     Case: 12-40419   Document: 00512268854     Page: 1   Date Filed: 06/10/2013




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

                                                                  FILED
                                                                 June 10, 2013

                                 No. 12-40419                    Lyle W. Cayce
                                                                      Clerk

TONY MUMFREY,

                                           Plaintiff–Appellant
v.

CVS PHARMACY, INC. ET AL.,

                                           Defendants–Appellees



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


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant Tony Mumfrey (“Mumfrey”) appeals the district court’s
denial of his motion to remand his retaliation suit against his former employer,
CVS Pharmacy, Inc. (“CVS”). He also appeals the district court’s conclusions of
law, arguing that it erroneously applied controlling law to conclude that
Mumfrey did not prove retaliatory termination. We affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      Mumfrey worked as a CVS pharmacist from 2004 until his termination in
February 2009. Pharmacy Supervisor Gary LeBlanc was Mumfrey’s direct
supervisor from mid-2006 until the end of 2008, when LeBlanc transferred to
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California. A district manager, Michael Cooney, became Mumfrey’s supervisor
in January 2009.        The store manager, Doug Jenny,1 had no supervisory
responsibilities over Mumfrey.
       Starting in October 2008, Mumfrey began exhibiting multiple performance
issues. Mumfrey had received oral warnings in the past for violating the
company’s prohibition on sharing one’s cash register number and password with
others. In October, LeBlanc learned Mumfrey had again given out his cash
register number and password to two individuals in the pharmacy. LeBlanc
issued Mumfrey two “coaching and counseling” forms, one for each violation.2
       LeBlanc also issued Mumfrey a third “coaching and counseling” form
based on a customer complaint filed with CVS on October 17, 2008. The
customer stated that Mumfrey had given her his personal phone number. She
said he called and e-mailed her and that the contact was unwanted. Mumfrey
would not disclose to LeBlanc how he received her contact information, other
than to say it was from an outside source. Cooney was present when Mumfrey
received each of the three October 2008 “coaching and counseling” forms.
       Mumfrey’s performance issues continued. In November and December
2008, multiple pharmacy technicians complained to LeBlanc about Mumfrey’s
behavior. On December 4, 2008, LeBlanc issued Mumfrey another “coaching
and counseling” form for creating a hostile working environment, exhibiting poor
customer service, and yelling and speaking rudely to a technician. Although
LeBlanc had been informally addressing Mumfrey’s professionalism for years,
he issued the warning on this occasion to document the incident. He wrote on
the form that it was Mumfrey’s final warning for that issue.


       1
        Jenny’s name was misspelled as “Jenney” in the Original Petition and the misspelling
has persisted throughout the litigation.
       2
        LeBlanc had also received oral warnings in the past for sharing his register password,
but had complied with the rule following the warning.

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      Mumfrey’s work troubles continued.           CVS requires a pharmacist to
complete a mis-fill report within twenty-four hours of mis-filling a prescription.
A pharmacist mis-fills by giving the customer a different medication, strength,
or quantity than prescribed. On December 16, 2008, Mumfrey mis-filled a
prescription by not providing the strength and form that the physician directed.
Mumfrey did not complete the mis-fill report, despite being reminded to. He
then initiated a medical leave of absence from December 17, 2008 to January 26,
2009.3
      LeBlanc did not think it was appropriate to discipline Mumfrey during his
leave of absence.      Because LeBlanc was transferred to California during
Mumfrey’s leave, Cooney became Mumfrey’s direct supervisor upon his return.
Cooney finally issued a “coaching and counseling” for Mumfrey’s failure to fill
out the mis-fill report before his medical leave of absence. In the “coaching and
counseling” session, Cooney told Mumfrey to consider the session a final warning
on behavior and performance, and warned Mumfrey that any future issues could
lead to termination.
      On February 2, 2009, Mumfrey e-mailed CVS Human Resources Business
Partner Todd Hine to complain about Hine’s handling of Mumfrey’s return-to-
work authorization. The authorization stated that Mumfrey be allowed to “sit
as needed.”    Hine had asked Mumfrey for clarification on what that meant.
Mumfrey replied by sending Hine the dictionary definitions of the three words.
On February 4, 2009, Mumfrey e-mailed and faxed a complaint to CVS’s Ethics
Line, stating he believed that he was receiving “coaching and counseling”
sessions for trivial reasons in retaliation for requesting health accommodations.
On February 5, 2009, Mumfrey alleged retaliation to the EEOC.


      3
       Mumfrey had received an accommodation to use a special chair at work to alleviate
back pain. He initially pleaded that he was retaliated against for requesting an
accommodation as well, but has abandoned that claim on appeal.

