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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
CASE NO. 11-60026
DELOIS EVERETT
PLAINTIFF/APPELLANT
VERSUS
CENTRAL MISSISSIPPI, INC., HEAD START PROGRAM,
DEFENDANT/APPELLEE.
BRIEF OF APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
Michael P. Mills, United States District Court Judge
JOSEPH R. MURRAY, II W. BRENT MCBRIDE
MISSISSIPPI BAR NO. 101802 MISSISSIPPI BAR NO. 101442
Harrison Law Office, PLLC. McBride Law Firm, LLC.
114 East Jefferson Street P.O Box 84
Ripley, MS 38663 Tupelo, MS 38802
TELEPHONE: (662) 837-6193 TELEPHONE: (662) 397-9028
FACSIMILE: (662) 837-7535 FACSIMILE: (662) 257-0809
EMAIL: EMAIL: [email protected]
Attorneys for Appellant
i
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
CASE NO. 11-60026
DELOIS EVERETT
PLAINTIFF/APPELLANT
VERSUS
CENTRAL MISSISSIPPI, INC., HEAD START PROGRAM,
DEFENDANT/APPELLEE.
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsels of record for Plaintiff/Appellant certify that the
following listed persons have an interest in the outcome of this case. These
representations are made in order that the Judges of this Circuit may evaluate
possible disqualifications or recusal pursuant to Rule 13.6.1 of the United States
Court of Appeals for the Fifth Circuit.
1. Delois Everett, Appellant;
2. Joseph R. Murray, II, Counsel for Appellant;
3. W. Brent McBride, Counsel for Appellant;
4. Harrison Law Office, PLLC., Counsel for Appellant;
5. McBride Law Firm, Counsel for Appellant;
6. Central Mississippi, Inc. Head Start Program, Appellee;
ii
7. Tony Gaylor, Counsel for Appellee;
14. Gaylor & Chambers, PLLC, Counsel for Appellees.
s/ Joseph R. Murray, II
JOSEPH R. MURRAY, II
iii
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Cir. R. 28.2.3, Plaintiff-Appellant Delos Everett requests oral
argument. The question presented by this appeal – whether or not the “mixed
motive” analysis applies to the stand alone Title VII claim of retaliation – could
alter how employment discrimination cases are litigated in this Circuit. In light of
the importance and novelty of the issues, and the fundamental rights at stake, this
appeal is deserving of an oral explication of the argument.
iv
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ………………………...………i
STATEMENT REGARDING ORAL ARGUMENT ……………….………......iii
TABLE OF CONTENTS …………………………………………..………….. iv
TABLE OF AUTHORITIES …………………………………………..…….… vi
STATEMENT OF JURISDICTION ………………………………………….. xii
STATEMENT OF THE ISSUES ……………………………………………… xiii
STATEMENT OF THE CASE ………………………………………...………… 1
STATEMENT OF THE FACTS ……………..………………………………...… 4
STANDARD OF REVIEW …………………………………………...………… 11
SUMMARY OF THE ARGUMENT …………………………………………… 12
ARGUMENT ………………………………………………….………………… 14
I. THE DISTRICT COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGEMNT BECAUSE IT INCORRECTLY
REVIEWED THE CASE UNDER THE RETALIATION PROVISION OF
THE AGE DISCRIMINATION IN EMPLOYMENT ACT ……...……… 14
A. Everett’s Retaliation Claim was Brought Pursuant to Title VII .…15
B. Scope of Title VII’s Anti-Retaliation Provision.………….….……19
C. Everett Established a Prima Facie Case of Retaliation………...….. 21
D. Head Start’s Legitimate, Non-Discriminatory Reason for
Everett’s Termination……………………………………………… 32
E. Everett Demonstrated Pretext or, in the Alternative, Showed
her Protected Conduct was a “Motivating” Factor in her
v
Termination…………………………………………….………… 32
1. Pretext Analysis………………….…………….………….. 34
2. Mixed-Motive Analysis……………………..…………….. 38
II. THE DISTRICT COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGMENT BECAUSE EVERETT
PRESENTED SUFFICIENT EVIDENCE TO INFER SHE WOULD NOT
HAVE BEEN TERMINATED BUT FOR HER DECISION TO ENGAGE
IN PROTECTED ACTIVITY…………………………………………….40
A. Everett’s Prima Facie Case…………………………..…………… 41
B. Head Start’s Legitimate, Non-Discriminatory Reason………...……43
C. Pretext and the “But For” Standard………………………….………43
III. PRO SE LITIGANTS ARE CUSTOMARILY HELD TO A LESSER
STANDARD THAN MEMBERS OF THE BAR, BUT THE DISTRICT
COURT FAILED TO GIVE PLAINTIFF THE BENEFIT OF ANY SUCH
INFERENCES………………………………………………...……………50
CONCLUSION ………………………………………………….……………… 52
CERTIFICATE OF SERVICE …………………………………………………. 53
CERTIFICATE OF COMPLIANCE……………………………………………. 54
vi
TABLE OF AUTHORITIES
FEDERAL CASES:
Adar v. Smith,
597 F.3d 697 (5th Cir. 2010)……………………………………….…………….. 12
Amburgey v. Corhart Refractories Corp., Inc.,
936 F. 2d 805 (5th Cir. 1991)…………………………………………………..….12
Armstrong v. City of Dallas,
997 F.2d 62 (5th Cir. 1993)…………………………………………….………… 22
Barksdale v. King,
699 F.2d 744 (5th Cir. 1983)………………………………………….………….. 51
Burlington N & S.F.R. Co. v. White,
548 U.S. 53 (2006)…………………………………………………………... 20, 21
Celotex Corp. v. Catrett,
477 U.S. 317 (1986)……………………………………………………………....11
Clark Co. Sch. Dist. v. Breeden,
532 U.S. 268 (2001)………………………………………………………………31
Cox v. Desoto Co., Miss.,
10-60405 (N.D.Miss., Jan. 13, 2011)……………………………………………. 40
Davis v. Chevron U.S.A. Inc.,
14 F.3d 1082 (5th Cir. 1994)…………………………….……………………..….12
Denesha v. Famrers Ins. Exchnage,
161 F. 3d 491 (8th Cir. 1998)…………………………………………………….. 23
De Anda v. St. Joseph Hosp.,
671 F.2d 850 (5th Cir. 1982)…………………………………………….………. 44
Deville v. Marcantel,
567 F.3d 156 (5th Cir. 2009)……………………………………………….….. 12
vii
Dominguez-Cruz v. Suttle Caribe, Inc.,
202 F.3d 424 (1st Cir. 2000)……………………………………….……………. 35
EEOC v. Ethan Allan, Inc.,
44 F3d. 116 (2nd Cir. 1994)………………………………………….…………. 35
EEOC v. Sears Roebuck & Co.,
243 F.3d 846 (4th Cir. 2001)………………………….…………………….…… 35
Elmore v. McCammon,
640 F.Supp. 905 (S.D. Tex. 1986)……………………………………….…… 50
Evans v. City of Bishop,
238 F.3d 586 (5th Cir. 2000)…………………………….………………..……. 37
Fisher v. Procter & Gamble Mfg. Co.,
613 F.2d 527 (5th Cir. 1980)…………………………………………………….. 23
Gee v. Principi,
289 F.3d 342 (5th Cir. 2002)………………………………..……………… 35, 37
Grant v. Cuellar,
59 F.3d 523 (5th Cir. 1995)………………………………..……………………. 51
Green v. McKaskle,
788 F.2d 116 (5th Cir. 1986)…………………………………………….……… 51
Gross v. FBL Financial Services Inc.,
129 S.Ct. 2343 (2009)…………………………………….…………. 12-13, 40, 41
Haines v. Kerner,
404 U.S. 519 (1972)………………………………………………..……………. 51
Hockman v. Westward Commc’ns, LLC,
407 F. 3d 317 (5th Cir. 2004) …………………………………..……………. 14, 40
Hopper v. Frank,
16 F.3d 92 (5th Cir. 1994)……………………………………………………...… 12
viii
Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986)………………………………..……………………………11
Jack v. Texaco Research Center,
743 F.2d 1129 (5th Cir. 1984)……………………...……………..………….. 43, 44
Jenkins v. Orkin Exterminating Co., Inc.,
646 F.Supp. 1274 (E.D. Tex. 1986)…………………..………………………….. 45
Johnson v. United Furniture Industries, Inc.,
No. 105-cv-317 (2007), WL 1501032…………………………………………. 19
Laxton v. GAP, Inc.,
333 F.3d 572 (5th Cir. 2003)……………………………………………………. 34
Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir. 1994)………………………………………………….…. 11
Long v . Eastfield Coll.,
88 F.3d 300 (5th Cir. 1986)………………………………….………. 21, 43, 44, 45
Lujan v. National Wildlife Federation
497 U.S. 871 (1990)…………………………………………..……………. 11, 12
McDonnell Douglas v. Green,
411 U.S. 792 (1973)……………………………….………………………… 23, 40
McMillam v. Rust College, Inc.,
710 F.2d 1112 (5th Cir. 1983)……………………………………….…………. 44
Medina v. Ramsey Steel Co.,
132 F.3d 674 (5th Cir. 2001)……………………………….…………….44, 48, 49
Merritt-Campbell, Inc., v. RxP Products, Inc.,
164 F.3d 957(5th Cir. 1999)……………………………………………………….11
Mora v. Jackson Memorial Foundation, Inc.,
597 F.3d 1201 (11th Cir. 2010)………………………………..………… 17, 18, 32
ix
Murray v. Educational Testing Service,
170 F.3d 514 (5th Cir. 1999)…………………………………………………...….11
National Railraod Passenger Corporation v. Morgan,
536 U.S. 101 (2002)……………………………………..………………………. 23
Nowlin v. Resolution Trust Corporation,
33 F.3d 498 (5th Cir. 1994)……………………………………………..………. 45
Patterson v. Patterson,
767 F.2d 916 (5th Cir. 1985)………………………….……………………. 50, 51
Pineda v. United Parcel Service, Inc.,
360 F. 3d 483 (5th Cir. 2004)……………………………………………….. 14, 40
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ……………………………………………………………. 17
Rachid v. Jack in the Box, Inc.,
376 F.3d 305 (5th Cir. 2004)…………………………………………………… 19
Raggs v. Mississippi Power & Light, Co.,
278 F.3d 463 (5th Cir. 2002)……………………………………….…………… 22
Rath v. Selection Research Inc.,
978 F.2d 1087 (8th Cir. 1992)……………………………………..……………. 22
Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000)……………………………………………………..34, 35, 37
Russell v. McKinney Hosp. Vent.,
235 F. 3d 219 (5th. Cir. 2000)……………………………..…………………….. 37
Septimus v. Univ. of Houston,
339 F.3d 601 (5th Cir. 2005)…………………………………………………….. 14
Sherrod v. American Airlines,
132 F.3d. 1112, 1122 (5th Cir. 1998)……….………………………….. 22, 40, 44
x
Shirley v. Chrysler First, Inc.,
970 F.2d 39 (5th Cir, 1992)………………………………………… 45, 46, 48, 49
Small v. Mass. Inst. Tech.,
584 F. Supp.2d 284 (D.Mss. 2008)………………………………………………. 24
Smith v. Xerox Corp.,
602 F.3d 320 (5th Cir. 2010)…………………………...…….. 12, 15, 17, 33, 38, 41
St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993)…………………………………………………………. 34, 36
Stewart v. Rutgers,
120 F.3d 426 (3rd. Cir. 1997)………………………….……………………….. 24
Strong v. University HealthCare System, LLC.,
482 F.3d 802 (5th Cir. 2007)……………………………………….……..44, 45, 46
Swanson v. General Services Admin.,
110 F.3d 1180 (5th Cir. 1997)………………………………………………. 22, 31
Thompson v. North American Stainless, LP,
No. 09-291 (J.Scalia January 24, 2011)……………………….…………….. 19, 42
Thornbrough v. Columbus-Greenville RR Co.,
760 F.2d 633 (5th Cir. 1985)………………………………………………..……..12
Turner v. Baylor Richardson Medical Ctr.,
476 F.3d 337 (5th Cir. 2007)……………………………………...……………….12
United Air Lines, Inc. v. Evans,
431 U.S. 553 (1977)…………………………………………………………….. 23
Wallace v. Methodist Hosp. Sys.,
271 F.3d 212 (5th Cir. 2001)…………………………………………………… 34
Warren v. Terex Corp.,
328 F.Supp.2d 641 (N.D. Miss. 2004)…………………………..…………… 38
xi
Wright v. West,
505 U.S. 277 (1992)…………………………………………………….…….. 36
Yearby v. Univ. of Houston,
230 F.Supp.2d 753 (S.D. Tex. 2002)………………………………………. 21, 22
Zaccagini v. Chas. Levy Circulating Co.,
338 F,3d 672 (7th Cir. 2003)……………………………….………………..…… 36
OTHER CITATIONS:
28 U.S.C. 1291……………………………………………….…………………. vii
28 U.S.C, 1331 ………………………………………………..……………….. vii
28 U.S.C. 1334 ………………………………………………..………………. vii
29 U.S.C. 623(d) …………………………………………………….………… 16
42 U.S.C. 2000, et. Seq………………………………………………….. vii, 16, 20
FRAP (4)(a)(1)……………………………………………………………….…. vii
FRAP 26 (a)……………………………………………………………..……….. vii
FRCP 4 (m)……………………………………………………………………….. 2
xii
STATEMENT OF JURISDICTION
Everett sued Head Start in district court to recover damages for an unlawful
termination of employment (pursuant to Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, cited as 42 U.S.C. § 2000, et. seq.).
