     Case: 14-30053        Document: 00512826822          Page: 1     Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                         No. 14-30053                               FILED
                                                                             November 5, 2014
                                                                               Lyle W. Cayce
THOMAS E. ROQUE,                                                                    Clerk

                                                    Plaintiff—Appellant

v.

NATCHITOCHES PARISH SCHOOL BOARD,

                                                    Defendant—Appellee


                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 1:12-CV-3149


Before JOLLY and JONES, Circuit Judges, and AFRICK, District Judge. *
PER CURIAM:**
      Plaintiff-Appellant Thomas E. Roque appeals the dismissal on
summary        judgment       of   his    lawsuit     alleging      claims    of      race-based
discrimination in connection with the selection of a school superintendent.
We review a grant of summary judgment de novo, applying the same
standard as the district court, and we construe the evidence and make all



      *   District Judge for the Eastern District of Louisiana, 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not be published and is not precedent except under the limited circumstances set forth in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.
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reasonable inferences in favor of Roque. E.g., Boyett v. Redland Ins. Co., 741
F.3d 604, 606 (5th Cir. 2014).
      The district court concluded that Roque failed to raise a fact dispute at
the pretext stage of the McDonnell Douglas burden-shifting analysis. After
reviewing the parties’ briefs, oral argument, and the record, including the
evidence of Hildebrand’s comment that the school district was not ready for a
minority superintendent, her alleged influence over the selection process, and
her role in reopening the applications period for additional candidates, we
conclude that Roque produced sufficient evidence to defeat summary
judgment. Accordingly, the judgment of the district court is
      VACATED        and     REMANDED           for       further    proceedings.




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E. GRADY JOLLY, Circuit Judge, concurring:
      Although I concur in the result the panel reaches, I take this
opportunity to make a few observations. As a matter of caution, there are
certain requirements that, while precluding summary judgment, do not
impress me as pellucid. While this means that Roque has the opportunity to
now build a case worthy of presentation to the jury, he should not expect that
he can rest solely upon this evidence at trial and sustain a defensible verdict
in his favor.
                                       I.
      A disparate treatment claim brought under Title VII must be premised
on an adverse employment action. Raj v. La. State Univ., 714 F.3d 322, 330–
31 (5th Cir. 2013). Roque identifies the adverse employment action against
him as his non-selection for the superintendent position.      The Board took
this adverse action when it voted, on a racially divided vote of 7–4, to select
Derwood Duke as superintendent instead of Roque. As Roque acknowledged
at oral argument, his evidence of discrimination by the Board depends upon
the comments and actions of member Julia Hildebrand. According to Roque,
Hildebrand harbored racist views, and she, in turn, influenced the other
white members of the Board to vote against Roque.
      Thus, Roque must rely on a cat’s paw theory of discrimination in order
to succeed on his claim against the Board. The cat’s paw theory applies if the
plaintiff can establish: “(1) that a co-worker exhibited discriminatory animus,
and (2) that the same co-worker ‘possessed leverage, or exerted influence,
over the titular decisionmaker.’” Roberson v. Alltel Info. Servs., 373 F.3d 647,
653 (5th Cir. 2004) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d
219, 227 (5th Cir. 2000)). Roque has presented little evidence to support each
element.