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                                        No. 12-40419

      On February 16, 2009, a customer complained that when he brought his
Category II prescription4 to CVS, Mumfrey told him that he would have to verify
the prescription with the doctor and would not be able to fill it that day. Based
on the customer complaint, Cooney initiated an investigation by calling the
customer. Cooney advised the customer to send him the complaint via e-mail.
The customer’s e-mail stated that on Sunday, February 15, 2009, he had driven
to Beaumont from a family event in Fort Polk, Louisiana. He said Mumfrey told
him to come back the next day because Mumfrey would have to verify the
prescription with the prescribing doctor because the doctor was from out of town.
According to the customer’s complaint, when he asked Mumfrey to look at the
customer’s past prescriptions in the CVS system to verify that he received the
same medicine and quantity from the same doctor every month, Mumfrey told
him that he did not care and that he could come back the next day. Mumfrey did
not attempt to call the doctor to verify the prescription. The customer returned
the next day and received the medicine without further incident.
      Cooney investigated the complaint. He concluded that a prescription from
an out-of-town doctor was not a reason to not immediately fill it. Neither was
the fact that the prescription’s release date was written for five days after the
date the prescription was signed. CVS’s computers indicated that the customer
had previously filled a prescription for the same medicine at the same store from
the same doctor. The previous fill was more than thirty days prior and had been
for thirty days’ worth of medicine. Mumfrey had claimed that insurance rejected
the prescription and that the customer had brought the prescription to other
pharmacies and been turned away.               However, Cooney called the customer’s
insurance company, which told him that no prescription claim had been made




      4
          Category II prescriptions are more strictly regulated and are kept in a locked safe.

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by Mumfrey on February 15, 2009, and that no other pharmacy had recently
presented the same prescription to the insurance company.
       After watching a video of Mumfrey’s interaction with the customer, Cooney
invited Human Resources Director Jimmy Griffin to interview Mumfrey with
him. Because Mumfrey had previously filed complaints against Cooney, Cooney
intended for Griffin to make the ultimate determination. Griffin was not
satisfied with Mumfrey’s explanation of events.              At the meeting, Mumfrey
protested that another pharmacy technician had mis-filled a prescription and
not been disciplined. Griffin, concerned that Mumfrey had not attempted to
verify the prescription, decided to terminate Mumfrey.
B.     Procedural Background
       Mumfrey filed suit on October 14, 2009 against CVS for the following
Texas Labor Code claims: (1) retaliation for seeking an accommodation based on
his good faith belief that he had a disability, and (2) unlawful retaliatory
termination after Mumfrey filed an EEOC charge of discrimination.5 He also
filed suit against Mike Cooney (“Cooney”), Gary LeBlanc (“LeBlanc”), and
Douglas Jenny (“Jenny”) (collectively “the individual defendants”). His suit
against the individual defendants claimed tortious interference with business
relationships, defamation, and constructive fraud.6
       Mumfrey’s Original Petition did not specify an amount in controversy and
pleaded only general categories of damages.               Mumfrey’s Original Petition
requested the following damages: “compensatory or pecuniary damages for past
lost wages up to the time of trial, and future pecuniary losses; past, present and
future emotional pain, suffering, inconvenience, mental anguish, loss of


       5
        Mumfrey does not appeal the district court’s decision on his claim of retaliation for
requesting a workplace accommodation.
       6
        Mumfrey abandoned his claims for defamation and constructive fraud against the
individual defendants.

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                                  No. 12-40419

enjoyment of life; and other past and future nonpecuniary losses. . . . Plaintiff
requests an additional amount in attorneys’ fees, to be set by the court, pursuant
to statute.”
      CVS moved the state district court to require Mumfrey to specify the
maximum amount of damages sought. The state court granted the motion, and
in response, Mumfrey filed a First Amended Petition claiming $3,575,000 in
damages. Within thirty days of requesting and receiving the First Amended
Petition, CVS removed to federal court. CVS, acknowledging that complete
diversity did not exist on the face of the complaint, asserted that removal was
nonetheless proper because the individual defendants from Texas were
improperly joined, and that without them, complete diversity existed. Mumfrey
filed a motion to remand, arguing that CVS’s removal was untimely and that the
individual defendants were not improperly joined.
      The district court issued an order finding CVS’s removal timely and the
individual defendant’s improperly joined such that the district court had
jurisdiction. Mumfrey filed a motion to reconsider, which the district court
denied. Several months after a three-day bench trial, the court entered Findings
of Fact and Conclusions of Law finding that Mumfrey did not prove retaliation.
Mumfrey timely appealed.
                              II. JURISDICTION
A.    Standard of Review
      This court reviews a district court’s denial of a motion to remand for lack
of subject matter jurisdiction de novo. Allen v. R & H Oil & Gas Co., 63 F.3d
1326, 1336 (5th Cir. 1995).
B.    Timeliness of Removal
      A defendant can remove to federal court any civil action brought in state
court over which the district court would also have had original jurisdiction. 28
U.S.C. § 1441(a). A federal district court has subject matter jurisdiction over a

