     Case: 17-10567      Document: 00514456709         Page: 1    Date Filed: 05/03/2018




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

                                                                             FILED
                                      No. 17-10567                        May 3, 2018
                                                                        Lyle W. Cayce
STEPHANIE WARREN,                                                            Clerk


              Plaintiff-Appellant

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, also known as Fannie
Mae,

              Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-3993


Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Stephanie Warren appeals the district court’s grant of summary
judgment for defendant Federal National Mortgage Association (“Fannie
Mae”) on her claims for race discrimination under Title VII, Texas Labor Code
Section 21.001 et seq., and 42 U.S.C. Section 1981, the district court’s exclusion
of certain testimony, and the district court’s dismissal of her defamation claim



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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for improper venue. After a full and careful review of the district court record,
we find no abuse of discretion in the district court’s evidentiary rulings.
Further, because Warren fails to raise evidence of pretext, this court AFFIRMS
the district court’s grant of summary judgment on her discrimination claims.
We REVERSE AND REMAND the district court’s dismissal of her defamation
claim.
                               BACKGROUND
      Fannie Mae is a private, federally chartered corporation that buys and
sells mortgage loans. Due to foreclosures, Fannie Mae also owns, manages,
and resells real estate. Fannie Mae employs sales representatives to manage
and sell these foreclosed properties in different geographic regions, who in turn
work with outside real-estate brokers in those regions.
      Warren, an African-American woman, worked as a sales representative
for Fannie Mae in Dallas from 1996 to 2013. Her duties included managing
properties, deciding how and when to sell properties, and working with outside
brokers in her assigned territory.
      Fannie Mae had a vetting process for outside brokers. Brokers had to
apply to Fannie Mae and verify information to be put on a list of available
agents in each territory.       A broker would be “onboarded” upon the
recommendation of the sales representative for that area. Once approved,
brokers gained access to Fannie Mae’s “Asset Management Network” (“AMN”).
Brokers receive a unique password to the AMN and are directed not to share
it with anyone.
      Fannie Mae takes steps to avoid conflicts of interest and the appearance
of conflicts between its sales reps and outside brokers.        Sales reps are
periodically assigned to new territories to reduce potential conflicts. Fannie
Mae’s Code of Conduct (and attendant Conflict-of-Interest Policy) forbids the



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appearance of impropriety or conflicts, and expressly forbids “giving one
Fannie Mae vendor an inappropriate advantage over other vendors.”
      Warren was the sales representative for Virginia in 2010. As sales
representative, Warren met Rhyan Finch, a Virginia real-estate broker who
was ultimately approved to work on Fannie Mae’s Virginia properties. Warren
was reassigned from Virginia to Pennsylvania in 2011. Warren eventually
needed to find additional brokers to assist with properties in western
Pennsylvania. She requested a list of available brokers in the area, which
listed only Emma Djiya. Warren contacted Djiya, who stated that she would
be assisted by Finch. Warren also contacted Finch, who had previously offered
to help Warren locate brokers in Pennsylvania. Finch told Warren that he
would help Djiya get up to speed with the process and assist her with
marketing properties. The emails Warren would later exchange with Finch
are a central focus of this case.
      On March 21, 2012, Finch told Warren that Djiya had applied to work as
a Fannie Mae broker. Finch attached a referral form for Warren to submit to
her manager, Marsha Peters. This form had Djiya’s information filled in. Of
note, Finch asked Warren to “delete my name from the email forwarding it on”
and noted that “the email in the form . . . goes to me as well as the phone call.”
Warren later confirmed by e-mail that she had forwarded the form to Peters,
though Warren stated in her deposition that she had instead forwarded a
request to onboard Djiya.
      Djiya was later approved as an outside broker. Finch soon after told
Warren that he would be filling out Djiya’s welcome paperwork. Warren also
observed that when she sent emails to Djiya’s email address, Finch, not Djiya,
would respond. Warren testified that she could not remember whether she
informed Peters of Finch’s involvement with Djiya’s affairs.



