United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 19, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-21087
_____________________
JUANITA DEHART,
Plaintiff - Appellant,
versus
BAKER HUGHES OILFIELD OPERATIONS, INC.; DOUG MURRAY,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CV-2233
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
The question presented is whether Juanita DeHart has a viable
retaliation claim against the defendants. Because we conclude that
she has not established a prima facie case of retaliation, we
AFFIRM the district court’s summary judgment for the defendants.
I.
On April 10, 2000, Juanita DeHart, an African-American, began
working as a Design Drafter in the Multilateral Engineering Group
of Baker Hughes Oilfield Operations, Inc. (“Baker Hughes”). Doug
Murray hired DeHart and was her supervisor at the time.
*
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this opinion should not be published and is not precedent except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.
Beginning in October 2000 and continuing for three and a half
years until Baker Hughes terminated DeHart on April 19, 2004,
DeHart complained of air quality problems. DeHart’s first
complaints came in October 2000 when she complained about dust and
the smell of fresh glue and paint from a construction area inside
the building. She requested to be moved to a different area, and
Baker Hughes complied. That next year, she received a favorable
2001 annual review.
In January and February 2002, DeHart took a one-month leave of
absence, complaining of breathing difficulties at work. During the
leave, she requested that Baker Hughes move her again and provide
her with a HEPA air filter. Baker Hughes complied. Later that
year, in July 2002, DeHart allegedly met with Murray’s boss, Brent
Emerson, and claimed racial discrimination against herself and an
African-American coworker, Ron Sinnette, but according to Baker
Hughes, the conversation never took place. In August 2002,
DeHart’s 2002 annual review was again favorable but noted strained
communication between DeHart and her supervisor, Cliff Mills,
stemming from her air quality problems.
In March 2003, DeHart complained about the smell of diesel
fumes and requested a “Negative Ionizer Purification System” air
filter, and Baker Hughes complied. Several months later, DeHart
left work on May 1, 2003 to take a leave of absence, during which
she saw two physicians. During her leave, Baker Hughes mailed
DeHart a letter requesting information regarding her medical
2
condition, diagnosis, and workplace limitations. That same month,
Baker Hughes terminated Sinnette pursuant to a work force
reduction. Sinnette later filed an EEOC charge alleging
discrimination, which the EEOC eventually dismissed.
DeHart returned to work on May 28 but did not stay long. On
her first day back, DeHart complained about the smell of a
coworker’s cologne. On June 8, Murray told DeHart she would not
receive a pay raise in 2003, and the next day, she left work again
due to air quality problems. On June 11, Murray e-mailed DeHart at
home and warned her that she would be terminated if she remained
off work after June 16 without medical authorization.
Nevertheless, when DeHart remained off work after June 16 without
medical authorization, Baker Hughes did not terminate her.
Instead, it sent her a letter requesting information about her
medical condition, to which her physician responded that DeHart had
“moderately severe reactive airway disease” but that the
physician’s testing of DeHart had been “unrevealing.” DeHart
returned to work on June 23.
On July 14, 2003, DeHart received her 2003 annual review. Her
Performance Development Plan rated DeHart as “Development Needed”
in every category in which she was rated. The accompanying written
memorandum criticized DeHart for an allegedly bad attitude and
allegedly poor attendance. In the meeting, Baker Hughes accused
DeHart of “bad mouthing” management, which she denied. During the
meeting, DeHart alluded to allegations of sex and race
3
discrimination against her, but she failed to provide evidence or
details when an HR representative later asked DeHart for specific
evidence and details supporting her claims.
Beginning in late July 2003, Baker Hughes denied DeHart’s
subsequent requests to have her workstation moved, despite requests
from her physicians.
On the morning of August 15, 2003, according to DeHart, an
EEOC investigator called her at home and questioned her regarding
Sinnette’s racial discrimination claim. According to DeHart, she
promptly told Emerson about the phone call when she arrived at work
that morning. Baker Hughes denies these allegations. Later that
day, Baker Hughes issued DeHart a written warning for
insubordination, for being argumentative, and for excessive
absenteeism.