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                                    No. 12-40419

state claim when the amount in controversy is met and there is complete
diversity of citizenship between the parties. See 28 U.S.C. § 1332(a). The
amount in controversy required by § 1332(a) is currently $75,000. Id. Any
ambiguities are construed against removal and in favor of remand to state court.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 1988)). The
party seeking to remove bears the burden of showing that federal jurisdiction
exists and that removal was proper. Id. (citations omitted).
      The timing of removal is controlled by 28 U.S.C. § 1446(b) as follows:7
      The notice of removal of a civil action or proceeding shall be filed
      within thirty days after the receipt by the defendant, through
      service or otherwise, of a copy of the initial pleading setting forth
      the claim for relief upon which such action or proceeding is based,
      or within thirty days after the service of summons upon the
      defendant if such initial pleading has then been filed in court and is
      not required to be served on the defendant, whatever period is
      shorter. . . .

      If the case stated by the initial pleading is not removable, a notice
      of removal may be filed within thirty days after receipt by the
      defendant, through service or otherwise, of a copy of an amended
      pleading, motion, order or other paper from which it may first be
      ascertained that the case is one which is or has become removable,
      except that a case may not be removed . . . more than 1 year after
      commencement of the action.

28 U.S.C. § 1446(b). Restated, if the initial pleading sets forth a claim that
triggers the removal clock, the defendant must file notice of removal within
thirty days of receiving it.8 If the initial pleading did not trigger the thirty-

      7
         28 U.S.C. § 1446 was amended in 2011. This Court relies on the version that was
applicable at the time Mumfrey filed his Original Petition. The statute as amended is
textually identical; only paragraph lettering was changed.
      8
          If the defendant seeks to remove on the basis of an initial pleading where the
jurisdictional amount is not established, the removing defendant must demonstrate by a

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day removal clock, a notice of removal must be filed within thirty days of the
defendant’s receipt of a document from which it may ascertain that the case is,
or has become, removable. Id. In any event, removal may not occur more than
one year after commencement of the action. Id.
       At the time Mumfrey initiated his suit, Texas prohibited plaintiffs from
pleading a specific amount of unliquidated damages. Tex. R. Civ. P. 47(b) (“An
original pleading . . . shall contain . . . in all claims for unliquidated damages
only the statement that the damages sought are within the jurisdictional limits
of the court.”) (emphasis added);9 see also Unauthorized Practice of Law Comm’n
v. Am. Home Assur. Co., 261 S.W.3d 24, 40 (Tex. 2008) (“Texas procedure does
not permit a plaintiff claiming unliquidated damages . . . to state a dollar figure
in his petition.”). Under the rule at the time of Mumfrey’s petition, there were
two main ways that a plaintiff disputed a case’s removal. The first type of
dispute arose when the defendant removed a case within thirty days of receiving
the initial pleadings—before the amount in controversy was clearly
established—and the plaintiff moved to remand, objecting that the amount in
controversy had not been met. In that situation, the defendant had to prove by
a preponderance of the evidence that the amount-in-controversy requirement
was satisfied. De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995)
(quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). Almost all
removal cases in the circuit fall into this first category—“amount disputes.”

preponderance of the evidence that the jurisdictional amount is satisfied. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1409 (5th Cir. 1995) (quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th
Cir. 1993)). In so determining, the court can rely on “summary judgment-type” evidence to
ascertain the amount in controversy. St. Paul Reins. Co., Ltd. v. Greenberg, 134 F.3d 1250,
1253 (5th Cir. 1998). This situation is not before us.
       9
         Texas Rule of Civil Procedure 47(b) was amended in an order dated February 12,
2013, effective March 1, 2013. It now states: “An original pleading . . . shall contain . . . a
statement that the damages sought are within the jurisdictional limits of the court.” Neither
party briefs whether this amendment allows a plaintiff to plead a specific damages amount,
and we need not consider the issue in this case.

