                                                        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this opinion should not be published and is not precedent except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