On September 2, 2003, DeHart filed an EEOC charge against
Baker Hughes alleging that she received her poor 2003 annual review
and the August 15 written warning in retaliation for having
participated in Sinnette’s EEOC investigation. DeHart met numerous
times with Baker Hughes’ management and HR department to discuss
the alleged discrimination. On February 4, 2004, Baker Hughes
dismissed her allegations as without merit, and a few weeks later
on February 25, the EEOC followed suit, issuing a Dismissal and
Notice of Right to DeHart.
On April 19, 2004, Baker Hughes terminated DeHart for alleged
“Disruptive/Inability to work harmoniously with other employees.”
4
Thereafter, in May 2004, DeHart filed suit in state court. Baker
Hughes and Murray removed the case to federal district court, which
granted summary judgment for Baker Hughes and Murray. DeHart
appeals the dismissal of her retaliation claim.
II.
The grant of summary judgment is reviewed de novo, applying
the same standard as the lower court. Gowesky v. Singing River
Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is
appropriate when there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law. Fed. R.
Civ. P. 56(c).
DeHart’s retaliation claim is based on 42 U.S.C. § 2000e-
3(a).2 To sustain a retaliation claim, the employee-plaintiff must
establish a prima facie case for retaliation. Baker v. American
Airlines, Inc., 430 F.3d 750, 754 (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. (citations and
internal quotations omitted). If an employee does not establish a
2
The statute states: “It shall be an unlawful employment
practice for an employer to discriminate against any of his
employees ... because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a).
5
prima facie case, we dismiss the retaliation claims as a matter of
law. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 429
(5th Cir. 2000).3 Here, DeHart claims three prima facie cases of
retaliation. For the following reasons, we conclude that all three
fail as a matter of law.
A.
DeHart first argues that because she was “closely related to
or associated with” Sinnette, she may share in Sinnette’s protected
activity of filing an EEOC racial discrimination charge. This
alleged protected activity, according to DeHart, is casually linked
to two alleged adverse employment actions: Baker Hughes’ denial of
DeHart’s request for sick leave, and Baker Hughes’ opening an
“investigative” file against DeHart.
We need not determine whether DeHart has alleged a sufficient
casual link or sufficient adverse employment actions because, as a
matter of law, DeHart cannot claim Sinnette’s protected activity as
her own. In Holt v. JTM Industries, Inc., 89 F.3d 1224 (5th Cir.
1996), this Court ruled that “when an individual, spouse or
otherwise, has not participated ‘in any manner’ in conduct that is
protected ..., we hold that he does not have automatic standing to
3
If the employee establishes a prima facie case, the burden
shifts to the employer-defendant to “state a legitimate
non-retaliatory reason for its action.” Baker, 430 F.3d at 754
(citation omitted). Then, “[a]fter 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. (citations and internal
quotations omitted).
6
sue for retaliation ... simply because his spouse has engaged in
protected activity.” Id. at 1227. In Lowrey v. Texas A&M
University System, 117 F.3d 242 (5th Cir. 1997), this Court
expounded on Holt and explained that “participation is the sine qua
non for a retaliation claim.” Id. at 252 n.17. Although the EEOC4
and some courts5 do not require personal participation, neither do
they extend standing as far as DeHart urges. Accordingly, DeHart
cannot claim Sinnette’s protected activity. Without a protected
activity, DeHart’s first claim of retaliation fails.
B.
DeHart next argues that her participation in Sinnette’s EEOC
investigation was a protected activity casually linked to two
alleged adverse employment actions: Baker Hughes’ written
discipline warning issued to DeHart on August 15, 2003, and the
denial of a pay raise to DeHart on June 8, 2003.
4
See EEOC Compliance Manual on Retaliation, Sections
8-II(B)(3)(c), 8-II(C)(3). The manual states: “The retaliation
provisions of Title VII ... prohibit retaliation against someone so
closely related to or associated with the person exercising his or
her statutory rights that it would discourage or prevent the person
from pursuing those rights.” Id., Section 8-II(C)(3). The manual
gives an example of a spouse, not a fellow member of an ethnic
group. See id.
