Case: 22-50737 Document: 00516687186 Page: 1 Date Filed: 03/23/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50737
Summary Calendar FILED
March 23, 2023
Lyle W. Cayce
Keith Eubanks, Clerk
Plaintiff—Appellant,
versus
Endeavor Energy Resources, L.P.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-61
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Keith Eubanks brings a Texas Labor Code and ADA retaliation claim
against Endeavor, his former employer. The district court granted summary
judgment for Endeavor because Eubanks had not shown a material factual
dispute concerning whether Endeavor’s stated reasons were a pretext for
retaliation. Eubanks appeals. We AFFIRM.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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On February 21, 2020, Plaintiff-Appellant Keith Eubanks was
terminated from his employment with Defendant-Appellee Endeavor Energy
Resources, L.P. (“Endeavor”) by his supervisor, Mark Webster. On April 8,
2021, Eubanks filed a complaint alleging his termination was retaliatory and
in violation of Chapter 21 of the Texas Labor Code 1 and the Americans with
Disabilities Act (“ADA”). 2 Specifically, Eubanks alleged that Endeavor
terminated his employment because he “complained of discrimination,
and/or . . . engag[ed] in protected activity.” In a subsequent filing, Eubanks
clarified that the allegedly discriminatory events at issue included Webster’s
comments regarding an employee’s colorblindness, Eubanks’s hearing loss,
and another employee’s obesity. Eubanks’s alleged protected activity was
asking Webster to stop making these comments on January 24, 2020, roughly
one month prior to his February 21 termination.
On July 16, 2022, the district court granted Endeavor’s motion for
summary judgment. It held that Eubanks had established a prima facie case of
retaliation, that Endeavor had put forth a legitimate, non-discriminatory
reason for its actions, and that Eubanks had failed to meet his burden of
showing a genuine dispute of material fact about whether Endeavor’s stated
reasons for his termination were pretexts for retaliation. Eubanks timely
appeals.
We review de novo a grant of summary judgment and apply the same
standards as the district court. Yogi Metals Grp., Inc. v. Garland, 38 F.4th 455,
1
On appeal, Eubanks does not pursue reversal of summary judgment on his
retaliation claim as it arises under the Texas Labor Code.
2
Additionally, because the same burden-shifting framework is applicable to claims
under both Title VII and the ADA, we cite cases involving Title VII claims when analyzing
claims under either statute where relevant and applicable. See Feist v. La., Dep’t of Just.,
Off. of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing both Title VII and ADA
cases when discussing a claim of retaliation under the ADA).
2
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458 (5th Cir. 2022). Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We view the evidence and draw all
inferences in a light most favorable to the nonmovant; however,
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”
Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003).
“The ADA prohibits an employer from ‘discriminat[ing] against any
individual because such individual has opposed any act or practice made
unlawful by [the ADA] or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under [the ADA].’” Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298,
303–04 (5th Cir. 2020) (alterations in original) (quoting 42 U.S.C.
§ 12203(a)). When a plaintiff, as here, presents indirect evidence of
retaliation, 3 we apply the burden-shifting framework from McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this framework,
[t]o establish a prima facie case of unlawful retaliation under
the ADA, the plaintiff must show that: (1) she engaged in an
activity protected by the ADA, (2) she suffered an adverse
employment action, and (3) there is a causal connection
between the protected activity and the adverse action. If the
3
Eubanks argues on appeal that Webster’s February 11, 2020 comment that
Webster would “always be on guard, and this is no way to work” constitutes direct
evidence that Eubanks’s termination was motivated by retaliation. But this argument was
not raised in the district court, and it is thus waived. See State Indus. Prods. Corp. v. Beta
Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009).
Eubanks unpersuasively argues this argument was not waived. Although he did
mention these comments in a filing, they were mentioned as part of Webster’s list of
complaints about Eubanks’s job performance. Eubanks did not clearly argue that these
comments were direct evidence of retaliation, and none of the direct evidence-related
authorities cited in his appellant brief were cited in his arguments in the district court.
3
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employee establishes a prima facie case of retaliation, the
employer must come forward with a legitimate,
nondiscriminatory reason for its action. If the employer meets
its burden of production, the employee must then demonstrate
that the proffered reason is a pretext for retaliation.
“Ultimately, the employee must show that ‘but for’ the
protected activity, the adverse employment action would not
have occurred.”