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      In 2012, Fannie Mae received a tip that another of its sales
representatives had improperly favored Finch. Fannie Mae was told that
Finch had received referral fees from other real-estate agents for referring
Fannie Mae properties. Fannie Mae began an internal investigation, which
determined that Finch and another outside broker named Spinetto had each
collected split commissions from other Fannie Mae brokers, had created fake
email addresses and phone numbers to receive communications directed to
other brokers, and had accessed the AMN using other brokers’ credentials. The
investigation identified twelve sales representatives and managers, including
Warren, who had worked with Finch or Spinetto.
      Megan Chadsey conducted the investigation into Warren’s interactions
with Finch.   Chadsey reviewed Warren’s emails and interviewed Warren,
Peters, and another manager who supervised specialists in Warren’s group.
Chadsey prepared an “Investigations Decision,” which concluded that Warren
had violated Fannie Mae’s Code of Conduct and Conflicts-of-Interest Policy.
The investigation determined that: (1) Warren favored Finch by “ensuring that
he was able to conduct business in Pennsylvania”; (2) Warren created the
impression that Fannie Mae condoned Finch’s business practices; (3) Warren
knew Finch had access to Djiya’s AMN credentials and managed her day-to-
day operations; and (4) Warren failed to raise concerns about these issues and
actually concealed Finch’s affiliation with Djiya.
      The investigation focused on emails to support this final finding that
Warren acted to conceal Finch’s actions with Djiya. In one email chain, Finch
asked if Peters knew he was working in Pennsylvania, noting that he was “not
sure what she will think” and that he didn’t want her to be surprised. Warren
responded that Peters was “not aware that you’re in this area yet because the
broker source had all of [Djiya’s] information,” stating that she would tell



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Peters during their next meeting. Warren was “[n]ot sure that [Peters would]
be a big fan.” Finch replied that he could send bids from Djiya’s email so Peters
wouldn’t “need to know if you rather not bring it up . . . your call. The [Djiya]
email comes to me too…. So I can stay below radar if that makes life easier just
didn’t want to say something on a call and put you in a bind.”
      Further, another Fannie Mae broker in Pennsylvania asked Warren if
Djiya was working with a broker from Virginia in August 2012. Warren was
not concerned about this question and did not tell management about the
concern. Warren mentioned this inquiry to Finch to “make sure that [Djiya]
was the person that was doing the day-to-day operation of the business.” Finch
responded (after a phone call with Djiya) that Djiya “hasn’t spoken to anyone”
and that she was “happy with how things are going and sees the value I bring
to her business.” Warren admitted that “she believed [Finch] asked her to
conceal his affiliation with [Djiya],” but thought he did so because Peters
disliked him.
      Upon completion of the investigation, Fannie Mae fired Warren on
February 7, 2013. Warren was one of four sales representatives fired, while
three others received some remedial action.
      Warren sued Fannie Mae in state court, alleging race discrimination and
defamation.     While that suit was pending she submitted her claims to
nonbinding arbitration, as required by Fannie Mae’s dispute resolution policy.
The arbitrator dismissed Warren’s state-law race discrimination claim as
ineligible for arbitration and granted Fannie Mae a summary disposition on
all remaining claims on the merits (despite Fannie Mae’s argument that the
defamation claim was untimely).
      Fannie Mae then removed the case to federal court. The district court
granted a motion to dismiss Warren’s defamation claim for improper venue



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pursuant to Federal Rule of Civil Procedure 12(b)(3) because Warren failed to
timely submit her Demand for Arbitration as required by Fannie Mae’s
employment policies. Fannie Mae then moved for summary judgment on all
remaining claims, which the district court granted.       The district court’s
decision was based, in part, on the exclusion of information in Warren’s
summary judgment declaration under the sham affidavit rule. The district
court also struck the declaration of another Fannie Mae employee who had
been fired as irrelevant. Warren timely appealed.
                         STANDARD OF REVIEW
      This court reviews a “district court’s evidentiary rulings when it
determines the summary judgment record under an abuse of discretion
standard.” Maurer v. Indep. Town, 870 F.3d 380, 383 (5th Cir. 2017).
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below. Tiblier v. Dlabal,
743 F.3d 1004, 1007 (5th Cir. 2014). Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute as to a material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). “[T]his
court construes ‘all facts and inferences in the light most favorable to the
nonmoving party.’” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)
(quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)). But “[s]ummary
judgment may not be thwarted by conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” Id. “We are not
limited to the district court's reasons for its grant of summary judgment and
may affirm the district court's summary judgment on any ground raised below



