Gregory Willis v. Cleco Corporation , 749 F.3d 314 ( 2014 )


Menu:
  •      Case: 13-30217   Document: 00512589583     Page: 1   Date Filed: 04/08/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-30217                           April 8, 2014
    Lyle W. Cayce
    GREGORY WILLIS                                                             Clerk
    Plaintiff-Appellant
    v.
    CLECO CORPORATION
    Defendant-Appellee
    Appeal from the United States District Court
    for the Western District of Louisiana
    Before DAVIS, GARZA, and DENNIS, Circuit Judges.
    EMILIO M. GARZA, Circuit Judge:
    Gregory Willis (“Willis”), who is an African-American, filed suit against
    his former employer, Cleco Corporation (“Cleco”), alleging race discrimination
    and retaliation under Title VII and 
    42 U.S.C. § 1981
    . After two rounds of
    motions, the district court granted summary judgment to Cleco on all of Willis’s
    claims. On appeal, Willis raises three points of error. First, he argues that his
    retaliation claims, based on a Disciplinary Warning and being placed on a
    Work Improvement Plan, should not have been dismissed because he raised a
    genuine dispute of material fact concerning his supervisor’s retaliatory motive.
    Second, he asserts that the district court erred in granting summary judgment
    on his wrongful termination claim because he offered summary judgment
    evidence tending to show that the stated reasons for his termination were
    Case: 13-30217      Document: 00512589583   Page: 2   Date Filed: 04/08/2014
    No. 13-30217
    merely pretext for discrimination. Lastly, he contends that the district court
    should have reconsidered its wrongful termination ruling based on his request,
    which was couched within a memorandum of law submitted in opposition to
    Cleco’s second motion for summary judgment. For the following reasons, we
    AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
    I
    Willis worked in Cleco’s Human Resources department as a Senior
    Human Resources Representative. At all times relevant to this appeal, he was
    supervised by Ed Taylor (“Taylor”), Manager of Human Resources. Taylor
    reported to John Melancon (“Melancon”), the general Manager of Human
    Resources.   Two years before his eventual termination, Willis reported to
    senior Cleco officials that he overheard a racially hostile conversation between
    Robyn Cooper (“Cooper”), a Cleco employee, and Melancon.             Willis was
    standing outside Cooper’s office when he heard Cooper assert that African-
    American students at a local historically black college were “dumb” and “lazy,”
    just like the current African-Americans working for Cleco. According to Willis,
    Melancon remained silent when he heard Cooper make this statement. Willis
    claims that reporting this incident created significant retaliatory animus
    against him, which was the true motivation for a subsequent Disciplinary
    Warning, being placed on a remedial Work Improvement Plan, and his
    eventual termination.
    Two weeks after reporting Cooper’s statement, Willis sent an email to
    twenty-four other Cleco employees informing them that another employee’s
    son had been hospitalized because of an overdose on a large volume of pills.
    That other employee, James Eli (“Eli”), allegedly informed Taylor that he did
    not authorize the email and that its dissemination caused him significant
    distress. Willis, however, claims he sent the message with Eli’s permission.
    Thereafter, Taylor issued a formal Disciplinary Warning to Willis by placing a
    2
    Case: 13-30217    Document: 00512589583     Page: 3   Date Filed: 04/08/2014
    No. 13-30217
    letter in his personnel file on April 16, 2007. The letter indicated that the
    Disciplinary Warning was based on Willis’s mass distribution of a co-worker’s
    private information, lack of good judgment, and lack of respect for others.
    Willis claims that these proffered justifications are merely pretext for
    retaliatory animus resulting from his earlier report.
    Several months after the Disciplinary Warning, Willis was placed on a
    “Work Improvement Plan” by Taylor. Taylor alleges he took this step because
    Willis’s job performance was inadequate during the first half of 2007.
    According to Cleco, a Work Improvement Plan is a developmental tool used to
    assist an employee in meeting performance standards. Willis claims that Work
    Improvement Plans are essentially punitive, because they factor negatively
    into an employee’s promotion and salary-increase calculations. Taylor claims
    his implementation of a Work Improvement Plan for Willis was necessary
    because Willis made recurring mistakes, missed meetings, and inefficiently
    managed an important hiring initiative. Willis, on the other hand, claims that
    he was actually placed on the Work Improvement Plan in retaliation for his
    earlier reporting of Cooper’s racially hostile statements in conversation with
    Melancon.
    The next year, Willis helped a personal acquaintance, Franklin Sylvia
    (“Sylvia”), obtain a job with Cleco. Sylvia is biracial. A number of months into
    his employment, Sylvia called Willis to ask a work-related question. During
    the call, Sylvia claims that Willis made inappropriate race-based comments.
    Among other things, Willis allegedly told Sylvia to spend more time with other
    African-American employees, and to better embrace his racial heritage. Sylvia
    was already concerned about his job security, and was further disquieted by
    this conversation. Sylvia reported the remarks to Taylor and other Cleco
    supervisors. Taylor and Melancon then arranged a meeting with Willis and
    related Sylvia’s allegations. Willis denied that any conversation took place.
    3
    Case: 13-30217     Document: 00512589583      Page: 4   Date Filed: 04/08/2014
    No. 13-30217
    However, Sylvia produced cell phone records showing that a call had been
    placed and that it lasted for thirty-five minutes. Willis accused Sylvia of lying.
    After additional investigation, Taylor and Melancon credited Sylvia’s version
    of events, and terminated Willis.       The reasons Cleco stated for Willis’s
    termination were that he engaged in inappropriate behavior during the phone
    call with Sylvia, that he lied to his supervisors about the call, and that he
    revealed Sylvia’s allegations to a non-Cleco employee. Willis claims these
    stated reasons are merely pretextual—that his firing was actually motivated
    by retaliatory or discriminatory animus.
    II
    This court reviews a district court’s grant of summary judgment de novo.
    See Antoine v. First Student, Inc., 
    713 F.3d 824
    , 830 (5th Cir. 2013). Summary
    judgment should be granted when the moving party shows that “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). A genuine dispute of fact exists when
    evidence is sufficient for a reasonable jury to return a verdict for the non-
    moving party, Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986), and
    a fact is material if it “might affect the outcome of the suit.” 
    Id.
     Summary
    judgment evidence is viewed in the light most favorable to the non-moving
    party—here, Willis. See, e.g., First Am. Title Ins. Co. v. Cont’l Cas. Co., 
    709 F.3d 1170
    , 1173 (5th Cir. 2013).
    To satisfy its burden, the party opposing summary judgment is “required
    to identify specific evidence in the record, and to articulate the ‘precise manner’
    in which that evidence support[s] their claim.” Forsyth v. Barr, 
    19 F.3d 1527
    ,
    1537 (5th Cir. 1994). This court has regularly reminded litigants that “Rule 56
