     Case: 13-30020       Document: 00512439578         Page: 1     Date Filed: 11/13/2013




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

                                                                            FILED
                                                                        November 13, 2013

                                     No. 13-30020                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ESMA ETIENNE,

                                                  Plaintiff–Appellant,
v.

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

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:11-CV-213


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Esma Etienne appeals the district court’s grant of
summary judgment on her claims that Defendant–Appellee Spanish Lake Truck
& Casino Plaza, L.L.C. (Spanish Lake) discriminated against her on the basis
of race by failing to promote her and retaliated against her for filing a charge of
discrimination with the Equal Employment Opportunity Commission (EEOC).
We affirm in part, vacate in part, and remand the case for further proceedings.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                               I
       Esma Etienne, an African-American woman, was employed as a waitress
and bartender by Spanish Lake until her termination on November 3, 2009. The
sequence of events leading to Etienne’s termination took place over a number of
months.
       In January 2009, a manager at Spanish Lake, Jeannene Johnson, resigned
her position, creating a job opening. Rather than notifying Spanish Lake’s
employees or the public about the open position, the general manager, Bernard
Terradot, directly recruited a former Spanish Lake employee who was then
employed as a waitress by a competitor to Spanish Lake, Elkie David. David is
a Caucasian woman. David had worked as a waitress and bartender during her
time at Spanish Lake and, in fact, had received her initial training from Etienne.
       After learning of David’s hiring, Etienne contacted Terradot on multiple
occasions, contending that she should have been given the position rather than
David. After several conversations, Terradot told Etienne that she should “suck
it up and move on.”           This prompted Etienne to file her first charge of
discrimination with the EEOC, alleging that on January 19, 2009, she was
discriminated against and harassed on the basis of her race when Terradot hired
David rather than Etienne for the management position. Etienne filed this
charge of discrimination on October 15, 2009.1
       Around the time that David was hired, Terradot issued a new “no
visiting–no chatting” policy that barred employees from having conversations
longer than five or ten minutes in length while working. Terradot later sent


       1
          Etienne asserts in numerous places that the charge was filed on April 20, 2009. This
assertion is contradicted by the record. The earliest charge of discrimination in the record was
filed on October 15, 2009. The only evidence in the record supporting the conclusion that a
charge was filed earlier is Terradot’s testimony that he “assum[ed] it was the mid to early part
of ‘09” that he received notice from the EEOC that a charge of discrimination had been filed.
However, in the same sequence of testimony, Terradot said that he could not recall when he
received the letter.

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follow-up memos to the employees to explain the policy. Etienne repeatedly
violated the policy and received both verbal and written warnings, including a
July 7, 2009 letter stating that Spanish Lake believed that it had “ample
grounds” to terminate Etienne but would give her one “last and final warning,”
and that Spanish Lake would terminate Etienne immediately upon further
violations of the policy. In testimony during an unemployment-compensation
proceeding following her termination, Etienne admitted to violating the policy
“on a regular basis.”
      Etienne also had attitude problems following David’s hiring. Etienne
acknowledged that she and David historically had “friction” and that she “copped
a little attitude” when David was hired. Etienne also admitted that she began
to have conflicts with Terradot at the same time.
      On November 3, 2009, Etienne was terminated by Spanish Lake. Her
termination notice stated that she was terminated due to her continued
violations of the no visiting–no chatting policy. In response, Etienne filed
another charge of discrimination with the EEOC asserting that her termination
was in retaliation for her filing the October 2009 charge of discrimination related
to her failure to be promoted.
      Etienne later filed suit against Spanish Lake in Louisiana state court,
asserting numerous state law claims. Spanish Lake removed the suit to federal
court, and Etienne amended her complaint to include failure-to-promote and
retaliation claims under Title VII of the Civil Rights Act of 1964. Etienne later
voluntarily dismissed certain of her state law claims, and the district court
granted summary judgment in favor of Spanish Lake on the remainder of
Etienne’s claims. Etienne now appeals the district court’s grant of summary
judgment on her failure-to-promote and retaliation claims under Title VII.




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                                                II
       We review the grant of summary judgment de novo, applying the same
standard as the district court.2 Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”3 A genuine dispute of material fact exists when
the evidence would permit a reasonable jury to return a verdict in favor of the
nonmovant.4 When making this determination, we view the evidence in the light
most favorable to the nonmovant and draw all reasonable inferences in her
favor.5
                                               III
       Etienne first appeals the district court’s grant of summary judgment with
respect to her failure-to-promote claim. As she did below, Etienne alleges that
the record contains both direct and circumstantial evidence of discrimination
such that summary judgment should have been denied.6 Because the district
court provided no explanation for its grant of summary judgment on this claim,
we vacate the district court’s judgment in part and remand for further
proceedings.
       Although Federal Rule of Civil Procedure 52(a) does not require a district
court to state findings of fact or conclusions of law when ruling on a motion for


       2
           Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
       3
           FED. R. CIV. P. 56(a); see Jackson, 602 F.3d at 377.
       4
           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       5
           Ramsey v. Henderson, 286 F.3d 264, 267 (5th Cir. 2002).
       6
         This includes an affidavit from Johnson, the manager whose resignation led to David’s
hiring, in which Johnson states that Terradot told her that Etienne was “too black” to do
certain tasks at Spanish Lake as well as that Terradot would not permit African-American
employees to handle money. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991-94 (5th
Cir. 2005) (reversing a district court’s grant of summary judgment in a race discrimination suit
in which similar statements constituted much of the evidence).