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and supported by the record.” Boyett v. Redland Ins. Co., 741 F.3d 604, 606-07
(5th Cir. 2014).
                                DISCUSSION
      Warren challenges the district court’s grant of summary judgment,
exclusion of Warren’s summary judgment declaration under the “sham
affidavit” rule, exclusion of Keitha Jefferson’s declaration, and the district
court’s dismissal of her state-law defamation claim under Federal Rule of Civil
Procedure 12(b)(3). We address the evidentiary rulings first, as they color the
summary judgment analysis.
      I. Evidentiary Rulings
         a. Warren’s Declaration
      The district court struck two paragraphs (paragraphs 20 & 22) from
Warren’s summary judgment declaration under the “sham affidavit” rule. “It
is well settled that this court does not allow a party to defeat a motion for
summary judgment using an affidavit that impeaches, without explanation,
sworn testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th
Cir. 1996).
      Paragraph 20 of Warren’s summary judgment declaration states that
Warren “investigated” whether Djiya was managing the properties and she
“received confirmation that Djiya or agents working in her officer [sic] were
performing the Broker Price Opinion on the properties, and were supervising
the arrangement for utilities and repair estimates. I learned that Finch was
proofing the BPO’s before they went out, but there was no prohibition to such
quality control assistance.”   The district court found that this declaration
conflicted with Warren’s sworn deposition testimony, where she affirmed that
she did not know if the utilities were in Djiya’s name and that it was her
understanding that the utilities were under Djiya’s name. Because Warren



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did not explain the discrepancy between her summary judgment declaration
and her earlier testimony on this matter (certainty versus uncertainty), the
district court excluded this paragraph.
      Warren argues that the district court erred in excluding this paragraph
because it focuses on her confusion during her deposition, which was later fixed
with her declaration. Warren ignores the fact that the next few lines of her
deposition directly contradict her declaration. When asked if she ever did
anything to confirm that the utilities were under Djiya’s name, Warren
responded: “No, we did not get the billings in sales.” Warren has not, and
cannot (given her clearly contradictory testimony and declaration), show that
the district court abused its discretion by excluding paragraph 20 of her
declaration.
      Paragraph 22 of Warren’s summary judgment declaration denies that
she agreed to conceal Finch’s connection to Djiya. She also states that she
“intended to mention Finch’s involvement with Djiya to Peters when I next met
with her, and may have actually done so, although I cannot remember with
certainty. I believe this happened because the investigator’s notes reveal that
someone told Peters that Finch was wanting to go ‘under the radar,’ which is
terminology he used in an e-mail with me.” The district court found that this
statement conflicted with Warren’s earlier testimony that she did not tell
Peters about Finch’s connection with Djiya, and excluded it for failure to
explain the discrepancy.
      Warren argues, citing Mutual Life Insurance Company of New York v.
Hillmon, 145 U.S. 285, 12 S. Ct. 909 (1892) that her consistent testimony that
she intended to disclose the Finch-Djiya connection to Peters can be used as
evidence that she later did so. Warren also argues that her contradiction is
explained by her viewing the investigator’s notes, and “[r]efreshing memory