    does not impose upon the district court [or the court of appeals] a duty to sift
    through the record in search of evidence to support a party’s opposition to
    summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 
    136 F.3d 455
    , 458 (5th
    4
    Case: 13-30217     Document: 00512589583      Page: 5     Date Filed: 04/08/2014
    No. 13-30217
    Cir. 1998). We have further observed that the “premise of the adversarial
    system is that appellate courts do not sit as self-directed boards of legal inquiry
    and research, but essentially as arbiters of legal questions presented and
    argued by the parties before them.” Coggin v. Longview Independent School
    Dist., 
    337 F.3d 459
     (5th Cir. 2003) (en banc).
    A
    Willis’s complaint stated retaliation claims arising under Title VII and §
    1981. The legal framework governing these claims is coextensive. See DeCorte
    v. Jordan, 
    497 F.3d 433
    , 437 (5th Cir. 2007). “To present a prima facie case of
    retaliation under either Title VII or § 1981, a plaintiff must show that: (1) he
    engaged in an activity protected by Title VII; (2) he was subjected to an adverse
    employment action; and (3) a causal link exists between the protected activity
    and the adverse employment action.” Davis v. Dallas Area Rapid Transit, 
    383 F.3d 309
    , 319 (5th Cir. 2004). Under Title VII’s familiar burden shifting
    framework, see, e.g., McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973),
    once the plaintiff presents a prima facie case, the burden shifts to the
    defendant-employer to “proffer a legitimate rationale for the underlying
    employment action.” Davis, 
    383 F.3d at 319
    . If a legitimate reason is proffered,
    the burden returns to the plaintiff to demonstrate that “the employer’s
    articulated reason for the employment action was a pretext for retaliation.” 
    Id.
    Showing pretext requires a plaintiff to “produce substantial evidence
    indicating that the proffered legitimate nondiscriminatory reason is a pretext
    for discrimination.” Laxton v. Gap Inc., 
    333 F.3d 572
    , 578 (5th Cir. 2003).
    Finally, in light of Title VII’s “because of” requirement, the plaintiff must show
    that the protected activity was the “but for” cause of the retaliation. Long v.
    Eastfield Coll., 
    88 F.3d 300
    , 305, 305 n.4 (5th Cir. 1996).
    5
    Case: 13-30217        Document: 00512589583        Page: 6    Date Filed: 04/08/2014
    No. 13-30217
    1
    Willis claims that the Disciplinary Warning was issued in retaliation for
    his reporting of Cooper’s racially hostile statements. Cleco asserts that the
    warning issued because Willis demonstrated a “lack of good judgment” and a
    “lack of respect for others” when he sent the mass email disclosing that his co-
    worker son overdosed on pills. 1 But Willis has proffered summary judgment
    evidence sufficient to show a genuine dispute of material fact about whether
    these stated reasons are pretext for an underlying retaliatory motive.
    Specifically, Willis references an affidavit from Jerome C. Ardoin, Jr.
    (“Ardoin”), another Cleco employee, in which Ardoin explains that Melancon,
    Taylor’s direct supervisor in the Human Resources department, told him that
    he was “very pissed” with Willis for reporting the conversation with Cooper.
    Moreover, Ardoin’s affidavit claims that Melancon stated: “If we have to find a
    reason, Ed [Taylor] and I have decided; we are going to terminate that nigger
    Greg Willis for reporting me and trying to burn my ass.” 2
    If credited by a trier of fact, this statement fairly indicates that Taylor,
    whose direct supervisor is Melancon, issued the Disciplinary Warning because
    of retaliatory intent—that is, because Willis previously engaged in the
    protected activity of reporting the racially hostile comments Cooper made in a
    conversation with Melancon. Accordingly, Willis has produced the requisite
    “evidence indicating that the proffered legitimate nondiscriminatory reason is
    a pretext for discrimination.” Laxton, 
    333 F.3d at 578
    . Because Willis has
    1 The warning letter specifically states: “Your action demonstrated a lack of good
    judgment and has harmed a fellow employee who was already under stress. This event
    demonstrated a lack of respect for the parties involved, a violation of the Cleco Guiding
    Principles, and undermines the high level of trust that one in your position must maintain.”
    R. USCA5 3874.
    2   Declaration of Jerome C. Ardoin, Jr., R. USCA5 4084 (emphasis omitted).
    6
    Case: 13-30217       Document: 00512589583          Page: 7     Date Filed: 04/08/2014
    No. 13-30217
    shown that there is a genuine dispute of material fact that Cleco’s stated
    reasons were pretextual, the district court erred in granting summary
    judgment on Willis’s retaliation claim based on the Disciplinary Warning. 3
    2
    Willis claims that he was actually placed on the Work Improvement Plan
    in retaliation for reporting Cooper’s statements, and that the district court
    erred in granting summary judgment. This claim is waived because it is
    inadequately briefed. In United States v. Scroggins, 
    599 F.3d 433
     (5th Cir.
    2010), we summarized our precedents under Fed. R. App. P. 28:
    A party that asserts an argument on appeal, but fails to
    adequately brief it, is deemed to have waived it. It is not
    enough to merely mention or allude to a legal theory. We
    have often stated that a party must ‘press’ its claims. At
    the very least, this means clearly identifying a theory as a
    proposed basis for deciding the case—merely intimating an
    argument is not the same as ‘pressing’ it. In addition,
    among other requirements to properly raise an argument,
    a party must ordinarily identify the relevant legal
    standards and any Fifth Circuit Cases. We look to an
    3  The record in this case contains numerous depositions and affidavits chronicling
    Willis’s employment with Cleco, the circumstances of his discipline, his eventual termination,
    and the allegedly racialized nature of the Cleco workplace. However, Willis’s briefs—here
    and before the district court—give scant, if not conclusory, attention to the record: citations
    are minimal, and legal analysis relating facts to the law is largely absent. The party opposing
    summary judgment must do so by citing to specific evidence in the record. See Ragas, 
    136 F.3d at 458
    . That party must further “articulate the precise manner in which that evidence
    supports” their argument. See Forsyth, 
    19 F.3d at 1536
    . Notwithstanding these principles,
    Judge Dennis’s separate opinion features lengthy discussion of record evidence that, despite
    its appearance in the summary judgment record, Willis did not properly cite or explain—on
    appeal or before the district court. However, the district court’s second summary judgment
    order, which addressed Willis’s retaliation claims, shows that the district court was
    specifically aware of Ardoin’s statement. See Memorandum Ruling, Feb. 12, 2013, ECF No.
    157, at 12. Thus, even though “Rule 56 does not impose . . . a duty to sift through the record
    in search of evidence to support a party’s opposition to summary judgment,” Ragas, 
    136 F.3d at 458
    , the district court actually considered this evidence. Accordingly, our reversal of this
    claim is based on an argument before the district court.
    7
    Case: 13-30217       Document: 00512589583         Page: 8     Date Filed: 04/08/2014
    No. 13-30217
    appellant’s initial brief to determine the adequately
    asserted bases for relief.
    