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summary judgment,7 a district court should provide some explanation of the
basis for its decision to aid appellate review.8 As this court long ago explained,
       When we have no notion of the basis for a district court’s decision,
       because its reasoning is vague or was simply left unsaid, there is
       little opportunity for effective review. In such cases, we have not
       hesitated to remand the case for an illumination of the court’s
       analysis through some formal or informal statement of reasons.
       Clearly, “[i]n all but the simplest case, such a statement [is] not only
       helpful, but essential.”9
The statement need not be formal or long, but it must be adequate to facilitate
our review.10
       The district court failed to provide such a statement in this case. The
district court’s Judgment of Dismissal with Prejudice granted summary
judgment “for oral reasons assigned in Open Court, having determined that
there are no genuine issues of material fact in dispute and that said Defendant
is now entitled to summary judgment as a matter of applicable law under the
facts of the case.” Our careful review of the record of the summary judgment
hearing, however, reveals that the district court stated no basis for granting
summary judgment on Etienne’s failure-to-promote claim. Although the parties
discussed the failure-to-promote claim during the hearing, when announcing its
reasons, the district court addressed only Etienne’s separate claim of wrongful
termination in retaliation for her filing an EEOC charge.11

       7
           FED. R. CIV. P. 52(a)(3).
       8
           E.g., Myers v. Gulf Oil Corp., 731 F.2d 281, 283-84 (5th Cir. 1984).
       9
       Id. (second alteration in original) (collecting cases and quoting Jot-Em-Down Store
(JEDS) Inc. v. Cotter & Co., 651 F.2d 245, 247 (5th Cir. Unit A 1981)).
       10
            Id. at 284 n.11.
       11
         The district court’s oral ruling stated, “[t]he fact is she was terminated because she
copped an attitude. She was terminated because she didn’t like the fact she didn’t get the
promotion. She was terminated because, during that period of time, she didn’t follow the rules
by her own admission. By her own admission she didn’t follow the rules. I—I’m going to grant

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      Because the district court provided no explanation of or basis for its grant
of summary judgment in favor of Spanish Lake on Etienne’s failure-to-promote
claim, we cannot effectively review its decision. Accordingly, we vacate the
district court’s judgment with respect to Etienne’s failure-to-promote claim and
remand for further proceedings consistent with this opinion.
                                              IV
      Etienne next challenges the district court’s grant of summary judgment
on her retaliation claim, asserting that the record contains both direct and
circumstantial evidence of discrimination such that summary judgment should
have been denied. The district court appears to have determined that Etienne
could not prove that Spanish Lake’s proffered nonretaliatory reasons for her
termination were pretextual. We agree.
      Title VII proscribes discrimination by an employer against an employee
because, among other things, the employee “has made a charge, testified,
assisted, or participated in an investigation, proceeding, or hearing” under Title
VII.12 A plaintiff’s ultimate burden in the retaliation context is to prove that but-
for the employer’s improper retaliatory motive, the allegedly retaliatory
employment action would not have occurred.13 A plaintiff can discharge this
burden by presenting direct evidence of retaliation or by presenting
circumstantial evidence of retaliation.14 “Direct evidence is evidence which, if
believed, proves the fact without inference or presumption.”15 “Because direct



the summary judgment on behalf of the defense. I’ll sign a formal order upon presentation.
That’s all.”
      12
           42 U.S.C. § 2000e-3(a).
      13
           Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
      14
           See, e.g., Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007).
      15
           Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993).

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evidence is rare, a plaintiff ordinarily uses circumstantial evidence,” which is
analyzed under the familiar McDonnell Douglas Corp. v. Green16 framework.17
       Etienne first alleges that she has identified direct evidence of retaliation,
pointing to Anna Terradot’s testimony that she and Terradot were “mad” that
Etienne had filed the EEOC charge when Etienne was terminated.                            This
testimony clearly does not constitute direct evidence of retaliation.                    Anna
Terradot did not testify that her husband told her that he retaliated against
Etienne for making the EEOC charge. Direct evidence, as noted, proves the fact
without inference or presumption. Anna Terradot’s testimony, however, has
value only if one makes an inference—i.e., that Terradot’s anger necessarily led
him to take a retaliatory action. This testimony does not constitute direct
evidence of retaliation.
       Accordingly, Etienne may prove her case only by presenting circumstantial
evidence and proceeding through the McDonnell Douglas burden-shifting
framework. Under that framework, the plaintiff must first establish a prima
facie case of retaliation, which requires showing “(1) that the plaintiff engaged
in activity protected by Title VII, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected activity and
the adverse action.”18 If the plaintiff makes out a prima facie case, the burden
of production “then shifts to the employer to articulate a legitimate, . . .
nonretaliatory reason for its employment action.”19 If the employer produces
such a reason, then the plaintiff “bears the ultimate burden of proving that the



       16
            411 U.S. 792 (1973).
       17
            Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994).
       18
         Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (quoting
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002)).
       19
            McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).

