Case: 19-60719     Document: 00515528044        Page: 1      Date Filed: 08/14/2020


                           REVISED August 14, 2020



         United States Court of Appeals
              for the Fifth Circuit                              United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  August 14, 2020
                                No. 19-60719
                                                                   Lyle W. Cayce
                                                                        Clerk

 Lashawnda Brown,

                                                          Plaintiff—Appellant,

                                    versus

 Wal-Mart Stores East, L.P.; Amanda Payton; John and
 Jane Does I-X,

                                                     Defendants—Appellees.


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 1:18-CV-243


 Before Clement, Southwick, and Higginson, Circuit Judges.
 Stephen A. Higginson, Circuit Judge:
       Plaintiff-Appellant Lashawnda Brown, an assistant manager at Wal-
 Mart Stores East, L.P. (Wal-Mart), was fired after she reported her
 supervisor, Aurelio Quinn, for sexually harassing other Wal-Mart employees.
 According to Wal-Mart, Brown was terminated because she violated Wal-
 Mart’s Investigation and Detention of Shoplifters Policy (AP-09). Brown
 sued Wal-Mart for retaliation and wrongful termination and Amanda Payton,
 another assistant manager at Wal-Mart, for tortious interference with an
 employment contract. The district court granted summary judgment for the
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                                 No. 19-60719


 defendants, dismissing all of Brown’s claims. Brown appeals the district
 court’s dismissal of her Title VII retaliation claim against Wal-Mart. We
 AFFIRM.
                                      I
       In 2014, Brown began working as an assistant manager at the Wal-
 Mart Neighborhood Market in Biloxi, Mississippi. She reported to the store
 manager, Quinn, who began working at the store in July 2016.
       In December 2016, Brown began hearing rumors about Quinn paying
 another employee, S.M., for sex. That employee never spoke to Brown about
 the incident directly, but two other employees, Amanda Payton and S.D.,
 told Brown what S.M. had told them about her relationship with Quinn. S.D.
 also told Brown that Quinn had invited her to meet him at his hotel room.
 Brown reported these incidents to Nate Drebes, a project manager for
 associate relations, but she perceived that Drebes “pushed [her reports]
 under the rug.”
       On March 28, 2017, Brown used Wal-Mart’s ethics hotline to report
 that Quinn was soliciting sexual favors from Wal-Mart employees in
 exchange for money or employment-related favors. She provided details
 about the incidents described above and additionally alleged that Quinn had
 removed an “attendance occurrence” for S.M., allegedly in exchange for
 sexual favors. Brown stated that she believed Quinn’s behavior was ongoing.
       On April 4, 2017, Brown used the Wal-Mart ethics hotline to follow
 up on her initial report and report a new allegation of sexual harassment by
 Quinn. She alleged that S.D. told her that S.M. had asked Quinn how she
 could keep her job “since she had nine points and was facing an automatic
 termination.” Quinn allegedly replied, “If you suck my dick.” S.M.’s points
 were later removed.




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        Wal-Mart investigated. On May 17, 2017, Quinn made a statement
 denying any wrongdoing, expressing frustration with Brown, and indicating
 he was aware Brown was behind the allegations. A customer service
 representative, Nicole Rankin, testified via affidavit that it was well known in
 the store that Brown had reported Quinn for sexual harassment.
        On May 19, 2017, Brown was fired. Three days later, Wal-Mart closed
 its sexual harassment investigation, finding the allegations against Quinn
 “unsubstantiated.”
        Quinn was later terminated for gross sexual misconduct based on the
 report of another Wal-Mart employee.
        Wal-Mart’s proffered legitimate, nondiscriminatory reason for
 Brown’s termination is based on two company policies: AP-09 and the
 Coaching for Improvement Policy. AP-09 states that authorized associates,
 like Brown, may approach a shoplifting suspect only if four conditions are
 met: (1) an authorized associate has observed all five elements of an unlawful
 taking, (2) an associate witness is present, (3) the associate witness is able to
 be in a safe position while maintaining the ability to see and hear the
 interaction between the authorized associate and the suspect, and (4) doing
 so will not place an associate or customer in an unsafe situation. The policy
 prohibits all associates from going beyond the facility’s sidewalk to make an
 approach or obtain additional information regarding a suspect. The policy
 also prohibits patting down, frisking, or searching a suspect or a suspect’s
 belongings such as a purse or bag. Any employee who witnesses a violation of
 the policy must report it to the market asset protection manager and regional
 asset protection director for the facility. Failure to do so may result in
 disciplinary action, including termination.
        The Coaching for Improvement Policy, Wal-Mart’s employee
 disciplinary policy, states that employees will receive one of three levels of




