United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2004
Charles R. Fulbruge III
No. 02-31175 Clerk
SANDRA SMITH,
Plaintiff - Appellant
v.
AT&T SOLUTIONS, INC., d/b/a AMERICAN TELEPHONE & TELEGRAPH CO.,
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 01-CV-2798
_________________________________________________________________
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*
District Judge.
PER CURIAM:**
Appellant Sandra Smith appeals the district court’s grant of
summary judgment in favor of Appellee AT&T Solutions, Inc. on her
claims of retaliation under the Louisiana whistleblower statute,
LA. REV. STAT. ANN. § 23:967 (West 2003). Finding no error, we
affirm.
*
District Judge for the Northern District of Texas, sitting
by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
I. FACTS AND PROCEEDINGS
AT&T Solutions, Inc. (“AT&T”)1 entered into a contract with
McDermott International to manage McDermott’s information
technology organization (the “McDermott Project”). AT&T
employees were to work in McDermott’s offices in New Orleans and
AT&T agreed to pay McDermott an annual fixed amount for office
space, phone services, and utilities. Appellant Sandra Smith had
been a supervisor for daily adjustments at AT&T Corporation,
working under the supervision of Sandi Michel. When Michel moved
to the McDermott Project as the human resources manager, she
offered Smith a position as the Project’s sole training
supervisor. Smith accepted, and began working in her new
capacity in 1999. From time to time, in addition to her training
responsibilities, Michel gave Smith other human resources work.
Soon after starting her new position, Smith apparently
became concerned that she was being required to perform an
excessive amount of work. She expressed her concern to Tom
Tierney, the AT&T manager in charge of the McDermott Project, and
to other AT&T employees involved with the Project. Eventually,
Smith raised her concern with Michel. In September or October of
1999, Smith requested to Michel that her position be reevaluated
1
AT&T Solutions, Inc. is a subsidiary of AT&T Corporation.
2
in light of her workload, so she could receive a promotion.2
Smith’s request for reevaluation was documented in an email
to Michel dated May 11, 2000. On May 12, 2000, Michel forwarded
Smith’s email, along with Michel’s recommendation that Smith be
given a promotion, to the offices of AT&T Corporation in New
Jersey.
Between October 1999 and May 2000, Smith had become aware
that two of her co-workers, Holly Pape (a temporary employee) and
Kenneth McBarron (a full-time AT&T employee), were making
personal long-distance telephone calls using the AT&T access code
for the McDermott account. Smith believed these calls were being
charged to McDermott. In April or May of 2000, Smith asked Brad
Herriage, AT&T’s controller, if the calls were being billed to
McDermott, which she believed would constitute theft. Smith
claims Herriage told her that the calls were being billed to
McDermott and that theft had therefore occurred. Herriage
explained in a deposition that the calls did not constitute theft
because AT&T paid McDermott a flat rate for facilities and
services, including long-distance service. McDermott was not
billed for individual long-distance calls. Herriage denies
telling Smith it was illegal for an AT&T employee on the
McDermott Project to make personal telephone calls.
2
Smith’s position as training supervisor was evaluated as an
A-4 position. Plaintiff sought to have her position reevaluated
to a reflect a grade of A-5 or higher.
3
Smith did not discuss the calls with Pape or McBarron.
However, Smith claims she reported the telephone calls to Michel
several times, and that Michel told her she would report the
calls to Adrian Lee, AT&T’s business manager on the McDermott
Project. Smith claims she once reported the calls directly to
Lee, who said he would have a report run on long-distance usage
at McDermott.
In mid-April of 2000, Smith reported McBarron’s and Pape’s
telephone calls to AT&T Corporation’s Corporate Security
Department. On June 29, 2000, Andrea Wade, a Security Department
employee, conducted an internal investigation. She interviewed
McBarron, Pape, Evelyn Demoruelle (another employee who reported
telephone misuse), Herriage, Lee, Michel, Tierney, and Ken
Konningsor (AT&T’s Chief Financial Officer). Wade reported the
results of her investigation, leaving the decision of whether to
discipline McBarron and Pape to Lee, Tierney, and Michel.
Thereafter, Pape’s temporary agency was informed that her
services were no longer required by AT&T, and Michel and Lee
formally reprimanded McBarron and instructed him to stop making
personal phone calls.
Smith claims Wade’s investigation made Michel and Lee angry
because it undermined their authority and made them look
irresponsible. Smith acknowledges she does not know whether
Michel or Lee knew she was the employee who prompted the
investigation by contacting Corporate Security. However, Smith
4
asserts that Michel and Lee could deduce that she had done so.