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                                       II.
                                       A.
        Turning to the animus requirement, I make two points on the relevant
law.     First, any comments or behavior regarding a protected class must
actually rise to a level that demonstrates animus.          While we have not
precisely defined the term, Webster’s Dictionary provides an instructive
definition, defining animus as “ill will, antagonism, or hostility, usu[ally]
controlled but deep-seated and sometimes virulent.” Webster’s Third New
Dictionary of the English Language Unabridged 86 (Philip Babcock Gove ed.,
1993).     These definitions underscore that animus requires evidence of a
substantial, deeply held prejudice. Second, we have always phrased the test
such that the plaintiff must demonstrate that the particular employee
wielding influence over the decisionmaker held the required animus. See
Roberson, 373 F.3d at 653; see also Gee v. Principi, 289 F.3d 342, 346 (5th Cir.
2002) (noting in the retaliation context that a cat’s paw claim is satisfied if
the decisionmaker is influenced by “those who were acting from retaliatory
motives”).
        Roque relies heavily on an allegedly discriminatory comment from
Hildebrand drawn from two secondhand accounts.             Board member Ralph
Wilson testified that Hildebrand remarked during the superintendent search:
         I just don’t believe that the system in our area is ready for a
        minority. I have nothing against the minorities, but I don’t think
        that they are. And she said, definitely—she pounded right there,
        and she definitely—she said to me, definitely not Tommy Roque.
Additionally, Board member Joella Wilson testified that “I can recall being at
a meeting and, you know, she’s saying that she didn’t feel that the
community was ready for a black superintendent.”               When these two
statements are read in context, Hildebrand is clearly referring to the



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potential animus of other individuals in the community and not herself. 1
Roque acknowledged in his brief that her statement pertained to whether the
community would accept an African-American superintendent. Hildebrand
herself clarified that she did not harbor any personal animosity toward
minorities.   At most Hildebrand was suggesting that selecting a minority
superintendent might be viewed negatively by some members of the
Natchitoches Parish community and that Roque might be a particularly
unpopular choice.
      In an unpublished decision a panel of this Court rejected the theory
that an employee’s statements about the racial animosity of others could
suggest that the employee making the statement harbored any racial
animosity.    Phillips v. TXU Corp., 194 F. App’x 221 (5th Cir. 2006).                In
Phillips, the plaintiff was fired after Duane Lock, her supervisor, had scored
her lowest on an assessment.         Lock had previously told the plaintiff that
another employee in the company, Jim Hess, “did not like aggressive women
but especially not aggressive black women.” 194 F. App’x at 223 (internal
quotation marks omitted). On another occasion, the plaintiff told someone at
the company that she felt like she had “stepped back in time” when she came
to work there, and Lock told her to avoid making those types of statements.
Id. The panel in Phillips concluded that these statements were not enough,
noting:   “Lock’s    remark     about    Hess    suggests      that   Hess   held    the
discriminatory animus, not the speaker. As it was Lock who was responsible

      1  Roque also references an alleged conversation at a public event where Hildebrand
purportedly suggested that the Board would not hire a person of color. Ralph Wilson
claimed at his deposition that an unnamed employee had sent an email indicating that
Hildebrand made such remarks. The district court excluded this statement as hearsay, and
I do not see how this statement presents competent summary judgment evidence. Ralph
Wilson himself acknowledged that it would be unfair to attribute this remark to
Hildebrand. This vague allegation does not identify a specific date on which Hildebrand
made the comment or identify who supposedly heard this statement. Such gossip does not
amount to admissible summary judgment evidence.


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for Phillips’s termination, not Hess, Lock’s remark about Hess’s alleged
dislike is not probative of discrimination.” Id. at 227. The other remark was
also insufficient, standing alone, to establish substantial evidence of pretext.
Id. In my view, Hildebrand’s comments are virtually indistinguishable from
Lock’s comments in Phillips.      As in Phillips, Hildebrand only described
potential racial animosity in others, and she went even further by
disclaiming any personal racial animosity.
      Although Phillips is an unpublished decision, I find it highly persuasive
given our repeated indications that the cat’s paw theory requires the plaintiff
to show that the employee personally held discriminatory animus.
Hildebrand’s comments are also readily distinguishable from the comments
that we have considered in our published decisions to create a fact question
as to animus. Recently, we considered a suit brought by an LSU police officer
who claimed that a co-worker harbored misogynistic views because he had
stated that he would resign his position if LSU appointed a woman as chief of
police. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll.,
719 F.3d 356, 361 (5th Cir. 2013). We concluded that a reasonable jury could
construe those remarks as demonstrating gender-based animus. Id. at 366.
By contrast, Hildebrand’s remarks do not reveal any personal animosity
toward African-Americans. Moreover, Hildebrand’s remarks do not suggest a
similar level of animosity, as Hildebrand never suggested that she would not
vote for a minority candidate or that she would resign if the Board selected a
minority candidate.
      In another gender discrimination case in which we applied the cat’s
paw theory, a supervisor responded to news of the plaintiff’s pregnancy by
becoming angry and noting that she would then have to pull management
from other stores to cover the pregnant plaintiff’s store. Laxton v. Gap Inc.,