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                                   No. 19-60719


 coaching if their performance fails to meet reasonable expectations, violates
 a company policy, or interferes with the safe, orderly, and efficient operation
 of business. First level coachings are essentially warnings; second level
 coachings require employees to submit plans of action outlining how they will
 improve their conduct or performance; and third level coachings require
 employees to submit action plans and discuss them with their managers, who
 will “take appropriate action” based on the plans. Employees may receive
 only one of each level of coaching in any 12-month period or they “will be
 subject to termination.”
        In June of 2016, Brown received a third level coaching under Wal-
 Mart’s disciplinary policy. Her first written coaching was for absences and
 tardiness, and her second and third written coachings were for using
 derogatory language when referencing hourly associates. Therefore, any
 additional coaching before June of 2017 subjected Brown to termination.
        On May 9, 2017, five weeks after Brown’s second report of sexual
 harassment via the ethics hotline and ten days before her termination, Brown
 was called to the front of the store to handle a possible shoplifting incident.
 Before Brown got to the front of the store, customer service representative
 Rankin told Brown that a customer left the store with a grocery cart full of
 items, but the receipt obtained from the self-checkout register reflected that
 the customer had only paid for six items. Rankin also told Brown that she had
 instructed a cashier, G.C., to bring the customer back into the store. Brown
 told Rankin that it was not appropriate to follow the customer into the
 parking lot, but it was too late to correct the mistake.
        According to Rankin and Jessica Danyus, another Wal-Mart employee
 who witnessed the incident, by the time Brown arrived at the front of the
 store, there was already a “huge commotion” and the customer was already
 back inside the store. Brown testified at her deposition, “when you come




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                                  No. 19-60719


 back in the store and I have a receipt in my hand that have six items and you
 got a buggy-load and it have more than six bags in there, I’m going to ask you
 some questions.” Brown compared the receipt to the items in the customer’s
 bags and determined that the customer had paid for the items in her cart.
        Angered by the inquiry, the customer demanded to speak to another
 manager. Quinn was standing just behind Brown, and when he approached,
 the customer gave him her receipt and showed him the contents of her bags,
 including the inside of her purse. Quinn checked her receipt, apologized to
 her, and escorted her outside, where he spoke with her for a while. According
 to Quinn, the customer insisted on reporting the incident.
        Immediately thereafter, Quinn reported the incident to market
 manager Todd Jabbia. According to Quinn, after he described the incident to
 Jabbia, Jabbia immediately concluded “[t]hat’s a bad stop.” Jabbia then
 reported the incident to market asset protection manager Terry Hebert, who
 called Quinn to hear his version of events and also concluded there had been
 a bad stop. When asked at his deposition what Brown did wrong, Quinn
 maintained, contrary to Brown and Rankin’s testimony, that Brown had
 instructed Rankin to stop the customer.
        Hebert investigated. As was his normal practice, he instructed the
 store manager, Quinn, to obtain witness statements. Rankin testified that
 when Quinn obtained her statement, he asked her to say that Brown directed
 her to stop the customer. Rankin refused, and Quinn indicated she would lose
 her job. Rankin asked Quinn if she could keep her job if she wrote down that
 Brown told her to stop the customer, and he said, “that’s what we been trying
 to get you to say.” Ultimately, Rankin did not say that Brown told her to stop
 the customer.
        After reviewing the witness statements gathered by Quinn and
 surveillance footage, Hebert concluded that Brown had “questioned a