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       The second situation—“a timeliness dispute”—occurs when the defendant
did not remove within thirty days after receipt of the initial pleadings under
§ 1446(b)’s first paragraph, but instead moved to remand under the second
paragraph, within thirty days of receiving some amended pleading or “other
paper.” In a timeliness dispute, the plaintiff tries to avoid removal by arguing
that it was clear from the initial pleadings that the case was removable such
that the defendant has missed the deadline and is forever barred from removing.
Distinguishing between the two removal disputes is critical because different
standards apply to each.
       It is the second scenario—“a timeliness dispute”—we are presented with.
Because CVS filed its motion to remove more than thirty days after receiving
Mumfrey’s Original Petition,10 but within thirty days of receiving the First
Amended Petition, the central issue here is whether Mumfrey’s Original Petition
triggered the thirty-day time period for removal, even though it did not include
a specific amount of liquidated damages. This situation arose because Texas, at
the time the suit arose, did not permit plaintiffs to plead a specific amount of
liquidated damages.
       Mumfrey argues that his initial pleadings were removable because his list
of damages was so extensive it was clear his claims satisfied the jurisdictional
amount. Specifically, he pleaded for lost wages and CVS, as his employer, knew
his salary. CVS argues that it timely removed because Mumfrey’s Original
Petition does not include any specific allegation that his claimed damages
exceeded $75,000. In essence, CVS contends it should not have to rely on its
subjective knowledge of Mumfrey’s salary from outside the pleading.
       In our seminal case on timeliness disputes, Chapman v. Powermatic, Inc.,
969 F.2d 160 (5th Cir. 1992), this Court held that the thirty-day removal period

       10
          28 U.S.C. § 1446(b) refers to initial pleadings broadly. Here, the particular initial
pleading is an Original Petition.

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under the first paragraph is triggered only where the initial pleading
“affirmatively reveals on its face that the plaintiff is seeking damages in excess
of the minimum jurisdictional amount of the federal court.” Id. at 163 (emphasis
added). The Chapman court specifically declined to adopt a rule which would
expect defendants to “ascertain[] from the circumstance[s] and the initial
pleading that the [plaintiff] was seeking damages in excess of the minimum
jurisdictional amount.” Id.
      The Chapman court had several practical ramifications in mind when it
announced this standard. By rejecting a so-called due-diligence standard, it
sought to promote efficiency by preventing courts from expending copious time
determining what a defendant should have known or have been able to ascertain
at the time of the initial pleading. Id. Morever, the Chapman court wanted to
avoid encouraging defendants to remove cases prematurely for fear of
accidentally letting the thirty-day window to federal court close when it is
unclear that the initial pleading satisfies the amount in controversy.           Id.
Ultimately, Chapman lays out a “bright line rule requiring the plaintiff, if he
wishes the thirty-day time period to run from the defendant’s receipt of the
initial pleading, to place in the initial pleading a specific allegation that damages
are in excess of the federal jurisdictional amount.” Id. (emphasis added). Such
a statement would provide notice to defendants that the removal clock had been
triggered, but would not run afoul of state laws that prohibit pleading
unliquidated damage amounts.
      A later case reaffirmed the Chapman standard. In Bosky v. Kroger Tex.,
LP, the parties agreed that the complaint was insufficient to trigger the thirty-
day removal clock. 288 F.3d 208, 210 (5th Cir. 2002). Though timeliness was




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thus not at issue, the court attempted to clarify “the question of timeliness of
removal.”11 Id. at 209.
       Bosky first reiterated Chapman’s holding: the first paragraph’s thirty-day
limit is triggered “only when that pleading affirmatively reveals on its face that
the plaintiff is seeking damages in excess of the minimum jurisdictional amount
of the federal court.” 288 F.3d at 210 (quoting Chapman, 969 F.2d at 163).
Bosky also reiterated Chapman’s bright line rule “requiring the plaintiff, if he
wishes the thirty-day time period to run from the defendant’s receipt of the
initial pleading, to place in the initial pleading a specific allegation that damages
are in excess of the federal jurisdictional amount.” Id.
       In a line that has become the source of significant confusion, Bosky then
went on: “[w]e have since held that specific damage estimates that are less than
the minimum jurisdictional amount, when combined with other unspecified
damage claims, can provide sufficient notice that an action is removable so as to
trigger the time limit for filing a notice of removal.” Id. at 210 (emphasis added)
(citing Marcel v. Pool Co., 5 F.3d 81, 82–85 (5th Cir. 1993), and DeAguilar, 47
F.3d 1408–12).
       However, both cases Bosky cites for this assertion are amount dispute
cases—where the time limit was not triggered.                          Thus, Bosky’s above
statement—“we have since held” that complaints stating unspecified damage
amounts trigger the time limit—is incorrect. In Marcel, the defendant filed a
notice of removal less than a month after the state court petition was filed. 5
F.3d at 82. The plaintiff sought to establish that his claim was below the
amount in controversy, such that remand was required. Id. Thus, the court
decided that the defendant was permitted to remove—not that the thirty-day


       11
         Because the court explained the standards for triggering the thirty-day removal
period abstractly without reference to the particular facts before it, its discussion is dicta. Id.
at 209–11.