The EEOC disagrees with the Fifth Circuit’s holding in Holt.
See id. n.27.
5
See, e.g., EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th
Cir. 1993) (plaintiff may allege relative’s protected activities);
Thurman v. Robertshaw Control Co., 869 F. Supp. 934, 941 (N.D. Ga.
1994) (plaintiff may allege protected activity of “close
relative”).
7
In determining whether an employer’s actions constitute
adverse employment actions, under our previous jurisprudence, we
were “concerned solely with ultimate employment decisions.” Walker
v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (citing Webb v.
Cardiothoracic Surgery Assoc. of N. Texas, P.A., 139 F.3d 532, 540
(5th Cir. 1998)). In a recent opinion, however, the Supreme Court
rejected our “ultimate employment decision” standard. Burlington
Northern and Santa Fe Ry. Co. v. White, __ U.S. __, 126 S.Ct. 2405,
2414 (2006) (“We therefore reject the standards applied in the
Courts of Appeals ... that have limited actionable retaliation to
so-called ‘ultimate employment decisions.’”). Under Burlington
Northern, “a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. at 2415
(citations and internal quotations omitted).
Here, Baker Hughes issued DeHart a written warning on August
15, 2003, allegedly for insubordination, for being argumentative,
and for excessive absenteeism. Under the facts before us, we
conclude that the written warning to DeHart would not “have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. In the first place, there were colorable
grounds for the warning and a reasonable employee would have
understood a warning under these circumstances was not necessarily
indicative of a retaliatory mind-set. Furthermore, the August 15
8
written warning did not in fact dissuade a charge of
discrimination, given that several weeks later on September 2, a
charge was filed. Accordingly, because the written warning did not
constitute an “adverse employment action,” this retaliation claim
fails.6
As to the denial of a pay raise, regardless of whether this is
an adverse employment action, the casual link fails. Murray told
DeHart on June 8, 2003 that she would not receive a pay raise that
year. This warning occurred over two months before DeHart
allegedly participated in Sinnette’s EEOC investigation and
supposedly told Emerson about her participation, which was on
August 15. Therefore, the casual link fails, and with it, DeHart’s
retaliation claim.
C.
DeHart finally argues that her EEOC charge was a protected
activity casually linked to her termination.7
Filing an EEOC charge is clearly a protected activity.
Walker, 214 F.3d at 629 (citing Dollis v. Rubin, 77 F.3d 777, 781
6
Because this retaliation claim fails, there is no reason for
a fact-finder to resolve the factual dispute as to whether Baker
Hughes knew, at the time it issued the August 15 written warning,
that DeHart had participated in Sinnette’s EEOC investigation.
7
DeHart also appears to argue that the EEOC’s issuance of a
dismissal and right-to-sue letter is a protected activity casually
linked to her termination. Her argument fails because an EEOC’s
issuance of a dismissal and right-to-sue letter is not a protected
activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001).
9
(5th Cir. 1995)). Likewise, termination is clearly an adverse
employment action, id., even under the new standard articulated in
Burlington Northern, see 126 S.Ct. at 2415. The question, then, is
whether a casual link existed between the two.
To determine the existence of a casual link, we look to three
factors: (1) the employee’s past disciplinary record, (2) whether
the employer followed its typical policy and procedures in
terminating the employee, and (3) the temporal proximity between
the employee’s conduct and termination. Nowlin v. Resolution Trust
Corp., 33 F.3d 498, 508 (5th Cir. 1994). Regarding the temporal
proximity of the protected activity and adverse employment action,
“the mere fact that some adverse action is taken after an employee
engages in some protected activity will not always be enough for a
prima facie case.” Roberson v. Alltel Info. Servs., 373 F.3d 647,
655 (5th Cir. 2004) (quoting Swanson v. Gen. Servs. Admin., 110
F.3d 1180, 1188 n.3 (5th Cir. 1997)). Consideration of the time
lapse is something for us to consider but is not itself
determinative of retaliation. Shirley v. Chrysler First, Inc., 970
F.2d 39, 44 (5th Cir. 1992). Close timing between the protected
activity and adverse employment action may provide a causal link.