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                                  No. 19-60719


 customer without observing the Five Elements and despite the fact the
 customer had gone past the facility’s sidewalk.” “Ms. Brown should not
 have engaged the customer at all under the circumstances; she should have
 allowed the customer to leave.” As a result, Hebert recommended that
 Brown receive coaching for violating AP-09. He concluded “[t]his next level
 coaching will result in termination due to previous coachings.” Hebert also
 recommended that cashier G.C. receive a coaching and that Rankin be
 terminated despite having no coachings pending. Hebert testified via
 declaration that “Quinn did not participate or otherwise influence the
 decision to issue discipline for the AP-09 violation.”
                                       II
        We review “a district court’s grant of summary judgment de novo,
 applying the same legal standards as the district court.” Welsh v. Fort Bend
 Indep. Sch. Dist., 941 F.3d 818, 823 (5th Cir. 2019) (citation omitted).
 Summary judgment is appropriate “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). All evidence is viewed in the light
 most favorable to the nonmoving party. Welsh, 941 F.3d at 823.
                                       III
        Brown alleges that she was fired in retaliation for reporting sexual
 harassment by Quinn. The antiretaliation provision of Title VII “prohibits
 an employer from ‘discriminat[ing] against’ an employee or job applicant
 because that individual ‘opposed any practice’ made unlawful by Title VII or
 ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding
 or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56
 (2006) (alteration in original) (quoting 42 U.S.C. § 2000e-3(a)). Where, as
 here, a retaliation case is based on circumstantial evidence, we apply the
 McDonnell Douglas framework. See Byers v. Dallas Morning News, Inc., 209




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                                   No. 19-60719


 F.3d 419, 425, 427 (5th Cir. 2000); see also McDonnell Douglas Corp. v. Green,
 411 U.S. 792, 802 (1973). Under this framework, the plaintiff has the burden
 to prove a prima facie case of retaliation by showing (1) she engaged in a
 protected activity; (2) she “suffered an adverse employment action”; and (3)
 “a causal connection exists between the protected activity and the adverse
 employment action.” Byers, 209 F.3d at 427.
        “Title VII retaliation claims must be proved according to traditional
 principles of but-for causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
 U.S. 338, 360 (2013). However, the but-for standard does not apply at the
 prima facie case stage. Garcia v. Prof’l Cont. Servs., Inc., 938 F.3d 236, 242
 (5th Cir. 2019). Instead, “[a]t the prima facie case [stage], a plaintiff can meet
 his burden of causation simply by showing close enough timing between his
 protected activity and his adverse employment action.” Id. at 243.
        If the plaintiff establishes a prima facie case, then the employer has the
 burden of production to provide “a legitimate, non-discriminatory reason”
 for the adverse employment action. Patrick v. Ridge, 394 F.3d 311, 315 (5th
 Cir. 2004). If the employer meets this burden, then the plaintiff has the
 burden to prove that the proffered reason is pretextual. Id. “A plaintiff may
 establish pretext by showing that a discriminatory motive more likely
 motivated her employer’s decision, such as through evidence of disparate
 treatment, or that her employer’s explanation is unworthy of credence.”
 Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356,
 363 (5th Cir. 2013).
        Ultimately, in order to survive a motion for summary judgment, a
 plaintiff must show “a ‘conflict in substantial evidence’” on the question of
 whether the employer would not have taken the adverse employment action
 but for the protected activity. Musser v. Paul Quinn Coll., 944 F.3d 557, 561
 (5th Cir. 2019) (quoting Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658




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                                   No. 19-60719


 (5th Cir. 2012)). “Evidence is substantial if it is of such quality and weight
 that reasonable and fair-minded men in the exercise of impartial judgment
 might reach different conclusions.” Id. at 561–62 (internal quotation marks
 and citation omitted).
        Under the cat’s paw theory of liability, a plaintiff can establish but-for
 causation even if the decisionmaker directly responsible for the adverse
 employment action did not act out of retaliatory animus. See Zamora v. City
 of Houston, 798 F.3d 326, 335 (5th Cir. 2015). A plaintiff proceeding under
 this theory must prove that (1) her supervisor, motivated by retaliatory
 animus, took action intended to cause an adverse employment action; and (2)
 that action was the but-for cause of her adverse employment action. Id. at 333.
        “[T]here will be cases where a plaintiff has both established a prima
 facie case and set forth sufficient evidence to reject the defendant’s
 explanation, yet ‘no rational factfinder could conclude that the action was
 discriminatory.’” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.
 2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
 (2000)). And, in an appropriate case, “a factfinder may infer the ultimate fact
 of retaliation from the falsity of the [employer’s] explanation.” Gee v.
 Principi, 289 F.3d 342, 348 (5th Cir. 2002). In deciding whether summary
 judgment is warranted, the court should consider “numerous factors,
 including the strength of the plaintiff’s prima facie case, the probative value
 of the proof that the employer’s explanation is false, and any other evidence
 that supports the employer’s case and that properly may be considered.”
 Price, 283 F.3d at 720 (internal quotation marks and citation omitted).
        The parties dispute (1) whether Brown has met her burden to prove
 the causation prong of her prima facie case and (2) even if she has, whether
 Brown has put forth adequate evidence of pretext—specifically, whether a
 reasonable jury could conclude that Quinn’s actions were the but-for cause