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removal clock had been triggered, as Bosky implied. See id. at 83. In De
Aguilar, the plaintiffs filed in state court and, pursuant to Tex. R. Civ. P. 47, did
not plead damages of a specific dollar amount. 47 F.3d at 1406. The defendants
removed to federal court. Id. The issue was whether the plaintiffs, to avoid
federal court, could specifically allege that their damages would not exceed the
jurisdictional amount.         Id. at 1409–10.        Thus, despite Bosky’s statement,
neither case considered what triggers the thirty-day window.
       Notably, there seems to be no Fifth Circuit case since Chapman that calls
into question its bright line rule for timeliness disputes.12 Thus, the rule
remains that the thirty-day clock is not triggered unless the initial pleading
“affirmatively reveals on its face” that the plaintiff’s sought damages exceeding
the jurisdictional amount. Chapman, 969 F.2d at 163; see also Rios v. City of Del
Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The rule in this circuit is that
where two previous holdings or lines of precedent conflict the earlier opinion
controls . . . .”).
       Mumfrey relies exclusively on inapposite “amount dispute” cases, and fails
to cite Chapman. His “amount dispute” cases held that removal was appropriate
when the jurisdictional amount was “facially apparent,” despite the absence of
a specific allegation that damages were in excess of the federal jurisdictional
amount. See, e.g., Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882–83 (5th
Cir. 2000); Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)
(stating that, from “the face of the complaint,” the district court’s denial of
remand was not error). However, the “facially apparent” inquiry is relevant only
to “amount dispute” cases.



       12
           See, e.g., Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)
(emphasizing Chapman’s bright line rule that the removal clock runs only when the “pleading
affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum
jurisdictional amount of the federal court”) (citation omitted).

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       Here, the parties agree that the initial complaint did not contain a “specific
allegation that damages are in excess of the federal jurisdictional amount.” The
removal clock was thus not triggered until CVS received a copy of an “amended
pleading, motion, order, or other paper from which” it was first ascertainable
that the case was removable, i.e., when Mumfrey filed his First Amended
Petition seeking $3,575,000 in damages.13
C.     Improper Joinder14
       A district court’s improper joinder decision is subject to de novo review.
McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir. 2005) (citing Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311 (5th Cir.
2002)). “[Improper] joinder can be established in two ways: (1) actual fraud in
the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a
cause of action against the non-diverse party in state court.” McKee v. Kansas
City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004) (quoting Travis v. Irby, 326
F.3d 644, 647 (5th Cir. 2003)). CVS did not contend that the pleadings contained
actual fraud; thus, only the second prong was before the district court.
       “[T]he test for [improper] joinder is whether the defendant has
demonstrated that there is no possibility of recovery by the plaintiff against an
in-state defendant, [restated,] there is no reasonable basis for the district court
to predict that the plaintiff might be able to recover against an in-state
defendant.” In re 1994 Exxon Chem. Fire, 558 F.3d 378, 385 (5th Cir. 2009)

       13
         We note that CVS likely could have removed immediately after Mumfrey filed his
Original Petition, giving rise to an amount dispute case if Mumfrey had sought to remand by
arguing that the amount-in-controversy was not satisfied. But even if CVS could have
removed immediately, Mumfrey’s Original Petition did not start the clock such that CVS was
required to remove if it wanted to.
       14
          The Fifth Circuit adopted the terminology “improper joinder,” Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d at 571 n.1, instead of the terminology “fraudulent joinder,” which is “a term
of art” used in other circuits to describe the doctrine that ignores a lack of complete diversity
where the plaintiff joins a nondiverse defendant to avoid federal jurisdiction. E.g., Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