    Id.
     at 446–47 (citations and quotations omitted). Willis’s legal argument about
    the Work Improvement Plan claim is asserted in these two sentences:
    A reasonable jury looking at the facts in a light most
    favorable to Willis could infer that Cleco’s reasons for
    placing Willis on the Work Improvement Plan were
    pretextual. Therefore, the court granting Cleco’s Motion
    for Summary Judgment as to Willis retaliation claims
    should be reversed. 4
    In this, Willis fails to identify a theory as a proposed basis for deciding the
    claim, and does not explain, in any perceptible manner, why the facts would
    allow a reasonable jury to decide in his favor. This claim is inadequately
    briefed, and we hold that it is waived. 5
    B
    Willis also appeals from the district court’s adverse grant of summary
    judgment on his Title VII wrongful termination claim. Wrongful termination
    claims are also evaluated under the McDonnell Douglas framework.                         See
    McCoy v. City of Shreveport, 
    492 F.3d 551
    , 556 (5th Cir. 2007). To establish a
    4 Three additional sentences in Willis’s brief provide introductory and factual content
    for the claim: “On August 15, 2007, Mr. Willis was placed on a Work Improvement Plan. Up
    until his reporting Melancon, Willis had been a model employee for the HR department. The
    District Court’s [sic] found that Melancon and Taylor harbored retaliatory/discriminatory
    animus toward Willis.” The entirety of Willis’s briefing on the Work Improvement Plan claim
    is contained in this short, conclusory paragraph, which does not include any citations to the
    record or internal references to other sections of his brief.
    5  In Nichols v. Enterasys Networks, Inc., 
    495 F.3d 185
    , 190 (5th Cir. 2007), Nichols
    failed to provide “any evidence or any legal argument beyond bare assertions” showing how
    a contract term was unconscionable. 
    Id.
     “Where analysis is so deficient, this court has
    considered the issue waived for inadequate briefing.” 
    Id.
     See also Mullins v. TestAmerica,
    Inc., 
    564 F.3d 386
    , 407 (5th Cir. 2009) (a single sentence claim that a subrogation clause
    required payment, without further explanation, justified waiver on grounds of inadequate
    briefing).
    8
    Case: 13-30217    Document: 00512589583     Page: 9      Date Filed: 04/08/2014
    No. 13-30217
    prima facie case, a plaintiff must demonstrate that he, “(1) is a member of a
    protected group; (2) was qualified for the position at issue; (3) was discharged
    or suffered some adverse employment action by the employer; and (4) was
    replaced by someone outside his protected group or was treated less favorably
    than other similarly situated employees outside the protected group.” 
    Id.
    Under the fourth prong’s “similarly situated employees” requirement, a
    plaintiff must show that he was treated less favorably than others “under
    nearly identical circumstances.” Love v. Kan. City S. Ry., 
    574 F.3d 253
    , 259–
    60 (5th Cir. 2009). Once a prima facie case is established, the defendant can
    offer a non-discriminatory reason for the termination, which may then be
    rebutted by the plaintiff as pretext. See supra Part II.A.
    The district court determined that Willis had not established a prima
    facie case. Specifically, the court found that Willis did not demonstrate that
    he was “treated less favorably than other similarly situated employees outside
    the protected class.” The district court found that Willis did not identify a
    similarly situated comparator—another employee who was treated differently
    “under nearly identical circumstances.”      The district additionally further
    concluded that Willis failed to establish that Cleco’s stated non-discriminatory
    reason for his termination was pretextual.
    On appeal, Willis does not challenge the district court’s holding that he
    failed to establish a prima facie case—he only challenges the district court’s
    pretext conclusion. Thus, he has waived appellate review of the district court’s
    prima facie case determination. See Adams v. Unione Mediterranea Di Sicurta,
    
