotion and termination constituted unlawful
retaliation under Title VII. Cingular filed a motion for summary
judgment seeking dismissal of both Richard and Maria Richard’s
claims. On February 22, 2006, the district court issued an order
granting Cingular’s motion as to both plaintiffs. The district
court held that because Maria Richard had never been an employee
of Cingular and her claims were wholly derivative of Richard’s,
she could not maintain an action against Cingular under Title
VII. Maria Richard has not appealed. The district court also held
that Richard had not satisfied his burden of creating a genuine
issue of material fact regarding whether Cingular’s proffered
non-retaliatory reasons for his demotion and termination were
pretextual. Richard now appeals.
II. JURISDICTION
The district court’s February 22, 2006 ruling was a final
judgment that disposed of all of Richard’s claims. Accordingly,
this court has jurisdiction pursuant to 28 U.S.C. § 1291.
III. ANALYSIS
1. Standard of Review
We review a district court’s grant of summary judgment de
novo. Dallas County Hosp. Dist. v. Assocs. Health & Welfare
Plan, 293 F.3d 282, 285 (5th Cir. 2002). Summary judgment is
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proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). A dispute about a
material fact is genuine if the evidence is such that a
reasonable fact-finder could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When deciding whether there is a genuine issue of
material fact, this court must view all evidence in the light
most favorable to the non-moving party. Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
2. Title VII Retaliation Framework
Under Title VII, it is “an unlawful employment practice for
an employer to discriminate against any of his employees . . .
because [the employee] has opposed any practice made an unlawful
employment practice” by the statute or “because [the employee]
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under Title
VII. 42 U.S.C. § 2000e-3(a). To establish a claim of retaliation
under Title VII, a plaintiff must demonstrate that: (1) he
engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the protected
activity and the adverse employment action. Fabela v. Socorro
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Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).
A plaintiff alleging Title VII retaliation may establish a
causal link in two ways: either by presenting direct evidence of
retaliatory motive or by providing circumstantial evidence that
creates a rebuttable presumption of retaliatory motive. Id. at
414-15. Where the plaintiff provides only circumstantial
evidence of causation, the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies.
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
2002). Under that framework, the employee must first make a prima
facie case for the three elements of retaliation. This prima
facie case is satisfied by the production of evidence; persuasion
is not necessary at this stage. Baker v. Am. Airlines, Inc., 430
F.3d 750, 753 (5th Cir. 2005). If the employee succeeds in making
a prima facie case, the burden of production shifts to the
employer to state a legitimate, non-retaliatory reason for the
employment action. Id. at 754-55. If the defendant meets its
burden, the presumption of discrimination created by the prima
facie case disappears, and the plaintiff is left with the
ultimate burden of proving that the protected activity was the
but-for cause of the adverse employment action. See Montemayor
v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). In
other words, the employee must show that the employer’s putative
justification is unworthy of credence and is instead a pretext
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for retaliation. Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir.
2001).
3. Richard’s Demotion
Richard argues that he has made out a prima facie case that his
demotion was retaliatory and has created a genuine issue of material
fact regarding whether Cingular’s proffered reasons for his demotion
were pretextual. The district court held that Richard had failed to
demonstrate that Cingular’s non-retaliatory reasons were mere
pretext. This court may affirm the district court’s grant of summary
judgment on any grounds supported by the record. Lifecare Hosps.,
Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).
Here, we do not reach the issue of pretext because we hold that
Richard has not made out his prima facie case of retaliation.
Richard has failed to produce evidence that he engaged in
activity protected by Title VII prior to his demotion. Protected
activity in the context of a retaliation claim is (1) opposing
discriminatory practices or (2) making a charge, testifying,
assisting, or participating in any manner in an investigation,
proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a).
At the time of his demotion, Richard had not yet called the
Cingular Ethics Line to complain, nor had he filed his charge
with the EEOC. Richard presents as protected activity prior to
the demotion his acts of (1) recommending that Barnes be given
the Radio Frequency Specialist position and (2) telling Barnes
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that he would not be receiving the position and encouraging him
to “seek justice.” Richard’s act of recommending Barnes for the
open position does not qualify as protected activity because it
did not oppose or protest an unlawful employment practice. See
Moore v. United Parcel Serv., Inc., 150 F. App’x 315, 319 (5th
Cir. 2005) (unpublished). Richard’s subsequent conversation with
Barnes also fails to qualify as protected conduct. Even if we
assume, arguendo, that telling a co-worker that he had suffered
unlawful discrimination is protected activity, Richard does not
allege nor produce any evidence that he suggested to Barnes that
Barnes’s failure to receive the available position was due to
racial discrimination. To satisfy the protected activity
requirement, an employee must oppose conduct made unlawful by
Title VII; complaining of unfair or undesirable treatment not
addressed by Title VII will not suffice. See id.; see also
Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913,
916 (5th Cir. 2006) (unpublished). We therefore conclude that
Richard has not demonstrated that he engaged in protected
activity prior to the demotion. Accordingly, the district court
properly granted summary judgment to Cingular on Richard’s claim
that his demotion was retaliatory.
