Manning v. Chevron Chemical Co., LLC

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 13, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 01-41222
____________

RONALD H. MANNING,

Plaintiff-Appellant,

versus

CHEVRON CHEMICAL COMPANY LLC,

Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Texas

Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Ronald H. Manning (“Manning”) appeals the district court’s grant of summary judgment in

favor of Chevron Chemical Company, LLC (“Chevron”). Manning filed this employment

discrimination lawsuit against Chevron, claiming that the company discriminated against him on the

basis of his race, gender, and disability, and retaliated against him for seeking redress for these alleged

wrongs, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title

VII”), and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). We conclude
that the district court properly granted Chevron’s motion for summary judgment, and therefore

affirm.

I

For approximately 23 years, Manning, an African American male, worked at a Chevron

facility in Orange, Texas. In 1998, Manning applied for a promotion to the position of Technician 1

(“T-1”). Chevron decided not to promote Manning, and instead selected Peggy Williams (an African

American female) and Fred Noyes (a Caucasian male) for the two open positions.

On October 26, 1998, after learning that he was not selected for a T-1 position, Manning filed

a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging

race and gender discrimination as well as retaliation.1 Manning did not check the box labeled

“disability” (for an allegation of disability discrimination) on that original charge.

Manning subsequently consulted an attorney about his case. The attorney noticed that

Manning had a tendency to stutter as he spoke, and suggested that Manning might also have a

disability discrimination claim. At his counsel’s suggestion, on November 20, 1999, Manning

amended his charge of discrimination to include an ADA claim. He then filed the instant lawsuit,

raising race, gender, disability, and retaliation claims for Chevron’s failure to promote him to a T-1

position.

A few months later, Chevron began reorganizing its workforce2 and informed Manning that

he was among the employees who might be terminated during this process. Chevron offered Manning

1
Manning explained the basis for the retaliation claim when he filed his federal complaint:
Manning had previously brought employment discrimination actions against Chevron, and he believed
that the company failed to promote him to retaliate against him for having filed those prior lawsuits.
2
The reorganization was precipitated by a merger of Chevron and Phillips Petroleum.

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(along with many of the other employees facing layoff) the opportunity to apply for positions at other

Chevron facilities. Manning subsequently applied for transfers to the Cedar Bayou Chemical Plant

and the Kingwood technology facility. Manning did not obtain a position at either location. As a

result, he amended his federal complaint against Chevron to include disability discrimination and

retaliation claims for the company’s failure to transfer him.

Chevron offered most of the employees facing layoff a severance package valued at

approximately $45,000.00. Chevron informed Manning that, in order to receive the package, he

would have to sign a release form, waiving all claims against the company. Manning refused to sign

the release and did not receive any severance pay. Manning alleged in his federal lawsuit that

Chevron’s failure to provide him with the severance package was another instance of retaliation.

The district court found that Manning had failed to raise a genuine issue of material fact as

to any of his race, gender, or retaliation claims. The court also concluded that Manning’s disability

discrimination claim regarding the T-1 position was time-barred, because Manning had failed to file

a timely charge of disability discrimination with the EEOC. Therefore, the district court granted

Chevron’s motion for summary judgment.

On appeal, Manning contends that (1) his ADA claim regarding the T-1 position is not time-

barred; (2) even if that first ADA claim is time-barred, his additional disability discrimination claim

(regarding the Cedar Bayou transfer positions) is subject to equitable tolling; (3) Chevron engaged

in race and gender discrimination when it failed to promote Manning to the T-1 position; and

(4) Chevron’s failure to transfer him and its refusal to award him the severance package constituted

retaliation. We address each claim in turn.

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 II

We review the district court’s ruling on a motion for summary judgment de novo, applying

the same legal standard as the district court. Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th

Cir. 2002). Summary judgment should be granted only when there is “no genuine issue as to any

material fact[.]” FED. R. CIV. P. 56(c); Wyatt, 297 F.3d at 408-09. An issue of fact is material only

“if its resolution could affect the outcome of the action.” Wyatt, 297 F.3d at 409.

