United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-30168
RICKY JOSEPH THIBODEAUX,
Plaintiff-Appellant-Cross-Appellee,
versus
CLECO UTILITY GROUP, INC.; CLECO POWER LLC,
Defendants-Appellees-Cross-Appellants,
CLECO POWER CORPORATION,
Cross-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(01-CV-2674)
Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
For this appeal from a summary judgment for defendants
(jointly, CLECO), the primary issue is whether material fact issues
preclude the judgment against Ricky Joseph Thibodeaux’s Title VII
retaliation claim. A second issue, presented by CLECO’s cross-
appeal, concerns the district court’s dismissing, without
prejudice, Thibodeaux’s state law claims; CLECO wants those claims
decided by that court instead. Because material fact issues exist
*
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this opinion should not be published and is not precedent except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.
for the retaliation claim, summary judgment against it was
improper; accordingly, this moots CLECO’s cross-appeal. VACATED
and REMANDED.
I.
The pertinent parts of the summary judgment record, viewed in
the requisite light most favorable to the non-movant (Thibodeaux),
follow. Thibodeaux, a white male hired by CLECO in 1973,
supervised meter readers, including appointing lead meter readers
when a vacancy occurred. These positions were historically not
posted to invite applications; Thibodeaux had never known one to be
posted. In 1999, a lead meter reader position became available;
Thibodeaux intended to appoint either of two employees; each was
white.
Thibodeaux became aware that a black meter reader whom
Thibodeaux supervised, Gant, met with a black CLECO vice president,
Hall. After becoming aware of this meeting, Thibodeaux was called
to meet with his supervisor, Bunting.
Bunting informed Thibodeaux that Hall had instructed Bunting
and a human resources manager, Barnes, to interview the employees
Thibodeaux supervised. Upon Thibodeaux’s expressing his confusion
to Bunting, he replied: “we’re just very concerned about a
racial/black lawsuit”; “[a] black employee raised the issues, and
we’re scared of a lawsuit”. Upon Thibodeaux’s asking what issues
Gant had raised with Hall, Bunting declined to tell Thibodeaux.
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Later, Bunting and Barnes instructed Thibodeaux to post the
position in order to permit applications. When Thibodeaux asked
why his authority to appoint was being taken away, Bunting and
Barnes responded: “that’s the way it was gonna [sic] be”.
(Thibodeaux was told that the position was being posted because
Gant was black and because Gant might sue, but he has not presented
evidence of when he was told this.) Thibodeaux objected to posting
the position because he believed Gant was receiving privileges
because of his race, which would adversely affect non-minority
employees. Nevertheless, Thibodeaux complied.
The vacancy posting included a deadline for receipt of
applications; CLECO had a written policy that there would be no
exceptions for missing an application deadline. Gant’s application
did not meet the deadline, and Thibodeaux informed Barnes of that.
Nevertheless, Barnes instructed Thibodeaux to accept the
application. When Thibodeaux inquired why, Barnes replied: “you
are to do it”.
When Thibodeaux spoke to Bunting about being required to
accept the application, Bunting said the situation could be
“touchy” and could “come back and bite” Thibodeaux. Thibodeaux
again objected because he believed Gant was receiving preferential
treatment because of his race, but Thibodeaux again complied. (At
an unknown point in time, Thibodeaux was told the reason for
accepting Gant’s late application was that he was black.)
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Thibodeaux evaluated Gant and the other applicant (white).
After his doing so, the intended white appointee outscored Gant.
Thibodeaux was instructed by Bunting to revise Gant’s evaluation to
make it less critical. Thibodeaux protested because he thought his
evaluation was accurate. Bunting said, for the first time, that
Gant would not get the job, but that his evaluation should be
improved to make him look better.
After submitting a revised evaluation, which provided less
critical narrative evaluation but gave Gant the same numerical
score as the first evaluation, Thibodeaux was instructed by Bunting
to revise the evaluation again. He was instructed to increase
Gant’s score. Thibodeaux objected because he had “looked at it
objectively” and made a “judgment call” but did make the revision.
Thibodeaux was told a third time to change the evaluation; he
was told that Gant’s score must be further increased. Thibodeaux
refused because to further alter the evaluation would falsify it.
Thibodeaux was told that the reason for the re-evalutions was
because Gant was black and CLECO “was gonna [sic] get sued”.
After Thibodeaux refused to perform this requested — fourth —
evaluation, Bunting performed it. He interviewed Gant and the
white employee. Bunting’s evaluation gave each applicant higher
scores than Thibodeaux had given them. Nevertheless, on Bunting’s
evaluation, the white employee still outscored Gant and was given
the job.