Michel and Lee avow they were unaware until the filing of Smith’s
lawsuit that Smith had contacted Corporate Security. Michel and
Lee were never reprimanded or otherwise criticized by AT&T for
how they handled McBarron’s and Pape’s telephone usage.
Nonetheless, Smith contends that Michel and Lee began harassing
her because of her report to Corporate Security.
Smith claims that, in July of 2000, she met with Lee about
her job reevaluation, and that he refused to give her the
promotion she had requested. Smith also claims that in the same
month, she asked Michel to review her job reevaluation, but that
Michel refused, and that Michel refused her a promotion.
However, later in July 2000, Smith was promoted to the A-5 level,
retroactive to May 2000, when Michel had forwarded Smith’s
request to AT&T Corporation with her positive recommendation.
Tierney testified that it was difficult to get promotions
finalized in the summer of 2000 due to a hiring freeze at AT&T.
Smith also complains that soon after she was promoted, she
volunteered to assist two co-workers in planning an off-premises
party. She contends that Michel sent out an email, accessible to
managers, stating that Smith could not assist with the party
because of her inability to handle her workload.
In August 2000, AT&T executives, including Tierney, met with
McDermott about the Project. Neither Lee nor Michel were
present. McDermott expressed its intention to transfer several
5
functions in-house, including training, human resources,
procurement, and program management. As a result of McDermott’s
decision, AT&T planned to give Forced Management Plans(“FMPs”) to
employees whose positions with AT&T would be terminated when
their functions were transferred to McDermott.3 Smith’s and
Michel’s positions were to be terminated. Tierney received
permission from AT&T to distribute the FMPs over a period of
time, rather than to notify the affected employees immediately.
Also during August, Michel conducted a favorable mid-year
performance evaluation of Smith.
On August 23, 2000, Smith contacted the Equal Employment
Opportunity Department of AT&T to complain about her treatment by
Michel and Lee. That Department advised Smith that her complaint
did not involve issues of discrimination or retaliation.
Smith contends that in mid-September of 2000, allegedly
angered by Smith’s complaint to Tierney about Michel’s and Lee’s
treatment, Michel and Lee informed her that she had thirty days
to find another job, or she would be discharged. Smith claims
that in late September, Konningsor told her he noticed a change
in Michel’s and Lee’s behavior towards Smith following her report
3
When an employee receives a FMP, the employee has a
designated time frame, between thirty and sixty days, to look for
alternative employment within AT&T. When the time period
expires, the employee’s position is terminated, and the employee
is let go, unless he or she had been able to locate other AT&T
employment.
6
to Corporate Security. Smith also claims that on September 26,
Lee informed her that her job was being decentralized and that
she had until the end of December 2000 to find alternative
employment within AT&T.
Michel scheduled a meeting with Smith for September 27,
2000. Smith claims she left work that day and did not attend the
meeting because she was afraid that Michel was going to harm her,
and contends she sent Tierney an email to that effect. Smith did
not return to work on September 28. Instead, she went on
disability leave due to stress and depression and remained on
leave for almost a year.
While Smith was on leave, she asked for a performance
evaluation for the period when she was working as an A-5. Michel
completed a draft of the evaluation in November of 2000. It
contained negative comments about Smith’s performance. It was
signed only by Michel, and did not include the requisite
signatures needed to finalize an AT&T evaluation. Upon receiving
the draft, Tierney made several revisions to it, eliminating
Michel’s remarks. Michel’s draft evaluation was never made a
part of Smith’s personnel file. Smith claims that Michel tried
to “break into” Smith’s email and voicemail accounts while she
was on leave.
In December of 2000, McDermott terminated its contract with
AT&T and, several employees, including Smith, were given FMPs.
In September of 2001, Smith was cleared for work by her
7
doctor, and she returned to AT&T. Upon her return, her FMP
became effective, and as a result, Smith had sixty days to find
other employment within AT&T. Smith claims that Michel impeded
her ability to find other employment. She claims Michel altered
Smith’s computer records to make AT&T’s internal hiring managers
contact Michel, rather than Smith, about positions that might be
suitable for Smith. Smith contends that Michel changed the
records in order to sabotage Smith’s chances of locating other
work within AT&T.
Smith was unable to find alternative employment at AT&T.
She contends that several of her co-workers were given extensions
on their FMP periods so they could fill positions set to become
available after the expiration of the sixty-day period. Smith
was not given an extension and was discharged when her FMP period
expired.
On September 12, 2001, Smith filed suit against AT&T,
alleging a violation of Louisiana’s whistleblower statute, LA.