Everett filed two lawsuits against Appellee. The first lawsuit, filed March 24,
2008, alleged age discrimination and retaliation. This lawsuit was dismissed after
the district court granted summary judgment in September 30, 2010. The second
lawsuit alleged the stand-alone claim of retaliation brought pursuant to Title VII
(Head Start had increased its harassment of Everett after she made her first filings
with the Equal Employment Opportunity Commission) and was filed on January
13, 2010. This is the lawsuit that is the subject of Everett’s appeal. The district
court’s federal question jurisdiction arose under 28 U.S.C. §§ 1331 and 1334.
Jurisdiction in this Court arises under 28 U.S.C. § 1291, as this appeal stems from
a final judgment issued by a District Court. The district court entered its order on
December 2, 2010. From this order, Plaintiffs filed a timely notice of appeal on
December 23, 2010, in accordance with Rule 4(a)(1) of the Federal Rules of
Appellate Procedure §§ 4(a)(1) and 26(a).
xiii
STATEMENT OF THE ISSUES
1. Whether Everett’s second allegation of retaliation was purely based upon
the ADEA or Title VII.
2. Whether the district court committed reversible error when it applied the
incorrect standard in dismissing Everett’s claim of retaliation.
3. Whether a claimant alleging a retaliatory discharge pursuant to Title VII
must show actual discrimination on top of retaliatory action stemming from
protected activities.
4. Whether a subsequent claim for retaliation is automatically linked to a
previous filed claim of age discrimination.
5. Whether retaliation is a stand-alone claim under Title VII’s statutory
framework.
6. Whether Everett established a causal link between her protected activity and
the adverse employment action she suffered.
7. Whether alleging a Title VII claim in a federal lawsuit, regardless of
procedural implications surrounding the claim, constitutes protected activity
under Title VII.
8. Whether the “mixed-motive” analysis in applicable in a case in which the
Plaintiff-Appellant alleged protected activated under both Title VII and the
ADEA.
9. Whether Everett presented evidence sufficient to raise the inference her
protected activity was the “but-for” cause of the adverse employment action
she suffered.
1
STATEMENT OF THE CASE
On January 15, 2010, Delois Everett (hereinafter “Everett” or “Appellant”),
filed a complaint against Central Mississippi, Inc. Head Start Program (hereinafter
“Head Start”) to recover damages for the unlawful retaliation she suffered when
she engaged in activities protected by Title VII. R., pp. 14-20.1 This complaint was
filed after Everett received a Right to Sue letter from the Equal Employment
Opportunity Commission (hereinafter “EEOC”) stemming from her January 26,
2009 charge of discrimination. R., p. 22. This, however, was not the first complaint
Everett had filed against Head Start.
Everett previously filed a charge of discrimination alleging age
discrimination against Head Start on November 2, 2007. R., pp. 26-31. Upon
receiving her right to sue letter from the EEOC, Everett filed a complaint against
Head Start alleging violation of both Title VII and the ADEA on March 24, 2008.
Id. When Everett filed her 2010 lawsuit, the subject of this appeal, the lower court,
sua sponte, consolidated the cases. Id. On September 30, 2010, the district court
granted Head Start’s motion for summary judgment dismissing the 2008
complaint. R., p. 144. Due to an error of the Court, Everett’s 2010 complaint was
1 Citations to the record on appeal are designated as “R.”
2
not subject to the Head Start’s summary judgment motion and remained
undisturbed by the district court’s September 2010 ruling. R., pp. 149-151; .2
Head Start had missed its deadline to file a dispositive motion concerning
Everett’s 2010 complaint but, nonetheless, filed a motion two months later to
dismiss Everett’s 2010 complaint on the grounds she failed to timely serve the
complaint. R., p. 123. Everett immediately responded with a motion for an
extension of time to serve the 2010 complaint. R., p. 132. U.S. Magistrate Judge
Alexander, understanding Head Start was represented by counsel and Everett was
not, granted Everett’s motion on October 13, 2010. R., p. 149. Head Start filed a
2 The record is unusually unclear in this case. As stated infra., Everett filed two lawsuits against Head Start: one in 2008 and one in 2010. The 2008 complaint alleged Title VII and ADEA claims and the 2010 complaint alleged continued retaliation brought on by Everett’s decision to engage in activities protected by Title VII. R., pp. 14-20. The Court set the discovery deadline to end on May 15, 2010, and the motions deadline was May 28, 2010. R., p. 26-31. More than two months after the motions deadline, Head Start filed a motion to dismiss on grounds it was not served with the complaint within the time allotted by federal rules. Id. At the time Head Start filed its motion to dismiss the 2010 complaint, Everett, still acting as a pro se litigant, moved for an extension of time to serve the 2010 complaint. R., pp. 132-33; 149-51. U.S. Magistrate Judge S. Allan Alexander granted Everett’s motion for time to serve the complaint on October 13, 2010. R., pp. 149-51. Chief Judge Michael Mills, however, had previously granted summary judgment on the 2008 case on September 30, 2010. R., p. 144. Because the 2010 complaint was not properly served at the time the district court entered its September 30, 2010, summary judgment ruling, it could not, procedurally, be dismissed by the ruling. R., pp. 144-45, 185.
Unfortunately, there was an error by the district court clerk that prevented Everett’s 2010 complaint from being properly served, but this error was caused by Everett. R., p.149-51; 184-86. As explained by U.S. Magistrate Judge S. Allan Alexander in granting Everett time to serve the 2010 complaint explained, “The fault for failure of service in this case actually falls at the feet of the court – not the plaintiff.” R., p. 151. Citing FRCP 4 (m), Judge Alexander explained there was good cause to permit Everett to file her complaint. Specifically, she reasoned, this is a pro se action being prosecuted by plaintiff in forma pauperis. Id. As such, the court should have directed at the time it entered its order consolidating the cases that process be served by the United States Marshal Service as is the procedure in all IFP cases. Id. Because this omission was that of the court’s, it would be patently unfair to hold plaintiff to account for an error not of her own making.” Id. It was for this reason Everett’s 2010 complaint remained viable ever after the 2008 complaint was dismissed.
3
motion for reconsideration, erroneously claiming the 2010 complaint was
dismissed when District Court Judge Michael Mills granted summary judgment on
the 2008 case on September 30, 2010. R., p. 153. Judge Alexander denied this
motion on November 9, 2010, expressly rejecting Head Start’s claim the 2010 case
was dismissed when Judge Mills granted summary judgment on the 2008 case. R.,
pp. 184-85. Prior to Judge Alexander’s November 9th decision, Head Started filed a
motion for leave to file a summary judgment motion in the 2010 case. R., p. 157.
After Judge Alexander denied its motion for reconsideration and before
Judge Mills granted leave to file its summary judgment motion, Head Start began
to file, on multiple occasions, motions for summary judgment. R., pp. 186, 408.
Everett, still acting as a pro se litigant, filed a motion to strike Head Start’s
summary judgment because it was filed before the district court granted leave. R.,
p. 625. On November 29, 2010, the district court granted Head Start’s motion for
leave to file its summary judgment motion pertaining to the 2010 case, but then, in
a remarkable turn, gave Everett, then a pro se litigant, two (2) days to file a
response. R., p. 629. The district court granted summary judgment on December 2,
2010. R., p. 689.
Everett filed a timely notice of appeal on December 23, 2010. R., p. 695.
Everett was a pro se litigant until November 30, 2010; just two days before the
district court dismissed her 2010 complaint. R., pp. 631-634.
4
STATEMENT OF FACTS
Everett started her employment with Defendant on or about September 10,
2004. R., pp. 638-45. Everett was hired as a Family Service specialist; a position
she held until she was relieved from her job duties on or about June 25, 2009. R.,
p. 646.