In determining whether t here is a dispute as to any material fact, we consider all of the

evidence in the record, but we do not make credibility determinations or weigh the evidence. Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Instead, we “draw all reasonable

inferences in favor of the nonmoving party[.]” Id.; Wyatt, 297 F.3d at 409. If we determine, after

giving credence to the facts as presented by the nonmoving party, that “the moving party is entitled

to a judgment as a matter of law,” we affirm the grant of summary judgment. FED. R. CIV. P. 56(c).

The district court found t hat Manning’s disability discrimination claim regarding the T-1

position was untimely. As the district court recognized, under the ADA, Manning had to file a charge

of discrimination within 300 days o f the alleged discriminatory act. See 42 U.S.C. § 12117

(incorporating 42 U.S.C. § 2000e-5(e)). The limitations period began to run from the time Manning

“[knew] or reasonably should have known that the challenged act [had] occurred.” Vadie v. Miss.

State Univ., 218 F.3d 365, 371 (5th Cir. 2000).

Manning learned that he did not receive the T-1 position on June 16, 1998. He had 300 days

from that date (or until April 12, 1999) to file his charge of discrimination. Manning did file a timely

charge on October 26, 1998, but that charge alleged only race, gender, and retaliation claims.

Manning did not amend his charge to include an ADA claim until November 20, 1999, after the

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expiration of the 300-day period. As a result, the district court concluded that his disability

discrimination claim was untimely.

Manning argues that the district court erred in holding that his ADA claim was time-barred.

He contends that the court should have found that his amended charge, alleging disability

discrimination, “relates back” to the date of his (timely filed) original charge.

As Manning appears to recognize, EEOC regulations allow a claimant to amend a charge of

discrimination to “cure technical defects or omissions” or to “clarify and amplify” the initial

allegations. 29 C.F.R. § 1601.12(b). If the amendments involve acts that “relate[] to or grow[] out

of the subject matter of the original charge,” the amendments will “relate back to the date the charge

was first received.” Id.; see 29 C.F.R. § 1626.8(c). Manning contends that his amendment, which

added a disability discrimination claim, is sufficiently related to the subject matter of his original

charge (i.e., his race, gender, and retaliation claims) to “relate back” to the date of his original charge.

As a result, he claims, his disability discrimination claim should be deemed timely.

Generally, amendments that raise a new legal theory do not “relate back” to an original charge

of discrimination. See, e.g., EEOC v. Miss. Coll., 626 F.2d 477, 483-84 (5th Cir. 1980) (observing

that “[b]ecause [the claimant’s] allegations of racial discrimination do not relate to or grow out of the

allegations of sex discrimination advanced in the original charge, that aspect of the amended charge

does not relate back to the time of filing of [the] original charge”); Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999) (holding that the

plaintiff’s amended charge did not relate back under § 1601.12(b), because the original charge alleged

only race discrimination, while the amended charge included “a new theory of recovery”—retaliation);

Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir. 1998) (“[A]n untimely amendment

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that alleges an entirely new theory of recovery does not relate back to a timely filed original charge.”);

id. at 576 (concluding that an amendment containing a claim of disability discrimination did not relate

back to the original charge, which alleged age discrimination); Evans v. Tech. Applications & Serv.

Co., 80 F.3d 954, 963-64 (4th Cir. 1996) (holding that the plaintiff’s age discrimination claim did not

relate back to the originally filed charge of sex discrimination).

This rule has an important policy justification. One of the central purposes of the employment

discrimination charge is to put employers on notice of “the existence and nature of the charges against

them.” EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984). In order to adequately notify employers

about the nature of the charges against them, employees must inform their employers from the outset

about their claims of discrimination. See Simms, 165 F.3d at 1327 (“Prohibiting late amendments that

include entirely new theories of recovery furthers the goals of the statutory filing period—giving the

employer notice and providing opportunity for administrative investigation and conciliation.”);

Fairchild, 147 F.3d at 575 (“The charge filing requirement ensures that the employer has adequate

notice of the charges and promotes conciliation at the administrative level.”).