4. Richard’s Termination
Richard also brings a claim for retaliation on the basis of his
termination by Cingular. Before his termination, Richard had called
9
the Cingular Ethics Line to complain of retaliatory demotion and had
also filed a complaint with the EEOC. We therefore conclude that
Richard had engaged in activity protected by Title VII. See Walker
v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000). Richard’s
termination qualifies as an adverse employment action, thus
satisfying the second prong of his prima facie retaliation case.
Dehart v. Baker Hughes Oilfield Operations, No. 05-21087, 2007 U.S.
App. LEXIS 1362, at *10 (5th Cir. Jan. 19, 2007). We therefore turn
to whether Richard has demonstrated that a causal link existed
between his protected activity and subsequent termination. Cingular
argues that Richard has made no such showing. This court allows,
however, for an inference of causation to be drawn where the adverse
employment action occurs in close temporal proximity to the
protected conduct. Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001). In Evans, we relied upon decisions from district courts
in this circuit that found “a time lapse of up to four months . .
. sufficient to satisfy the causal connection for summary judgment
purposes.” Id.2 In this case, the time span between Richard’s EEOC
complaint and his termination was roughly two and a half months. We
therefore will allow for an inference of causation, and we conclude
that Richard has made out his prima facie case of retaliation.
2
We note, however, that the Supreme Court has acknowledged
other circuit court decisions that found three and four month
periods too long to allow for an inference of causation. Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).
10
Cingular, however, has satisfied its burden of stating a
legitimate, non-retaliatory justification for Richard’s
termination. Cingular presented several such justifications: (1)
Richard’s wife’s harassing phone calls to Barnes, which were in
violation of Cingular’s policy against employee harassment; (2)
Richard’s refusal to cooperate fully with Cingular’s
investigation into his involvement in the harassing phone calls;
and (3) Richard’s earlier lies to Cingular supervisors regarding
his conversations with Barnes. The burden therefore falls to
Richard to demonstrate that retaliation was the but-for cause of
his termination. See Montemayor, 276 F.3d at 692. Accordingly, at
the summary judgment stage, Richard must demonstrate that a
genuine issue of material fact exists regarding whether
Cingular’s justifications were pretextual.
Richard first argues that he presented evidence that Barnes
did not find the phone calls from Maria Richards threatening. He
cites to a memorandum by Willey in which she stated that Barnes
told her that Maria Richard’s voicemail was “not very nice.” This
memorandum, however, also stated that Barnes’s wife feared for
his safety after the calls. Based on Barnes’s statements to
Willey, Cingular could have concluded that Richard’s wife had
made phone calls to a Cingular employee that were, if not
physically threatening, certainly harassing and inappropriate.
Cingular also could have concluded, in light of the facts that
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Maria Richards called Barnes’s Cingular-issued cellphone and that
Barnes “heard a male voice in the background” during the
voicemail, that Richard was complicit in his wife’s calls. We
agree with the district court that Richard has not demonstrated
that a genuine issue of material fact exists regarding whether
Cingular’s justification based on Maria Richards’ phone calls was
pretextual.
Richard then proposes that Cingular’s justification based on
his failure to cooperate with their investigation into the phone
calls was mere pretext because he was, in fact, cooperative.
While Richard concedes that he did not answer numerous questions
posed during the meeting with his supervisors, Richard argues
that he was told that he could have additional time to answer
these questions in writing. The parties dispute how long Richard
was told he would have to submit these answers--Richard claims
forty-eight hours, Cingular claims twenty-four--and when exactly
the decision was made to terminate Richard--Richard argues that
the decision was made before even twenty-four hours had elapsed.
Even if we were to conclude that Richard had demonstrated
that a genuine issue of material fact exists regarding whether
his alleged lack of cooperation was merely a pretext, however,
Richard “must put forward evidence rebutting each of the
nondiscriminatory reasons the employer articulates” to satisfy
his burden. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
12
(5th Cir. 2001). As we have seen, Richard has not successfully
rebutted Cingular’s justification based on his wife’s phone calls
to Barnes. Richard has also not rebutted Cingular’s justification
based on his earlier lies to his supervisors regarding his
conversations with Barnes. Richard argues that “there’s no
evidence in the record that [he] lied to his superiors, except
for the self-serving reports generated by Cingular.” On the
contrary, Cingular has presented a statement signed by Richard,
dated October 6, 2003, admitting that he lied twice to Cingular
personnel regarding his statements to Barnes because he “was
afraid of what would happen” to him. Even if Richard could
establish that he did not in fact lie, “an incorrect belief that
an employee’s performance is inadequate constitutes a legitimate,
non-discriminatory reason” for termination. Little v. Republic
Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). Based on Richard’s
conduct and admissions at the time, Cingular could have believed
that Richard had lied to his supervisors. We conclude that
Richard has not demonstrated that a genuine issue of material
fact exists regarding whether Cingular’s justification based on
Richard’s false statements to his superiors was unworthy of
credence.
In sum, Richard has not satisfied his burden under the
McDonell Douglas framework of demonstrating that Cingular’s
proffered reasons for his termination were pretextual and that
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retaliation was the but-for cause of his termination.
Accordingly, the district court properly granted summary judgment
to Cingular on Richard’s claim that his termination was
retaliatory.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the
district court granting summary judgment to Cingular.
AFFIRMED.
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