For the first three (3) years of her employment things went smoothly and
Everett excelled in her position. R., pp. 319-21, 638-642. Plaintiff received
numerous favorable reviews, as well as pay raises. R., p. 644-50. This, however,
changed in May 2007 when Everett’s regular manager resigned. R., p. 319-21
Calvin Neely (hereinafter “Neely”), Defendant’s Director, appointed Beverley
Forrest-Butts (hereinafter “Butts”) to the post. R. pp. 313, 319-23, 638-45. No
sooner had Butts assumed her post, Everett was charged with two infractions –
insubordination and disrespectful to a supervisor. R., pp. 364-67. This was on June
22, 2007, and Defendant, by way of the infractions, took five (5) days pay during
this period and reneged on Everett’s previously approved vacation days. Id. Everett
had never received such infractions prior to Butts becoming the new manager. R.,
pp. 319-21, 638-42, 644-50. This was one of the incidents that led to Everett’s
initial charge of discrimination to the EEOC.3
3 The other incidents also involved Butts. As described infra., Everett made complaints against Butts prior to Butts giving Everett her first reprimand in three (3) years.
5
Everett’s employment situation further deteriorated in November 2007. R.,
pp. 326, 638-45. On or about November 2, 2007 Everett filed her first charge of
discrimination with the Equal Employment Opportunity Commission (hereinafter
“EEOC”) alleging age, as well as other forms of discrimination. R., p. 657. This
charge was the result of a suspension in which Head Start punished Everett for
doing her job. R., pp. 371, 638-45.
A parent of a Head Start student was upset about treatment she received at
the hand of a case worker, Josephine Bailey. R., p. 316-17, 638-45. After the
parent made a complaint, Everett, pursuant to her job duties, intervened and
notified Butts. Id. Everett continued to investigate the claim, while keeping Butts
updated. Id. Head Start, however, began to target the complaining parent. Id. While
Head Start targeted the parent and questioned the parent’s complaint, Everett
continued to do her job and resolved the issue to the parent’s satisfaction. Id. Butts
was upset Everett performed her job duties and informed her Neely was also upset.
Id. This, in turn, led to her suspension. Everett attempted to appeal to the Board
about this suspension, but she was denied access and appeal rights. R., pp. 316-17,
320-22, 638-42. She was not permitted to challenge this action. Id. Everett did not
return to work until January 22, 2008. Id.
Butts took issue with Everett. Id. Specifically, Butts and Neely were upset
Everett had complained about Butts’ “appointment” as Everett’s supervisor and
6
Everett’s 2007 EEOC claim. R., pp. 313, 319-20, 638-45. After Everett’s
supervisor, Janet Stewart, stepped down, Neely appointed Butts’ to temporarily
assist Everett. Id. Butts was younger than Everett. R., p. 314. The temporary
replacement, however, became permanent. R., pp. 313-14. Because of this, Everett
was never given the opportunity to apply for the position. Id.
This was no uncommon. In her five (5) year tenure with Head Start Everett
discovered older employees were sent to the back of the buffet line. She had noted
Head Start supervisors treated older employees, such as Carolyn Lattimore,
different from younger employees. R., p. 315. More astonishing, Everett
complained to Tela Collins (hereinafter “Collins”), Head Start’s then executive
director, about the age discrimination and Collins instructed her to just “sweep it
under the rug.” R., p. 313. This was one of numerous complaints made by Everett
prior to her first 2007 EEOC complaint. R., p. 326. This, however, is just the tip of
the retaliatory ice berg.
In 2007, while Everett was riding in a company vehicle with Butts and
Lucile Meeky (hereinafter “Meeky”), Butts continually referred to Everett as a
“dumb lawyer.” R., pp. 322-23. When Everett asked why Butts kept calling her
this name, Butts never answered and merely repeated that Everett was a “dumb
lawyer.” R., pp. 322-23, 638-42. Meeky interjected and said if Everett went to
school she would be a good lawyer. Id. Butts, however, did not stop there. Butts
7
then stated she hoped when Everett died that nobody would attend her funeral. Id.
When Everett returned to Central Mississippi she detailed this incident in a letter to
Collins. Id. Collins stated the incident was a “light-hearted discussion” among co-
workers. R., pp. 638-42, 658. And while Collins also concluded it was
inappropriate, Butts was never suspended for her actions. Id. All of these events
compelled Everett to file the 2007 EEOC charge.
In March 2008 Everett, acting as a pro se litigant, filed a federal lawsuit
naming, among others, Head Start as a defendant. In her lawsuit, Everett alleged
Central Mississippi’s continual harassment and discrimination violated the ADEA
and Title VII. After this lawsuit was filed, Central Mississippi stepped up the
retaliation Everett had to endure.
On October 2, 2008 Butts ordered a secretary to enter Everett’s office and
move her belongings. R., pp. 384, 638-45. She further ordered the secretary to
place approximately thirty (30) three-ring binders in Everett’s office. Id. To place
these binders, the secretary moved Everett’s personal belongings. Id. This struck
Everett as odd because she had plenty of storage space on bookshelves in her
office. Id. Upset her personal belongings were moved, Everett relocated the
binders. Id. Butts wrote Everett a letter stating moving the binders, which were in
Everett’s office, was insubordination. Id. Ironically, Butts chastised Everett for not
8
placing the binders on the bookshelves; the very bookshelves where the binder
could have been placed in the first place. Id.
On or about October 15, 2008, Butts ordered that Everett’s office be
changed. R., pp. 385, 638-42. She wanted to relocate Everett to a smaller, dingier
office. Id. Everett stated she was happy in her current office, but Butts declared this
was insubordination. Id. Collins intervened on Everett’s behalf to stop the office
move. Id. Collins, however, left Defendant’s employ and Butts instructed Everett
that if she did not move offices she would be suspended. Id.
On or about January 7, 2009, Vanessa Topps (hereinafter “Topps), Everett’s
new immediate supervisor, accused her of absenteeism. R., pp. 638-42. This was
unfortunate because the reason for Everett’s absenteeism was her sister’s illness.
Id. Everett’s sister was dying of cancer and the hospice nurse was running a few
minutes late. Id. Everett could not leave her sister until her mother arrived, thus
making her a few minutes late. Id. Everett had anticipated submitting Family
Medical Leave Act papers, but her sister passed before she could do so. Id. Everett
had explained this situation to Topps. Id.
Topps also accused Everett of not doing her job during this time frame. Id.
Everett was assigned a task of assessing parent behavior. Id. While this task
included pulling files, it also included observing actual behavior. Id. Everett was
9
told she could observe behavior in lieu of pulling every file folder, but when she
did just that, Topps reprimanded her. Id.
On or about June 7, 2009, Defendant accused Everett of leaving work
without permission. Id. This was not true, as Everett had notified Topps of her
departure. Topps, however, was in a meeting with Neely, so Everett texted Topps
and called her cell phone. Id. Everett also notified Topp’s secretary, Michelle
Richardson, and notified Human Resources. Id. In reprimanding Everett, Topps
stated she had previously warned her about such behavior, but this was not true. Id.
On or about June 12, 2009, Everett was reprimanded concerning an
unexcused absence. R., pp. 638-44. The facts, however, show the absence was
excused. Everett had a medical emergency and contacted Topps. Id. Topps told
Everett to go to the doctor and she did just that. Id. Everett had an adverse reaction
to the medicine, which delayed her return, and was told, after permission was
granted, such an absence was not excused. Id.
On or about June 22, 2009, Everett was reprimanded for not visiting a head
start center. Id. The facts, however, show this was not the case. Everett had
suffered automobile damage and was in need of a mechanic. Id. Topps was aware
of this, as Everett had to leave her car parked in Topp’s personal driveway. Id.
Topps had told Everett to remove the car on that day. Id. Everett told her she was
supposed to be visiting a head start center and Topps told her to first remove the
10
car and then go to the center. Id. Everett followed her instructions. Butts, however,
said plaintiff was insubordinate because she did not visit the center first. Id.
The situation was so bad Defendant actually had employees monitoring
Everett’s movements. R., p. 663. In addition, Everett, after filing her 2007 EEOC
charge, was excluded from administrative meetings and her supervisors withheld
information. R., pp. 328-29. This situation caused Everett to seek professional
counseling. R., pp. 325-326. More importantly, it caused others at Head Start to be
fearful of complaining about discrimination. R., p. 325.
Because of this harassment, Everett had filed a second charge of
discrimination with the EEOC in January 2009. R., p. 24. Everett claimed that her
decision to file her initial EEOC charge, coupled with the filing of her March 2008
federal lawsuit and continued gender discrimination, placed a bull’s eye on her
back. Id. Everett received a right to sue letter on her second EEOC charge and filed
a second lawsuit against Head Start in January 2010. R., pp. 14-20, 23. This
complaint – the complaint that is the subject of this appeal – clearly states that her
claim of retaliation was rooted in Title VII. Id.
No other employees who filed charges of discrimination with the EEOC
during the time period in question were treated like Everett. R., pp. 638-45. No
other employees were reprimanded or suspended after they filed EEOC charges or
made complaints. Id. Head Start’s unwillingness to suspend others was evident
11
when they did not suspend Butts for calling Everett a “dumb lawyer” or when she
said she hoped nobody came to Everett’s funeral. R., p. 658.
STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo, applying the
same standards as a district court. Murray v. Educational Testing Service, 170 F.3d
514, 516 (5th Cir. 1999)(Citing Merritt-Campbell, Inc., v. RxP Products, Inc., 164
F.3d 957, 961 (5th Cir. 1999)).
The party moving for summary judgment must “demonstrate the absence of
a genuine issue of material fact,” but it need not negate all the elements of the non-
movant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Lujan v.
National Wildlife Federation, 497 U.S. 871, 885-86 (1990). As explained by this
Circuit:
If the moving party fails to meet this initial burden, the
motion must be denied, regardless of the nonmovant's
response. If the movant does, however, meet this burden,
the nonmovant must go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial.
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Celotex, 477 U.S. at
325).
In order to present a dispute of materials facts, the non-movant cannot rely
upon “some metaphysical doubt as to the material facts,” Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), by “conclusory
12
allegations,” Lujan, 497 U.S. at 871-73, by “unsubstantiated assertions,” Hopper v.
Frank, 16 F.3d 92 (5th Cir.1994), or by only a “scintilla” of evidence, Davis v.
Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994). A conclusory allegation is just
that – a conclusion upon which no factual evidence was proffered to bolster its
validity. Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633, 645 (5th
Cir. 1985). A conclusory allegation, thus, is treated as a “bald assertion.”
Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 814 (5th Cir. 1991) In
other words, it is an end with without means.
“In reviewing the evidence, the court must “refrain from making credibility
determinations or weighing the evidence.” Deville v. Marcantel, 567 F.3d 156,
163-64 (5th Cir. 2009)(Quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007)). This Court also reviews a “district court’s
determinations of state law de novo, giving no deference to such rulings.” Adar v.
Smith, 597 F.3d 697, 703 (5th Cir. 2010).
All issues presented in this appeal are governed by the above standard.