    364 F.3d 646
    , 653 (5th Cir. 2004) (“Issues not raised or inadequately briefed on
    appeal are waived.”). Because a plaintiff must establish a prima facie case to
    9
    Case: 13-30217       Document: 00512589583         Page: 10     Date Filed: 04/08/2014
    No. 13-30217
    prevail on a claim of wrongful termination under Title VII, analysis of the
    pretext stage cannot change the disposition of this claim. 6
    C
    Willis last contends that the district court erred in failing to reconsider
    its ruling on his wrongful termination claim, following the first summary
    judgment order.       Willis did not formally seek reconsideration by motion.
    Rather, the request was couched at the end of an eighteen page memorandum
    of law. 7 Assuming, without deciding, that this was sufficient to raise the issue,
    we find no merit in his argument. See supra Part II.B. Additionally, contrary
    to Willis’s several contentions on appeal, nothing in the record shows that the
    district court provided an unfair “second bite at the apple” to Cleco in allowing
    a second motion for summary judgment. Rather, the record reflects that all
    parties were allotted additional, and equal, time for discovery and motions
    after the ruling on the first motion for summary judgment.
    III
    For the foregoing reasons we REVERSE the district court’s grant of
    summary judgment on Willis’s retaliation claim arising from the April 16, 2007
    Disciplinary Warning, AFFIRM the district court’s grant of summary
    judgment on the remaining retaliation and discrimination claims, and
    REMAND for further proceedings consistent with this opinion.
    6  Judge Dennis’ partial dissent does not account for Willis’s fundamental failure to
    appeal the district court’s determination that he had not established a prima facie case. As
    explained above, this is a necessary predicate for success on his wrongful termination claim.
    The compelling narrative Judge Dennis draws from the record—despite the inadequacy of
    Willis’s appellate arguments—is insufficient to overcome this legal obstacle.
    Willis’s Second Memorandum in Opposition to Cleco’s Second Motion for Summary
    7
    Judgment.
    10
    Case: 13-30217     Document: 00512589583     Page: 11   Date Filed: 04/08/2014
    No. 13-30217
    JAMES L. DENNIS, Circuit Judge, concurring in part, dissenting in part:
    I concur in the majority’s decision that plaintiff-appellant Gregory Willis
    should proceed to trial on his claim that the disciplinary warning constituted
    illegal retaliation. The heart of this retaliation-and-race-discrimination case,
    however, is not the disciplinary warning, which is alleged to have been a mere
    stepping stone, but is rather the later termination of Willis’s employment in
    Cleco Corporation’s human resources department. According to Willis and his
    supporting evidence in the record, he reported to Cleco corporate executives
    that he overheard a racist conversation between the head of his department,
    John Melancon, and another coworker about the company’s hiring practices
    and whether the company should recruit African-American employees. After
    he learned that Willis reported him for participating in the racist conversation,
    Melancon told a colleague that he was “very pissed,” that he was “not going to
    forget” Willis’s slight, and that he had decided to “terminate that nigger.” Over
    the next two years, allegedly for other reasons, Willis was disciplined, given a
    poor performance review, and, finally, fired. On the day he was fired, Willis
    says that Melancon came to his home to deliver the news and added, “Boy, you
    will keep your mouth shut now.” This and additional evidence adduced by
    Willis, as outlined below, conflicts with the employer’s reasons for the
    discharge and raises genuine issues as to what motivated the discharge,
    making summary judgment for the employer inappropriate based on the record
    in this case. The evidence that Willis’s discharge was motivated by retaliation
    and, at least in part, by racial discrimination is too strong and pervasive to
    ignore or compartmentalize. I respectfully dissent from the denial of these
    claims.
    I.
    To survive Cleco Corporation’s motions for summary judgment on his
    retaliation and race discrimination claims, Willis must establish that there is
    11
    Case: 13-30217        Document: 00512589583           Page: 12     Date Filed: 04/08/2014
    No. 13-30217
    a genuine issue of material fact. 1 Matsushita Elec. Indus. Co. v. Zenith Radio
    Corp., 
    475 U.S. 574
    , 585-86 (1986).                 An examination of Willis’s evidence
    submitted in opposition to Cleco Corporation’s motions reveals that there can
    be little question that Willis has carried his burden. Willis’s evidence, with
    supporting citations to the record on appeal, is as follows.
    A.
    Willis, who is African-American, started working in Cleco Corporation’s
    human resources department in 2000. 2 Several years later, he was promoted
    to the position of senior human resources representative. 3 From 2005 until his
    termination in 2009, his direct supervisor was Ed Taylor, manager of human
    resources. 4 Taylor, in turn, reported to John Melancon, general manager of
    human resources. 5
    Over their years working at the company, Willis and two of his
    coworkers, Jerome C. Ardoin, Jr. and Patrick Lacour, claim to have overheard
    statements by Taylor and Melancon that were charged with racism:
    Melancon
    1  On September 17, 2010, Cleco Corporation moved for summary judgment on all of
    Willis’s claims. R. 373-77 (District Court Doc. No. 35). On September 22, 2011, the district
    court granted the motion in part and denied it in part. Id. at 3335-71 (District Court Doc.
    No. 105), 3372-73 (District Court Doc. No. 106). On March 8, 2012, Cleco Corporation filed a
    second motion for summary judgment addressing Willis’s claims that survived the first
    motion. Id. at 3812-17 (District Court Doc. No. 137). Willis opposed the motion and asked
    the district court to reconsider the district court’s resolution of the first motion. Id. at 4045-
    63 (District Court Doc. No. 149). The district court denied Willis’s request and granted the
    company’s second motion for summary judgment, thus disposing of all of Willis’s claims of
    retaliation and race discrimination. Id. at 4724-45 (District Court Doc. No. 157), 4746
    (District Court Doc. No. 158).
    2 Id. at 384-86 (Willis Dep.), 455 (Taylor Decl.).
    3 Id.
    4 Id. at 389-92 (Willis Dep.).
    5 Id. at 394 (Willis Dep.), 4424 (Taylor Dep.).
    12
    Case: 13-30217       Document: 00512589583        Page: 13     Date Filed: 04/08/2014
    No. 13-30217
    • According to Ardoin, who is white and who worked with Melancon
    for over two decades, Melancon referred to African-Americans as
    “niggers” and “coons” on “numerous occasions.” 6
    • According to Lacour, who is white, Melancon once told him that he
    refused to allow his family to live in Alexandria, Lousiana because
    “there are too many black people who live over there.” 7
    Taylor
    • According to Willis, Taylor referred to African-Americans
    sometimes as “colored people.” 8
    • According to Willis, Taylor told him on several occasions that the
    first time he saw an African-American man, he thought the man
    “looked like a gorilla.” 9
    B.
    Willis alleges that, on March 2, 2007, he overheard a conversation
    between     Melancon      and    Robyn     Cooper,     a   corporate    communications
    representative. 10    Willis says that he overheard Cooper ask Melancon, in
    reference to a company recruitment trip, “Why are you all going to Grambling
    State University?” 11      Grambling State University is a historically black
    institution. Willis says that Cooper continued:
    As you are aware, those students are dumb. They are
    no different than the dumb and lazy blacks that work
    at this company. If you don’t hire any of them, what
    are they going to do? Are they going to go to the
    NAACP? 12
    Melancon remained silent while Cooper was speaking, which Willis
    interpreted to mean that Melancon was a “willing audience.” 13
    6  Id. at 4082 (Ardoin Decl.).
    7  Id. at 4146 (Lacour Decl.).
    8 Id. at 4189 (Willis Decl.).
    9 Id. at 4191 (Willis Decl.).
    10 Id. at 392-99, 440 (Willis Dep.), 453-54 (Letter from Willis to George Bausewine,
    Sr., Vice President of Support Services, Cleco Corp.).
    11 Id.
    12 Id.
    13 Id. Melancon denies that Cooper said anything inappropriate to him. He says:
    13
    Case: 13-30217       Document: 00512589583        Page: 14     Date Filed: 04/08/2014
    No. 13-30217
    Willis says that he was troubled by the fact that Melancon, the general
    manager of human resources, had listened to such sentiments about the
    company’s recruitment practices without taking exception. 14 Willis reported
    the conversation to Jeff Hall, the company’s chief diversity officer, and George
    Bausewine, the senior vice president of corporate services. 15 He drafted and
    gave a memorandum describing the conversation to Bausewine. 16
    According to Willis, during the following months of spring of 2007, his
    relationship with Melancon broke down severely. 17 Melancon was furious and
    stopped speaking to him for months. 18 Coworkers advised Willis to try to “build
    a bridge” with Melancon, but Willis was “uncomfortable” doing so because
    Melancon had started making “derogatory” comments about him around the
    office. 19 Willis says that he sought advice from Taylor about his difficulties
    with Melancon and that Taylor told him, “You should not have reported John
    [Melancon].” 20 Taylor continued, “You wouldn’t have these problems you’re
    having right now.” 21 Taylor’s only advice, Willis says, was to try to work things
    out with Melancon. 22
    Cooper never made disparaging remarks regarding African-
    Americans. In that conversation between Cooper and myself, I
    simply explained to Cooper some of the actions and initiatives
    Cleco was taking with regard diversity, which included visiting
    Grambling State University, so that she could consider writing
    an update regarding Cleco’s diversity efforts.
    Id. at 462 (Melancon Decl.).
    14 Id. at 392-99, 440 (Willis Dep.), 453-54 (Letter from Willis to George Bausewine,
    Sr., Vice President of Support Services, Cleco Corp.).
    15 Id.
    16 Id.
    17 Id. at 3834 (Willis Dep.).
    18 Id.
    19 Id.
    20 Id.
    21 Id.
    22 Id.
    14
    Case: 13-30217      Document: 00512589583          Page: 15     Date Filed: 04/08/2014
    No. 13-30217
    Willis says that he retrieved the memorandum he had sent to Bausewine
    describing the conversation about the trip to Grambling and he brought it into
    Melancon’s office, set it on the table, and said that he wanted to talk about it. 23
    According to Willis, Melancon ordered him to close the office door. 24 Then,
    Melancon slammed his hand on the table and declared, “You tried to burn my