Despite the important policy justifications for requiring employees to assert all of their claims

in the original charge, we have identified one very narrow exception to this general rule. We have

held that an amendment, even one that alleges a new theory of recovery, can relate back to the date

of the original charge when the facts supporting both the amendment and the original charge are

essentially the same. See Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985) (concluding

that the plaintiff’s amendment, which alleged gender discrimination, related back to the age and

retaliation claims in her original charge, because the factual allegations in the original charge included

a reference to gender discrimination); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-64 (5th

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Cir. 1970) (concluding that the plaintiff could add a national origin discrimination claim to the gender

discrimination claim in her original charge).

Manning contends that his case fits under our exception. He asserts that, when he amended

his original charge to include a disability discrimination claim, he “did not allege new and/or additional

facts to support his amended disability claim.” Manning appears to assume that, under our cases, an

employee can amend his charge of discrimination at any point to allege a new theory of recovery, as

long as the employee does not allege any new facts in the amended charge.

Manning misunderstands the import of our precedent. The issue is not whether the employee

adds any facts when he amends his charge of discrimination. Instead, the question is whether the

employee already included sufficient facts in his original complaint to put the employer on notice that

the employee might have additional allegations of discrimination. See Hornsby, 777 F.2d at 247

(concluding that the plaintiff could add a claim of gender discrimination because the facts in her

original charge supported such a claim, but holding that the plaintiff could not amend her complaint

to include a claim of sexual harassment, because the fact s alleged in the original charge did not

support such a claim); see also Sanchez, 431 F.2d at 462 (“[T]he crucial element of a charge of

discrimination is the factual statement contained therein.”). In this case, Manning failed to allege

sufficient facts in his original charge to provide Chevron with the requisite notice. Therefore, we hold

that Manning’s amended charge, alleging disability discrimination, does not relate back to his original

charge, which raised different theories of recovery.

As Manning acknowledges, our conclusion that Manning’s ADA claim regarding the T-1

position was untimely “adversely affect[s]” his additional disability discrimination claim. Manning

was informed on July 19, 2000, that he would not be transferred to any position at the Cedar Bayou

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facility. He then had 300 days (or until May 15, 2001) to file a charge of discrimination. Manning,

however, never filed any charge of discrimination with respect to these transfer positions. Manning

believed that a new charge of discrimination was unnecessary, because (in his view) his ADA claims

were already properly before the district court. However, as we have concluded, Manning did not

file a timely charge of disability discrimination with respect to the T-1 position. Therefore, in order

to bring a disability discrimination claim with respect to the transfer positions, he should have filed

a new charge of discrimination. Because he failed to do so, his additional ADA claim is also time-

barred.

Manning concedes that his disability discrimination claim regarding the Cedar Bayou facility

was untimely. He argues, however, that we should apply the doctrine of equitable tolling to this

claim.

As Manning asserts, the limitations period on filing a charge of employment discrimination

“is subject to equitable doctrines such as tolling or estoppel.” Nat’l RR Passenger Corp. v. Morgan,

536 U.S. 101, 113 (2002); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). However,

these equitable doctrines “are to be applied sparingly.” Morgan, 536 U.S. at 113. The party who

invokes equitable tolling bears the burden of demonstrating that it applies in his case. Ramirez v. City

of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002).

We have identified three potential bases for equit able tolling: (1) the pendency of a suit

between the same parties in the wrong forum; (2) the plaintiff’s lack of awareness of the facts

supporting his claim because of the defendant’s intentional concealment of them; and (3) the EEOC’s

misleading the plaintiff about his rights. Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.