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from a contemporaneous document is a perfectly legitimate reason” for
changing testimony.
      Hillmon looked at a declarant’s words as evidence they later followed
through with a plan. 145 U.S. at 294-95, 12 S. Ct. at 912. Warren is arguing
that her post-conduct statements of intention imply that she actually told
Peters about Finch. Therefore, Hillmon is inapposite. Warren’s argument that
viewing the investigator’s notes refreshed her memory is also unavailing.
Warren offers no explanation as to why seeing the investigator’s notes from an
interview with a third party reminded her that she “may have” told Peters
about Finch after flatly denying that she told Peters about Finch in her
deposition. Warren has not shown that the district court abused its discretion
in excluding paragraph 22 of her summary judgment declaration.
         b. Jefferson’s Declaration
      The district court entirely excluded the declaration of Keitha Jefferson,
another former Fannie Mae employee. Jefferson’s declaration described her
interactions with the same investigators who recommended that Warren be
terminated. Fannie Mae argued that Jefferson’s declaration was irrelevant,
prejudicial, hearsay, not based on personal knowledge, and improper opinion
testimony, while Warren contended that the declaration showed the
investigator’s bad faith.
      The district court concluded that Jefferson’s declaration was excludable
because it had no evidentiary value outside of attacking the investigators’
credibility, and credibility determinations are not allowed at summary
judgment. See Anderson, 477 U.S. at 255. The district court also held that,
notwithstanding the inadmissibility of credibility evidence, Jefferson’s
declaration was unrelated to the facts in Warren’s case because Jefferson and
Warren had different jobs, were fired for different reasons, and raised different



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claims.   Thus, the district court determined that “[n]othing in Jefferson’s
Declaration is probative of whether Fannie Mae discriminated against Warren
because of race.”    Warren v. Fed. Nat’l Mortg. Ass’n, No. 3:14-CV-3993-B,
2017 WL 1365785, at *8 (April 14, 2017 N.D. Tex). The district court also
observed that many of Jefferson’s statements were conclusory allegations. Id.
      We agree that, regardless whether any evidence regarding credibility
and credibility determinations is absolutely barred at summary judgment, the
district court did not abuse its discretion in finding that Jefferson’s statements
regarding the investigation process for her complaints of retaliation and
discrimination on the basis of disability do not tend to prove or disprove that
Fannie Mae discriminated against Warren because of her race. Further, the
district court did not abuse its discretion by concluding that much of Jefferson’s
declaration was merely conclusory, such as her belief that the investigators
have “poor reputations for truthfulness, and all investigations that were either
conducted or reviewed by them should be considered a sham along with being
called into question as to their reliability.”
      II. Summary Judgment
      Warren claims that Fannie Mae discriminated against her because of
her race in violation of Title VII, 42 U.S.C. Section 1981, and the Texas Labor
Code Section 21.001 et seq.
      Because Warren has not offered any direct evidence, this court applies
the modified McDonnell Douglas burden-shifting standard.                Burrell v.
Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007).
Warren must first demonstrate a prima facie case of discrimination; she must
show that she: (1) is a member of a protected class, (2) was qualified for the
position at issue, (3) was discharged or suffered some adverse employment
action by the employer, and (4) was replaced by someone outside her protected



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group or was treated less favorably than other similarly situated employees
outside the protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556
(5th Cir. 2007). If Warren can make out a prima facie case, the “burden then
shifts to the employer to articulate a legitimate, nondiscriminatory . . . reason
for its employment action.” Id. at 557. This burden is one of production, not
persuasion and does not involve a credibility assessment.           Id.    Once the
employer states its reason, the burden shifts back to the plaintiff. The plaintiff
must then create a genuine, material fact issue either that the employer’s
reason is false and merely pretext for discrimination, or that while the
employer’s reason is true, it is only one of the reasons for its conduct, and
another motivating factor is the plaintiff’s protected characteristic. Burrell,
482 F.3d at 411-12.
        Fannie Mae assumed that Warren established a prima facie case, and
the    parties   agree    that   Fannie    Mae    has   proffered   a     legitimate,
nondiscriminatory reason for terminating Warren. Therefore, the court turns
to Warren’s arguments to show that Fannie Mae’s reason for terminating
Warren was pretextual or one of several motivating factors, including her race.
Warren contends that there are ten facts or fact issues that should have
precluded summary judgment on her race discrimination claims. The court
addresses them in the order she raises them.
        1. Fannie Mae Deviated from Progressive Discipline Procedures
        Warren argues that Fannie Mae deviated from its normal procedure for
using progressive discipline when it decided to terminate her without looking
at her work history. She notes that an employer’s deviation from its typical
procedures can imply discrimination. Miller v. Raytheon Co., 716 F.3d 138,
146 (5th Cir. 2013). The district court noted, correctly, that the document
Warren points to as a “progressive discipline policy” is not a progressive