    ass and I am not going to forget that.” 25 Willis responded, “Look, I did not
    report you. My memo said, she [i.e., Cooper] was making the comments and
    you were her audience.” 26 This did not assuage Melancon’s anger. 27
    Around this same time, Ardoin claims that Melancon told him that he
    was “very pissed” with Willis for reporting his conversation with Cooper about
    the Grambling recruitment trip and that, “If we have to create a reason, Ed
    [Taylor] and I have decided—we are going to terminate that nigger Greg Willis
    for reporting me.” 28
    C.
    On March 15, 2007, Willis sent an email to twenty-four coworkers saying
    that the son of a colleague, James Eli, overdosed on “thirty one pills.” 29 Willis’s
    email asked the coworkers to pray for Eli’s son. 30 According to Willis, Eli asked
    him to send the email to his friends at the company. 31 But, on April 16, 2007,
    Taylor and Melancon issued a disciplinary warning to Willis, stating that
    Willis’s email caused Eli and his wife “considerable pain and distress” and that
    23 Id.
    24 Id.
    25 Id. at 3834 (Willis Dep.), 4185-86 (Willis Decl.).
    26 Id. at 3834 (emphasis added).
    27 Id.
    28 Id. at 4084 (Ardoin Decl.).
    29 Id. at 3858-59 (Willis Dep.), 3874-75 (Disciplinary Warning), 3876-77 (Taylor Decl.).
    30 Id.
    31 Id.
    15
    Case: 13-30217       Document: 00512589583         Page: 16     Date Filed: 04/08/2014
    No. 13-30217
    Willis was “advised to use better judgment,” and a failure to do so “could result
    in further disciplinary action including suspension or termination.” 32
    D.
    On August 15, 2007, Taylor put Willis on a work improvement plan,
    citing his purportedly poor job performance. 33 According to Willis, as a result
    of the improvement plan, he was unlikely to receive a salary increase that
    year. 34    Willis says that Taylor told him that the improvement plan was
    necessary because Willis “caused morale problems” at the company when he
    reported the conversation about the Grambling recruitment trip between
    Cooper and Melancon. 35 Willis says that Taylor told him, “Cooper is upset.” 36
    E.
    During late 2008 and early 2009, a series of events culminated in the
    termination of Willis’s employment. In 2008, Willis helped Franklin Sylvia
    obtain a job at the company. 37 Sylvia says that he called Willis, on Willis’s cell
    phone, on January 21, 2009 to discuss issues involving workplace rumors about
    whether Sylvia had, as some believed, reported a coworker for sleeping during
    a training class. 38 According to Sylvia, during that conversation, Willis veered
    off topic and lectured Sylvia about his racial heritage (Sylvia has one black
    parent and one white parent), telling him generally that he should not be
    ashamed of his African-American roots, that he should not reject who he is,
    and that he should spend more time with black coworkers. 39
    32  Id. The disciplinary warning states that it is “From: Ed Taylor,” but the document
    is signed by both Taylor and Melancon.
    33 Id. at 3877-78 (Taylor Decl.).
    34 Id. at 3828-29 (Willis Dep.).
    35 Id. at 3837 (Willis Dep.).
    36 Id.
    37 Id. at 479-82 (Sylvia Decl.).
    38 Id.
    39 Id.
    16
    Case: 13-30217       Document: 00512589583           Page: 17   Date Filed: 04/08/2014
    No. 13-30217
    Sylvia says that he was troubled by the conversation, which he
    considered inappropriate “race instruction,” and feared that it may have
    implications for his future employment at Cleco given Willis’s position in the
    human resources department and the influential role Willis played in his
    hiring. 40    Sylvia reported the conversation to Taylor, prompting an
    investigation. 41 The investigation was carried out by Taylor and Melancon,
    who worked together closely. 42 On February 2, 2009, Taylor and Melancon
    summoned Willis into Melancon’s office and confronted him about Sylvia’s
    allegations of an inappropriate phone conversation. 43 At the meeting, Willis
    denied that the alleged call ever happened. 44               The next day, Taylor and
    Melancon met with Sylvia and confirmed that Sylvia’s cell phone showed a
    record of a call between Sylvia’s and Willis’s cell phones on January 21, the
    day the alleged inappropriate conversation occurred. 45                 Willis, however,
    continued to deny that the call ever occurred. 46 Taylor and Melancon decided
    to credit Sylvia’s allegations over Willis’s denials. 47
    On February 4, 2009, Willis was fired purportedly for the inappropriate
    phone conversation and for lying about his involvement in it. 48 Willis says that
    Taylor and Melancon came to his home to deliver the news and that, after
    Melancon told him that he was fired, Melancon said, “Boy, you will keep your
    mouth shut now.” 49
    40 Id.
    41 Id. at 481 (Sylvia Decl.), 456 (Taylor Decl.).
    42 Id. at 457-58 (Taylor Decl.).
    43 Id.
    44 Id.
    45 Id.
    46 Id.
    47 Id. at 458 (Taylor Decl.), 464 (Melancon Decl.).
    48 Id.
    49 Id. at 4186 (Willis Decl.).
    17
    Case: 13-30217       Document: 00512589583         Page: 18     Date Filed: 04/08/2014
    No. 13-30217
    II.
    Under Title VII of the Civil Rights Act of 1964, it is illegal for an
    employer to discharge an employee or otherwise discriminate against him with
    respect to the terms, conditions, or privileges of employment because of race.
    42 U.S.C. § 2000e-2. It is also illegal for an employer to retaliate against an