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(some alteration in original) (emphasis added) (quoting Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)). Although the district
court erred by improperly placing the burden on the plaintiff, the error is
harmless because CVS demonstrated that Mumfrey had no possibility of
recovering against the individual defendants, and that thus, the individual
defendants were improperly joined.
      This Court’s en banc opinion in Smallwood sets out a procedure for
determining whether a nondiverse defendant was improperly joined. First, the
court should focus on the complaint: “Ordinarily, if a plaintiff can survive a Rule
12(b)(6) challenge, there is no improper joinder.” Id. at 573. However, where a
complaint states a claim that satisfies 12(b)(6), but has “misstated or omitted
discrete facts that would determine the propriety of joinder . . . the district court
may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Id.
(citing Badon v. RJR Nabisco, Inc., 236 F.3d 282, 389 n.10 (5th Cir. 2000)). The
purpose of the inquiry is limited to identifying “the presence of discrete and
undisputed facts that would preclude plaintiff’s recovery against the in-state
defendant.” Id. at 573–74. Ultimately, the defendant bears the burden: “the
test for fraudulent joinder is whether the defendant has demonstrated that there
is no possibility of recovery . . . .” Id. at 573 (emphasis added).
      Here, the district court, following Smallwood, evaluated the complaint and
determined that Mumfrey failed to state a claim against the individual
defendants. It then conducted a summary inquiry. Cf. Smallwood, 385 F.3d at
573. However, in doing so, the trial court placed the burden on the plaintiff,
requiring him to show that he could possibly recover against the individual
defendants notwithstanding his failure to state a claim:
      Having examined Defendant’s response and found Plaintiff’s
      pleadings insufficient, the Court allowed Plaintiff the opportunity
      to reply and offer facts and argument in support of his theories
      against the named individuals.         Plaintiff’s reply contained

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      additional facts pertinent to his theories of discrimination and
      retaliation committed by C.V.S. but did not offer any additional
      support for his allegations of tortious interference with prospective
      business relationships, constructive fraud, or defamation.

Under Smallwood, however, not only is the initial burden on the defendant to
show the complaint fails to state a claim, but if the court elects “in its
discretion[] [to] pierce the pleadings and conduct a summary inquiry,” the
burden remains with the defendant. Id. at 573–75 (“Our insistence that a
removing defendant demonstrate that the joinder was improper . . .”; “[t]o justify
removal on improper joinder grounds, [the defendant] was required to prove that
the joinder of [non-diverse defendant] was improper.”).
      Moreover, the district court analyzed the wrong claim. The district court
concluded that Mumfrey had insufficient evidence to support a claim for tortious
interference with prospective business relationships. But, Mumfrey pleaded only
tortious interference with business relationships, namely his employment
contract with CVS.      The two torts require different elements.        See, e.g.,
Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 727 (Tex. 2001).
      Nonetheless, these errors are harmless because CVS has carried its
burden and established that Mumfrey had no possibility of recovery against the
individual defendants. In In re Exxon, this court held that individual defendants
were improperly joined. 558 F.3d at 386–87. The court, in determining whether
the individual defendants could be held liable under applicable state law, looked
to a 1973 state case that articulated the four factors necessary for establishing
individual liability. Id. at 385–86. The court applied the case’s test to the
individual defendants, and determined they could not be individually liable
under state law. Id. at 386. (“Restated, the conduct at issue did not involve
personal fault giving rise to liability under Louisiana Law.”). The court held
that there was “nothing in the record” to satisfy the third and fourth factors. Id.
at 386 (“The evidence does not show that Paul had personal knowledge of the

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                                  No. 12-40419

condition of the valves . . . [and] Paul did not personally perform the valve
swap.”). Thus, the individual defendants were improperly joined because the
defendant demonstrated that there is no reasonable basis for the district court
to predict that the plaintiff could recover against the in-state defendants. Id. at
386–87.
   Similarly, CVS has established that Mumfrey cannot satisfy the second
element of tortious interference. Under Texas law, the elements of tortious
interference with contract are: (1) the existence of a contract, (2) willful and
intentional interference, (3) interference that proximately caused damage, and
(4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.
1998) (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.
1997)). “When the defendant is both a corporate agent and the third party who
allegedly induces the corporation’s breach, the second element is particularly
important.” Id. at 456–57. To maintain a tortious interference suit against a
corporate agent or representative, a plaintiff must show that the agent acted
willfully and intentionally to serve the agent’s personal interests at the
corporation’s expense. Id. at 457. Even an agent’s mixed motives—benefitting
himself and the corporation—are insufficient. Id.
      The Texas Supreme Court has provided guidance on determining when an
corporation’s agent is acting against the corporation’s interests: If a corporation
does not complain about it’s agents actions, then the agent cannot be held to
have acted contrary to the corporation’s interests. Id. (citing Morgan Stanley &
Co. v. Tex. Oil Co., 985 S.W.2d 178, 181–82 (Tex. 1997)).
      Mumfrey alleged the following acts on the part of the individual
defendants: LeBlanc retaliated by telling Mumfrey he was going to “rip the chair
out” of the pharmacy; LeBlanc wrote Mumfrey up and subjected him to long
disciplinary meetings as retaliation for his having sought an accommodation; he
was generally harassed by the individual defendants for seeking the