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discipline policy, but rather, an appendix to Fannie Mae’s Investigation
Procedure. Warren, 2017 WL 1365785, at *12. The document states that the
listed “criteria are instructive, but not determinative” and any “Directed Action
is dependent on the specific facts and circumstances of the violation.” Fannie
Mae could not violate a progressive discipline policy it did not have. Therefore,
this argument does not suggest Warren’s termination was motivated
discriminatory intent.
      2. Lack of Training
      Warren next contends that Fannie Mae failed to train her to know that
her interactions with Finch were improper.        She points to Shirley Small,
another sales representative, who could not recall being told that a consulting
arrangement like Finch’s was forbidden. Warren’s argument proves too much.
Warren was as untrained as her coworkers. Warren has not alleged that she
received less training than similarly situated employees outside her group
(such as Shirley Small). Accordingly, her lack of training does not raise an
inference of pretext or discriminatory intent.
      3. Warren Kept Peters Informed
      Warren argues that her termination for concealing Finch’s relationship
with Djiya is contradicted by the record. Warren contends that her repeated
intentions to inform Peters about Finch and the inclusion of the “under the
radar” language from Finch’s correspondence with Warren have led her to
believe that she actually did disclose Finch’s actions to Peters. As discussed
above, Warren’s contentions that she told Peters about Finch were properly
excluded under the sham affidavit rule. The record does, however, contain
Warren’s deposition in which she flatly denies telling Peters about Finch. She
may not backtrack on this previous statement now. Accordingly, Warren has




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not offered facts to indicate she did not conceal Finch’s relationship with Djiya
to raise an inference of pretext or discriminatory intent.
      4. Selective or Preferential Enforcement of Policies
      Warren next argues that her termination for concealment was pretextual
or motivated by discriminatory intent because Fannie Mae selectively enforced
its policies and treated similarly situated employees differently. To raise even
a prima facie case of disparate treatment, Warren must identify a similarly
situated comparator. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th
Cir. 2009). Employees are similarly situated if: (1) they “held the same job or
responsibilities”; (2) they worked for “the same supervisor or had their
employment status determined by the same person”; (3) they had “essentially
comparable violation histories”; and “critically” (4) the employees’ conduct
drawing adverse consequences was “nearly identical” but resulted in
“dissimilar employment decisions.” Id. at 260. The converse is also true.
Employees are not similarly situated if they: (1) had different supervisors;
(2) worked for different divisions within the company; (3) held different
responsibilities; (4) suffered adverse actions for dissimilar conduct; or
(5) suffered adverse actions too remote in time from each other. Id. at 259-60.
“If the difference between the plaintiff’s conduct and that of those alleged to be
similarly situated accounts for the difference in treatment received from the
employer, the employees are not similarly situated for the purposes of an
employment discrimination analysis.” Id. at 260 (quotations omitted).
      Warren argues that Fannie Mae ignored “an identical infraction” by
Brian Kapprell, a white male employee who worked with Spinetto, and
reprimanded, but did not fire, Shirley Small, a white woman who worked with
Finch.




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      Warren alleges (via declaration from Lynette Sandidge, another
terminated employee) that her first comparator, Brian Kapprel, engaged in the
same conduct she did, but was not fired. Fannie Mae responds that Kapprel
was found to have improperly favored a vendor, but their investigators did not
find that he had concealed his actions as Warren did.
      Warren’s argument that Kapprel is an apt comparator relies on her
contention that she did not conceal her dealings with Finch and his
relationship with Djiya. There are no facts in the record to suggest that
Kapprel and Warren engaged in the same behavior. Conspicuously absent
from the investigation record into Kapprel’s conduct is any scintilla of evidence
that he concealed his relationship with Spinetto or Spinetto’s relationships
with other brokers.    The investigators found “no evidence indicating that
Mr. Kapprel tried to obscure the [broker’s] affiliation with these agents from
Fannie Mae management. Instead, . . . the evidence showed that he forwarded
emails that indicated this affiliation to his manager and a Corporate
Procurement representative.” Warren claims that she and Kapprel engaged in
the same conduct, but this discounts the finding that Kapprel forwarded
information to management regarding his outside broker.            Because the
undisputed facts show that Kapprel and Warren engaged in dissimilar
conduct, Kapprel is not an adequate comparator.
      Warren’s second comparator is Shirley Small, a white, female sales
representative who engaged in similar conduct involving Finch.           Warren
argues that the investigation decisions for her and Small show that their
conduct was “essentially identical,” but she was fired while Small was spared.
To show the similarity between her behavior and Small’s, Warren cites:
(1) Chadsey’s investigation notes in which Chadsey purportedly “admitted
. . . that Warren’s conduct was closer in nature to Shirley Small than Sandidge,