1988). Manning asserts that all three bases for equitable tolling apply in his case.

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 Manning first argues that equitable tolling should apply because his case has been pending in

the wrong forum. Manning appears t o assert that, because he brought his claim in an untimely

manner, the district court was the “wrong” forum for those claims. Evidently, Manning

misunderstands the meaning of the first factor justifying equitable tolling. As we observed in

Chappell v. Emco Mach. Works Co., 601 F.2d 1295 (5th Cir. 1979), equitable tolling is appropriate

in the rare case when the parties have been litigating an action in state court, but they later discover

that they chose the wrong forum under state law. Id. at 1302. This first basis for equitable tolling

does not apply in Manning’s case.

Manning next asserts that equitable tolling is appropriate because Chevron concealed the facts

supporting his ADA claim. Manning suggests that he was unaware that his alleged disability (his

stuttering) might have affected Chevron’s decision with respect to the Cedar Bayou positions until

the company released the notes from Manning’s interview for the positions. These notes contained

negative comments about Manning’s speech and communication skills. Manning claims that, until

these notes were released in November or December of 2000, he had no way of knowing that he

might have been discriminated against based on his disability. Thus, Manning suggests, Chevron

misled him about a potential ADA claim.

Manning’s argument lacks merit. We equitably toll a limitations period only when the

employer’s affirmative acts mislead the employee and induce him not to act within the limitations

period. Ramirez, 312 F.3d at 184; Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 391 (5th Cir. 2002).

In this case, Manning has not alleged that Chevron took any action that might have induced him not

to file a charge of discrimination. By his own admission, Manning failed to file a new charge with the

EEOC solely because he believed his disability discrimination claims were already properly before the

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district court.

That leads us to Manning’s assertion that the third basis for equitable tolling applies in his

case: the EEOC misled him about the nature of his rights. Manning contends that, by issuing him a

new right to sue letter (containing an ADA claim relating to the T-1 position), the EEOC led Manning

to believe that he could properly bring his ADA claims. Once again, Manning misunderstands our

stated basis for equitable tolling. We apply equitable tolling when an employee seeks information

from the EEOC, and the organization gives the individual incorrect information that leads the

individual to file an untimely charge. See Ramirez, 312 F.3d at 184. In this case, Manning does not

allege that the EEOC gave him any incorrect information with respect to the proper time for filing

his charge. Therefore, the third basis for equitable tolling does not apply in this case. Manning’s

disability discrimination claims are time-barred.3

III

Manning alleges that Chevron discriminated against him on the basis of race and gender when

it failed to promote him to a T-1 position. As we have observed, Chevron instead selected Peggy

Williams (an African American female) and Fred Noyes (a Caucasian male). Manning contends that

Chevron discriminated against him as an African American male.

Manning attempts to prove his race /gender discrimination claim by indirect (circumstantial)

evidence. As a result, we apply the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under this three-part scheme, a plaintiff must first present a prima facie

3
Manning suggests that his claims might be timely under a continuing violation theory.
Manning fails, however, to adequately brief this issue, so we need not address it. See Kane Enter.
v. MacGregor (USA) Inc., 322 F.3d 371, 376 n.3 (5th Cir. 2003) (observing that issues inadequately
briefed are deemed waived).

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case of discrimination. A plaintiff satisfies this initial burden by showing that (1) he belongs to a

protected group; (2) he was qualified for the position sought; (3) he suffered an adverse employment

action; and (4) he was replaced by someone outside the protected class. Price v. Fed. Express Corp.,

283 F.3d 715, 720 (5th Cir. 2002). If the plaintiff can present a prima facie case, the burden shifts

to the defendant to rebut the plaintiff’s case by demonstrating a “legitimate, nondiscriminatory

justification for its actions.” Id. If the defendant offers such a justification, the burden shifts back to

the plaintiff, who can attempt to show that the defendant’s proffered reason is simply a pretext for

discrimination. Id.

