     Case: 11-60343     Document: 00511834994         Page: 1     Date Filed: 04/25/2012




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

                                                                            FILED
                                                                           April 25, 2012

                                       No. 11-60343                        Lyle W. Cayce
                                                                                Clerk

MILO RICHARDSON,

                                                   Plaintiff - Appellant

v.

PRAIRIE OPPORTUNITY, INCORPORATED; LAURA A. MARSHALL,

                                                   Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:10-CV-2


Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        Milo Richardson contests the summary judgment against his gender-
discrimination and retaliation claims. VACATED and REMANDED.
                                              I.
        In 2003, Richardson was hired as a program administrator by Prairie
Opportunity, Inc. (Prairie), a non-profit corporation that provides financial
assistance to the poor.        On 21 January 2009, Richardson filed an Equal


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                 No. 11-60343

Employment Opportunity Commission (EEOC) charge of discrimination, stating
he believed: he had been treated less favorably because of his gender; and, his
gender was a motivating factor in his not receiving a raise he was due in 2008.
At that time, Richardson was the only male among eight employees at Prairie’s
central office.
      On 10 March 2009, executive director Laura Marshall, Richardson’s
supervisor, presented Richardson a document to sign, but he refused to do so
until he had read it. An argument ensued between them, which resulted in
Marshall’s filing an internal employee-disciplinary report, alleging Richardson
had “pointed his finger at [me] and stated what he was not going to do”, and
suspending him for five days without pay. On 16 March, the board of directors,
on Marshall’s recommendation, terminated Richardson’s employment.                  He
subsequently amended his EEOC charge to add he believed his initial EEOC
charge was a motivating factor in his termination.
      After receiving a right-to-sue letter from the EEOC, Richardson filed this
action against Prairie and Marshall, claiming, inter alia: gender discrimination,
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;
retaliation, under Title VII; and a state-law malicious-interference-with-
employment claim against Marshall.           Defendants were awarded summary
judgment on the two Title VII claims, but Marshall was denied summary
judgment on the tortious-interference claim. Richardson v. Prairie Opportunity,
Inc., No. 1:10-CV-2-MPM, 2011 WL 1769104 (N.D. Miss. 9 May 2011) (Opinion).
Subsequently, Richardson dismissed Marshall voluntarily (tort claim against her
pending in state court).
                                       II.
      A summary judgment is reviewed de novo. E.g., Davis-Lynch, Inc. v.
Moreno, 667 F.3d 539, 549 (5th Cir. 2012). Such a judgment is proper if “there
is no genuine dispute as to any material fact and the movant is entitled to

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                                  No. 11-60343

judgment as a matter of law”. Fed. R. Civ. P. 56(a). A dispute is genuine if the
evidence is such that a reasonable juror could find for the non-moving party.
E.g., Davis-Lynch, 667 F.3d at 549. All evidence is viewed in the light most
favorable to the non-moving party. Id. at 549-50.
                                       A.
      Before reaching the substance of the two claims, the role of Prairie’s board
in Richardson’s termination must be addressed. The district court awarded
Prairie summary judgment on the retaliation claim on the ground that
“Richardson has not offered a scintilla of proof to suggest that Prairie’s board
considered his previously filed EEOC complaint in reaching its decision [to
terminate him]”.    Opinion at 10.    Because his termination is the adverse
employment action on which both claims rest, that reasoning (board not involved
in alleged improper conduct) could apply equally to Richardson’s gender-
discrimination claim.
      “Employers are liable under Title VII, in accordance with common law
agency principles, for the acts of employees committed in the furtherance of the
employer’s business.” Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996).
But, as noted by the district court, Marshall did not terminate Richardson; the
board did. And, “in determining whether an adverse employment action was
taken as a result of retaliation [or discrimination], our focus is on the final
decisionmaker”. Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002).
      The question thus becomes whether the board’s decision to terminate
Richardson was tainted by Marshall’s alleged animus–i.e., whether the board
acted as her “cat’s paw”. Long, 88 F.3d at 307 (citing Shager v. Upjohn Co., 913
F.2d 398, 405 (7th Cir. 1990)). If not, the causal link between Marshall’s alleged
animus and Richardson’s termination is broken, and Richardson cannot recover
against Prairie. E.g., Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191, 1194 (2011)
(holding employer is liable under “very similar” Uniformed Services Employment

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and Reemployment Rights Act when employee, motivated by unlawful animus,
intends to cause adverse employment action and proximately causes that action).
      Given Marshall’s position as Prairie’s executive director, her testimony
and that of a board member that Marshall had final authority over personnel
decisions, minutes showing that Marshall’s recommendation and its being
adopted by the board occurred at the same 16 March 2009 board meeting, and
the absence of evidence of independent fact-finding by the board, there was a
genuine dispute on whether Marshall caused Richardson’s termination. The
district court said as much, and more, in ruling on Richardson’s tortious-
interference claim against Marshall:         “It is undisputed that Marshall’s
evaluations and recommendation to Prairie’s board are what led to Richardson’s
loss of employment.” Opinion at 12. Thus, on this record, that the board, rather
than Marshall, made the ultimate termination decision does not permit
summary judgment on that basis against either Title VII claim.
                                       B.
      Accordingly the two claims are addressed. That for gender-discrimination
is considered first.
                                        1.
      Title VII forbids an employer from discriminating against an employee
“because of such individual’s race, color, religion, sex, or national origin”. 42
U.S.C. § 2000e-2(a). In maintaining a Title VII discrimination claim based on
circumstantial evidence, plaintiff “must carry the initial burden under the
statute of establishing a prima facie case”. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). The burden then shifts to the employer “to articulate
some legitimate, nondiscriminatory reason” for its action. Id. Finally, plaintiff
must be afforded a fair opportunity to show: the employer’s stated reason was
pretext, id. at 804; or, an impermissible consideration was a “motivating factor”,
Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). See also Smith v. Xerox