SUMMARY OF THE ARGUMENT
“Title VII and the ADEA are ‘materially different with respect to the
relevant burden of persuasion.’” Smith v. Xerox Corp., 602 F.3d 320, 330 (5th Cir.
2010) (quoting Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2348
13
(2009)). This case was a Title VII retaliation case that was erroneously viewed as
an age discrimination case.
As evidenced by the record, this was a case was defined by confusion.
Unfortunately, the confusion was so great it reached the final order granting
summary judgment. In granting summary judgment, the district court characterized
Everett’s claim as one dealing solely with age discrimination. R. pp. 690-91. This
was not the case. Everett clearly stated in her January 2010 complaint that she was
bringing the retaliation charge pursuant to Title VII, not the ADEA. R., pp. 14-20.
Further, Everett clearly marked in her complaint that gender discrimination was the
basis of her retaliation charge. R., p. 17.
In dismissing the case, the district court failed to apply the Title VII analysis
and, therefore, improperly dismissed the case after utilizing a more stringent
ADEA analysis. Because Everett can satisfy the Title VII analysis, the dismissal of
her claim by way of summary judgment was clear error. Further, assuming
arguendo the district court was correct in analyzing this claim under the more
stringent ADEA standard, Everett has produced sufficient evidence to suggest her
termination would not have happened “but for” her decision to engage in protected
activity.
14
ARGUMENT
I. THE DISTRICT COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGEMNT BECAUSE IT
INCORRECTLY REVIEWED THE CASE UNDER THE
RETALIATION PROVISION OF THE AGE DISCRIMINATION IN
EMPLOYMENT ACT.
Title VII retaliation claims based on circumstantial evidence are developed
through a burden-shifting construct. Septimus v. Univ. of Houston, 399 F.3d 601,
610 (5th Cir. 2005). To establish a prima facie case for retaliation, an employee
must show “1) that she engaged in a protected activity; 2) that an adverse
employment action occurred; and 3) that a causal link existed between the
protected activity and the adverse action.” Id. (citing Pineda v. United Parcel
Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004)). See also Hockman v. Westward
Commc 'ns, LLC, 407 F.3d 317, 330 (5th Cir. 2004). If the plaintiff sets out a
prima facie case, the burden shifts to the employer to “state a legitimate non-
retaliatory reason for its action.” Septimus, 399F.3d at 610. After the employer
states the reason, “any presumption of retaliation drops from the case” and the
burden shifts back to the employee to show that the “stated reason is actually a
pretext for retaliation.” Id. at 610-11 (citing Pineda, 360 F.3d at 487). Under the
pretext framework the burden falls to the employee to establish that the employer's
permissible reason is actually a pretext for retaliation. Id. at 607 (citations omitted).
15
Pretext, however, is not the only way a plaintiff can satisfy the burden
shifting framework. The Fifth Circuit has held a plaintiff may offer circumstantial
evidence of a mixed-motive in litigating her Title VII retaliation claim. Smith,.
602 F.3d at 330.
A. Everett’s retaliation claim was brought pursuant to Title VII.
In filing this lawsuit, Everett made one claim of retaliation under Title VII.
R., pp. 14-20. In granting summary judgment for Head Start, the district court
refused to recognize Everett’s Title VII retaliation charge and held:
Plaintiff is correct that Title VII contains an anti-
retaliatory provision. The section prohibits discrimination
against making a charge under Title VII. (citation
omitted). However, the only discrimination Plaintiff has
alleged in her complaints has been in regard to her age.
Thus, this court cannot conduct a Title VII analysis.
R., p. 691. The district court went on to conclude, “The court is of the opinion that
the appropriate governing statutory provision is the anti-retaliatory section of the
ADEA. Plaintiff’s second EEOC complaint was merely a retaliation claim for
filing the first EEOC complaint, the basis of which was a violation of the ADEA.”
R., pp. 691-92. The Court, therefore, dismissed Everett’s claim of retaliation by
way of the ADEA and failed to even address the stand-alone claim of retaliation
Everett brought pursuant to Title VII. R., pp. 690-94. This was reversible error.
When Everett filed her second charge of discrimination with the EEOC in
January 2007, she clearly stated that her retaliation was in violation of Title VII of
16
the Civil Rights Act and age discrimination. R., p. 24. Additionally, in the second
lawsuit she filed in January 2010, the lawsuit that is the focus of this appeal,
Everett clearly stated her retaliation was rooted in gender discrimination. R., p. 17.
Title VII of the Civil Rights Act of 1964 forbids employment discrimination
against “any individual” based on that individual’s “race, color, religion, sex, or
national origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended, 42 U. S. C.
§2000e–2(a). A separate section of the Act—its anti-retaliation provision—forbids
an employer from “discriminat[ing] against” an employee or job applicant because
that individual “opposed any practice” made unlawful by Title VII or “made a
charge, testified, assisted, or participated in” a Title VII proceeding or
investigation. §2000e–3(a). The ADEA has a similar anti-retaliation provision. See
ADEA, 29 U.S.C. § 623(d).
The district court ignored the substance of Everett’s 2010 complaint and
erroneously confused the complaint with the lawsuit filed in 2008 (the lawsuit
alleging age discrimination). Upon the filing of Everett’s 2010 complaint, the
lower, sua sponte, consolidated Everett’s 2010 case with her previously filed 2008
case. R., pp. 26-31. At the time of the consolidation the lower court recognized,
“Plaintiff’s claims in this case is based upon retaliatory actions alleged to be, at
least in part, due to the filing of a previous charge of discrimination and subsequent
lawsuit in this court.” R., p. 26. This statement, made by the magistrate judge
17
demonstrated, at least in part, Everett’s 2010 retaliation lawsuit was independent
from her 2008 lawsuit alleging age discrimination. Translation – this was not just a
regurgitation of Everett’s 2008 age complaint.
Nonetheless, about twelve months later, the district court ignored the Title
VII component of Everett’s 2010 complaint and declared it to be solely an ADEA
case (despite the fact the complaint clearly alleges a Title VII retaliation claim
based on gender). This error was monumental, as this Circuit, as well as the
Supreme Court in Gross, has held Title VII retaliation cases received the benefit of
the mixed motive analysis, while an ADEA retaliation claim must be put through
the rigorous “but for” standard. Smith, 602 F.3d at 628-32. By failing to provide
the proper analysis, the district court committed reversible error. See Mora v.
Jackson Memorial Foundation, Inc., 597 F.3d 1201 (11th Cir. 2010).
In Mora, the Eleventh Circuit was faced with a flipped version of the facts
before this Court. The district court in Mora, relying on Price Waterhouse v.
Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), wrongfully
applied the “mixed motive” analysis to the Mora-plaintiff’s case despite the fact
she had brought her case pursuant to the ADEA. Because the district court applied
the “mixed motive” standard, the Mora-defendant was able to raise the “same
decision” affirmative defense. Mora, 591 F.3d at 1203-04. The Mora-district court,
18
in granting summary judgment, found no reasonable juror would dispute that
Defendant had met its affirmative defense burden. Id.
On appeal, the Supreme Court decided Gross and the Eleventh Circuit held
it was reversible error for the district court to apply the “mixed-motive” standard to
an ADEA case. Id. at 1202. In reversing the district court, the Eleventh Circuit
explained how Title VII’s “mixed motive” standard was different from the
ADEA’s “but for” standard:
[T]he Supreme Court ruled out the idea of a “mixed
motive” ADEA claim, instead requiring plaintiffs to
show that age was the “but for” cause of an employment
action. Id. at 2350. The ADEA requires that “age [be] the
‘reason’ that the employer decided to act.” Id. Because an
ADEA plaintiff must establish “but for” causality, no
“same decision” affirmative defense can exist: the
employer either acted “because of” the plaintiff's age or it
did not. Id. at 2352 (“The burden of persuasion does not
shift to the employer to show that it would have taken the
action regardless of age, even when a plaintiff has
produced some evidence that age was one motivating
factor in that decision.”).
Id. at 1204. Because the district court applied the wrong standard in reviewing the
summary judgment motion, the district court was reversed. Id.
The situation before this court is not unlike that in Mora. The district court,
despite pleadings to the contrary, declared Everett’s case to be an ADEA case and,
in doing so, refused to apply the “mixed motive” analysis to the Everett’s case. R.,
pp. 690-94. The ability to argue “mixed motive” is much more palpable to an
19
employee, as its hurdle is not as steep as its “but for” counterpart. In explaining
how Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004), and by
extension the “mixed motive” analysis, benefited an employee, the Northern
District of Mississippi stated:
Clearly, it is the second option [motivating factor at the
third stage] which marks such a significant departure
from pre-existing law. While plaintiffs in the Fifth
Circuit have traditionally focused on trying to prove that
a defendant’s stated non-discriminatory reason was false,
Rachid provides them with the option of not contesting
the truthfulness of the stated reason, and instead
attempting to demonstrate that discrimination was also a
motivating factor behind the adverse employment action.
Johnson v. United Furniture Indus., Inc., No. 1:05cv317, 2007 WL 1501032, *4.
By failing to apply the “mixed motive” standard, as made permissible by Smith, the
district court unnecessarily limited Everett’s ability to survive summary judgment
and, therefore, committed reversible error.
B. Scope of Title VII’s Anti-Retaliation Provision.
Everett need not prove an employer actually engaged in the alleged act of
discrimination when bringing a claim of retaliation. “Rather, Title VII’s anti-
retaliation provision prohibits any employer action that ‘well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.’”
Thompson v. North American Stainless, LP, No. 09–291 (J. SCALIA, January 24,
2011) (citations omitted). “Title VII's anti-retaliation provision forbids employer
20
actions that “discriminate against” an employee (or job applicant) because she has
‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified, assisted,
or participated in’ a Title VII ‘investigation, proceeding, or hearing.’” Burlington
N. & S. F. R. Co. v. White, 548 U. S. 53, 60 (2006). (quoting §2000e-3(a)).
While it is true that Everett filed an age discrimination case against Head
Start in 2008, such a case was dismissed and is no longer relevant. The merits of
the 2008 case have absolutely no bearing on the outcome of the case before this
Court. Rather, a retaliation claim, by its very nature, “protects an individual …
from retaliation that produces an injury or harm.” Id., p. 67. The issue at play is
this – did an employee, after engaging in a protected activity, suffer an injury to
her employment that was materially adverse. Id. at 68. In other words, are Head
Start’s actions such that they would dissuade employees from complaining about
conduct proscribed by Title VII. The answer is yes, as Everett was targeted when
she engaged in protected conducted and put forth evidence additional Head Start
employees, after seeing how Everett was treated, were afraid to complain out of
fear of earning a place in the free cheese line. R., p. 325.