Both parties appear to agree that Manning has demonstrated a prima facie case of

discrimination. Therefore, we proceed to the second two parts of the analysis.

Manning argues that Chevron has failed to articulate a legitimate, non-discriminatory reason

for its decision not to promote him. As Manning observes, Chevron claimed that it selected the “best

qualified” candidates for the T-1 position. Manning appears to argue that this declaration was not

sufficient. He claims that Chevron had to state the “specific reason [he] was denied [the] promotion.”

Manning appears to argue that Chevron was required to explicitly state that it chose Williams and

Noyes because they were more qualified than Manning, rather than simply state that they were the

“best qualified” candidates. We disagree. Chevron’s statement that it chose the “best qualified”

candidates clearly implies that it selected Williams and Noyes because they were better qualified than

Manning. Chevron’s explanation constitutes a legitimate, non-discriminatory justification for its

failure to promote Manning. See id. at 721 n.2.

Because Chevron provided a legitimate, non-discriminatory justification, the burden shifted

back to Manning to show that Chevron’s asserted reason was a pretext for discrimination. In order

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to demonstrate that Chevron’s asserted justification (that Williams and Noyes were more qualified)

was pretext, Manning can attempt to show that he was “clearly better qualified” for the T-1 position.

Id. at 723; Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280 (5th Cir.

1999).4 Manning attempts to show that he was better qualified than Williams and Noyes by pointing

to his educational background, his various technical and analyt ical skills, and his asserted good

performance during the interview process. The facts presented by Manning fail, however, to suggest

that he was clearly better qualified than the selected applicants.5 Thus, Manning cannot demonstrate

pretext in this manner.

Second, Manning contends that Chevron’s assertion (that Williams and Noyes were the most

qualified candidates) must be pretext because Chevron’s hiring criteria were largely subjective. The

mere fact that an employer uses subjective criteria is not, however, sufficient evidence of pretext. See

Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th Cir. 2002) (observing that “‘[a]bsent evidence that

subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a

hiring or promotion decision on purely subjective criteria will rarely, if ever, prove pretext under Title

VII’”) (quoting Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001)).

Third, Manning attempts to show pretext by pointing to Chevron’s alleged failure to promote

4
Manning suggests that we should not apply our “clearly more qualified” standard, because,
he asserts, it is inconsistent with the Supreme Court’s decision in Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000). Manning fails to explain (and we fail to see) how the Court’s
decision in Reeves undermines our cases articulating the “clearly more qualified” standard. In any
event, Price v. Federal Express Corp., 283 F.3d 715 (5th Cir. 2002), a post-Reeves decision, makes
clear that the standard still applies. See id. at 723.
5
Indeed, it is not even apparent that Manning himself believes he was clearly better qualified
than both Williams and Noyes. When questioned about Williams’ qualifications, Manning stated that
she was a “tremendous t echnician,” suggesting that he believed Williams to be at least equally
qualified for the T-1 position.

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African American males to managerial or supervisory positions. The evidence he provides, however,

does not demonstrate pretext. See Sessions v. Rusk State Hosp., 648 F.2d 1066, 1071 (5th Cir. Unit

A Jun. 1981) (“The statistical evidence buttresses [the plaintiff’s] prima facie case, but it does not

demonstrate that the reason advanced for failure to promote him lacked either substance or

credibility.”).

Finally, Manning relies on a discriminatory statement allegedly made by Wanda Weatherford

(“Weatherford”), a Chevron employee who participated in the decisionmaking process for the T-1

positions. Manning asserts that Weatherford once used the word “nigger” in his presence. We have

held that, in order for comments in the workplace to provide sufficient evidence of discrimination,

they must be (1) related to the protected class of which the plaintiff is a member; (2) proximate in

time to the employment action; (3) made by an individual with authority over the employment

decision at issue; and (4) related to the employment decision at issue. Wallace v. Methodist Hosp.

