United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 21, 2004
FOR THE FIFTH CIRCUIT
_________________________ Charles R. Fulbruge III
Clerk
No. 02-31240
_________________________
Edwin O. Ware, IV,
Plaintiff - Appellant,
versus
CLECO Power LLC,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
District Court No. 01-CV-1844
_________________________________________________________________
Before DEMOSS, DENNIS, and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
Appellant Edwin O. Ware IV (“Ware”) sued his former
employer, CLECO Power (“CLECO”), alleging that CLECO had
discriminated against him on the basis of race and had terminated
him in retaliation for his complaints about racial
discrimination, in violation of Title VII, 42 U.S.C. § 2000e-2
et seq. (“Title VII”), and LA. REV. STAT. § 51:2256. Ware’s
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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complaint also contained claims for intentional infliction of
emotional distress, and for violation of Louisiana’s
Whistleblower Statute, LA. REV. STAT. § 23:967. Ware now appeals
the district court’s grant of summary judgment against him on all
of his claims.
Factual Background
Ware began working at CLECO in 1987 and was transferred to
the credit and collections department in 1993. In the fall of
2000, Ron Smith was hired as his supervisor. Both parties
concede that the relationship between the two was contentious
from the beginning. Ware told several co-workers he believed
Smith was hired because he was African-American. After a staff
meeting on November 27, 2000, Smith called Ware into his office
and counseled him for exhibiting negative body language and for
being argumentative during the meeting. Immediately after this
meeting, Ware visited one of Smith’s superiors, Anthony Bunting,
to complain about Smith. On December 1, 2000, several
supervisors, including Smith, met with Ware and asked him to stop
criticizing Smith to co-workers.
On January 11, 2001, Ware complained to Cathy Powell, a
CLECO Senior Vice-President. Ware told her he believed there was
a “Black Coalition” at CLECO in which African-American employees
were hiring and promoting their African-American friends. Ware
alleges that between December 5, 2000, and January 12, 2001,
another employee in his department, Ellen Scroggs, informed Smith
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that Ware was saving Smith’s e-mail messages in order to build a
case against Smith. On January 17, 2001, Smith wrote a memo
concluding that Ware should be suspended without pay for three
days, or be given notice in lieu of termination.2
When Ware returned to work on Monday, January 22, 2001, he
met with the CLECO employee who was following up his complaint to
Powell, and was instructed to take the next week off with pay.
During the week of January 22, 2001, CLECO supervisors conducted
two separate investigations into Ware’s complaints and his work
history. Smith interviewed all of the employees in Ware’s
department to see if Ware had been complaining to them about
Smith’s management. While the employees reported hearing Ware
criticize management, it was not clear if these comments were
made before or after Ware had been asked to stop criticizing
management on December 1, 2000.
On January 26, 2001, Smith met with other CLECO supervisors
and proposed that Ware be terminated. Smith supported his
decision by arguing that Ware was causing a morale problem in the
department and not completing his assigned work. On January 29,
2001, a CLECO human resources employee met privately with Ware
and told him that he was being terminated for “not being a team
player.”
2
Ware was on vacation at this time.
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Standard of Review
A grant of summary judgment is reviewed de novo. Hanks v.
Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).
In reviewing summary judgment motions, courts are to make all
reasonable inferences in favor of the non-moving party and may
not make credibility determinations or weigh the evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Summary judgment is proper if the movant can show that there is
no genuine issue as to any material fact. FED. R. CIV. P. 56(c).
To defeat a motion for summary judgment, the non-movant must show
that there is indeed a genuine issue of material fact, based on
evidence greater than mere conclusory allegations or
unsubstantiated assertions. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994); Taylor v. Gregg, 36 F.3d 453, 457
(5th Cir. 1994).
Retaliation Claim
In his complaint, Ware alleged violations of both LA. REV.
STAT. § 51:2256 and Title VII.3 To make a prima facie case of
retaliation under Title VII, a plaintiff must show that: 1) he
engaged in activity protected by Title VII; 2) there was an
3
Because Louisiana courts look to Title VII standards to
apply § 51:2256, those are the only standards that need to be
examined here. See Devillier v. Fidelity & Deposit Co. of Md.,
709 So.2d 277, 280 (La. Ct. App. 3 Cir. 1998); McMillan v.
Corridan, No. Civ. A. 97-3981, 1999 WL 729250, at *2 (E.D. La.
Sept. 15, 1999).
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adverse employment action; and 3) there was a causal nexus
between the protected activity and the adverse employment action.
Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339
(5th Cir. 1999). To show a causal nexus, a plaintiff must show
only that the protected activity was among the factors motivating
the adverse employment action, not that it was the sole
motivating factor. See Long v. Eastfield College, 88 F.3d 300,
305 n.4 (5th Cir. 1996). Temporal proximity between the
protected activity and the adverse employment action may be a
significant factor in showing this causal link. See Evans v.
City of Houston, 246 F.3d 344, 356 (5th Cir. 2001; Swanson v.
Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). A prima
facie case may also be supported by a showing that the person who
ultimately decided on the adverse employment action was
improperly influenced by the person against whom a retaliatory
motive was alleged. Gee v. Principi, 289 F.3d 342, 346 (5th Cir.
2002).
If the plaintiff succeeds in making a prima facie case of
retaliation, the burden then shifts to the defendant to show a
legitimate non-discriminatory rationale underlying the employment
action. Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001).