In this case, therefore, the issue is not whether Everett was actually
discriminated against, but whether Head Start, after learning of the Everett’s
complaints, subjected her to employment action that was materially adverse and
deterred others from resisting unlawful employment practices. In other words, “A
21
reasonable employee facing the choice between retaining her job (and paycheck)
and filing a discrimination complaint might well choose the former.” Id. at 73. For
this very reason, the issue is not the substantive elements of the discrimination
alleged, but the retaliation brought on after the substantive charge was filed (or
complained of).
C. Everett Established a Prima Facie Case of Retaliation.
In rendering its decision, the district court found Everett engaged in
protected activities4 and, by virtue of her indefinite suspension that began June 24,
2009, and continues to this day, was terminated by Head Start. R., pp. 691. The
issue before this Court, therefore, is whether Everett demonstrated a causal link
between her protected activity and her subsequent adverse employment action. R.,
p. 693. This she did.
“[A] plaintiff need not prove that her protected activity was the sole factor
motivating the employer’s challenged decision in order to establish the ‘causal
link’ element of a prima facie case.” Yerby v. University of Houston, 230
F.Supp.2d 753, 768 (S.D. Tex. 2002)(citing Long v. Eastfield Coll., 88 F.3d 300,
305 n.4 (5th Cir. 1996)). The Fifth Circuit has held that: “the ‘causal link’ required
in prong three of the prima facie case for retaliation is not as stringent as the ‘but
4 Despite the findings of the district court, Everett’s protected activities were not just age related. As detailed both supra. and infra., Everett demonstrated that starting October 2008 Head Start’s retaliatory behavior was motivated by gender discrimination.
22
for’ standard.” Raggs v. Mississippi Power & Light Co., 278 F.3d 463 (5th Cir.
2002). In fact, “A plaintiff merely needs to show some connection between the
protected activity and the adverse employment action in order to establish a prima
facie case of retaliation.” Yerby, supra, at 770.
“In order to establish the causal link between the protected conduct and the
illegal employment action as required by the prima facie case, the evidence must
show that the employer's decision to terminate was based in part on knowledge of
the employee's protected activity.” Sherrod v. American Airlines., 132 F.3d. 1112,
1122 (5th Cir. 1998). Further, “Close timing between an employee's protected
activity and an adverse action against him may provide the ‘causal connection’
required to make out a prima facie case of retaliation.” Swanson v. General
Services Admin., 110 F.3d 1180 (5th Cir. 1997) (citing Armstrong v. City of Dallas,
997 F.2d 62, 67 (5th Cir.1993)). See also Cf. Rath v. Selection Research, Inc., 978
F.2d 1087, 1090 (8th Cir.1992) (discharge soon after protected activity is indirect
proof of causal connection).
Everett, as stated supra., has provided such a connection. Everett was hired
by Defendant in 2004 and from 2004 to 2007 she excelled at her job. R., pp. 319-
21, 638-42. She earned favorable evaluations and received pay raises. R., pp. 644-
50. In 2007, after she complained about Butts and filed a charge of discrimination
with the EEOC, the climate changed, R. pp. R., pp. 319-21, 638-42.
23
In determining Everett failed to establish a causal link, the district court
held:
Plaintiff has a long-standing pattern of disciplinary
issues, as evidence by her personnel file. Documentation
of the reason given for her suspension, insubordination,
is present beginning in June 2007. The filing of the
complaint in January 2009 simply could not have been
the triggering source of any type of retaliation, as
Plaintiff claims unwarranted reprimands had been issued
years prior.
R., p. 693. The causal connection analysis utilized by the district court, however, is
ripe with logical inaccuracies and factual omissions.
As indicated by Sherrod, Everett is able to satisfy her prima facie case
because: (i) Head Start was well aware of her complaints and (ii) her termination
was within close proximity to her protected activities.
While the district court was correct in noting Everett’s “disciplinary”
problems began in June 2007, it failed to consider the fact that June 2007 was also
the first time Everett complained of harassment. R., pp. 319-23, 638-42.5 As
5 While it is true Everett’s examples of retaliation that occurred in June 2007 and November 2007 occurred outside the 180-day time period to be actionable under Everett’s January 2009 charge of discrimination, such evidence does provide background support for Plaintiff’s claim. See Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 500 (8thCir. 1998) (“[A] jury in assessing . . . whether there was intentional discrimination may consider the employer’s conduct throughout the employee’s tenure with the company.”)(citing McDonnel Douglas, 411 U.S. at 804, 93 S. Ct. 1817; see also Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 540 (5th Cir. 1980) (“‘A discriminatory act which is not made the basis for a timely charge . . . may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.’”) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977)); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113 (2002) (an employee is not barred “from using . . . prior acts as background
24
explained by Everett in her moving papers, in June 2007 she had occasion to
embark on an office field trip with her fellow employees. R., pp. 322-23, 638-42.
One of the said employees was Butts; Everett’s new supervisor who was appointed
by Calvin Neely in May 2007. R., pp. 319-20.
It was at this time Butts called Everett a “dumb lawyer. It was at this time
Butts told Everett she wanted her to die alone. It was at this time Head Start
classified Butts behavior has playful banter. Finally, it was at this time Everett
made it known she objected to Butt’s appointment, stated she had wanted to apply
for the post and was told by Collins to sweep such complaints “under the rug.” The
result? A model employee of three (3) years with a pristine record was overcome
by an avalanche of mindless reprimands.
The record is clear – Head Start was fully aware of Everett’s protected
activity. R., pp. 313, 321-23, 326, 368, 658. Further, Neely recognized Everett’s
complaints and told her to complain on her own time. R., p. 368. Further, Everett
evidence in support of a timely claim”); Stewart v. Rutgers, 120 F.3d 426 (3d Cir. 1997) (permitting evidence of past acts of discrimination where the plaintiff sought to use such acts to show recent conduct of a similar nature was motivated by discrimination and not to create a separate and distinct claim); Small v. Mass. Inst. Tech., 584 F. Supp. 2d 284, 288 (D. Mass. 2008) (evidence before the statutory window begins “may nevertheless be considered to put the acts which form the basis of plaintiff’s claim in context”). The district court, in finding “Plaintiff had a long-standing patter of disciplinary issues … present in June 2007, failed to consider key evidence suggesting that such “disciplinary issues” were linked to Everett’s June 2007 complaint that she was harassed by Butts. The district court, therefore, was in the right church by virtue of recognizing the June 2007 incidents were relevant, but sat in the wrong pew when it adopted Head Start’s spin on the facts rather than giving Everett the benefit of the reasonable inference her disciplinary issues (which were absent from her record three (3) years prior) were the result of her engaging in protected activities.
25
filed two charges of discrimination against Head Start and filed two lawsuits
against the company. The important question, however, is how Head Start
responded to Everett’s protected activity.
Everett established that Butts took issue with her desire to further educate
herself and advance her career. R., pp. 638-42. Intimidated by a strong woman,
Butts, during this June 2007 road trip, told Everett she was a “dumb lawyer” and
also stated she hoped nobody attended Everett’s funeral when she died. R., pp.
322-23, 638-42. In response to this blatantly inappropriate conduct, Everett filed a
complaint with Head Start. Id. Head Start investigated the claim and found that
Butts did, in fact, make the comments. R., pp. 322-23. Remarkably, Head Start
concluded that such conduct was merely playful banter between two employees.
R., p. 658.
It was at this time, June 2007, that Head Start began to harass Everett by
charging her with “insubordination” at the drop of a hat, as well as disrespecting
her superiors. R., pp. 319-23, 364-67. Not coincidently, prior to these reprimands,
Everett had also voiced concerned over Butts’ position. After Everett’s former
supervisor, Janet Steward, vacated her position, Neely appointed Butts to
temporarily supervise Everett. R., p. 313. Normal protocol states that while a temp
is in place, the position be posted so applicants can be received. Id. This never
happened and Butts’ temporary position became permanent. Id. Everett, who had
26
desired to apply for the post, was upset and complained to Collins. Id. Collins told
Everett to “sweep it under the rug.” Id. Thus, Everett, a strong woman, continued
to threaten Butts, an insecure woman, and prompted Everett to respond by issuing
reprimands. This was done with the blessings of Neely. R., pp. 368, 399.
Rather than recognize that this harassment stemmed from Everett’s first
complaint of unlawful conduct on the part of Head Start and continued until her
termination in June 2009, the district court ignored Head Start’s documented
actions and accepted the its party-line that Everett was insubordinate. The timing
between Everett’s complaint in June 2007 and the start of her “discipline”
problems in June 2007 failed to catch the eye of the district court.
It is pivotal to note that June 2007 marked the beginning, not the end, of
Everett’s discriminatory encounters with Head Start. After being told by Head
Start that a superior’s wish that she have an unattended funeral was merely playful
banter, Everett became public enemy number one.
Less than a month after Butts told Everett she was a “dumb lawyer” and
unworthy of funeral – and Everett subsequently complained about the comments –
Butts suspended Everett for insubordination and disrespecting a supervisor. R., pp.
364-67. This occurred on June 22, 2007. Make no mistake; Butt’s decision to
suspend an employee who had recently complained about unlawful conduct was in
and of itself unlawful. Everett had worked for Head Start approximately three (3)
27
years prior to Butt’s appointment and, as the district court noted, was free from
disciplinary action. It was only after Butts was appointed and Everett
complained about Butts’ discriminatory comments, as well as how Butts
received her new job, that Everett’s file started to be filed with suspensions
and disciplinary actions. R., pp. 360-99, 638-42.
One vague suspension for insubordination did not satisfy Head Start’s
appetite to run Everett out of Dodge. Just a few months later, Everett had occasion
to deal with a parent of a child in the Head Start program complaining about her
child’s participation in the program. R., pp. 316-17, 638-42. After the parent made
a complaint, Everett, pursuant to her job duties, intervened and notified Butts. Id.
Everett continued to investigate the claim, while keeping Butts updated. Id. Head
Start, however, began to target the parent. Id. While Head Start targeted the parent
and questioned the parent’s complaint, Everett continued to do her job and
resolved the issue to the parent’s satisfaction. Id. Butts was upset Everett
performed her job duties and informed her Neely was also upset. Id. Further,
Everett’s successful resolution of the matter played into Butts’ fear that Everett, a
strong, educated woman. This, in turn, led to her suspension. Everett attempted to
appeal to the Board about this suspension, but she was denied access and appeal
rights. R., pp. 320-21, 638-42. She was not permitted to challenge this action.
Everett did not return to work until January 22, 2008. Id.
28
Again, it is pivotal to note the district court, inadvertently, muddied the
factual waters of this case when it attempted to refute retaliation by looking back to
Everett’s June 2007 suspension. First, Everett’s January 2009 charge of
discrimination was not directly based on the incidents that occurred in 2007, as
they would have been time-barred. Instead, the 2007 incidents are used to support
Everett’s contention that she was the target of retaliation. These incidents,
however, need not be viewed in isolation and the events of 2007 provide the court
with context and motive.