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and only justified its severity due to the alleged concealment, which didn’t
happen”; and (2) Finch’s deposition where he states that Warren and Small
engaged in essentially identical conduct.
      Warren’s argument mischaracterizes Chadsey’s notes, which mention
that Warren’s case is “more severe than Small” due to concealment, but not
likely as severe as Sandidge’s because Warren’s case did not involve “a lot of
brokers/states.” This is not an admission that Warren’s conduct was closer to
Small’s. Warren’s argument on this point also flatly denies that she concealed
information from management, but cites nothing in the record to support this
contention. Further, Finch’s testimony is not adequate to demonstrate that
Warren and Small engaged in similar conduct.          While Finch stated that
Warren and Small were “doing the same thing,” he admitted that he had
reviewed neither Warren’s nor Small’s investigation decision.             Finch’s
testimony also does not contradict the undisputed fact that Warren testified
she did not reveal Finch’s relationship to Djiya despite receiving concerns from
other brokers. There is nothing in the record to suggest that Small had similar
concerns presented to her. Further, Warren admitted to Chadsey that “she
believed that [Finch] had asked her to conceal his affiliation with [Djiya] from
her manager.” There is nothing in the record suggesting that Small held a
similar belief and failed to disclose Finch’s affiliations to management. The
undisputed facts show that Small and Warren engaged in dissimilar conduct.
Therefore, Small is not an adequate comparator. Accordingly, Warren has not
adduced sufficient facts concerning selective or preferential enforcement of
policies to raise an inference of pretext or discriminatory intent.
      5. Executive and Manager Approval
      Warren next contends that evidence of Fannie Mae’s managers’
approving conduct that she engaged in, which was then called a violation of



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policy, shows pretext. She cites Ameristar Airways, Inc. v. Administrative
Review Board, United States Department of Labor, 650 F.3d 562 (5th Cir.
2011), to support this statement of law. She contends that Fannie Mae Vice
President David Box approved Spinetto’s backoffice service consulting and that
Director Peter Poidmani actively sought help from Spinetto in onboarding new
brokers in Chicago (when Spinnetto was based in Virginia).
      First, Ameristar does not stand for the proposition for which Warren
cites it.   Rather, the Ameristar court found that when an employer cited
inadequate work product as a reason for taking adverse action against an
employee, where that work product had “already been approved and conformed
to prior management directives,” an inference arose that the employer had
“simply attempted to manufacture facially legitimate reasons for termination
when its true motive was retaliation.” Ameristar, 650 F.3d at 569. Ameristar
does not apply to the facts of this case. Warren has not contended that a
manager outright approved her conduct, nor has she alleged that Box’s and
Poidmani’s conduct followed a “prior management directive.” Instead, she
focuses on the fact that neither Box nor Poidmani was investigated or
disciplined for their interactions with Spinetto.
      To the extent that Warren is claiming Box and Poidmani are
comparators, this argument fails. Box, a Vice President, and Poidmani, a
Director, are not similarly situated to Warren, a sales representative. As the
district court noted, Fannie Mae was entitled to make potentially irrational or
unfair decisions (such as not investigating Box and Poidmani) so long as their
decisions were not discriminatory. Warren, 2017 WL 1365785, at *16 (citing
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)). The
undisputed     record   reflects   that   Fannie    Mae   investigated   all   sales
representatives with ties to Spinetto or Finch. Warren’s invocation of conduct



