Paulin v. Mayorkas

Case: 22-30285 Document: 00516571321 Page: 1 Date Filed: 12/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 8, 2022
No. 22-30285 Lyle W. Cayce
Clerk
Dirk N. Paulin,
Plaintiff—Appellant,
versus
Alejandro Mayorkas, Secretary, U.S. Department of Homeland
Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-14748
Before Dennis, Elrod, and Ho, Circuit Judges.
Per Curiam:*
In this Title VII retaliation case, Plaintiff Dirk N. Paulin appeals the
grant of summary judgment for Defendant, arguing the district court abused
its discretion in allowing Defendant to file successive summary judgment
motions and erred in finding he could not prove his prima facie case. We
disagree and accordingly affirm.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30285 Document: 00516571321 Page: 2 Date Filed: 12/08/2022
No. 22-30285
I.
From 2006 to 2019, Dirk Paulin worked in the Federal Emergency
Management Agency’s (FEMA) Louisiana office in New Orleans. His
supervisor was Eddie Williams, the Infrastructure Branch Director for the
office. Paulin filed equal employment opportunity complaints in 2009, 2012,
and 2013, and Williams admits he was aware of these complaints. Paulin
litigated his 2013 complaint through June 2017, when the parties reached a
settlement.
FEMA employees like Paulin hold two job titles. One is their hired-in
job title, which determines their grade and pay scales. The other is part of
FEMA’s Qualification System (FQS), an internal system the agency uses to
classify its employees. The FQS title determines “the type of work,
deployments, and supervisory responsibilities [employees] are assigned on a
daily basis.” To be promoted, employees complete a “task book” to qualify
to a new FQS position. Employees are considered qualified in their FQS
position when they complete a task book that corresponds with that position.
A task book consists of pre-defined training, job tasks, and experiences that
must be completed for the employee to advance to the next FQS position and
be eligible for more complex and supervisory deployments. An employee is
promoted upon completion of the relevant task book. Once an employee
becomes qualified for a position after completing the relevant task book, the
employee can then receive a new task book that corresponds with the next
most senior FQS position and can become a candidate or trainee for that
position.
FEMA restructured FQS in 2017 to unify employees’ hired-in title
and FQS title. Each employee received a new FQS title. As part of the
restructuring, FEMA management directed Williams to assign new task
books and titles to employees under his supervision, including Paulin.
2
Case: 22-30285 Document: 00516571321 Page: 3 Date Filed: 12/08/2022
No. 22-30285
Prior to the restructuring, Paulin was qualified for the position of
Public Assistance Coordinator Lead (PAC Lead). And he had an open task
book for the position of Public Assistance Task Force Leader (TFL). As a
qualified PAC Lead, Paulin had project specialists reporting to him, and he
reported to TFLs. In the restructuring, FEMA eliminated the intermediary
PAC position and instead created the Program Delivery Manager (PDMG),
which reports directly to TLFs. Under the new model, Williams assigned
Paulin to the PDMG position as a trainee and opened a PDMG task book
instead of a TFL task book.
Paulin believes this reassignment “constructively demoted” him to a
“non-supervisory position in which he could not even deploy or train in the
supervisory Task Force Leader position.” Paulin also claims Williams
retaliated against him for his prior equal employment opportunity complaints
by not selecting him to deploy to Houston, Texas to assist with recovery
efforts after Hurricane Harvey. Paulin concedes that his FQS title rendered
him ineligible for that deployment, but argues he would have been eligible if
Williams had not failed to open a TFL task book under the new model.
In November 2017, Paulin filed an equal employment opportunity
complaint alleging that Williams retaliated against him by demoting him and
discriminated against him based on sex when Williams selected two women
to deploy to the Hurricane Harvey recovery efforts instead of him. FEMA
opened an investigation into the claims. The following August, FEMA
concluded the investigation and a month later the Department of Homeland
Security’s Office for Civil Rights and Civil Liberties dismissed Paulin’s
complaint. This complaint forms the basis for the instant case, which Paulin
3
Case: 22-30285 Document: 00516571321 Page: 4 Date Filed: 12/08/2022
No. 22-30285
filed in district court in December 2019. 1 After two years of litigation, the
district court granted summary judgment for Defendant.