REV. STAT. ANN. § 23:967, because Michel and Lee allegedly
retaliated against Smith as a direct result of the report she
made to Corporate Security about McBarron’s and Pape’s personal
telephone calls. Smith alleges that AT&T retaliated against her
in two ways: first, by harassing her in response to her report,
and second, by having her discharged as a result of her report.
AT&T filed a motion for summary judgment, which the district
court granted on October 23, 2002. Smith appeals from that
8
ruling.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Ackel v. Nat’l Communications, Inc., 339 F.3d 376, 381
(5th Cir. 2003) (citing Tango Transp. v. Healthcare Fin. Servs.
LLC, 332 F.3d 888, 890 (5th Cir. 2003)). Fed. R. Civ. P. 56(c)
provides that “[s]ummary judgment is appropriate only if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
In determining whether a genuine issue of fact exists, the court
views the evidence in the light most favorable to the nonmovant.
Halls v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). “In
the language of the Rule, the nonmoving party must come forward
with specific facts showing that there is a genuine issue for
trial. Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citations,
quotations, and emphasis omitted).
III. DISCUSSION
Smith’s Complaint is based solely on Louisiana’s
9
whistleblower statute, LA. REV. STAT. ANN. § 23:967. In pertinent
part, the statute reads:
A. An employer shall not take reprisal against an employee
who in good faith, and after advising the employer of
the violation of law:
(1) Discloses or threatens to disclose a workplace act
or practice that is in violation of state law.
(2) Provides information to or testifies before any
public body conducting an investigation, hearing,
or inquiry into any violation of law.
(3) Objects to or refuses to participate in an
employment act or practice that is in violation of
law.
The statute states: “Reprisal includes firing, layoff, loss
of benefits, or any discriminatory action the court finds was
taken as a result of an action by the employee that is protected”
under the statute. Id. § 23:967(C)(1). An employee who suffers
reprisal under the statute may bring a civil action against the
employer for damages, reasonable attorneys’ fees, and court
costs. Id. § 23:967(B).
Both parties agree that the appropriate framework for
analyzing a retaliation claim under the Louisiana whistleblower
statute is the same as that applied in Title VII retaliation
cases. While the Louisiana Supreme Court has not spoken directly
on whether that framework applies to section 23:967 cases,
Louisiana courts have often looked to federal anti-discrimination
jurisprudence in interpreting Louisiana’s anti-discrimination
statutes. See, e.g., Plummer v. Marriott Corp., 654 So.2d 843,
848 (La.App. 4 Cir. 1995); Alphonse v. Omni Hotels Mgmt. Corp.,
643 So.2d 836, 838 (La.App. 4 Cir. 1994); Bennett v. Corroon and
10
Black Corp., 517 So.2d 1245, 1246-47 (La.App. 4 Cir. 1987).
Accordingly, we find that the Title VII framework is applicable
to the Louisiana statute.
In order to establish a prima facie case of retaliation
under Title VII, a plaintiff must show that (1) she engaged in
activity protected by the statute, (2) an adverse employment
action occurred, and (3) a causal link exists between the
protected activity and the adverse employment action. Fierros v.
Texas Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001). If a
plaintiff presents direct evidence that her employer’s motivation
was at least in part retaliatory, the burden shifts to the
employer to demonstrate, by a preponderance of the evidence, that
the same decision would have been made in the absence of the
discriminatory motive. Id. at 192. Alternatively, if a
plaintiff presents only circumstantial evidence of causation, the
McDonnell Douglas burden-shifting framework applies. Id. at 191.
Under the McDonnell Douglas framework, the plaintiff has the
initial burden of demonstrating a prima facie case of
retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 36 L.E.2d 668 (1973). At this stage, the
standard for satisfying the causation element is less stringent
than “but for” causation. Fierros, 274 F.3d at 191. If the
plaintiff establishes a prima facie case, an inference of
retaliatory motive is created. Id. The employer can rebut this
inference by producing evidence of a legitimate, non-retaliatory
11
reason for the adverse employment action. Id. Once the employer
produces such evidence, the burden shifts back to the plaintiff
to prove that her protected activity was a “but for” cause of the
adverse action. Id. If the plaintiff produces evidence
establishing a prima facie case and evidence that the reasons
proffered by the employer for engaging in the adverse action are
pretextual, a jury may infer the existence of “but for”
causation. Id. at 191-92.
In the present case, Smith has presented only circumstantial
evidence of causation. Smith’s contention that Michel’s and
Lee’s statements to Smith that she had thirty days to find
another job constitute direct evidence of retaliation is in
error. Even assuming that Michel and Lee threatened Smith’s
employment, Smith has not presented any direct evidence linking
Michel’s and Lee’s statements to her report to Corporate
Security. Therefore, McDonnell Douglas provides the appropriate
framework for an analysis of Smith’s claims.
