                   REVISED FEBRUARY 3, 2015
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30026                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ESMA L. ETIENNE,                                                         February 2, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

SPANISH LAKE TRUCK & CASINO PLAZA, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana



Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       Esma Etienne was a waitress and bartender at Spanish Lake Truck &
Casino Plaza. When she was not promoted to a managerial position, she filed
this Title VII suit, alleging that Bernard Terradot, Spanish Lake’s general
manager, had failed to promote her to the position because of her race and
color. 1 To support her allegations, Etienne submitted the affidavit of Jeannene


       1 As a preliminary to this suit, Etienne filed the required charge with the EEOC, in
which she claimed that a “less qualified” white former co-worker was hired as manager
instead of her. On appeal, Spanish Lake contends that we lack jurisdiction to hear Etienne’s
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Johnson, a former manager of Spanish Lake.                    The affidavit states that
Terradot allocated responsibilities to Spanish Lake employees according to the
color of their skin, that Terradot would not let “a dark skinned black person
handle any money,” and that Terradot and his wife on several occasions told
Johnson “that they thought Esma Etienne was too black to do various tasks at
the casino.” The district court granted summary judgment to Spanish Lake,
holding that Etienne had failed to make out a prima-facie case of
discrimination. 2 For the reasons stated below, we VACATE and REMAND.
       We review de novo a district court’s grant of summary judgment. Ford
Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary
judgment is appropriate when the evidence “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). In undertaking this inquiry, we view the
evidence in the light most favorable to the nonmonvant; that is, the “evidence
of the nonmovant is to be believed, and all justifiable inferences are to be drawn




current contentions, since they allege primarily the assertions of the former manager’s
affidavit—not Etienne’s qualifications relative to the person hired. This argument, however,
is meritless: our jurisdiction depends on “the scope of the EEOC investigation which can
reasonably be expected to grow out of” Etienne’s EEOC complaint, Pacheco v. Mineta, 448
F.3d 783, 789 (5th Cir. 2006) (internal quotation marks omitted), and the affidavit is within
the scope of an investigation which would be expected to grow out of an EEOC complaint
regarding a discriminatory failure to promote because of race.
        Etienne was eventually discharged by Spanish Lake, and her suit originally included
an additional claim that this discharge constituted retaliation in violation of Title VII. The
district court dismissed this claim on summary judgment, and, in Etienne v. Spanish Lake
Truck & Casino Plaza, L.L.C., 547 F. App’x 484 (5th Cir. 2013), we affirmed.

       2 Notably, the district court seemed to pass over Etienne’s claim that she was
discriminated against on the basis of both race and her dark color because, when granting
summary judgment, it relied heavily on the fact that most of the managers at Spanish Lake
were of the black race. Though we have never explicitly recognized “color” as a separate,
unlawful basis for discrimination by employers, the text of Title VII is unequivocal on the
matter. See 42 U.S.C. § 2000e-2(a) (prohibiting employment discrimination against an
individual because of the individual’s “race, color, religion, sex, or national origin”).
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in [her] favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation
marks omitted).
       A Title VII plaintiff may make out a prima-facie case of discrimination
using either direct or circumstantial evidence. See Portis v. First Nat’l Bank,
34 F.3d 325, 328 (5th Cir. 1994). If the plaintiff presents only circumstantial
evidence, then she must prove discrimination inferentially using “[t]he three-
step McDonnell Douglas-Burdine ‘minuet.’” Davis v. Chevron U.S.A., Inc., 14
F.3d 1082, 1087 (5th Cir. 1994). If, however, the plaintiff presents direct
evidence of discrimination, “the burden of proof shifts to the employer to
establish by a preponderance of the evidence that the same decision would
have been made regardless of the forbidden factor.” Brown v. E. Miss. Elec.
Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989)). 3
       To determine whether comments in the workplace constitute “direct
evidence,” or only “stray remarks,” we have looked to four factors: whether the
comments are (1) related to the plaintiff’s protected characteristic; (2)
proximate in time to the challenged employment decision; (3) made by an
individual with authority over the challenged employment decision; and (4)
related to the challenged employment decision. See Wallace v. Methodist Hosp.