The January 2009 charge of discrimination focused on a number of incidents
that began in 2008. R., p. 24. These incidents demonstrated a pattern in which
Head Start systematically excluded Everett from meetings, denied her training,
refused to permit her to further her education and created an intolerable work
environment for the purpose of forcing a resignation. It further showed Head
Start’s retaliation was in a close proximity to Everett’s termination.
On October 2, 2008, Butts continued expose her fears of Everett and began a
crusade in which she would discipline Everett for inconsequential and mundane
actions. Specifically on October 2, Butts ordered a secretary to enter Everett’s
office and move her belongings. R., pp. 384, 638-42. When Everett asked that the
binders be moved to an open bookshelf, as to enable her to return her items to the
cabinet, Butts declared such a question insubordination.
29
The harassment continued and one October 15, 2008, Butts order Everett to
change her office to a smaller, dingier location. R., p. 661. This move, however,
was not a move on up to the East Side, but rather a ticket to Hell’s Kitchen. R., pp.
638-42. When Everett questioned this decision, Butts charge her with
insubordination. R., p. 661.
The source of the harassment, however, was not limited to just Butts. On
January 7, 2009, Topps’, Everett’s new immediate supervisor, charged her with
absenteeism despite the fact Topps knew Everett was caring for a fatally ill sister.
R., pp. 638-42. On June 7, 2009, Everett was accused of leaving work early, but
this charge was meritless because Everett had notified Topps of her departure. Id.
On June 12, 2009, Everett was charged with an unexcused absence despite the fact
she notified Topps of a medical emergency. Id. On June 22, 2009, Everett was
charged with not visiting a Head Start center, despite the fact she was told by
Topps she did not have to do so. Id.
Due to the fact that Butts and Topps had a hand in Everett’s harassment, it is
a reasonable inference that the source of the harassment went above the two
supervisors and landed in the lap of Everett’s male supervisor – Calvin Neely.
Neely continually harassed Plaintiff, by way of suspensions and threatening
letters, and worked to make her work life miserable. These letters were place dinto
Everett’s work file. R., pp. 360-99.
30
Making all reasonable inferences in her favor, it could be inferred that Neely
was harassing Everett because she was growing too big for a female’s britches. In
other words, Everett’s claims of discrimination rocked the “good ole’ boy’s club”
and was causing turmoil in Neely’s male-driven world. Furthermore, it can be
inferred Neely was upset a subordinate female employee was questioning his
decisions. R., pp. 313, 319-20. Remember, it was Neely who, improperly, made
Butts temporary appointment as supervisor permanent. Id. Everett was calling
Neely out on this act. Id. Neely, upset a female was making him look bad,
unleashed the dogs. The end result, Butts and Topps worked, with Neely’s blessing
and active participation, to run Everett from her job.
It was the aforementioned incidents that gave way to Plaintiff’s January
2009 charge of retaliation and her subsequent 2010 lawsuit. In concluding Everett
did not satisfy her prima facie case, the district court concluded that Everett’s
previous disciplinary actions made it impossible for her termination to be rooted in
retaliation. The district court, however, failed to take into account that Everett was
free from disciplinary actions until she made her first complaint against Butts in
June 2007. It was only after Everett complained about Butts’ comments and Butts’
appointment that the disciplinary notes and/or suspension began to flow freely.
The temporal proximity between an employee’s protected activity and an
adverse employment action may provide insight into the existence of a causal link.
31
See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997), cert.
denied, 522 U.S. 948, 118 S. Ct. 366, 139 L. Ed. 2d 284 (1997). In Clark County
School District v. Breeden, the Supreme Court noted that “cases that accept mere
temporal proximity . . . as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be very close.” Id, 532 U.S.
268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001).
In Everett’s case, her harassment began in June 2007 and spanned the course
of approximately twenty-four (24) months. From her first write-up given just days
after she complained about Butts’ remarks and appointment to her last write-up
falsely accusing her of not visiting a Head Start Center days prior to her
termination, Everett has demonstration a “very close” proximity between her
complaint in January 2009 and her termination in June 2009. In other words, the
adverse action began in 2007 with Head Start trying to run Everett from her job.
Everett, however, held tough for two years and it was at that point Head Start bit
the bullet and issued the pink slip. This was done, however, after Head Start spent
two (2) years building a straw man case of insubordination against Everett to
justify her termination so this “dumb lawyer” would lose her case.
As stated supra., Everett is not relying on temporal proximity alone, but
demonstrated her disciplinary record was clear until she made her first complaint
in June 2007. Further, it is impossible to determine whether Head Start followed its
32
typical procedures in this case, as there is no evidence illustrating whether any
other employees were placed on an indefinite suspension after making a claim of
retaliation. Thus, “A reasonable juror could find that [an employer’s] statements
should be taken at face value and that he fired Plaintiff because of her [gender].
For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all
reasonable inferences in her favor as the nonmoving party.” Mora., 597 F.3d at
1205.
D. Head Start’s Legitimate, Non-Discriminatory Reason for
Everett’s Termination.
In a letter written to Everett, dated June 25, 2009, Head Start gave three
reasons leading to her suspension, and ultimately, her termination. R., p. 399.
Those reasons were: (i) insufficient notice that was not given as far as possible, (ii)
took unapproved leave at 2:39 pm – 5:00 pm without supervisor’s approval, (iii)
refused to go to Reform Center at scheduled time. Id. Head Start defined those
incidents as insubordination.
E. Everett Demonstrated Pretext or, in the Alternative, Showed her
Protected Conduct was a “Motivating” Factor in her
Termination.
The Fifth Circuit held in Smith:
As recognized by the plurality in Price Waterhouse, a
case need not be “correctly labeled as either a ‘pretext’
case or a ‘mixed-motives' case from the beginning in the
District Court” because the distinction often will not be
known to the plaintiff prior to discovery. Instead, “[a]t
33
some point in the proceedings, of course, the District
Court must decide whether a particular case involves
mixed motives.” As explained by the en banc Ninth
Circuit decision in Desert Palace, “[o]nce at the trial
stage, the plaintiff is required to put forward evidence of
discrimination ‘because of’ a protected characteristic.
After hearing both parties' evidence, the district court
must decide what legal conclusions the evidence could
reasonably support and instruct the jury accordingly ....
[T]he choice of jury instructions depends simply on a
determination of whether the evidence supports a finding
that just one-or more than one-factor actually motivated
the challenged decision.” Costa v. Desert Palace, Inc.
Put another way, if the district court has before it
substantial evidence supporting a conclusion that both a
legitimate and an illegitimate (i.e., more than one) motive
may have played a role in the challenged employment
action, the court may give a mixed-motive instruction.
Smith, 602 F.3d at 333. Separate and apart from the traditional “pretext analysis,”
the Fifth Circuit, in Smith, has ruled that a plaintiff may use circumstantial
evidence in showing her protected conduct was a substantial motivating factor in
its decision to terminate employment. Id. at 330.
In addition, the United States Supreme Court has held:
The defendant’s “production” (whatever its persuasive
effect) having been made, the trier of fact proceeds to
decide the ultimate question: whether plaintiff has proven
“that the defendant intentionally discriminated against
[him]” because of his race. The factfinder’s disbelief of
the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case,
suffice to show intentional discrimination. Thus,
rejection of the defendant’s proffered reasons will permit
the trier of fact to infer the ultimate fact of intentional
34
discrimination . . . upon such rejection, no additional
proof of discrimination is required.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (citations omitted).
In the case at bar, Head Start has changed its reasoning for Everett’s
termination. In a June 25, 2009, letter Head Start stated its reason for the adverse
employment action was insubordination. R., p. 399. In its motion papers, Head
Start, for whatever reason, added additional reasons in its attempt to justify the
termination. Such charges included: (i) tardiness, (ii) absenteeism, (iii)
insubordination, and (iv) misconduct at work. R., pp. 408-412, 514-19. Head Start,
therefore, changed its reasons midstream and has created an issue of fact to be
determined at trial.
Everett, therefore, can prevail under either analysis.
1. Pretext Analysis.
A plaintiff may establish pretext “by showing that the employer’s proffered
explanation is false or ‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th
Cir. 2001), cert. denied, 535 U.S. 1078 (2002)) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). An explanation is false or
unworthy of credence if it is not the real reason for the employment action. Id.
“Evidence demonstrating that the employer’s explanation is false or unworthy of
credence, taken together with the plaintiff’s prima facie case, is likely to support an
35
inference of discrimination [or retaliation] even without further evidence of the
defendant’s true motive.” Id.
As the Supreme Court explained in Reeves:
[T]he trier of fact can reasonably infer from the falsity of
the explanation that the employer is dissembling to cover
up a discriminatory purpose. Such an inference is
consistent with the general principle of evidence law that
the factfinder is entitled to consider a party’s dishonesty
about a material fact as affirmative evidence of guilt.
530 U.S. at 147 (internal quotation marks and citations omitted).
When an employer offers inconsistent explanations for its employment
decision at different times, as here, the jury may infer that the employer’s proffered
reasons are pretextual. See Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002)
(determining summary judgment was improper where the plaintiff produced
evidence that the employer’s explanation for her non-selection had been
inconsistent and there were discrepancies between the decisionmaker’s affidavit
and testimony); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th
Cir. 2001) (“[T]he fact that Sears has offered different justifications at different
times for its failure to hire Santana is, in and of itself, probative of pretext.”)
(citing, inter alia, Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st
Cir. 2000) (“[W]hen a company, at different times, gives different and arguably
inconsistent explanations, a jury may infer that the articulated reasons are
pretextual.”), and EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)
36
(holding that a reasonable juror could infer that the shifting and inconsistent
explanations given by the employer at trial were pretextual, developed over time to
counter the evidence suggesting discrimination)); Zaccagnini v. Chas. Levy
Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003) (“[T]he consistency of the
explanation provided by an employer at the time of an employment decision and in
an administrative proceeding is evidence of the veracity of the employer’s
explanation at summary judgment.”).
In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, (1993) the Court
stated that, because the factfinder's disbelief of the reasons put forward by the
defendant, together with the elements of the prima facie case, may suffice to show
intentional discrimination, rejection of the defendant's proffered reasons will
permit the trier of fact to infer the ultimate fact of intentional discrimination. Proof
that the defendant's explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it can be
quite persuasive. Id., at 517. In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose. Wright v. West, 505 U.S. 277,
296 (1992).
A Title VII plaintiff is not required to produce additional independent
evidence of discrimination or retaliation for an employer’s decision to terminate
37
her. See Gee, 289 F.3d at 348 (stating that under Reeves “a plaintiff may withstand
a motion for summary judgment without adducing additional, independent
evidence” of discrimination or retaliation). Rather, as this court previously has
explained, “evidence of the prima facie case plus pretext may, and usually does,
establish sufficient evidence for a jury to find discrimination.” Evans v. City of
Bishop, 238 F.3d 586, 592 (5th Cir. 2000).