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 of Brown’s termination. Wal-Mart concedes that Brown engaged in
 protected activity and experienced an adverse employment action. Brown
 concedes that Wal-Mart has proffered a legitimate, nondiscriminatory reason
 for her termination. And Wal-Mart also concedes, for the purpose of
 summary judgment, that there is a genuine dispute of material fact as to the
 first prong of the cat’s paw theory—whether Quinn, motivated by retaliatory
 animus, took action intended to cause an adverse employment action. We
 address each dispute in turn.
                                       IV
        As stated above, “[a]t the prima facie case [stage], a plaintiff can meet
 his burden of causation simply by showing close enough timing between his
 protected activity and his adverse employment action.” Garcia, 938 F.3d at
 243. However, “[t]he protected act and the adverse employment action must
 be very close in time to establish causation by timing alone.” Porter v. Houma
 Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015)
 (quotation marks, citation, and alterations omitted). We have held that a
 period of two-and-a-half months, Garcia, 938 F.3d at 243, a period of two
 months, Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 995 (5th Cir. 2005),
 and a period of six-and-a-half weeks, Porter, 810 F.3d at 949, are close enough
 to show a causal connection.
        Brown made her first report to the Wal-Mart ethics hotline on March
 28, 2017, seven weeks and three days before her termination, and she
 followed up on that report on April 4, 2017, six weeks and three days before
 her termination. Because the approximately six-to-seven-week gap between
 Brown’s protected activity and her termination is shorter than gaps that we
 have previously found sufficient to show a causal connection, Brown has met
 her prima facie burden based on timing alone.




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                                         No. 19-60719


                                               V
          Pretext can be proven by any evidence that casts doubt on the
  credence of the employer’s proffered justification for the adverse
  employment action. See, e.g., Garcia, 938 F.3d at 244; Wheat v. Fla. Par. Juv.
  Just. Comm’n, 811 F.3d 702, 710–11 (5th Cir. 2016). Brown relies on the
  following evidence to demonstrate but-for causation: (1) the temporal
  proximity between her protected activity and her termination, (2) evidence
  that Quinn talked to Jabbia and Hebert before the investigation began and
  they concluded there had been a bad stop, (3) evidence that Quinn attempted
  to influence Rankin’s witness statement, and (4) evidence that Quinn
  engaged in similar misconduct during the same shoplifting incident and did
  not receive any discipline from Wal-Mart.1
          The temporal proximity between Brown’s protected activity and her
  termination is relevant to, but not alone sufficient to demonstrate, pretext.
  See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
  Therefore, we must consider whether Brown’s other evidence, in
  combination with this temporal proximity, is sufficient for a reasonable jury
  to find but-for causation.




          1
            Brown also argues that Wal-Mart’s proffered reason for her termination is
  pretextual because Wal-Mart is misinterpreting its own policies. She argues that her
  undisputed actions on May 9, 2017, did not violate the plain meaning and purpose of AP-
  09 and that Wal-Mart was not required to terminate her for receiving another coaching
  under the Coaching for Improvement Policy. But the relevant issue is not whether Brown’s
  actions actually constituted a violation of AP-09 or whether Wal-Mart was required to
  terminate Brown for a perceived violation; it is whether Hebert based his recommendation
  to terminate Brown on his independent conclusion that Brown violated AP-09 or on
  Quinn’s retaliatory actions. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408–
  09 (5th Cir. 1999) (“The issue is whether [the employer’s] perception . . ., accurate or not,
  was the real reason for [the plaintiff’s] termination.”).