Sys., 271 F.3d 212, 222 (5th Cir. 2001). Manning cannot meet the second and fourth requirements

of that test. Manning claims that Weatherford made the derogatory comment prior to 1994, at least

four years before he applied for the T-1 position. Manning fails to allege either that the comment was

made at (or around) the time of the promotion decision or that the comment related in any way to that

employment decision. As a result, Manning fails to demonstrate pretext in this manner.

None of the other evidence presented by Manning creates a genuine issue of material fact

regarding pretext. We thus conclude that the district court did not err in granting summary judgment

to Chevron on this claim of race and gender discrimination.

IV

Manning contends that Chevron retaliated against him when it failed to transfer him to the

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Cedar Bayou and Kingwood facilities and when it refused to award him a $45,000 severance package.

Title VII prohibits an employer from retaliating against an employee because that employee has

complained about acts of discrimination at work. See 42 U.S.C. § 2000e-3(a) (“It shall be an

unlawful employment practice . . . to discriminate against any individual . . . 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.”).

We have stated that, in order to establish a prima facie case of retaliation, the plaintiff must

show (1) that he engaged in an activity protected by Title VII; (2) that an adverse employment action

occurred; and (3) that there is a causal link between the protected activity and the adverse

employment action. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001).

Chevron argues that Manning cannot establish a prima facie case for the transfer positions

because he cannot satisfy the third requirement: demonstrating a “causal link” between his protected

activity and the adverse employment action. Chevron asserts that the supervisors who made the

decisions regarding the lateral transfer positions were unaware that Manning had previously filed

employment discrimination act ions against the company. Chevron contends that, because these

individuals were unaware of Manning’s lawsuits, they could not have retaliated against Manning for

filing the lawsuits.

We have determined that, in order to establish the causation prong of a retaliation claim, the

employee should demonstrate that the employer knew about the employee’s protected activity. See

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001); see also Chaney v. New Orleans

Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If an employer is unaware of an

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employee’s protected conduct at the time of the adverse employment action, the emplo yer plainly

could not have retaliated against the employee based on that conduct.”).6

To show that the decisionmakers at the Cedar Bayou and Kingwood facilities were aware of

his lawsuits, Manning offers only an ambiguous statement by John Swansiger (“Swansiger”), who

apparently was a supervisor at the Chevron facility where Manning worked. Swansiger was the

individual who informed Manning that he was not selected for any of the lateral transfer positions.

During this conversation, after Swansiger told Manning that he had not received a Cedar Bayou

position, Manning asked about the Kingwood facility. According to Manning, Swansiger replied,

“No, they don’t want that.” According to Manning, although he asked Swansiger about the

statement, Swansiger never explained the meaning of the comment. Manning ultimately concluded

that Swansiger was referring to Manning’s employment discrimination actions.

We conclude, however, that Swansiger’s statement does not indicate that any of the

decisionmakers at the Cedar Bayou or Kingwood facilities knew about Manning’s previous lawsuits

against Chevron. As a result, Manning fails to demonstrate a causal link between his protected

activity and Chevron’s failure to transfer him. Thus, Manning cannot establish a prima facie case of

retaliation for the lateral transfer positions.

Finally, Manning claims that Chevron retaliated against him by failing to award him a $45,000

6
Manning appears to contend that, in order to establish a prima facie case, he need not offer
evidence that the Cedar Bayou or Kingwood decisionmakers were aware of any of his prior lawsuits.
As Manning observes, “[a]t this threshold stage, the standard for satisfying the causation element is
‘much less stringent’ than a ‘but for’ causation standard.” Fierros, 274 F.3d at 191. Although the
plaintiff’s burden at the prima facie stage is not onerous, the plaintiff must produce at least some
evidence that the decisionmakers had knowledge of his protected activity. See Medina, 238 F.3d at
684. If the decisionmakers were completely unaware of the plaintiff’s protected activity, then it could
not be said (even as an initial matter) that the decisionmakers might have been retaliating against the
plaintiff for having engaged in that activity.