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                                   No. 12-40419

accommodation; he was subjected to snide and profane comments regarding his
use of the chair;      he was written up frequently; he was passed over for
promotions; he was denied a managerial position; and his pay did not progress.
        Mumfrey’s pleadings do not allege that the individual defendants were
acting to serve their own personal interests. Cf. In re Exxon, 558 F.3d at 386–87
(finding individual defendants improperly joined where the record could not
support two required elements of the plaintiff’s state law claim). Mumfrey even
admits in his brief that the “individual [d]efendants . . . were acting in the scope
of their employment at the time of the retaliatory acts.” Further, CVS never
complained or disciplined the individual defendants for their behavior, such that
the individual defendants cannot be held to have acted contrary to CVS’s
interests.    Because CVS demonstrated that Mumfrey has no reasonable
possibility for recovery against the individual defendants under Texas law, they
were improperly joined. Therefore, there was complete diversity between the
parties such that the district court had jurisdiction.
                  III. DETERMINATION ON THE MERITS
A.      Standard of Review
        “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Bd. of
Trs. New Orleans Emp’rs Int’l Longshoremen’s Ass’n v. Gabriel, Roeder, Smith
& Co., 529 F.3d 506, 509 (5th Cir. 2008) (internal quotation marks omitted)
(citing Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir.
2006)). “A finding is clearly erroneous if it is without substantial evidence to
support it, the court misinterpreted the effect of the evidence, or this court is
convinced that the findings are against the preponderance of credible testimony.”
Id.
B.      Discussion
        After the bench trial, the district court concluded that Mumfrey had not

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proved retaliation by a preponderance of the evidence. Seemingly conceding the
district court’s findings of fact, Mumfrey argues on appeal that the district court
erred in its conclusions of law. As mentioned above, the district court’s legal
conclusions are reviewed de novo. Id. Mumfrey did not meet his burden of
establish, by a preponderance of the evidence, that CVS retaliated against him.
      Retaliation claims are evaluated under a burden-shifting framework.
Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (citing Sherrod v.
Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Under the three-part
framework, a plaintiff must first establish a prima facie case of retaliation. Id.
If he can do so, the burden shifts to the defendant to produce a legitimate, non-
retaliatory justification for its actions. Id. Finally, in the third stage of the
burden-shifting framework, the plaintiff must establish that the defendant’s
proffered reason is pretext for intentional retaliation. Id.
      Texas law prohibits retaliation by employers against employees who,
among other things, file a complaint. Tex. Labor Code Ann. § 21.055 (West
2006). To ultimately prevail, the plaintiff must establish that without his
protected activity, the employer would not have reached the same adverse
employment decision. Wal–Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 295 (Tex.
App.— Corpus Christi 2000, pet. denied); Pineda v. United Parcel Serv., Inc., 360
F.3d 483, 487 (5th Cir. 2004). In essence, Mumfrey had to establish that but for
filing his complaints, he would not have been fired when he was.
      CVS seems to concede the district court’s determination that Mumfrey
established a prima facie case of retaliation. CVS asserted that it terminated
Mumfrey for legitimate non-retaliatory reasons—namely refusing to verify a
prescription while on final review. Mumfrey argues that CVS’s stated reason
is pretext for retaliation based on Mumfrey’s recently filed EEOC complaint.
Mumfrey relies on three main arguments to establish pretext. First, he argues
that the final prescription incident was not a legitimate reason to terminate his

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                                  No. 12-40419

employment. Second, he argues that he was treated differently than other
employees in similar situations, implying that his disparate treatment is
evidence that CVS’s termination justification was pretext. Third, he relies on
the temporal proximity between the filing of his EEOC complaint and his
termination. The court addresses each in turn.
      First, Mumfrey argues it was appropriate for him, as a licensed
professional, to exercise his best judgment in determining whether to
immediately fill what he considered to be a suspicious prescription before he
could verify it with the authorizing physician. Mumfrey presented evidence to
the district court to support his position that he was justified in not filling the
prescription immediately. CVS investigated the incident and presented the
district court its evidence as well. After considering both, the district court made
findings of fact. Mumfrey did not attempt to claim the prescription on the
customer’s insurance, despite his assertion that he did so. Mumfrey told the
customer he needed to verify the prescription with the doctor, but made no calls
to the doctor and was not scheduled to work the next day. After the customer
urged Mumfrey to confirm that he had filled the exact same prescription at that
CVS before, he refused to do so. A videotape of the encounter confirms these
omissions.
      Mumfrey argues that a fact-finder can infer pretext if the employer’s
stated reason is false or not worthy of credence. The district court’s conclusions
of law against Mumfrey affirm that, as the fact finder, the district court did not
find CVS’s stated reasons false or not worthy of credence. We see no clear error
in the district court’s findings of fact.15 This final failure, in addition to his
previous final warnings for rudeness and failing to fill out required reports, is
hardly evidence of a non-legitimate termination justification and does not