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                                   No. 19-60719


         First, Brown argues that Quinn interfered with Hebert’s investigation
  by talking to Jabbia and Hebert immediately after the incident. During these
  conversations, Quinn told Jabbia and Hebert his version of what had
  happened, which likely included his assertion that Brown instructed Rankin
  to stop the customer. According to Quinn, both Jabbia and Hebert concluded
  that there had been a “bad stop” at that moment, before any investigation
  had been conducted. From this evidence, Brown argues that a jury could
  conclude “Quinn, motivated by retaliatory animus, poisoned the well from
  the outset and set in course a series of events that . . . he knew would result
  in Ms. Brown’s termination.”
         This evidence could lead a reasonable jury to conclude that Quinn
  influenced Hebert’s initial perception of the incident, but, without more, it
  is not sufficiently probative of the ultimate issue—whether that initial
  perception was the but-for cause of Brown’s termination. Brown does not
  contest that after these initial conversations took place, Hebert ordered an
  investigation into what happened and who should be disciplined. After
  reviewing    witness   statements     and    surveillance   footage,   Hebert
  recommended that Brown be terminated. Notably, that recommendation was
  based on his conclusion that Brown should not have engaged with the
  customer once she knew that there had been a bad stop, not that she had
  instructed Rankin to conduct the bad stop.
         Brown is really arguing that a reasonable jury could conclude that
  Hebert lied about his reason for recommending termination. According to
  Brown, although Hebert said his recommendation was based on the fact that
  Brown engaged with the customer, it was really based on Quinn’s accusation
  that Brown instructed Rankin to stop the customer. Because Brown has not
  provided any evidence to undermine Hebert’s credibility, we disagree. There
  is no evidence from which a reasonable jury could conclude that Hebert based
  his recommendation to terminate Brown on his initial perception of the



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                                       No. 19-60719


  incident, which may have been influenced by Quinn and Quinn’s retaliatory
  motive. Cf. Gee, 289 F.3d at 346–37 (finding summary judgment
  inappropriate where, inter alia, there was evidence that the plaintiff’s
  supervisor and another employee who knew of the harassment spoke
  negatively about the plaintiff at a meeting with the ultimate decisionmaker
  and another individual who was present at that meeting testified that the
  decision not to promote the plaintiff seemed to be made at that meeting).
         Next, Brown argues that Quinn interfered with Hebert’s investigation
  by attempting to influence witness statements. Specifically, Rankin testified
  via affidavit that Quinn threatened her with termination if she did not say that
  Brown instructed her to stop the customer. While this evidence is deeply
  disturbing, it is not sufficient to prove but-for causation as to Hebert’s
  termination recommendation because the record conclusively demonstrates
  that Quinn’s attempts were unsuccessful.2 Not only did Rankin refuse to lie,
  but no one else was successfully pressured into blaming Brown either. None
  of the witness statements in the record accuses Brown of instructing Rankin
  to stop the customer. Consequently, Hebert’s recommendation to terminate
  Brown, after having viewed a video of Brown’s interaction with the customer,
  was based on his conclusion that Brown should not have engaged the
  customer once she knew that there had been a bad stop, not Quinn’s
  accusation that Brown instructed Rankin to stop the customer. Brown admits
  that she told Rankin the stop was bad before engaging with the customer.



         2
            Were this not the case, the fact that Quinn, who Brown had recently reported
  for sexual harassment, was given a role in investigating Brown’s potential misconduct
  would likely be sufficient to survive a motion for summary judgment. Typically, an
  investigation cannot be said to be “independent” enough to break the causal chain
  when a supervisor with retaliatory motive participates in that investigation. See Fisher
  v. Lufkin Indus., Inc., 847 F.3d 752, 759–60 (5th Cir. 2017).