Paulin was “finally able to voluntarily transfer” from the Louisiana
office to FEMA’s national headquarters in 2019. Paulin maintains that his
“demoted PDMG title has had a cascading effect on his career advancement
at FEMA.” Defendant notes that, since transferring to headquarters and
filing his lawsuit in district court, Paulin filed another complaint against six
of his new supervisors also alleging retaliation.
II.
Paulin now presents two main arguments for why the district court
should be reversed. He first argues that the district court abused its
discretion by allowing Defendant to file successive motions for summary
judgment after altering the scheduling order due to COVID-19. He then
argues the district court misinterpreted the evidence, law, and summary
judgment standard when it held he could not prove his prima facie case.
Upon our review of the record and law, we identify no reversible error in the
district court’s order.
A.
The district court granted Defendant’s request to file successive
motions for summary judgment over Paulin’s objections. Paulin now argues
the district court abused its discretion by permitting Defendant to file
motions for summary judgment after the initial dispositive motion deadline
had passed. He perfunctorily argues that permitting Defendant to file a
“very late” summary judgment motion because of COVID-19 “was highly
prejudicial to Paulin.”
1
Paulin dropped the sex discrimination claim from his district court complaint.
4
Case: 22-30285 Document: 00516571321 Page: 5 Date Filed: 12/08/2022
No. 22-30285
We review district court decisions to extend scheduling order
deadlines for abuse of discretion. See Springboards to Educ., Inc. v. Houston
Indep. School Dist., 912 F.3d 805, 819 (5th Cir. 2019). See also Squyres v. Heico
Cos., LLC, 782 F.3d 224, 236–37 (5th Cir. 2015).
It is well settled that district courts have broad discretion in
controlling their own dockets. Edwards v. Cass Cnty., Tex., 919 F.3d 273, 275
(5th Cir. 1990). And Rule 6(b) grants district courts “broad discretion to
expand filing deadlines.” Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367
(5th Cir. 1995). Paulin does not even attempt to argue any of the four factors
relevant to determining whether there was good cause for the district court
to modify the scheduling order. See Springboards, 912 F.3d at 819.
Accordingly, we hold the district court did not abuse its discretion by
allowing Defendant to file successive motions for summary judgment in light
of the amended scheduling order resulting from COVID-19 delays.
B.
Paulin argues the district court erred in granting summary judgment
by positing various attacks on the district court’s analysis. None succeed.
We review a district court’s ruling on a summary judgment motion de
novo. Correa v. Fischer, 982 F.2d 931, 932 (5th Cir. 1993). Summary
judgment is appropriate 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).
Title VII makes it unlawful for an employer to retaliate against an
employee who “opposed any practice made an unlawful employment
practice by [Title VII], or because he 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 prima facie case
of retaliation, [Paulin] must establish that: (1) he participated in an activity
5
Case: 22-30285 Document: 00516571321 Page: 6 Date Filed: 12/08/2022
No. 22-30285
protected by Title VII; (2) his employer took an adverse employment action
against him; and (3) a causal connection exists between the protected activity
and the adverse employment action.” McCoy v. City of Shreveport, 492 F.3d
551, 556–57 (5th Cir. 2007). The district court found that Paulin failed to
provide sufficient evidence to establish the causal connection element.
“At the prima facie stage, the standard for satisfying the causation
element is much less stringent than a ‘but for’ causation standard.” Ackel v.
Nat’l Commc’n, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (internal quotation
marks omitted). But Paulin “must produce some evidence of a causal link
between the protected activity and the adverse employment action.” Id.There are two ways to establish causation.