      15
         Again, Mumfrey also presumably conceded the court’s findings of fact by not
challenging any specifically in his argument on appeal.

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                                      No. 12-40419

support to Mumfrey’s allegations of pretext. Further, the district court’s factual
findings rely on both documentary and testimonial evidence. Based on the
evidence, the district court found that Mumfrey’s failure to at least attempt to
verify the prescription motivated CVS’s decision. This finding suggests that the
parties’ dispute about whether Mumfrey’s stated suspicions were reasonable is
beside the point. Even if Mumfrey had established that he was justified in his
suspicion of the prescription, it would be immaterial; he was fired instead for not
making an attempt to verify it. Thus, it is immaterial that Mumfrey and CVS
employees had different opinions about whether the prescription, as presented,
was suspicious.
       Mumfrey’s second argument for establishing pretext is his assertion that
two other employees, Rodriguez and LeBlanc, were treated differently by CVS.
This argument is without merit. For Mumfrey to establish disparate treatment,
the situation and conduct of the employees must be “nearly identical.” AutoZone,
Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008). Employees with different
responsibilities or disciplinary records are not “nearly identical.” Id.; see also
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 514–15 (5th Cir.
2001). As a pharmacy technician, Rodriguez had different responsibilities and
thus was not similarly situated to Mumfrey.16 LeBlanc was not similarly
situated because he had not failed to fill a prescription while on final warning,
as Mumfrey had. Further, unlike Mumfrey, LeBlanc did not continue to give out
his cash register password to other employees after being counseled not to, as
Mumfrey did. Perhaps most obviously, LeBlanc and Mumfrey had different
disciplinary records on file.
       Mumfrey argues that because he claimed retaliation, not discrimination,
the district court relied on inapplicable authority to conclude that Mumfrey was
       16
           To the extent that Mumfrey’s disparate treatment argument is based on Rodriguez
not being disciplined for mis-filling, it is baseless. Mumfrey was never disciplined for mis-
filling, but for failing to file a report afterward, as required.

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                                  No. 12-40419

not “similarly situated.”   However, courts use the same standard in both
discrimination and retaliation cases. See, e.g., Bryant, 413 F.3d at 478
(“Disparate treatment of similarly situated employees is one way to demonstrate
unlawful discrimination and retaliation.”); Rios v. Rossotti, 252 F.3d 375, 380
(5th Cir. 2001) (“The framework for analyzing a retaliation claim is the same as
that used in the employment discrimination context.”). His second argument is
thus without merit and has no weight when considering the ultimate merits of
his pretext argument.
      Mumfrey’s third argument is that the temporal proximity between his
complaints and his termination establishes that the termination was pretextual.
The district court relied on clear Fifth Circuit precedent to hold that Mumfrey’s
proximity evidence is insufficient to prove retaliation. See Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (“[W]e affirmatively
reject the notion that temporal proximity standing alone can be sufficient proof
of but for causation.”). Mumfrey takes issue with the district court’s application
of Strong to his facts: while he admits Strong is good law, he contends he has
produced other evidence of pretext to support his proximity evidence. Strong
stands for the proposition that proximity plus other grounds can establish
pretext.   Here, even granting his proximity argument, neither Mumfrey’s
termination justification argument, nor his disparate treatment arguments are
sufficient to complete the equation. Additionally, although the timing appears
suspect at first glance, when taken together with Mumfrey’s three October 2008
“conferences and counselings,” his December 2008 Final Warning, his January
2009 Final Warning, and his final prescription incident, the more likely cause
for his termination was the cascade of recent discipline episodes rather than one
specific infraction.
      Mumfrey’s proximity evidence, without other persuasive evidence of
pretext is insufficient to demonstrate by a preponderance of the evidence that

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                                No. 12-40419

CVS retaliated against Mumfrey. Therefore, Mumfrey’s retaliation claim fails.
                            IV. CONCLUSION
     For the foregoing reasons, we AFFIRM.




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