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by Box and Poidmani raises no inference that Fannie Mae discriminated
against her.
      6. Fact Issues Exist on AMN Access Policy
      Warren contends that summary judgment should have been precluded
due to fact issues regarding Fannie Mae’s policy on brokers’ sharing their AMN
passwords. This argument presents no evidence of racial animus. Rather,
Warren is taking issue with Fannie Mae’s conclusion that her conduct was
improper. This argument ignores Fannie Mae’s actual justification for her
termination: the finding that she “attempted to conceal” Finch’s relationship
with Djiya. “[E]vidence that the employer’s investigation merely came to an
incorrect conclusion does not establish a racial motivation behind an adverse
employment decision.” Bryan v. Compass Grp. USA, Inc., 413 F.3d 471, 478
(5th Cir. 2005).    This argument fails to raise an inference of pretext or
discriminatory intent.
      7. Finch Actively Promoted Services Without Management Guidance
      Warren’s seventh argument focuses on the fact that Finch apparently
came to Fannie Mae’s Dallas office to promote his backoffice services without
objection from management. Even if this were true, (and the district court
noted that “the evidence Warren points to in support of [this] claim, Finch’s
deposition, does not much support it,”) this fact does nothing to demonstrate
that her termination was motivated by racial animus towards her. Warren,
2017 WL 1365785, at *16.
      8. Box Video Shows Conflicts Rule Enforced Selectively
      Warren’s next argument contends that “a jury [could] reasonably doubt
Fannie Mae’s sincerity about never favoring one REO broker over another”
because Box chose Spinetto to appear in a commercial in Maryland, although
Spinetto was not licensed in Maryland. As discussed above, Box is not a valid



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                                  No. 17-10567

comparator due to his position. That Box had Spinetto appear in a commercial
is also not comparable to Warren’s conduct because there is no indication that
he was concealing any alleged conflict. Commercials are widely distributed,
not concealed. This argument is meritless and fails to raise an inference of
pretext or discriminatory intent.
      9. Biased Investigators Preclude Summary Judgment
      Warren’s penultimate argument claims that Meghan Chadsey and Leslie
Arrington, Fannie Mae’s investigators, “were partial, and deliberately ignored
evidence favoring minorities to justify their results.” To support her claim of
partiality, Warren cites the omission of Peters’ statement that someone told
her Finch was trying to “stay under the radar,” Jefferson’s testimony that
Chadsey prepared her investigation report before meeting with Jefferson, and
Sandidge’s experience with a third investigator. The investigators’ notes and
their omission from Warren’s investigation decision do not create a material
factual dispute or allow an inference that Fannie Mae harbored racial animus.
This argument instead rehashes Warren’s disagreement with Fannie Mae’s
conclusion that she concealed information, which fails to raise a material
factual dispute for the reasons discussed above. Jefferson’s declaration is
irrelevant for the reasons discussed above, as is the experience of another
employee with a different investigator.      This argument fails to raise an
inference of pretext or discriminatory intent.
      10. Knowledge of Race
      Warren’s final argument takes issue with “Fannie Mae’s assertions of
ignorance on the racial disparity of the harm . . . in light of the investigator’s
selective attention to rule-breaking.” She contends that the investigators met
with Fannie Mae Vice President John Liszka “who presumably knew the race
of the various employees, and identified them for investigation” and that