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333 F.3d 572, 583 (5th Cir. 2003). We concluded that “[i]t is reasonable to
infer from [the supervisor’s] negative reaction to the news of [the plaintiff’s]
pregnancy that she harbored a stereotypical presumption about [her] ability
to fulfill job duties as a result of her pregnancy.” Id. at 584. Again, the
evidence in Laxton allowed an inference that the employee personally
harbored discriminatory animosity, and no such inference is available here.
Finally, this Court also found discriminatory animus as to age when one
employee frequently referred to another as “old bitch.” Russell, 235 F.3d at
226. Here again, the employee clearly held a personal animus.
      It is obvious, when compared to these cases, that Hildebrand’s remarks
are significantly different, in both direction and degree.         Hildebrand’s
comments are made in a different direction because they point to the
potential animus of others, not herself. In each of our published decisions,
the employee’s comments or actions demonstrated that employee’s personal
animosity toward members of a protected group. Hildebrand’s comments do
not suggest that she harbored a negative personal opinion of African-
Americans, and she actually suggested the contrary.               Additionally,
Hildebrand’s comments, even if somehow attributed as her beliefs, are of
insufficient degree to suggest animus. Unlike many of our cases, she did not
use any epithets or hostile phrases to reference minorities. She also gave no
indication that she would vote against or block all minority candidates. Her
remarks, at most, indicate that she was skeptical that the community would
favorably receive an African-American superintendent.         Such a personal
observation, standing alone, does not rise to the level of animosity under our
precedent.
      Nonetheless, given the racially-charged atmosphere that dominated the
Board during this time and other comments from the African-American



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Board members suggesting that Hildebrand harbored discriminatory views, I
accept that the panel should allow this case to proceed to a jury. It is at least
possible that Roque can ultimately produce admissible evidence to suggest
that Hildebrand harbored racial animus.         The panel’s decision, however,
should not be construed to reflect that the current record is sufficiently clear
on this point.
                                       B.
      Roque’s evidence on the second prong of the cat’s paw analysis is
similarly weak.      Our recent decision in Haire demonstrates the typical
context in which an employee will have leverage or influence over an
employment decision.      There, the plaintiff was ultimately fired by the
Chancellor of LSU, and there was no evidence to suggest that the Chancellor
harbored any discriminatory views based on gender. 719 F.3d at 365–66.
The Chancellor relied on a discriminatory employee, though, for critical
information related to the alleged bases for the plaintiff’s termination. Id. at
366–67.   Thus, the cat’s paw theory typically applies where the ultimate
decisionmaker, the superior, relies on evidence or advice from a subordinate
who harbors discriminatory animus. Id. at 366 n.11. The theory recognizes
that the decisionmaker who makes an employment decision often lacks the
personal information to make the decision and must instead rely on
“performance assessments by other supervisors.” Staub v. Proctor Hosp., 131
S.Ct. 1186, 1192–93 (2011).
      This case is not a typical cat’s paw case because Hildebrand
purportedly influenced six other co-equal members of the same Board. It
does not appear to me that this Court has applied the cat’s paw theory to a
similar argument in a published opinion. A panel of this Court suggested in
an unpublished opinion that the theory might apply in such cases, but it