       3  Neither party explains whether or how this dichotomy between direct and
circumstantial evidence was affected by the Supreme Court’s decision in Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003). Compare, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332,
341 (5th Cir. 2005) (interpreting Desert Palace to “answer a disputed question from [Price
Waterhouse], clarifying that direct evidence . . . is not needed to shift the burden of proof to
the employer to affirmatively show that it would have treated the plaintiff the same in the
absence of the unlawful motivating factor; circumstantial evidence of the motivating factor
can be enough”) and Rachid v. Jack in the Box, Inc., 376 F.3d 305, 310, 312 (5th Cir. 2004)
(holding that, under Desert Palace, “the direct evidence requirement has been removed from
mixed-motive cases,” justifying the use of an “integrated,” “modified McDonnell Douglas
approach” (internal quotation marks omitted)), overruled on other grounds by Gross v. FBL
Fin. Servs., 557 U.S. 167, 180 (2009); with, e.g., Jones, 427 F.3d at 992 (continuing to apply
the direct-evidence requirement without mentioning Desert Palace).
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Sys., 271 F.3d 212, 222 (5th Cir. 2001). In applying this test, our ultimate focus
is on whether the comments prove, “without inference or presumption, that
race was a basis in employment decisions” in the plaintiff’s workplace. Jones
v. Robinson Prop. Group, L.P., 427 F.3d 987, 993 (5th Cir. 2005). Notably,
when the proximity in time of the comments to the challenged employment
decision is unclear, we have found the proximity-in-time factor to be satisfied
when the comments were “routine,” see Brown, 989 F.2d at 861, or “made over
a lengthy period of time.” See Wallace, 271 F.3d at 222.
      This discussion leads us to Etienne’s argument that Johnson’s affidavit
constitutes “direct evidence” of discrimination.        According to Johnson’s
affidavit, Terradot—Spanish Lake’s general manager who was charged with
filling the managerial opening—allocated responsibilities to Spanish Lake
employees according to the color of their skin, did not allow “dark skin black
person[s to] handle any money at” Spanish Lake, and told Johnson “on several
occasions” that he “thought Esma Etienne was too black to do various tasks at
the casino.” This last statement, if made, is direct evidence that color is likely
to have played a role in Spanish Lake’s employment decisions. Put differently,
“no inference or presumption” is required to get from this statement—that
Etienne was “too black to do various tasks at the casino”—to the conclusion
“that race was a basis in employment decisions” made at Spanish Lake with
regard to Etienne. See Jones, 427 F.3d at 993. The statement is therefore, for
purposes of summary judgment, direct evidence of discrimination.
      Applying the four factors, to which we have earlier referred, for
distinguishing direct evidence from stray remarks yields the same conclusion.
See Wallace, 271 F.3d at 222. Factors (1), (3), and (4) are easily satisfied:
Terradot’s comments explicitly reference Etienne’s color; they were made by
Terradot, the person who indisputably had authority over the managerial
hiring process; and they are related to the challenged employment decision in
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that they have to do with who can handle money at Spanish Lake, a task that
neither side disputes is required of the manager position. Only the second,
proximity-in-time factor raises a concern, since Johnson’s affidavit is unclear
when Terradot made his comments. Nonetheless, the affidavit alleges that the
comments were made “on several occasions,” that Terradot “determined” his
employees’ duties based on the color of their skin, and that Terradot “would
not allow” a dark-skinned black person to handle money at Spanish Lake.
Taken together, these statements constitute a justifiable inference that
Terradot’s comments were not isolated or anomalous, but instead were in
keeping with a “routine,” ongoing practice of allocating employment duties by
skin color. See Brown, 989 F.2d at 861. This being the summary-judgment
stage, that inference is one we reasonably draw; and so the four-factor
consideration reinforces the conclusion that Johnson’s affidavit constitutes
direct evidence of discrimination.
      Finally, the comments described in Johnson’s affidavit are strikingly
similar to comments that we have held before to constitute direct evidence of
discrimination.   In Jones, another case involving race discrimination in a
casino, the plaintiff alleged that he was not hired as a poker dealer because he
was of the black race. 427 F.3d at 991. According to other employees, the
casino’s poker-room manager stated that he did not hire black dealers because
“good old white boys don’t want black people touching their cards,” and “maybe
[he’d] been told not to hire too many blacks in the poker room.” Id. at 993. The
Jones court held that these statements “clearly and explicitly indicate[d] that
decision maker(s) in the poker room used race as a factor in employment
decisions, which is by definition direct evidence of discrimination.” Id. Like
the statements in Jones, Terradot’s comments indicate that Etienne was
disqualified from performing certain tasks at the casino because of her skin


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color.       Moreover, they do so “clearly and explicitly.”         Thus, under Jones,
Terradot’s comments are “by definition direct evidence of discrimination.” Id.
         Summary judgment, then, was appropriate only if Spanish Lake carried
its burden of showing that it would have made the same decision absent the
evidence of discrimination. Although the district court did not reach this issue
(holding that Etienne had not made out a prima-facie case), it is clear that
Spanish Lake did not carry its burden. Spanish Lake contends that it did not
hire Etienne because the person it hired was more qualified than Etienne. But
to prevail on summary judgment, Spanish Lake must do more than merely
identify a legitimate basis for its decision—it must show that any reasonable
jury would conclude that it would have made the same decision absent the
discrimination. See Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 417–18
(5th Cir. 2003). Etienne has offered evidence that she too was qualified, 4 and
this evidence, alongside her direct evidence that she was not even considered
for the opening on account of her skin color, is surely enough to create a
genuine issue for trial.
         For these reasons, the district court’s grant of summary judgment is
VACATED, and the case is REMANDED for proceedings consistent with this
opinion.
                                                         VACATED and REMANDED.




         For instance, the record shows that Etienne had worked at Spanish Lake for more
         4

than three years at the time she was not promoted; that she had trained the person
eventually hired as manager when the latter was originally hired to work at Spanish Lake
as a waitress; and that, according to Etienne and Johnson, at least, Etienne’s performance at
work was excellent and exceeded the “requirements for her position.”
                                             6