One, a plaintiff may satisfy the causation element by relying on the
“close timing between an employee’s protected activity and an adverse
action against him.” Feist v. La. Dep’t of Just., 730 F.3d 450, 454 (5th Cir.
2013) (citation and alterations omitted). In cases where causation is
established through “mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action,” the
“temporal proximity must be very close.” Clark Cnty. Sch. v. Breeden, 532
U.S. 268, 273–74 (2001) (per curiam) (internal quotation marks omitted).
The examination of the “temporal relationship between the employee’s
conduct” and the adverse employment action is “highly fact specific.”
Nowlin v. Resolution Tr. Corp., 33 F.3d 498, 508 (5th Cir. 1994).
Two, absent a sufficiently close temporal proximity, a plaintiff can
establish causation if he presents “other evidence of retaliation.” Feist, 730
F.3d at 454. “Such evidence may include an employment record that does
not support [the adverse employment action], or an employer’s departure
from typical policies and procedures.” Id. at 454–55.
6
Case: 22-30285 Document: 00516571321 Page: 7 Date Filed: 12/08/2022
No. 22-30285
In this case, Paulin attempts to establish the causation element by
arguing that because he litigated his complaint through settlement in June
2017—several months after the restructuring—there was sufficient temporal
proximity between his protected activity and his constructive demotion. But
there are two problems with this theory: First, we do not presume causation
from temporal proximity to long-pending matters. Second, the evidence
Paulin proffers does not establish Williams knew about the settlement.
The Fifth Circuit has previously recognized that “there is nothing
inherently ‘suspicious’ about [an employment action] that occurs at least
several years after protected activity begins” even if the protected activity
is—as here—on-going. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092
(5th Cir. 1995) (holding there is no causation where an employee was
suspended for 13 days after regularly bringing equal employment opportunity
charges from the mid-1980s to 1992). Indeed, in such cases, “one might
argue that the ‘timing’ . . . is evidence against retaliation.” Id. See also Clark
Cnty. Sch. Dist., 532 U.S. at 273 (“[I]f one presumes [the employer] knew
about [the right-to-sue letter], one must also presume that she (or her
predecessor) knew almost two years earlier about the protected action (filing
of the EEOC complaint) that the letter supposedly disclosed. . . . Action taken
(as here) 20 months later suggests, by itself, no causality at all.”). That is
especially true when there is an intervening positive employment action
between the protected activity and the alleged retaliation. See Raggs v. Miss.
Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (“The seven-year time
lapse between [the plaintiff’s] claim and his 1996 layoff, and the intervening
positive evaluation by [his supervisor], undermine any causal connection
between those two events.”). And here there is evidence that Williams
allowed Paulin to serve in an acting supervisory position in 2015.
7
Case: 22-30285 Document: 00516571321 Page: 8 Date Filed: 12/08/2022
No. 22-30285
And in any event, though it is undisputed that Williams knew of the
complaints, Paulin failed to present evidence Williams was aware of the then-
forthcoming settlement.
Paulin tried to proffer untimely-produced emails regarding the
settlement agreement to establish temporal proximity. The district court,
however, disregarded these emails under Federal Rule of Civil Procedure 37
because they were not timely produced even though they fell squarely within
the scope of Defendant’s discovery requests. As the district court correctly
noted, “[i]f a party fails to provide information or identify a witness as
required by [Rule 26], the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Simply put, Paulin cannot rely on evidence he inappropriately failed to
provide to Defendant to establish causation—an essential element of his
claim. Cf. CQ, Inc. v. TXU Min. Co., LP, 565 F.3d 268, 280 (5th Cir. 2009)
(noting that at an “advanced stage of the litigation” like summary judgment,
“permitting . . . new evidence would not have been harmless”).