There are only two instances in which a showing of pretext is insufficient to
get the plaintiff past summary judgment: (1) when the record conclusively reveals
some other, nondiscriminatory or non-retaliatory reason for the employer’s
decision; or (2) when the plaintiff creates only a weak issue of fact as to whether
the employer’s reason was untrue and there is abundant and uncontroverted
independent evidence that no discrimination or retaliation occurred. Reeves, 530
U.S. at 148. Such instances, however are not the norm and this Circuit has
described them as being “rare.” Russell v. McKinney Hosp. Venture, 235 F.3d 219,
222, 223 (5th Cir. 2000).
As stated supra., Head Start, in filing its motion papers, added additional
reasons for termination. By changing its story, Head Start opened a can of worms it
cannot shut with a summary judgment motion. Even further, Everett did not have
any of these problems until she had the audacity of hope to file an EEOC charge.
38
At this point a bull’s-eye was placed on her back and, as explained supra., she was
the victim of retaliatory conduct that resulted in her to her termination.
Finally the record is devoid of any similarly situated employees being placed
on an indefinite suspension after engaging in conduct protected by Title VII.
2. Mixed Motive Analysis.
As stated by the Northern District of Mississippi:
A plaintiff's failure to prove the falsity of a defendant's
stated nondiscriminatory reason has doomed many a
discrimination case in this circuit, and the mixed-motive
alternative set forth in Rachid will thus likely prove to be
a lifeline for many discrimination cases which would
otherwise not have survived summary judgment. Clearly,
it will be easier for many plaintiffs to circumstantially
prove that discrimination was one factor motivating an
adverse employment decision than it would be to prove
that the nondiscriminatory reason offered by the
defendant is false.
Warren v. Terex Corp., 328 F.Supp.2d 641, 644 (N.D.Miss. 2004). Though district
court stated its opinion was a guess at the time the decision was written, its guess
was validated by the Fifth Circuit in Smith. “Put another way, if the district court
has before it substantial evidence supporting a conclusion that both a legitimate
and an illegitimate (i.e., more than one) motive may have played a role in the
challenged employment action, the court may give a mixed-motive instruction.”
Smith, 602 F.3d at 333.
39
In the case at bar, Everett has demonstrated she did not have substantial
disciplinary problems until she made her first complaint against Butts in June
2007. R., pp. 319-23, 638-42. It was at this time Butts, with the blessing and
participation of Neely, and later Topps, became extremely hostile to Everett,
reprimanding her for the silliest of things and publicly humiliating her in front of
her co-workers. R., pp. 360-99. At one point, Butts said Everett was a “dumb
lawyer” and hoped Everett would be buried alone. R., pp. 322-23, 638-42, 658.
This harassment spanned from 2007 into 2008 and finally ended in 2009. In
January 2009, the same month Head Start chastised Everett for caring for her
fatally ill sister, Everett filed a second charge of discrimination. R., p. 638-42. The
harassment escalated after the January 2009 filing of the EEOC charge of
discrimination and Everett was finally disposed of in June 2009. Id. Everett’s
evidence – everything from their knowledge of the complaints, treatment of
Everett, exclusion of Everett from basic employment function, ridicule of Everett,
filing of frivolous charges against Everett and public humiliation of Everett –
created a questions as to whether Head Start had more than one motive in firing her
and whether such a motive was retaliatory.
40
II. THE DISTRICT COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGMENT BECAUSE EVERETT
PRESENTED SUFFICIENT EVIDENCE TO INFER SHE WOULD
NOT HAVE BEEN TERMINATED BUT FOR HER DECISION TO
ENGAGE IN PROTECTED ACTIVITY.6
The McDonnell Douglas burden-shifting framework applies to age
retaliation claims. Cox v. DeSoto County, Mississippi, 10-60405 (N.D.Miss. Jan.
13, 2011) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir.
1998)). Under that framework, the burden first lies on the plaintiff–employee to
establish a prima facie case of unlawful retaliation. Sherrod, 132 F.3d. at 1122.
The prima facie case test remains the same for ADEA retaliation claims, as it does
Title VII retaliation claims. Id. (citing Pineda v. United Parcel Service, Inc., 360
F.3d 483, 487 (5th Cir. 2004)). See also Hockman v. Westward Commc 'ns, LLC,
407 F.3d 317, 330 (5th Cir. 2004). Further, the second phase of the test – the
proffering of as legitimate, non-discriminatory reasons for the employee’s
termination, also remains the same. Id. Things, however, change once an employer
states its reason for termination.
Under the pretext framework the burden falls to the employee to establish
that the employer's permissible reason is actually a pretext for retaliation. Id. at 607
(citations omitted). When dealing with a retaliation claim brought pursuant to Title
6 Due to the prevailing confusion, Everett, assuming arguendo that the district court was correct in its assessment that this is a case governed by the ADEA, briefed the ADEA issue. This briefing, however, is in no way meant to limit Everett’s options on appeal, nor should it be viewed as a concession the district court’s ADEA analysis was proper.
41
VII (rather than the ADEA), pretext is not the only way a plaintiff can satisfy the
burden shifting framework and a plaintiff can show mixed motive. Smith v. Xerox
Corp., 602 F.3d 320, 330 (5th Cir. 2010). When addressing an ADEA claim of
retaliation, mixed-motive is no longer available and employees must show they
would not have been terminated “but for” their decision to partake in protected
activities. Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343
(2009).
Ultimately, the employee must “prove that the adverse employment action
would not have occurred ‘but for’ the protected activity.” Id. “The plaintiff must
reveal a conflict in substantial evidence on the ultimate issue of retaliation in order
to withstand a motion for summary judgment.” Id. “Evidence is substantial if it is
of such quality and weight that reasonable and fair minded persons in the exercise
of impartial judgment might reach different conclusions.” Id. (internal quotation
marks and citation omitted).
A. Plaintiff’s Prima Facie Case
As stated supra., the district court found Everett engaged in protected
activities and, by virtue of her indefinite suspension that began June 24, 2009, and
continues to this day, was terminated by Head Start. R., pp. 690-94. The issue
before this Court, therefore, is whether Everett demonstrated a causal link between
her protected activity and her subsequent adverse employment action. Id.
42
Mindful of judicial economy, Everett incorporates the law, facts and
arguments detailed in Argument I, Section B of this brief. Once again, it is pivotal
to note that Everett need not show age discrimination, but merely show that her
filing of an age claim led to retaliation. Thompson v. North American Stainless, LP,
No. 09–291 (J. SCALIA, January 24, 2011) (the issue is whether an employer’s
action would have dissuaded an employee from filing a discrimination charge).
Everett has done this.
Everett testified she complained to Collins about age discrimination. R., p.
313. Collins response was for Everett to “sweep it under the rug.” Id. It is also key
to note Neely never properly hired Butts as Everett’s supervisor. R., pp. 313, 319-
20. Instead, Neely appointed Butts “temporarily,” but such an appointment became
permanent. Id. This prevented Everett, an older employee, from applying for the
job. Id.
This response was indicative of Head Start’s view of older employees. Butts
was younger than Everett and Everett had notice that older employees were
shuffled to the bingo hall while younger employees advanced. R., pp. 311-12. She
also testified that she witnessed Head Start treat older employees derogatorily,
while younger employees did not get treated the same way. R., p. 315.
43
B. Head Start’s Legitimate, Non-Discriminatory Reason.
In a letter written to Everett, dated June 25, 2009, Defendant gave
three reasons leading to her suspension, and ultimately, her termination. R., p. 399.
Those reasons were: (i) insufficient notice that was not given as far as possible, (ii)
took unapproved leave at 2:39 pm – 5:00 pm without supervisor’s approval, (iii)
refused to go to Reform Center at scheduled time. Id. Defendant defined those
incidents as insubordination.
C. Pretext and the “But For” Standard
“When the employee sues and complains that this prohibition has been
violated, the employee must prove that there was a causal connection between the
protected activity and the adverse employment decision.” Jack v. Texaco Research
Center, 743 F.2d 1129, 1131 (5th Cir. 1984). In addition, “The connection required
is causation-in-fact or ‘but for’ causation. Whether or not there were other reasons
for the employer's action, the employee will prevail only by proving that ‘but for’
the protected activity she would not have been subjected to the action of which she
claims.” Id. See also Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129
S.Ct. 2343 (2009). “In other words, even if a plaintiff's protected conduct is a
substantial element in a defendant's decision to terminate an employee, no liability
for unlawful retaliation arises if the employee would have been terminated even in
the absence of the protected conduct.” Long, 88 F.3d at 305, n.4 (citing Jack, 743
44
F.2d at 1131). In sum, Everett’s “ultimate burden is to show pretext; that is, to
prove by a preponderance that [Head Start] fired her not for its stated reasons, but
in retaliation for her age and gender discrimination complaint against Head Start.
See Strong v. University HealthCare System, L.L.C., 482 F.3d 802, 806 (5th Cir.
2007).
As stated supra., “The standard for establishing the ‘causal link’ element of
the plaintiff's prima facie case is much less stringent. Long, 88 F.3d at 305, n.4. See
also McMillan v. Rust College, Inc., 710 F.2d 1112, 1116-17 (5th Cir.1983)
(holding plaintiff's evidence sufficient to meet causation element of prima facie
case but insufficient to prove ultimate question of ‘but for’ causation). The
difference between the two tests is simple – in proving the causal link a plaintiff
need “need not prove that her protected activity was the sole factor motivating the
employer's challenged decision. De Anda v. St. Joseph Hosp., 671 F.2d 850, 857 n.
12 (5th Cir.1982). At this stage of the Court’s analysis, however, Everett must
reveal “a conflict in substantial evidence on the ultimate issue of retaliation in
order to withstand a motion for summary judgment.” Medina v Ramsey Steel Co.,
238 F.3d 674, 685 (5th Cir. 2001) (citing Sherrod v. American Airlines, Inc., 132
F.3d 1112, 1122(5th Cir. 1998)).
“The courts have sketched an outline of indicia of causation in Title VII
cases, because causation is difficult to prove. Employers rarely leave concrete
45
evidence of their retaliatory purposes and motives. For example, in Jenkins, the
court examined the employee’s past disciplinary record. Second, the court
investigated whether the employer followed its typical policy and procedures in
terminating the employee. Third, it examined the temporal relationship between
the employee’s conduct and discharge.” Nowlin v. Resolution Trust Corporation,
33 F.3d 498, 507-08 (5th Cir. 1994). (citing Jenkins v. Orkin Exterminating Co.,
Inc., 646 F.Supp. 1274, 1278 (E.D.Tex. 1986).
In looking for causation, the court should look at the evidence in totality.