Swanson, 110 F.3d at 1188. However, conclusions drawn from a lack
of suspicious timing are less compelling than those drawn from the
existence of suspicious timing. Fabela v. Socorro Indep. Sch.
Dist., 329 F.3d 409, 418 n.9 (5th Cir. 2003).
10
Here, DeHart’s past disciplinary record was not stellar. Her
2002 annual review noted a strained relationship between her and
Mills. When she took a leave of absence in June 2003 without
medical authorization, she came very close to termination, yet for
reasons unclear, Baker Hughes decided to forgo Murray’s explicit
warning of terminating DeHart if she did not return to work or
provide medical authorization for her leave by June 16. When she
received her 2003 annual review, Baker Hughes listed “Development
Needed” in every category for which DeHart was rated, and the
accompanying written memorandum referred to her bad attitude and
poor attendance. On August 15, 2003, Baker Hughes issued her a
warning, charging insubordination, an argumentative attitude, and
excessive absenteeism.
Furthermore, the record shows that Baker Hughes followed its
usual policies and procedures in terminating DeHart. When DeHart
complained repeatedly about air quality problems, Baker Hughes
repeatedly accommodated her requests. Whenever DeHart took leaves
of absence for alleged medical problems, Baker Hughes gave her the
opportunity to respond and to support her allegations with medical
support or authorization. When she complained about sex and race
discrimination on July 14, 2003, Baker Hughes followed up and asked
her to provide details. Each year, Baker Hughes provided DeHart
with an annual review, and as problems developed, Baker Hughes
discussed these problems with DeHart. Similarly, Baker Hughes
provided DeHart with ample warnings, advising her during her June
11
2003 leave that she could be terminated if she did not provide
medical authorization or report back to work, and, further warning
her on August 15, 2003. As problems developed, Baker Hughes
provided DeHart with numerous meetings to discuss the problems.
With respect to the temporal proximity between the day DeHart
filed her EEOC charge, September 2, 2003, and the day Baker Hughes
terminated her, April 19, 2004, some seven and a half months
lapsed. In this Circuit, similar lapses of time, by themselves,
have been insufficient to show a causal link. See Bell v. Bank of
America, 171 Fed. Appx. 442, 444 (5th Cir. 2006) (unpublished)
(seven-month lapse, by itself, did not demonstrate a causal link);
Myers v. Crestone Intern., LLC, 121 Fed. Appx. 25, 28 (5th Cir.
2005) (unpublished) (three-month lapse, by itself, did not create
casual link); Harvey v. Stringer, 113 Fed. Appx. 629, 631 (5th Cir.
2004) (unpublished) (ten-month lapse, by itself, did not create
casual link); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-
72 (5th Cir. 2002) (five-month lapse, by itself, did not create a
casual link). In contrast, in Shirley we held that a casual link
existed despite a fourteen-month lapse, but there the employee had
worked for nine years without a single oral or written reprimand
until she filed an EEOC charge, at which point the employer
“suddenly found three so-called flagrant indiscretions or
violations, which it accused this plaintiff of committing.” See
970 F.2d at 44. Here, unlike Shirley, Baker Hughes gave DeHart
repeated warnings before she was terminated.
12
Considering all three factors together, it is clear as a
matter of law that DeHart has failed to establish a casual link
between filing her EEOC charge and her termination. See Nowlin, 33
F.3d at 508. Accordingly, her final retaliation claim fails.8
III.
DeHart has failed to demonstrate a prima facie case of
retaliation by Baker Hughes. Accordingly, the district court’s
summary judgment for Baker Hughes and Murray is
AFFIRMED.
8
DeHart alleges other protected activities and adverse
employment actions. She does not, however, allege any casual link
between them, and accordingly they are insufficient to create a
prima facie case of retaliation. See Baker, 430 F.3d at 754.
13