Under the McDonnell Douglas framework, to make out a prima
facie claim of retaliation, Smith would have to produce evidence
that she engaged in activity protected under the Louisiana
whistleblower statute, that an adverse employment action
occurred, and that there is a causal link between the protected
activity and the adverse action.
Smith argues that the district court’s grant of summary
judgment was inappropriate because Smith presented sufficient
12
evidence to create a material issue of fact as to whether AT&T
was actually reducing its workforce at the time of the alleged
retaliatory acts. Smith argues that the district court erred by
failing to draw reasonable inferences in her favor regarding her
termination and Michel’s and Lee’s alleged harassment.
Specifically, Smith argues that the evidence that other employees
received extensions on their FMP expiration periods and that Lee
and Michel threatened Smith’s job demonstrates that Smith’s FMP
was pretextual. Smith also contends that the evidence is
sufficient to warrant a reasonable inference that Michel and Lee
acted with animus towards Smith because of her report to
Corporate Security, and that this animus resulted in a delay in
Smith’s promotion and, ultimately, in Smith’s mental breakdown.4
AT&T contends that summary judgment is appropriate for three
reasons. First, AT&T argues that Smith’s allegations do not show
that Smith suffered any actionable adverse employment action.
Second, AT&T contends that even if Smith alleged an actionable
adverse employment action, Smith has failed to demonstrate a
causal connection between such action and her report to Corporate
Security. Third, AT&T claims that Smith cannot establish she
4
Smith asserts that causing someone to have a mental
breakdown is actionable under section 23:967 because it is
similar to a constructive discharge under federal discrimination
laws. Because we conclude that Smith has failed to meet her
burden on the causation element, we do not address whether such a
claim is cognizable under the Louisiana statute.
13
engaged in protected conduct because McBarron’s and Pape’s
personal telephone calls were not made pursuant to an AT&T
practice or policy, and the phone calls were covered by AT&T’s
flat rate arrangement with McDermott and, therefore, they were
not illegal. In addition, AT&T maintains that Smith’s
“disclosure” to AT&T Corporate Security is not protected under
the whistleblower statute because the statute requires disclosure
to a third party.
The Court finds that judgment in favor of AT&T was proper
because even if Smith’s allegations establish that she engaged in
protected activity and that an adverse employment action
occurred, she has failed to establish a sufficient causal
connection between such action and her report to Corporate
Security. Accordingly, the Court need not address the parties’
other arguments.
A. Smith’s Claims of Retaliatory Harassment
Smith alleges that because of her report to Corporate
Security, Lee and Michel became hostile and retaliated against
her by delaying her promotion, causing her to have a mental
breakdown. Smith’s allegations must fail, however, because Smith
has failed to meet her burden of establishing a causal connection
between Michel’s and Lee’s allegedly hostile actions and her
report.
There are no facts demonstrating a causal connection between
14
Smith’s reporting of the telephone calls and the delay in her
promotion. Further, Smith has not presented any facts showing
that either Michel or Lee had any control over the granting of
promotions, nor that Michel or Lee interfered with Smith’s
efforts to receive a promotion. In fact, the record establishes
that Michel assisted Smith in obtaining a promotion by forwarding
her request to AT&T’s Corporate Office with a favorable
recommendation. Further, the record establishes that delay in
the approval of Smith’s promotion was due to hiring conditions at
AT&T Corporation. Moreover, Smith did not experience any
actionable prejudice due to the delay because her promotion was
approved in July and made retroactive to June. Because Smith has
failed to present any facts tending to prove that her promotion
was delayed due to her report to Corporate Security, she has
failed to establish a prima facie case of retaliation as to this
allegation. Therefore, summary judgment in favor of AT&T is
appropriate on this claim.
Smith also fails to meet her burden on the causation element
as to her claim that Michel and Lee caused her to have a mental
breakdown. Smith arguably presents sufficient facts to make out
a prima facie case that Michel and Lee acted with animus towards
Smith, and that such animus caused Smith’s mental breakdown.
However, she does not present sufficient evidence to meet her
causation burden under the McDonnell Douglas analysis.
Smith has produced facts showing that Michel and Lee treated
15
her with hostility. Smith alleges that Michel raised her voice
to Smith, and that both Michel and Lee threatened her job before
the FMP was given to her. Smith also claims that Michel sent
emails to other AT&T employees, undercutting her reputation.