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Thibodeaux was suspended and offered a choice of either
immediate termination or demotion with a 50 percent pay cut. He
chose the demotion; but, after several months in the new position,
he resigned. According to Barnes, the actions taken against
Thibodeaux were because of his handling of the entire situation
with Gant.
Thibodeaux sued under federal and state law, presenting, inter
alia, a Title VII retaliation claim premised on his objecting to
unlawful racial discrimination. 42 U.S.C. § 2000e-3(a).
(Concerning Title VII, he also claimed racial discrimination but
does not appeal the summary judgment against that claim.)
On CLECO’s motion for summary judgment, the district court
applied the well-established three-step burden shifting test
(whether: prima facie case; justification; pretext). Concerning
the Title VII retaliation claim, it held: Thibodeaux had failed to
establish a prima facie case; in the alternative, he had failed to
create a material fact issue that CLECO’s claimed justification for
his demotion — insubordination — was a pretext for retaliation.
Among other things, the court dismissed, without prejudice,
Thibodeaux’s state law discrimination and retaliation claims. (As
discussed supra, vacating the judgment moots CLECO’s cross-appeal
about those claims.)
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II.
A summary judgment is reviewed de novo; it is proper only if,
inter alia, there is no material fact issue. FED. R. CIV. P. 56(c);
e.g., Ackel v. National Communications, Inc., 339 F.3d 376, 381
(5th Cir. 2003). As stated, for that review, we view the evidence,
and draw all inferences, in the light most favorable to the non-
movant (Thibodeaux). Ackel, 339 F.3d at 381. Pursuant to our de
novo review, material fact issues exist on: whether Thibodeaux
presented a prima facie case; and whether CLECO’s justification for
the demotion was a pretext. Hence, summary judgment was improper
on that claim.
A.
To establish a prima facie case for Title VII retaliation,
Thibodeaux must show: he engaged in activity protected by Title
VII; an adverse employment action occurred; and there is a causal
link between the adverse action and the protected activity. E.g.,
Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
Obviously, the second and third factors are satisfied: the
demotion was an adverse employment action; and there was a causal
link between all of Thibodeaux’s actions with respect to the lead
meter reader position and the demotion. (Barnes stated in her
deposition that the “whole situation” of Gant’s application led to
Thibodeaux’s demotion: posting, accepting, and evaluating.)
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Concerning the disputed protected activity factor, Thibodeaux
was so engaged if he opposed actions he reasonably believed to be
violative of anti-discrimination statutes. E.g., id. Thibodeaux
believed Gant was receiving preferential treatment, because of his
race, in two respects: the position’s being posted; and his
application’s being accepted.
Viewing the summary judgment record in the requisite light
most favorable to Thibodeaux, he could reasonably have believed
that his protests were in opposition to unlawful discrimination.
He was aware that Gant had spoken with a black CLECO officer, who
then initiated an investigation into Thibodeaux’s team by Bunting
and Barnes; Bunting directed Thibodeaux to post a position that had
never, to Thibodeaux’s knowledge, been posted previously; and, when
Gant failed to apply on time, Barnes ordered Thibodeaux to accept
his application, despite a written company policy to the contrary.
In sum, there is a genuine issue of material fact whether, prior to
being told that Gant would not get the job, Thibodeaux reasonably
believed that he was opposing unlawful actions.
B.
For pretext vel non, at issue is whether Thibodeaux created a
material fact issue for CLECO’s proffered non-retaliatory
justification for Thibodeaux’s demotion — insubordination.
According to Bunting, his instructions to Thibodeaux were issued
out of concern that a disparity between the low rating given by
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Thibodeaux and Gant’s clean personnel file raised the possibility
that Gant would file a workplace discrimination action or that
CLECO’s own review board would reject Thibodeaux’s decision.
Bunting’s affidavit provides: Thibodeaux was insubordinate “in
refusing to comply with my direct order to redo ... Gant’s
evaluation to properly reflect his competencies as reflected in his
personnel file”; and this insubordination led to the demotion.
As reflected by the foregoing discussion of the summary
judgment record, material fact issues exist for whether that
justification for the adverse employment action was pretext. In
addition, regarding Bunting’s claimed concern about Thibodeaux’s
evaluation creating a disparity with Gant’s personnel file,
Thibodeaux stated: CLECO had a policy that personnel files were
not to have negative materials placed in them; any negative
materials in the personnel files were to be expunged; Bunting was
aware of this policy; and Barnes had investigated a complaint
against Gant.
III.
For the foregoing reasons, the judgment is VACATED and this
action is REMANDED to district court for further proceedings.
VACATED and REMANDED
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