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“Chadsey and presumably Arrington knew Warren was African American
shortly after the termination.”     Warren’s arguments regarding selective
enforcement do not hold water, as discussed above. The investigators’ notes
regarding the meeting with Liszka make no mention of race, so that
consultation raises no inference of discrimination.          Finally, Warren’s
contention that the investigators knew her race after her termination is
irrelevant. See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 231 (5th
Cir. 2015) (“[A]fter-acquired knowledge cannot be the basis of the [employer’s]
decision.”) (quotation omitted). This argument fails to raise an inference of
pretext or discriminatory intent. Accordingly, because no disputes of material
fact exist, the district court’s grant of summary judgment for Fannie Mae must
be affirmed.
      III.   Federal Rule of Civil Procedure 12(b)(3) Dismissal
      Warren’s last point of error argues that the district court erred in
dismissing her state law defamation claim for improper venue under Federal
Rule of Civil Procedure 12(b)(3).     Warren argues that the district court
contravened Supreme Court precedent dictating that a forum-selection clause
may not be enforced via Rule 12(b)(3). See Atl. Marine Constr. Co. v. U.S. Dist.
Court for the W. Dist. of Tex., 571 U.S. 49, 55 134 S. Ct. 568, 577 (2013)
(“Rule 12(b)(3) allow[s] dismissal only when venue is ‘wrong’ or ‘improper.’
Whether venue is ‘wrong’ or ‘improper’ depends exclusively on whether the
court in which the case was brought satisfies the requirements of federal venue
laws, and those provisions say nothing about a forum-selection clause.”).
Warren argues that Fannie Mae’s motion to dismiss under 12(b)(3) was moot
when filed because she timely filed her defamation lawsuit before seeking
arbitration. Warren further notes that the arbitrator decided her defamation




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                                  No. 17-10567

claim on its merits, and thus, the district court was not in a position to decide
whether her claim was properly or timely before the arbitrator.
      Fannie Mae counters that: (1) Warren failed to preserve any error below;
(2) Atlantic Marine is inapplicable in this case; (3) the district court’s reliance
on Rule 12(b)(3) is immaterial because the district court could have simply
converted its motion to a motion for summary judgment and reached the same
result; and (4) the district court was correct in dismissing the defamation claim
because it was not timely submitted to arbitration. As to timeliness, Fannie
Mae notes that Warren filed her Demand for Arbitration on March 20, 2014,
but alleged that Fannie Mae’s defamatory statements prevented her from
getting a job at Freddie Mac in February 2013. This would put her Demand
for Arbitration past the one-year statute of limitations for defamation claims
in Texas. See Tex. Civ. Prac. & Rem. Code § 16.002(a).
      Fannie Mae correctly notes that arbitration agreements are a
“specialized kind of forum-selection clause.”     Scherk v. Alberto-Culver Co.,
417 U.S. 506, 519, 94 S. Ct. 2449, 2457 (1974). However, the district court and
Fannie Mae have overlooked the language of the arbitration agreement, which
cleanly disposes of this argument. Fannie Mae’s Dispute Resolution Policy
requires that employees must engage in nonbinding arbitration of claims with
Fannie Mae as a prerequisite to suit. Regarding timeliness, the policy requires
that the arbitrator “receive the employee’s completed ‘Demand for Arbitration’
form within the time limit set by law for bringing suit on that claim in court.”
“If the company contends that the claim was not made within the time limit,
the arbitrator may be requested to decide the issue before any hearing on the
substance of the claim.” Further, “[t]he arbitrator will resolve all disputes over
the interpretation and applicability of the [Dispute Resolution] Policy, and over
the arbitrability of all matters presented under it.”



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                                  No. 17-10567

      Fannie Mae alleged two bases for summary disposition on Warren’s
defamation claim to the arbitrator: (1) that it was ineligible because she filed
it out of time; and (2) she had not established her claim. The arbitrator
assumed her claim was eligible and dismissed the claim on its merits for failure
to establish the necessary elements.         The arbitrator’s decision to dismiss
Warren’s claim on the merits and assumption it was timely implicitly
determined the arbitrability of Warren’s defamation claim. As noted above,
the arbitrator was entitled to “resolve all disputes . . . over the arbitrability of
all matters presented under [the Dispute Resolution Policy].” Therefore, the
district court attempted to override the arbitrator’s determination of
arbitrability when it found that Warren’s claim was untimely. The district
court erred in doing so. Accordingly, this court will vacate and remand the
district court’s dismissal of Warren’s defamation claim for disposition on the
merits, in light of the nonbinding decision of the arbitrator.
                                 CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s
evidentiary rulings and grant of summary judgment for Fannie Mae on
Warren’s race discrimination claims, but REVERSE AND REMAND the
district court’s dismissal of Warren’s defamation claim.




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