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employer’s proffered reason is not true but instead is a pretext for the real . . .
retaliatory purpose.”20
       In this case, the parties agree that Etienne can make out a prima facie
case of discrimination. Spanish Lake offers two legitimate, nondiscriminatory
reasons for Etienne’s termination—Etienne’s insubordination from the time that
David was hired until her termination, and Etienne’s repeated violations of
Spanish Lake’s “no visiting–no chatting policy.” Spanish Lake has satisfied its
burden of production, and in order to survive summary judgment, Etienne must
identify “substantial evidence” indicating that Spanish Lake’s proffered reasons
are a pretext for retaliation.21 She has not done so.
       Etienne attempts to prove pretext by pointing to two pieces of evidence.
First, she points to the administrative law judge’s conclusion, in her Louisiana
Workforce Commission appeal for unemployment benefits, that a videotape
submitted by Spanish Lake in that proceeding did not show Etienne to have
violated, on one occasion, Spanish Lake’s no visiting–no chatting policy. Second,
she again refers to Anna Terradot’s testimony that she and Terradot were “mad”
that Etienne had filed the EEOC charge when Etienne was terminated.
       The administrative law judge’s statement from the state unemployment
benefits appeal is not evidence in and does not bear on the instant case.22 That
conclusion represents that administrative law judge’s evaluation of the evidence
before the Louisiana Workforce Commission. The record from that unrelated
proceeding—in particular, a videotape submitted by Spanish Lake—is not before


       20
            Id.
       21
            Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       22
         We also note that if the ALJ’s conclusion were relevant in this appeal, then the ALJ’s
other conclusion—that “the facts fail to validate [Etienne’s] assertion that the reason for her
separation was due to the complaint she logged with the [EEOC]”—also presumably would be
relevant. We doubt that Etienne desires such a result.

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this court. Etienne makes no argument that the judge’s conclusion bears on this
appeal in some alternative manner, such as through the doctrines of res judicata
or collateral estoppel. Finally, to the extent Etienne seeks to use the judge’s
conclusion to demonstrate that Spanish Lake’s belief that Etienne had violated
the no visiting–no chatting policy was inaccurate, her argument misses the
mark. The relevant question is not whether an employer’s proffered reason was
justified but rather “whether [the employer’s] perception of [its employee’s]
performance, accurate or not, was the real reason for her termination.”23
          Anna Terradot’s testimony, standing alone, also does not create a genuine
issue of material fact with respect to pretext. In this regard, we reiterate that
Etienne’s burden is to prove that a retaliatory motive was the but-for cause of,
not merely a motivating factor behind, the decision to terminate her.24 In this
case, although Anna Terradot’s testimony that she and her husband were “mad”
that Etienne had filed the EEOC charge may suggest that a retaliatory motive
was a factor supporting Terradot’s decision to terminate Etienne, it does not
create a genuine issue of material fact on the question whether but-for
Terradot’s possible retaliatory motive, Etienne would not have been
terminated.25 This is particularly true in light of the other undisputed facts in
the record, including that Etienne by her own admission had repeatedly violated
the no visiting–no chatting policy and “copped a little attitude,” as well as that
Etienne was repeatedly warned in the months prior to her filing of the EEOC
charge that her violations risked her continued employment with Spanish Lake.

          23
               Laxton, 333 F.3d at 579. (quoting Evans v. City of Hous., 246 F.3d 344, 355 (5th Cir.
2001)).
          24
               Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
          25
         Cf. Pennington v. Tex. Dep’t of Family & Protective Servs., 469 F. App’x 332, 338 (5th
Cir. 2012) (holding that the plaintiff’s evidence of pretext, which included but was not limited
to her supervisor’s statement that she “had enough of [the plaintiff] going to [her] supervisor
about [her],” was not sufficient to preclude summary judgment).

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This included a written warning three months before her EEOC charge that
Spanish Lake thought it had “ample grounds to terminate [Etienne’s]
employment” based on her violations of the policy and that “should [Etienne]
spend [her] working hours visiting, [she] w[ould] be terminated immediately.”
On this record, Anna Terradot’s testimony does not constitute the type of
“substantial evidence” that would preclude the entry of summary judgment. We
therefore affirm the district court’s grant of summary judgment on Etienne’s
retaliation claim.
                               *        *         *
      For the foregoing reasons, the judgment of the district court is AFFIRMED
in part and VACATED in part, and the case is REMANDED for further
proceedings consistent with this opinion.




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