If the defendant is able to show a legitimate rationale for the
employment action, the burden shifts back to the plaintiff to
show that defendant’s stated rationale is a mere pretext for the
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real, discriminatory purpose that motivated the action. See
Aldrup, 274 F.3d at 286. This Court has noted that an employer’s
reliance on subjective criteria to make employment decisions can
provide “a ready mechanism” for racial discrimination. Rowe v.
Gen. Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972).
The parties concede that Ware’s complaint to Powell was a
protected activity and that Ware’s termination was an adverse
employment action. To make a prima facie case of retaliation,
Ware must only show that there was a causal nexus between his
complaint and his termination. See Casarez, 193 F.3d at 339.
Ware made his complaint on January 11, 2001 and the decision to
terminate him was made on January 26, 2001. This close timing
suffices to shift the burden to CLECO to state a legitimate non-
discriminatory reason for terminating Ware. See Evans, 246 F.3d
at 356; Swanson, 110 F.3d at 1188.
CLECO claims that Ware was fired because of insubordination
in continuing to criticize Smith after being asked to stop.
However, Smith acknowledged that his decision to recommend
terminating Ware was based, at least partially, on Ware’s
attitude towards Smith, and Ware’s effect on department morale.
These highly subjective judgments, could easily be pretext for
retaliation. See Rowe, 457 F.2d at 358. Smith’s influence on
the decision to fire Ware also contributes to showing a
retaliatory motive because Ware had complained to Powell and
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Scroggs about Smith. See Gee, 289 F.3d at 346. As a result, a
genuine issue of material fact exists about whether CLECO
retaliated against Ware in violation of Title VII and LA. REV.
STAT. § 51:2256. Therefore, the district court erred in granting
summary judgment to CLECO on these claims.
Intentional Infliction of Emotional Distress
Ware alleged that his termination from CLECO amounted to
intentional infliction of emotional distress. Under Louisiana
law, a plaintiff alleging intentional infliction of emotional
distress must prove that: 1) defendant’s conduct was so extreme
in degree and character that it went beyond all bounds of decency
and was utterly intolerable in a civilized community; 2) that
such conduct caused severe emotional distress; and 3) that the
defendant intended, by performing the acts complained of, to
inflict severe emotional distress upon the plaintiff, or that the
defendant knew that such severe distress would be certain or
substantially certain to result from the conduct. White v.
Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). In employment
situations, Louisiana courts generally limit this showing to
situations of repetitive harassment. See id. Suffering must be
extreme to meet this standard. Smith v. Amedisys, 298 F.3d 434,
449 (La. App. 4 Cir. 2002).
Ware alleged that he suffered depression, sleeplessness,
stomach problems and the loss of self-esteem as a result of his
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termination from CLECO and the manner in which the termination
was conducted. Ware did not seek professional treatment for any
of these problems, nor did he take any medication for them.
Ware’s deposition indicates that a CLECO supervisor met privately
with Ware and explained the termination decision, and gave Ware
the opportunity to resign in lieu of termination. Ware did not
allege any misconduct by the supervisor during this meeting, nor
did he allege any history of repetitive harassment by CLECO.
Making all reasonable inferences in favor of Ware, his
allegations of intentional infliction of emotional distress fail
because they cannot be considered actions that go “beyond all
bounds of decency” and are “utterly intolerable in a civilized
community.” See White, 585 So.2d at 1205. The district court
correctly granted summary judgment in favor of CLECO on this
claim.
Ware’s Claim under Louisiana Civil Code Article 2315
Ware made a further claim that CLECO breached its legally
recognized duty to avoid intentionally inflicting emotional
distress upon him, thereby committing a tort under LA. CIV. CODE
art. 2315. LA. CIV. CODE art. 2315 is a general tort statute
which provides a cause of action for plaintiffs alleging the
breach of a legally recognizable duty. Gluck v. Casino Am.,
Inc., 20 F. Supp.2d 991, 995 (W.D. La. 1998). Ware’s claim does
not meet the Louisiana standard for a cause of action for
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intentional infliction of emotional distress. Therefore his
claim under LA. CIV. CODE art. 2315, based on the same
allegations, cannot withstand summary judgment.
Whistleblower Claim
In his amended complaint, Ware alleged that CLECO violated
Louisiana’s Whistleblower Statute, LA. REV. STAT. § 23:967.
Specifically, Ware claims he made good-faith objections to what
he alleges was the practice within CLECO of expunging the debts
of black politicians. LA. REV. STAT. § 23:967 protects employees
who disclose or threaten to disclose an act or practice at their
place of employment that violates of state law. Puig v. Greater
New Orleans Expressway Comm’n, 772 So.2d 842, 845 (La. App. 5
Cir. 2000). To state a claim under LA. REV. STAT. § 23:967, a
plaintiff must allege the violation of state law. Id. Nowhere
in his amended complaint does Ware indicate which state law, if
any, was violated by CLECO and therefore he fails to state a
claim under La. Rev. Stat. § 23:967. See id. The district court
correctly granted summary judgment in favor of CLECO on this
claim.
Conclusion
For the reasons discussed herein, this Court AFFIRMS the
summary judgment of the district court as to all claims except
for the claims under Title VII and LA. REV. STAT. § 51:2256. This
Court REVERSES the summary judgment as to Ware’s claims under
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Title VII and LA. REV. STAT. § 51:2256, and REMANDS this case for
further action consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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