According to Smith, Konningsor told her that he noticed a change
in Michel and Lee’s behavior towards Smith after she made her
report to Corporate Security. As a matter of law, however,
Konningsor’s observation does not constitute evidence that
Smith’s report to Corporate Security caused that change in
treatment. Nor does Smith’s proffered testimony from a clinical
social worker, who stated that Smith’s medical condition was due
to hostile treatment she received at AT&T.
Assuming that the reporting of improper telephone calls
constitutes conduct protected by the Louisiana whistleblower
statute, and that the alleged instances of hostile conduct which
resulted in Smith’s mental breakdown constitute a “reprisal”
under the statute, Smith’s initial burden of proving her prima
facie case could be met. However, AT&T produced ample evidence
that Michel’s and Lee’s hostility was due to Smith’s continued
complaints about her workload and her airing her grievances to
Tierney before presenting them to her immediate supervisors,
Michel and Lee. Her complaints to fellow employees and to
Tierney long predated her report to Corporate Security.
Because AT&T presented evidence of a reason for Michel’s and
Lee’s alleged hostility to Smith that is wholly unrelated to
16
Smith’s exercise of a protected activity, the burden shifts to
Smith to produce evidence that AT&T’s explanation constitutes a
pretext, and that Smith’s report to Corporate Security is the
“but for” cause of Michel’s and Lee’s actions. Smith fails to
meet this burden. First, Smith has produced no evidence that
AT&T’s proffered explanations are pretextual. The record
establishes that Smith’s relationship with Michel and Lee was
problematic before she made her report to Corporate Security.
Second, Smith has produced no evidence that her report was the
“but for” cause of Michel’s and Lee’s actions. Accordingly, as
to this allegation, we find that Smith has failed to satisfy her
burden of causation under the McDonnell Douglas framework.
Therefore, summary judgment is likewise appropriate as to Smith’s
claim that Michel and Lee harassed Smith due to her report, and
that such harassment resulted in her mental breakdown.
B. Smith’s Claim of Retaliatory Dismissal
Smith also argues that her dismissal from AT&T resulted from
her report to Corporate Security. Under the plain terms of the
Louisiana statute, discharge constitutes reprisal. However,
Smith’s allegations are insufficient to withstand summary
judgment because she has not presented sufficient facts to
establish a prima facie case on the causation element. There is
no evidence in the record to support Smith’s contention that
Michel’s and Lee’s anger towards Smith caused Smith’s discharge.
17
The record confirms that Smith’s position was eliminated, along
with many others, as part of a reduction in force unrelated to
Smith’s activity. While Smith has raised a fact issue over
whether Michel and Lee acted with animus towards Smith, Smith
does not present any facts indicating that Lee and Smith had any
control over Smith’s discharge.5 The record establishes that
Smith’s position was terminated because McDermott decided to
transfer certain functions in-house.
Smith was discharged under the FMP after she was unable to
find alternative employment within AT&T. Smith contends that
other employees who received FMPs were granted extensions beyond
the sixty-day expiration period, and suggests she was denied an
extension in retaliation for her report to Corporate Security.
While the record demonstrates that some other employees who
received FMPs were given an extension, the record does not show
that this treatment was causally related to Smith’s report. Due
to her claim of disability, Smith began her sixty-day FMP period
many months after the other employees involved in the workforce
reduction. Accordingly, her situation was substantially
different from that of the other employees. Second, and most
importantly, Smith has not demonstrated that Michel or Lee had
5
While Smith alleges that Michel and Lee told her in mid-
September that she had thirty days to find a new job, the record
does not show that Michel and Lee were involved with the decision
to discharge Smith or to transfer the training function back to
McDermott.
18
any control over the length of Smith’s FMP, nor has she
demonstrated that whoever did have control failed to grant her an
extension in retaliation for her report to Corporate Security.
Smith does not directly argue, but speculates, that part of
the reason she was unable to locate alternative employment was
because of the negative performance appraisal Michel drafted and
Michel’s alleged tampering with Smith’s computer data. However,
there is no evidence of a causal connection between her dismissal
and the negative appraisal and/or the alleged computer tampering.
First, the record shows that Michel’s negative reviews were
contained in a draft that was never placed in Smith’s personnel
file. There is no evidence that this draft was circulated beyond
Tierney, who changed it. Second, Smith has not provided any
evidence that hiring managers contacted Michel about Smith during
Smith’s FMP period, nor that Michel provided a negative review of
Smith to any such hiring managers.
Because Smith has failed to make out a prima facie case that
her dismissal was due to a retaliatory motive on the part of
AT&T, we find that summary judgment was appropriate as to Smith’s
claim that she was discharged as a result of her report to
Corporate Security.
IV.CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
19