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         Finally, Brown argues that Wal-Mart’s proffered reason for her
  termination is pretextual because Quinn is a similarly situated employee who
  received no discipline following the shoplifting incident. In fact, she argues
  that Quinn engaged the customer in a manner that was “far more intrusive
  and lengthier” than her own minimal interaction with the customer. In
  addition to looking at the customer’s receipt and the items in her cart, Quinn
  looked in the customer’s purse—an action that is explicitly prohibited by AP-
  09—and he talked with the customer for an extended period of time in the
  parking lot.
         Typically, “[a] plaintiff who proffers the treatment of a fellow
  employee must show that the plaintiff’s termination was taken ‘under nearly
  identical circumstances’ as those faced by the comparator.” Garcia, 938 F.3d
  at 244 (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir.
  2009)). “Employees are similarly situated when they h[o]ld the same job
  responsibilities, share[] the same supervisor or ha[ve] their employment
  status determined by the same person, and have essentially comparable
  violation histories.” Id. (internal quotation marks and citation omitted).
  However, we have previously considered disparate treatment of less similarly
  situated comparators as some evidence of pretext, even though it is less
  probative than evidence of a more similarly situated comparator. See Porter,
  810 F.3d at 950 (considering evidence of differential treatment received by
  four employees but noting that the plaintiff had “not demonstrated that those
  four employees were similarly situated”); Shackelford, 190 F.3d at 409
  (considering evidence of a “similarly situated” employee without comparing
  the employees’ positions, supervisors, or violation histories).
         Viewing the evidence in the light most favorable to Brown, there are
  important ways in which Brown and Quinn were similarly situated on May 9,
  2017. Both responded to a disgruntled customer who had been




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                                     No. 19-60719


  inappropriately stopped by another Wal-Mart employee, and both compared
  that customer’s receipt to the items in her cart.
         However, there are also important ways in which Brown and Quinn
  were not similarly situated. Most notably, Brown admits that she was aware
  the stop violated AP-09 before she addressed the customer. Rankin told
  Brown that she had sent a cashier into the parking lot to bring the customer
  back into the store, and Brown told Rankin that was not appropriate. The
  record does not indicate that Quinn was aware of the same background facts
  when he engaged with the customer, and Quinn only engaged with the
  customer after she asked to speak with another manager. Therefore, Wal-
  Mart could have concluded it was a violation of AP-09 for Brown to engage
  with the customer but it was not a violation of AP-09 for Quinn to engage
  with the customer.
         Having considered all of Brown’s evidence of pretext, we must decide
  whether a reasonable jury could find that Quinn’s actions were the but-for
  cause of Hebert’s recommendation to terminate Brown. As we’ve explained,
  to survive Wal-Mart’s motion for summary judgment, Brown’s evidence of
  pretext must show “a conflict in substantial evidence” on the question of
  whether Wal-Mart would not have terminated her but for her reporting of
  Quinn’s sexual harassment. See Musser, 944 F.3d at 561 (internal quotation
  marks and citation omitted).
         In Musser, we explored how much evidence of causation is required to
  survive a motion for summary judgment. Id. at 562. Temporal proximity
  combined with positive performance reviews prior to the protected activity
  is insufficient. Id. (citing United States ex rel. King v. Solvay Pharm., Inc., 871
  F.3d 318, 334 (5th Cir. 2017)). On the other hand, temporal proximity
  combined with a dispute of facts leading up to termination, disparate
  treatment of a similarly situated employee, harassment from a supervisor




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                                    No. 19-60719


  following the protected activity, the stated reason for the termination being
  known to the employer for years, and the employer standing to lose millions
  of dollars if its conduct was discovered, is enough. Id. (citing Garcia, 938 F.3d
  at 244). Similarly, “temporal proximity, unfounded performance concerns,
  warnings from other employees not to engage in the protected activity, and
  disparate treatment” is enough. Id. (citing Shackelford, 190 F.3d at 409). We
  have also reversed summary judgment where the plaintiff provided evidence
  of interference with an allegedly independent investigation, disingenuous
  and inconsistent explanations by her employer, and prior glowing reviews.
  Gee, 289 F.3d at 347–48.
         Brown’s evidence of pretext is weaker than that provided by the
  plaintiffs in Garcia, Shackelford, and Gee. Brown does not dispute the facts
  that Hebert claims to have relied upon in finding a violation of AP-09, above
  all her own admission that she knew a bad stop occurred before she engaged
  with the customer, nor does she provide any evidence casting doubt on
  Hebert’s credibility. There are meaningful differences between Brown’s and
  Quinn’s responses to the potential shoplifting incident that could explain
  their differential treatment. Finally, Brown does not provide other evidence,
  such as warnings from other employees or shifting explanations from Wal-
  Mart, to cast further doubt on Wal-Mart’s proffered legitimate,
  nondiscriminatory reason. We conclude that a reasonable jury could not find
  that Quinn’s actions were the but-for cause of Wal-Mart’s termination of
  Brown based on the record before us. Therefore, summary judgment was
  appropriate.
         AFFIRMED.




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