The evidence in this case does not permit us to infer causation from
mere temporal proximity. The evidence before the district court at summary
judgment suggests that Williams knew of Paulin’s complaints for years and
not only did not retaliate despite being Paulin’s supervisor the entire time,
but actually provided Paulin positive employment opportunities.
Nor is there other sufficient evidence of retaliation. Paulin attempts
to argue that there was sufficient evidence before the district court to find
causation absent temporal proximity. But his evidence is little more than his
own interpretation of how the FQS system should work and his contention
that he believes he should have received a higher title after the restructuring.
He also points to Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992),
8
Case: 22-30285 Document: 00516571321 Page: 9 Date Filed: 12/08/2022
No. 22-30285
a case where this circuit held there was causation despite the 14-month gap
between the protected activity and the alleged retaliation because there was
other evidence of retaliatory motive. In that case, there was evidence that the
supervisor consistently harassed the employee over her equal employment
opportunity complaint during its pendency and that—after nine years
without any issues—her employer complained of problems with her work
after she filed the complaint. Id. Here there was no such evidence. Paulin
just assumed (rather than provided evidence) that Williams had a retaliatory
motive for his reclassification, even though there was deposition testimony
from Williams explaining his process for reclassifying Paulin and other
employees as well as testimony from another supervisor corroborating
Williams’s explanation. And although Paulin provided deposition testimony
from a prior supervisor—one that had not supervised Paulin since 2009 and
was not involved in restructuring assignment decisions—who believed
Paulin could have been given a higher position, that evidence did not create
any dispute as to whether Williams properly exercised his discretion in
assigning Paulin. That testimony merely represented a difference in opinion
and does not support an inference of retaliation. Cf. Vance v. N. Panola Sch.
Dist., 189 F.3d 470, 470 (5th Cir. 1999) (per curium) (unpublished) (noting
that an affidavit speculating about the reason the plaintiff was fired from
someone “not involved in the decision” “simply has no bearing on the
plaintiff’s termination”).
Paulin next attacks the summary judgment order by arguing the
district court erred in failing to consider two of his arguments. Not so.
First, he claims the district court improperly discounted his
argument that Williams had no legitimate non-discriminatory reason for
closing Paulin’s prior TLF task book. Second, he claims that the district
court erred in failing to consider two comparators he proffered. But Paulin
did not adequately present either argument before the district court. And so,
9
Case: 22-30285 Document: 00516571321 Page: 10 Date Filed: 12/08/2022
No. 22-30285
both arguments are forfeited on appeal. See Singleton v. Wulff, 428 U.S. 106,
120 (1976) (“[A] federal appellate court does not consider an issue not passed
upon below.”).
In his reply brief, Paulin points to various portions of the record he
says show he thoroughly presented these arguments to the district court.
Having reviewed these citations, we disagree. It is true that Paulin
occasionally refers to the closure of his prior task book when discussing the
facts of the case, but he did not explicitly argue the closure showed Williams
lacked a legitimate non-discriminatory reason for assigning Paulin as he did.
Similarly, it is true that in his response to the motion for summary judgment
Paulin mentions—for the first time—two employees he believes were treated
more favorably than him. But to argue that these individuals are
comparators, Paulin would have needed to argue that they were similarly
situated to him—something he did not do at the district court. See Lee v.
Kan. City S. Ry. Co., 574 F.3d 253, 261 (5th Cir. 2009) (noting that, when
trying to establish a prima facie case by pointing to comparators, the plaintiff
bears an “initial burden” to show “he had been treated disparately from any
other similarly situated” employee). For an argument to be preserved for
appeal, it “must be raised to such a degree that the trial court may rule on
it,” something that did not happen here. Ray v. Comm’r of Internal Revenue,
13 F.4th 467, 476 (5th Cir. 2021) (quotation omitted). See also Matter of
Fairchild Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993) (“[T]o be
preserved, an argument must be pressed, and not merely intimated.”)
(quotation omitted).
***
Having identified no reversible error in the district court’s grant of
summary judgment, we affirm.
10