    employee for objecting to illegal workplace discrimination. Id. § 2000e-3. In
    this lawsuit, Willis claims that Cleco Corporation, through Taylor and
    Melancon, his supervisors in the human resources department, did both.
    The question before the court on summary judgment is whether Willis
    has put forth sufficient evidence to create a genuine dispute as to whether
    Cleco Corporation discriminated against him on the basis of race or retaliated
    against him for objecting to race discrimination at the company. In considering
    the evidence in the record, this court must draw all reasonable inferences in
    favor of Willis, the non-moving party, and may not make credibility
    determinations or weigh the evidence. See Reeves v. Sanderson Plumbing
    Prods., 
    530 U.S. 133
    , 150 (2000).
    Willis’s, Lacour’s, and Ardoin’s testimony, drawing all reasonable
    inferences therefrom, establishes that Willis’s boss, Melancon, often referred
    to African-Americans as “niggers” and “coons.” Willis overheard and reported
    a racist conversation about company hiring policies between Melancon and
    another. Melancon was furious. He told Willis that he would “not forget”
    Willis’s slight. He told Ardoin that he had decided “to terminate that nigger.” 50
    Weeks later, Willis was disciplined for sending an email involving private
    matters of a colleague (Eli’s son’s overdose) that Willis believed he was
    authorized to send. A few months later, Willis was given a poor performance
    50It has been said that, in discrimination cases, “there will seldom be ‘eyewitness’
    testimony as to the employer’s mental processes.” Reeves, 
    530 U.S. at 141
    . This is one of the
    rare cases in which there is “eyewitness” testimony—here, Ardoin’s.
    18
    Case: 13-30217     Document: 00512589583       Page: 19   Date Filed: 04/08/2014
    No. 13-30217
    review because, as Taylor put it, he “caused morale problems” when he
    reported Melancon’s involvement in the racist conversation. Then, about a
    year and a half later, Melancon and Taylor came to Willis’s home, told Willis
    that he was fired for having an inappropriate phone conversation with Sylvia
    and lying about it (which Willis denies), and Melancon added, “Boy, you will
    keep your mouth shut now.” This evidence is, without question, sufficient for
    Willis to satisfy his burden on summary judgment to demonstrate genuine
    issues as to material fact.
    True, when Willis was fired, the termination decision may have been
    based on the combination of both illegitimate considerations (i.e., retaliatory
    or racist ones) and legitimate ones (i.e., the perception, correct or not, that
    Willis was dishonest in the company’s investigation of the alleged
    inappropriate phone conversation he had with Sylvia) together.                This
    possibility of “mixed motives,” however, does not defeat Willis’s claims.
    As for Willis’s retaliation claim, Cleco commits illegal retaliation if the
    termination would not have occurred “but for” Willis’s protected activity. Univ.
    of Tex. Sw. Med. Ctr. v. Nassar, 
    133 S.Ct. 2517
    , 2534 (2013). Again, it is clear
    that there is sufficient evidence to support a reasonable inference that Willis
    would not have been terminated if he had not reported discrimination at the
    company. Although some time had passed between when Willis allegedly
    infuriated Melancon by reporting his conversation about the Grambling
    recruitment trip and when Willis was fired, the jury could reasonably infer
    that Melancon, working with Taylor, had accomplished exactly what Melancon
    promised: “If we have to create a reason,” “we are going to terminate that
    nigger Greg Willis for reporting me.” It is a reasonable inference that, once
    Sylvia complained about Willis’s allegedly inappropriate conduct, Melancon
    and Taylor found their “reason.”
    19
    Case: 13-30217     Document: 00512589583     Page: 20   Date Filed: 04/08/2014
    No. 13-30217
    As for Willis’s race discrimination claim, Cleco commits illegal
    discrimination if race is a “motivating factor” in the termination. 42 U.S.C.
    § 2000e-2(m). Here, it is clear that there is sufficient evidence to find that,
    when Willis’s employment was terminated by Melancon, who allegedly
    referred to Willis as “that nigger,” race was a “motivating factor” in the
    decision.
    The majority faults Willis for not identifying a “similarly situatuated
    comparator,” that is, another Cleco employee “who was treated differently
    [than Willis] under nearly identical circumstances.” Ante, at 9, 10 n.6. The
    majority’s argument is without merit.         Where the evidence is that an
    employee’s boss announces that he has decided to “terminate that nigger,”
    neither the law nor common sense requires the employee to show “similarly
    situated comparators” in order to prove that race was a motivating factor in
    the termination. See, e.g., Brown v. E. Miss. Elec. Power Ass’n, 
    989 F.2d 858
    ,
    861 (5th Cir. 1993) (use of the term “nigger,” a “universally recognized
    opprobrium [that] stigmatiz[es] African-Americans because of their race,” is
    direct evidence of discrimination).
    Summary judgment in favor of Cleco Corporation is inappropriate here.
    I respectfully dissent from the majority’s denial of Willis’s claims of
    discriminatory and retaliatory termination. I concur in allowing Willis’s claim
    regarding the disciplinary warning to go to trial.
    20
    