Lyons, 964 F.3d at 304 (footnotes omitted) (quoting Nall v. BNSF Ry. Co.,
917 F.3d 335, 349 (5th Cir. 2019)).
Eubanks has shown a prima facie case of retaliation when considering
the evidence in a light most favorable to him. He opposed Webster’s
comments regarding various employees’ disabilities, which is a protected
activity, and his termination is an adverse employment action. See 42 U.S.C.
§ 12203 (prohibiting discrimination “against any individual because such
individual has opposed any act or practice made unlawful by [the ADA] or
because such individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under [the ADA]”).
The temporal proximity between the protected activity on January 24 and his
termination on February 21 is close enough to establish causation. See Porter
v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–49 (5th
Cir. 2015) (“[T]emporal proximity between protected activity and alleged
retaliation is sometimes enough to establish causation at the prima facie
stage. . . . Given this precedent, the six-and-a-half-week timeframe between
Porter's testimony and the denial of her rescission is sufficient to satisfy the
prima facie case of causation.”). Endeavor then came forward with a
nondiscriminatory reason for Eubanks’s termination, i.e., his poor
performance. The record shows that Eubanks, inter alia, did not “plan or
communicate well” and failed to follow through on projects.
4
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Eubanks then has the burden of showing a genuine dispute of material
fact as to whether Endeavor’s stated reason for termination was pretextual.
He fails to meet this burden. He first argues that comments can constitute
evidence of pretext if they indicate discriminatory animus and are made by
the person responsible for termination. He argues that such bias or animus is
present in Webster’s comments that he would “always be on guard,” that he
wanted to get Eubanks “out of production,” and that he did not want to put
Eubanks on a performance improvement plan. Eubanks argues that these
comments show that Endeavor’s stated termination reason—performance
issues—was pretextual. We disagree. In context, these comments are from
Webster’s notes where he was primarily documenting various criticisms of
Eubanks’s working style. These particular comments, read in their broader
context, are straightforwardly related to Eubanks’s performance, and
Eubanks does not present any analysis or additional evidence as to why these
comments indicate the kind of improper bias, animus, or motive serving as
improper pretext for retaliation.
Next, Eubanks argues that he has shown a material factual dispute as
to pretext because Endeavor’s specific method of termination failed to follow
company policies. But the record demonstrates that Endeavor followed
established policies in terminating Eubanks. Eubanks contends that
Endeavor should have put him on a performance improvement plan (“PIP”),
but Endeavor’s human resources department had previously stopped
utilizing PIPs. And in any case, Endeavor’s employee handbook specifically
allowed Endeavor to change the order of disciplinary actions, eliminate
disciplinary steps, or implement new disciplinary measures.
Eubanks’s other arguments concerning pretext are without merit.
Eubanks avers that Webster only began to compile evidence of Eubanks’s
poor performance after his January 2020 protected activity. But this
contention is belied by the record, which shows Webster maintained records
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of various instances of Eubanks’s performance issues prior to Eubanks’s
protected activity. Eubanks’s disagreements with how to interpret this
evidence are insufficient to create a material factual dispute, Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (noting that “merely
disputing” a performance assessment will not create a material factual
dispute), and are not “of such quality and weight that reasonable and fair-
minded men in the exercise of impartial judgment might reach different
conclusions.” Lindsey v. Bio-Med. Applications of La., L.L.C., 9 F.4th 317,
325–26 (5th Cir. 2021) (quoting Watkins v. Tregre, 997 F.3d 275, 283–84 (5th
Cir. 2021)). And despite the close temporal proximity between his protected
activities and his termination, Eubanks has not proffered other significant
evidence of pretext that would otherwise point to a material factual dispute.
Ultimately, Eubanks has failed to create a genuine dispute of material
fact as to whether his protected activities were the but-for cause of his
termination. As noted above, Endeavor has provided ample evidence that
Eubanks’s termination was motivated by numerous examples of less-than-
stellar job performance. Without more, temporal proximity between
Eubanks’s protected activities and his termination is insufficient to establish
but-for causation. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802,
808 (5th Cir. 2007) (rejecting “the notion that temporal proximity standing
alone can be sufficient proof of but for causation”). Eubanks argues that his
protected activities were the but-for cause of his termination because, in his
annual evaluation with Webster (prior to Eubanks’s protected activity),
Webster noted that Eubanks had shown improvement and suggested that
Endeavor would continue to employ him. But this argument standing alone
is insufficient to create a genuine material factual dispute concerning pretext
in light of the extensive record of documented performance-related issues,
both before and after this performance evaluation, that Endeavor credibly
identifies as motivating its termination decision.
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For the foregoing reasons, we AFFIRM.
7