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declined to impute the potential biases of one member, even though that
member was the chairman of a committee, to the other members of the
committee without evidence that the biased member exercised a greater voice
in the proceedings. Russell v. Univ. of Tex. of the Permian Basin, 234 F.
App’x 195, 203–04 (5th Cir. 2007). Although I leave open the possibility that
the cat’s paw theory could apply in some cases where one member of a board
has clear leverage or influence over the others, I would argue that we should
be reticent to draw such an inference.
      Roque admitted that the Board interviewed all the finalists, including
him, and that all members were engaged, as “everyone around the table had
questions for the candidates except Julia Hildebrand.” Thus, it appears that
Roque participated in the interview process, and the individual Board
members had the opportunity to question the candidates. This suggests that
the other members had the ability to exercise independent judgment in
making their decisions.
      There are three other items of evidence in the record to suggest that
Hildebrand exhibited influence over the Board as a whole.           First, Joella
Wilson testified that Hildebrand presented the Board with some information
about the candidates before the Board made the decision to re-open the
application the process. Hildebrand chaired the search committee for the
superintendent, and she apparently spoke to various people about several
candidates. These comments apparently portrayed Roque in a negative light.
Roque did not clearly raise this argument in support of his cat’s paw
argument in his brief, and thus he has probably waived it.          See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (noting that an appellant waives
all arguments that are not raised in his initial brief as well as those issues
that are inadequately briefed).    Even had Roque raised the issue, he has



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offered little evidence to suggest that any Board member actually relied on
these statements as a reason for making his or her hiring decision. Cf. Gee,
289 F.3d at 346–47 (finding that the plaintiff could defeat summary judgment
with testimony from a committee member that he thought the decisionmaker
had already made the decision at the meeting where a biased member made
negative comments about the plaintiff). The second item of evidence is Ralph
Wilson’s testimony that Hildebrand met with Pam McAlexander, another
Board member, and made negative comments about Roque.             This item is
weak, but it is probably enough to create a jury question because it at least
shows that Hildebrand attempted to influence the decision of other board
members.
      Finally, Board member Harry Graham asserted that Hildebrand “took
over” the meetings regarding the superintendent search.            Roque has
primarily relied upon this item of evidence to defeat summary judgment. The
conclusory statements that Hildebrand “took over” meetings or “took charge”
of the debate are probably insufficient, standing alone, to defeat summary
judgment. See Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297
(5th Cir. 1997) (“Unsupported allegations or affidavit or deposition testimony
setting forth ultimate or conclusory facts and conclusions of law are
insufficient to defeat a motion for summary judgment.”).          Inexplicably,
Roque’s counsel did not follow up Graham’s assertions with further questions
to extract how Hildebrand took charge of the meetings, whether she actually
told members how to vote, and when she had the opportunity to make such
directives to the other members. A jury could infer from these comments, at
most, that Hildebrand led the effort to re-open the application process, a fact
also belied by the meeting minutes.




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      I would submit that we should rarely assume that other members of a
co-equal Board act based on the invidious motives of another member. It
would be especially inappropriate to do so absent evidence that Hildebrand
supplied the reasons why the other white members voted to hire Duke over
Roque.   Evidence that the biased employee provided at least some of the
reasons for the employment decision is necessary, not merely helpful, to
creating an issue of fact under the cat’s paw theory. This Court, in Gee, held
that there was evidence of influence when a biased employee participated in
a meeting on the plaintiff’s job status, and another attendee said that he
thought the decision was made in that meeting. 289 F.3d at 347. Tellingly,
the decisionmaker in Gee also gave the biased employee’s proffered reason as
his reason for making the decision. Id. at 344–45. At best, the facts in this
case provide a weak comparison to Gee.         While there is evidence that
Hildebrand chaired the search committee and that she presented some
negative information about Roque to the Board, Roque has not yet presented
specific evidence that suggests the white Board members relied on this
information.
                                     III.
      We have recognized at the summary judgment stage that the non-
moving party need not reduce all its evidence to an admissible form. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Although it appears to me
that much of the evidence is currently vague and relies heavily on
speculation, I believe the panel has exercised appropriate caution by
remanding this case to proceed with a trial.      It does not appear to me,
however, that Roque could sustain a defensible verdict at trial if he rested
solely upon this feeble evidence. Indeed, plaintiffs seeking to raise claims
based on the cat’s paw theory should be cautioned to avoid similarly



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speculative evidence as to either the animus or influence, particularly when
such an employee purportedly influenced other co-equal members of a board.




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