Document Info

Docket Number: 13-30217

Citation Numbers: 749 F.3d 314, 122 Fair Empl. Prac. Cas. (BNA) 513, 2014 WL 1379103, 2014 U.S. App. LEXIS 6449

Judges: Davis, Garza, Dennis

Filed Date: 4/8/2014

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (18)

Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097 ( 2000 )

University of Tex. Southwestern Medical Center v. Nassar , 133 S. Ct. 2517 ( 2013 )

Henry Brown v. East Mississippi Electric Power Association , 989 F.2d 858 ( 1993 )

DeCorte v. Jordan , 497 F.3d 433 ( 2007 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

McCoy v. City of Shreveport , 492 F.3d 551 ( 2007 )

Nichols v. Enterasys Networks, Inc. , 495 F.3d 185 ( 2007 )

Adams v. Unione Mediterranea Di Sicurta , 364 F.3d 646 ( 2004 )

Ragas v. Tennessee Gas Pipeline Co. , 136 F.3d 455 ( 1998 )

Lee v. Kansas City Southern Railway Co. , 574 F.3d 253 ( 2009 )

Fayette Long Jeanell Reavis v. Eastfield College , 88 F.3d 300 ( 1996 )

United States v. Scroggins , 599 F.3d 433 ( 2010 )

Forsyth v. Barr , 19 F.3d 1527 ( 1994 )

Coggin v. Longview Indep Sch , 337 F.3d 459 ( 2003 )

Laxton v. Gap Inc. , 333 F.3d 572 ( 2003 )

Davis v. Dallas Area Rapid Transit , 383 F.3d 309 ( 2004 )

Mullins v. TestAmerica, Inc. , 564 F.3d 386 ( 2009 )

View All Authorities »