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Corp., 602 F.3d 320, 333 (5th Cir. 2010) (citing Price Waterhouse v. Hopkins, 490
U.S. 228 (1989)) (mixed-motive “defense” allows employer, once employee
presents evidence that illegitimate consideration was a “motivating factor”, to
show it would have made same decision even without that consideration).
      To establish a prima facie case of discrimination, Richardson must show:
(1) he is a member of a protected class; (2) he was qualified for his job; (3) he
suffered an adverse employment action; and, (4) he was treated less favorably
than employees outside the protected class. E.g., Septimus v. Univ. of Houston,
399 F.3d 601, 609 (5th Cir. 2005). “The burden of establishing a prima facie case
of disparate treatment is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). As Richardson is male, has a masters degree in social
work, was terminated, and presented evidence that he was treated more harshly
than the female employees in the central office–e.g., was the only employee
required to sign upon receipt of memoranda, was singularly undermined by
Marshall in front of the staff, was “written up” for projects he had completed–he
established a prima facie case of discrimination.
      The burden then shifts to Prairie to articulate a legitimate,
nondiscriminatory reason for terminating Richardson. Id. at 254-56; McDonnell
Douglas, 411 U.S. at 802. Richardson concedes that Prairie met its burden of
production by presenting evidence that he was terminated because of his alleged
10 March 2009 misconduct toward Marshall.
      Plaintiff retains “the ultimate burden of persuading the court that [he] has
been the victim of intentional discrimination”.      Burdine, 450 U.S. at 256.
Plaintiff may succeed “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence”. Id.
That is to say, plaintiff may avoid summary judgment if he creates a genuine
dispute on the truth of the employer’s proffered reasons for termination. E.g.,

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Septimus, 399 F.3d at 609.      That is because “rejection of the defendant’s
proffered reasons will permit the trier of fact to infer the ultimate fact of
intentional discrimination”. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 147 (2000) (emphasis in original) (quoting St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 511 (1993)).
      Richardson presented his and a co-worker’s deposition and the co-worker’s
administrative-hearing testimony that Richardson’s words and gestures toward
Marshall during their 10 March argument were non-threatening, as well as an
administrative law judge’s (ALJ) finding (in an unemployment-benefits
proceeding) that Richardson was not guilty of misconduct and that Marshall had
acted “unreasonably”. (Prairie has not objected to consideration of the ALJ’s
decision.) That evidence was sufficient to create a genuine dispute on the truth
of Prairie’s proffered explanation. It, along with the evidence Richardson
presented in making his prima facie case, would permit a trier of fact to infer
intentional discrimination. Reeves, 530 U.S. at 147. Therefore, summary
judgment against Richardson’s discrimination claim was improper.
                                       2.
      As noted, the summary judgment against Richardson’s retaliation claim
was based on the board’s, rather than Marshall’s, terminating him; as also
noted, that basis was improper. A summary judgment may be affirmed on any
ground supported by the record and presented to the district court. E.g., Cuadra
v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010). Whether
summary judgment was proper on the substance of the claim is addressed below.
      Title VII forbids retaliating against an employee because that individual
“made a charge” under Title VII.        42 U.S.C. § 2000e-3(a).      As with a
discrimination claim, a retaliation claim based on circumstantial evidence
proceeds via the McDonnell Douglas burden-shifting framework. E.g., McCoy
v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

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      To present a prima facie case of retaliation, Richardson must show: (1) he
participated in protected activity; (2) he suffered an adverse employment action;
and, (3) there was a causal connection between the protected activity and the
adverse action. E.g., Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th
Cir. 2009). It is undisputed that Richardson participated in protected activity
(21 January 2009 EEOC charge) and suffered an adverse employment action (16
March 2009 termination). “Close timing between an employee’s protected
activity and an adverse action against him may provide the ‘causal connection’
required to make out a prima facie case of retaliation.” McCoy, 492 F.3d at 562
(internal quotation marks omitted). As the district court ruled, this less than
two-month span between the protected activity and the adverse action is
sufficient “temporal proximity” for a prima facie showing of causation. Opinion
at 9; see also Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (“[A]
time lapse of up to four months has been found sufficient to satisfy the causal
connection for summary judgment purposes”. (internal quotation marks
omitted)).
      The burden then shifts to Prairie to articulate a legitimate, non-retaliatory
reason for terminating Richardson. E.g., McCoy, 492 F.3d at 557. Again, it did
so by presenting evidence that Richardson was terminated because of his alleged
10 March 2009 misconduct toward Marshall.
      Finally, the burden returns to Richardson to show: Prairie’s proffered
reason was pretext, e.g., id.; or, retaliation was a “motivating factor” in his
termination, Xerox Corp., 602 F.3d at 328-30. Richardson may survive summary
judgment by creating a genuine dispute on the truth of Prairie’s proffered
reason, e.g., Septimus, 399 F.3d at 609, thereby permitting a trier of fact to infer
retaliation, e.g., Reeves, 530 U.S. at 147.
      Prairie’s proffered reason for terminating Richardson was his alleged 10
March 2009 misconduct. As detailed above, Richardson presented evidence

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creating a genuine dispute on the truth of that explanation. Therefore, the
summary judgment against Richardson’s retaliation claim was also improper.
                                   III.
     For the foregoing reasons, the judgment is VACATED and this matter is
REMANDED for further proceedings consistent with this opinion.




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