Among the factors that will establish causation are – (i) a plaintiff’s previous
employment record, (ii) an employer’s knowledge of the protected activity and (iii)
the temporal proximity between the adverse employment action and the protected
activities. Nowlin, 33 F.3d at 507-08 (citing Jenkins, 646 F.Supp. at 127). The
Court will also look to see if other employees were treated the same way for
engaging in the same activities. Long, 88 F.3d at 304.
The presence of these factors greatly assist in determining causation. For
example, the Fifth Circuit, in Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir.
1992), held causation was present because the Shirley plaintiff showed a temporal
proximity and that she had no disciplinary history during her nine years of
employment and quickly was fired for incidents for which no evidence existed. Id.,
970 F.2d at 43. On the flip side, in Strong, the Fifth Circuit held evidence of
46
temporal proximity alone would be insufficient to demonstrate causation in a
retaliation case. Strong, 482 F.3d at 808.
In the case at bar, Everett demonstrated: (i) she enjoyed three (3) years of
discipline free work and was not disciplined until after she complained she was
discriminated against, (ii) Head Start did not follow its standard policies and
procedures in addressing Everett in that it placed her on an indefinite leave
spanning years, not months (which the district court concluded amounted to
termination), and (iii) Everett filed her claim for retaliation in January 2009 and
was “terminated” in June 2009, thus creating a close proximity in time.
As demonstrated infra., Everett’s case is more in line with Shirley, not
Strong. Everett, like the Shirley-plaintiff, was harassed about her discrimination
complaint; Everett had worked for Head Start four five (5) years (not two years
like the Strong-plaintiff); Everett’s disciplinary record, like the Shirley-plaintiff
was completely clean prior to her complaint; and, unlike Strong, reports of
Everett’s disruptiveness did not come from every direction at Head Start:
subordinates, equals, supervisors, and clients. The Fifth Circuit, therefore,
concluded, “Strong is left with no evidence of retaliation save temporal proximity.
Again, temporal proximity alone is insufficient to prove but for causation.” Strong,
482 F.3d at 808 (internal citations omitted). Strong, once again, is clearly
distinguished from the case at bar.
47
Everett assumed her post with Head Start in 2004 and for three (3) years she
worked without incident. R., pp. 638-42. No write-ups. No disciplinary actions. No
suspensions. Put simply, she was a model employee.
The tide turned, as the district court noted, in June 2007. R., pp. 690-92.
While the district court blindly accepted the Head Start party-line that in June 2007
an employee, who previously had a pristine work record, went rogue, Everett
produced facts to suggest her “disciplinary issues” had more sinister origins.
June 2007 was a key date for Everett because it was the first time she
registered a complaint of discrimination with Head Start. R., pp. 319-23, 638-42.
During a road trip, Butts, a female threatened by Everett’s ambition and
intelligence, demeaned Everett in front of co-workers. R., pp. 322-23, 638-42.
Specifically, Butts, referring to Everett’s knowledge of discrimination law, argued
Everett was a “dumb lawyer.” Id. The harassment, however, did not stop there, as
Butts took it up a notch when she stated Everett deserved a funeral in which
nobody would be in attendance. Id.
Everett, taken aback from Butts harassment, registered a complaint with
Head Start. R., pp. 638-42. Remarkably, Head Start found the conversation
between Butts (a supervisor) and Everett (a subordinate) was nothing more than
playful banter. R., p. 358. Also in play was the fact Everett complained about how
Butts was appointed supervisor. It was at this point, however, Everett’s once
48
pristine record became tarnished with frivolous reprimands; a trend that continued
up until her final “suspension” in June 2009. It is not coincidental that as Everett’s
complaints increased, so did the reprimands. R., p. 326, 360-99.
Frustrated by the way Head Start was treating her, Everett filed an EEOC
charge of discrimination alleging age discrimination in November 2007. R., p. 326.
She subsequently filed a lawsuit in 2008. This, however, did not stop the
harassment, as Butts, and now Topps, continued to harass Everett.
Though Everett, a pro se litigant in 2008, thought age was the reason for her
termination, she also learned that Head Start was discrimination against her
because of her gender and filed another charge of discrimination with the EEOC in
January 2009. R., p. 24. She subsequently filed a second lawsuit in January 2010,
the lawsuit in question with this appeal, alleging retaliation on the basis of both age
and gender. R., pp. 14-20.
Such evidence supports Everett’s claim that her work experience changed
once she made her first complaint in June 2007 to Head Start and, therefore, her
termination would not have occurred “but for” her decision to engage in protected
activities. See also Medina, 238 F.3d at 685 (holding dramatic changes in work
evaluations after a complaint is made supports causation in retaliation case). See
also Shirley, 970 F.2d at 42-43 (holding evidence showing an employer suddenly
49
found flagrant indiscretions or violations in an employees work performance after
a once pristine employee engaged in protected activities supports causation).
There is no doubt Head Start knew of Everett’s protected activities. Butts
had previously called her a “dumb lawyer” and, most importantly, she filed
lawsuits against Head Start in 2008 and 2010. Further, by the very nature of the
charges of discrimination, the EEOC notified Head Start when they were filed and
Head Start filed a response to both charges. Thus, just like Medina, Head Start
continued to place criticisms in Everett’s file even after she filed both charges of
discrimination and lawsuits. Medina, 238 F.3d at 685.
Finally, Everett demonstrated the adverse action occurred in close proximity
with the protected speech. Make no mistake; one may look at Everett’s facts and
say the harassment started in 2007 and she was not terminated until 2009. This,
however, would be an incorrect analysis.
It is true that the harassment began in June 2007, but the retaliatory behavior
did not stop in June 2007. Rather, Everett produced evidence showing Head Start
continued a pattern of harassment that excluded her from meetings, punished her
for frivolous reasons, suspended her at the drop of a hat, moved her to a dingier
office and even subjected her to employee spying. R., pp. 638-42, 663. There is a
clear inference, therefore, that Head Start was engaging in a pattern of
50
discrimination to make Everett’s employment so unbearable that she would leave.
When, after two 92) years, Everett remained – she was fired.
Such a contention is further supported by the fact Head Start knew Everett
understood what here rights were (Butts called her a “dumb lawyer”). Because of
this, Head Start wanted Everett to leave without a termination. This much is
evident by the fact head Start, quite bizarrely, placed Everett on a final suspension
in June 2009 that, to this day, is still in effect. R., pp. 399.
This indefinite suspension was determined to a termination by the district
court, but the very suspension speaks to causation. Head Start cannot look this
court in the face and state that a multi-year suspension is considered normal
practice and procedure. Head Start did not supply the court with evidence
suggesting other employees were placed on multi-year suspensions. Rather,
Everett, the only employee who complained, was left dangling in the wind. In
sum, Everett has produced evidence suggesting she was terminated because she
engaged in protected activities.
III. PRO SE LITIGANTS ARE CUSTOMARILY HELD TO A LESSER
STANDARD THAN MEMBERS OF THE BAR, BUT THE DISTRICT
COURT FAILED TO GIVE PLAINTIFF THE BENEFIT OF ANY
SUCH INFERENCES
The law of this circuit requires the Court to give extreme deference to a pro
se litigant and search the record for any legitimate claims the Plaintiff may have.
Elmore v. McCammon, 640 F.Supp. 905 (S.D.Tex. 1986) (citing Patterson v.
51
Patterson, 767 F.2d 916 (5th Cir.1985) and Green v. McKaskle, 788 F.2d 1116
(5th Cir.1986)). See also Barksdale v. King, 699 F.2d 744 (5th Cir. 1983). Further,
courts “liberally construe briefs of pro se litigants and apply less stringent
standards to parties proceeding pro se than to parties represented by counsel….”
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). See also Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (holding pleadings
filed by pro se parties to “less stringent standards than formal pleadings drafted by
lawyers” and allowing pro se petitioners to proceed when their briefs, “however
inartfully pleaded, are sufficient to call for the opportunity to offer supporting
evidence”).
In granting Head Start’s motion for leave to file its summary judgment
motion and, subsequently, giving a pro se litigant just two (2) days to respond to a
dispositive motion, the district court failed to give Everett the deference the law
requires. The record is clear – Head Start diligently attempted to use the legal
system against Everett. The district court erred because it did not, as it is required
to do in pro se cases, have the U.S. Marshalls serve Everett’s 2010 complaint.
Then, two months after its dispositive motion deadline, Head Start files a motion to
dismiss. Judge Alexander rightfully denies this motion explaining the system failed
Everett, a pro se litigant, and Head Start would not be entitled to unjustly exploit
that error.
52
Undeterred, Head Start filed a motion for reconsideration, which was also
denied by Judge Alexander. Still determined, Head Started filed a motion for leave
to file a summary judgment motion. Then, before the district court granted leave to
file, Head Start filed its summary judgment motion. Everett responded by filing a
motion to strike the motion. The district court, however, denied Everett’s motion to
strike and granted Head’s Start motion for leave. Remarkably, the district court
turned around and ordered Everett respond to this dispositive motion in two (2)
days. Such a decision, thus, violated the letter and spirit of the law in dealing with
pro se litigants.
CONCLUSION
The district court’s decision to grant Defendants-Appellee’s motions for
summary judgment should be reversed.
53
CERTIFICATE OF SERVICE
I hereby certify that, I, Joseph R. Murray, II, attorney for Plaintiff, have,
upon request by the Fifth Circuit, by United States mail, postage prepaid,
forwarded a true and accurate copy of the above and foregoing document, as well
as electronic copy via CD, to:
Tony R Gaylor
Chambers & Gaylor Law Firm PLLC
2660 Ridgewood Rd Ste 600
Jackson, MS 39216
s/ Joseph R. Murray, II
JOSEPH R. MURRAY, II
54
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this brief complies with
the type-volume limitations of 5th Cir. R. 32.2.7(b).
1. Exclusive of the exempted portions in 5th Cir. R. 32.2.7(b)(3), the
brief contains:
A. 13,557 words in proportionately spaced typeface.
2. This brief has been prepared:
A. In proportionately spaced typeface using Word 2009 in Times New
Roman, 14 point.
3. If the Court requires, the undersigned will provide an electronic
version of the brief and/or copy of the word or line print out.
4. The undersigned understands that material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in 5th Cir. R.
32.2.7, may result in the Court’s striking the brief and imposing sanctions against
the person signing the brief.
Respectfully submitted,
s/ Joseph R. Murray, II
JOSEPH R. MURRAY, II W. BRENT MCBRIDE
MISSISSIPPI BAR NO. 101802 MISSISSIPPI BAR NO. 101442
Harrison Law Office, PLLC. McBride Law Firm, LLC.
114 East Jefferson Street P.O Box 84
Ripley, MS 38663 Tupelo, MS 38802
TELEPHONE: (662) 837-6193 TELEPHONE: (662) 397-9028
FACSIMILE: (662) 837-7535 FACSIMILE: (662) 257-0809
EMAIL: EMAIL: [email protected]
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