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severance package. This package was offered to the Chevron employees who lost their jobs during

the company reorganization of 2000. In order to receive the package, Manning had to sign a release

form, waiving all claims against the company. Manning was unwilling to do so, because Chevron

informed him that signing the release would require him to abandon the lawsuit he had already filed.

Manning contends that Chevron’s failure to award him the severance package constituted retaliation.

Again, Manning must show that there was a causal connection between Chevron’s refusal to

award him the severance package and his protected activity. Manning, however, fails to demonstrate

that causal link. The record shows that Chevron required all employees to sign the same release form

before they could receive the severance package. Thus, when Chevron refused to award Manning

a severance package, it was simply applying that general policy to Manning, not retaliating against

him for bringing an action against the company. See Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d

1498, 1508 (3rd Cir. 1996) (concluding that the plaintiff failed to prove the causal link required for

a retaliation claim, because the defendant employer “required completion of a form waiving all claims

against [the employer] from all employees prior to disbursing the [benefits]”) (emphasis added).

Manning has not demonstrated that the district court erred in granting Chevron’s motion for

summary judgment. As a result, the judgment of the district court is AFFIRMED.

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DENNIS, Circuit Judge, specially concurring:

While I agree with much of the majority opinion, I write

separately to express disagreement with the majority’s statement in

a footnote that Price v. Federal Express Corp., 283 F.3d 715 (5th

Cir. 2002), established that Deines v. Texas Department of

Protective & Regulatory Services, 164 F.3d 277 (5th Cir. 1999),

survived the Supreme Court’s decision in Reeves v. Sanderson

Plumbing Products, 530 U.S. 133 (2000). I believe that this

remains an open question that we must resolve in a future,

appropriate case.

In Reeves the Supreme Court rejected prior Fifth Circuit

jurisprudence holding that a plaintiff needed evidence beyond

evidence showing that an employer’s proffered non-discriminatory

reason for an employment decision is false in order to establish a

Title VII claim. Rather, a plaintiff’s prima facie case combined

with evidence that the employer’s stated reasons are false can be

sufficient grounds to support a verdict for a plaintiff. Reeves,

530 U.S. at 148.

Whether the “clearly better qualified” standard articulated in

Deines is consistent with Reeves is unclear. While Deines could be

read, in accordance with Reeves, to merely state the standard of

proof required to establish that the employer’s stated reasons are

false, the opinion specifically denied that the test it applied did

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so. See Deines, 164 F.3d at 281. The opinion’s stated purpose of

describing the “quality” of evidence needed to establish the

“ultimate fact” of intentional discrimination, id., sounds

suspiciously similar to the requirement of additional evidence of

intentional discrimination beyond proof of falsity that the Supreme

Court found inconsistent with Title VII in Reeves. And contrary to

the majority’s suggestion, our continued application of Deines in

Price without analysis of whether Deines survived Reeves does not

establish that Deines is still good law. Rather, it merely shows

that litigants in Price failed to properly raise the issue of

Deines’ vitality.

Thus, I believe that this court must one day confront whether

Deines is still good law. This, however, is not that day, as

Manning has introduced no relevant evidence suggesting that his

employer’s proffered explanation is false. Most of Manning’s

rebuttal evidence consists of conclusory assertions insufficient to

withstand summary judgment. Ramsay v. Henderson, 286 F.3d 264, 269

(5th Cir. 2002). The remaining evidence consists of Manning’s

different educational background and additional years of experience

in his current position, both of which Chevron has established were

not criterion for the T-1 position. In fact, as the majority

accurately explains, Manning has all but admitted that at least one

of the people who received the job instead of him was as well

qualified for the position as he was. Hence, I believe that we

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should affirm the district court’s grant of summary judgment here

without reaching the thorny question of whether the Deines’

“clearly better qualified” standard remains good law.

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