     Case: 15-40428        Document: 00513871870          Page: 1     Date Filed: 02/10/2017




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

                                        No. 15-40428                              FILED
                                                                          February 10, 2017
                                                                             Lyle W. Cayce
WILLIAM FISHER,                                                                   Clerk

               Plaintiff-Appellant Cross-Appellee

v.

LUFKIN INDUSTRIES, INCORPORATED,

               Defendant-Appellee Cross-Appellant




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


Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
       William Fisher brought this action against his former employer, Lufkin
Industries, Inc., alleging, inter alia, that Lufkin violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., by discharging him in retaliation
for his complaint that his direct supervisor racially harassed him. 1 Following
a two-day evidentiary hearing, the presiding magistrate judge, acting as a
special master pursuant to 42 U.S.C. § 2000e-5(f)(5) and Federal Rule of Civil


       1 Fisher also asserted claims for racial discrimination in violation of Title VII, as well
as retaliation and discrimination claims under 42 U.S.C. § 1981. On appeal, however, Fisher
does not challenge the district court’s judgment against him with respect to his § 1981 claim
or his Title VII racial discrimination claim.
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                                 No. 15-40428

Procedure 53, issued a Report and Recommendation recommending that the
District Court find facts as follows: although the initial complaint by Fisher
that his supervisor racially harassed him by addressing him as “boy” was
meritless, Lufkin’s subsequent investigation and ultimate discharge of Fisher
were motivated by the desire of a coworker and a supervisor to retaliate against
him for his protected activity; however, Fisher lied to his supervisors during
the investigation and did not fully cooperate in it, and these latter actions by
Fisher were sufficient to justify his termination independent of any other
proffered reasons.
      Fisher filed objections and moved for an extension of time to file
additional objections to the report, but the district court rejected his motion,
adopted the Report and Recommendation in full without assigning additional
reasons, and therefore dismissed Fisher’s retaliation claim. Fisher appeals the
district court’s decision and its refusal to grant an extension of time to file
additional objections to the Report and Recommendation. Lufkin filed a cross-
appeal seeking to assess its expert witness’s fee against Fisher. We reverse
the district court’s judgment against Fisher and remand for further
proceedings.
                                       I
      Fisher, an African American man, was first employed by Lufkin in 1991.
Fisher experienced three layoffs due to reductions in force but was rehired each
time and eventually accumulated ten years of seniority before his termination
on May 18, 2009, which is the subject of this lawsuit. He began his employment
as a helper but was promoted to machinist in January of 2005.             Fisher
performed his job in a satisfactory manner, received regular merit raises, and
had never been disciplined prior to his termination. At the time that he was
terminated, Fisher was fifty-five years old.



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      Steve Saxton, Fisher’s direct supervisor, is a white man who was
approximately thirty-one years old at the time Fisher was terminated. On
Friday, March 6, 2009, Saxton instructed Fisher to take his breaks when
everyone else did, rather than when Fisher wanted to. When Fisher replied
that he could not take breaks when his machine was running during certain
operations, Saxton responded, “Boy, I don’t know why every time I come over
here it’s a hassle!” Saxton was angry and spoke with a raised voice. Fisher
then stated, “If you’re going to harass me, we need to get a steward.” Due to
union rules, Saxton told Fisher to come to his office while a union steward was
summoned.     When no steward appeared, Saxton told Fisher to return on
Monday so that they could resume the process. After he left, Fisher called
Lufkin’s Vice President of Human Resources, Paul Perez, and left a voicemail
stating that Saxton’s use of “boy” in addressing him constituted racial
harassment.    Perez promptly directed another manager, Ty Thornton, to
conduct an investigation. Thornton talked to both Fisher and Saxton and
determined that, although Saxton had called Fisher “boy,” he did not intend it
as a racially derogatory term. Saxton’s supervisor, David Jinkins, was also
asked to look into the matter and talk to Saxton. The magistrate judge found
that Saxton probably intended “boy” as an exclamation rather than as an
epithet for Fisher.
      In April 2009, about a month after that incident, David Rhoden, a white
coworker of Fisher’s, went to Jinkins and complained that he did not like the
fact that Fisher had reported Saxton for using the word “boy” and that he was
offended by Fisher’s statements that he would get Saxton fired.        Jinkins
testified that during this conversation Rhoden mentioned that Fisher had long
been selling DVDs out of his lunch box and that some of them were
pornographic. Rhoden, however, testified that it was Jinkins who raised the



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question of whether Fisher sold DVDs out of his lunch box. Jinkins called
Thornton to hear what Rhoden had to say. Jinkins thereupon came up with a
plan for Rhoden to conduct a “sort of sting operation” by buying DVDs from
Fisher. Rhoden testified that he had never bought a DVD from Fisher and did
not want to buy one even after Jinkins asked him to do so, but he nevertheless
agreed to comply after Jinkins told him, “You scratch my back and I’ll scratch
yours.” Rhoden soon bought a DVD from Fisher and took it to Jinkins, but it
turned out to be blank. Jinkins instructed Rhoden to try again. The second
time, Jinkins was able to view the DVD and said that he thought it was
pornographic.
       On May 11, 2009, Jinkins and Thornton called in the chief union
steward, Kerroy Thomas. Saxton brought Fisher to a conference room where
Thornton, Jinkins, Saxton, and Thomas spoke with Fisher about conducting
an unauthorized business on company property that involved pornographic
material. Fisher said he did not have any such materials with him that day
but did not admit or deny that he was engaged in such activity. He asked why
this was coming up now and said that he did not know that “trading” things
violated company policy.
       The group then asked Fisher to go with them to open his locker. In the
locker, they found a manila envelope that contained five DVDs. 2 Fisher said
they were not his and that they must have been planted because the hinges of
his locker were broken and anyone could have forced their way in, and he
denied selling any videos. 3

       2  Among the DVDs found in the manila envelope, one was titled “Interracial Cherry
Poppers XXX.” Even though he denied owning the DVDs, Fisher took them with him when
he left work that day and said that he destroyed the titled DVD described above because it
was blank.
        3 At the evidentiary hearing, Fisher admitted to selling and trading videos but denied

selling any pornographic videos. After Lufkin’s handwriting analyst testified that the titles
of two DVDs produced by Lufkin from undisclosed sources, “XX White Hot Nurses XX” and


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       When asked to allow a search of his car in the parking lot, Fisher initially
cooperated but then claimed that he had to leave to tend to his wife, who was
ill, and therefore did not allow a search of the passenger compartment. Fisher
claimed that while at his locker, he had received a phone call from his wife.
Thomas testified that he heard Fisher’s phone ring but the other witnesses
testified that they did not hear anything.
       After Fisher left work during the attempt to search his car, he was
suspended by Thornton pending further investigation.                   The day after the
search, Thornton prepared notes regarding the search, which he and Jinkins
eventually presented to Perez. On May 18, 2009, Fisher was terminated via a
letter signed by Jinkins, written at Perez’s direction, which stated only that he
was fired “for a serious violation of company policy.” No further details were
given to Fisher about his termination at that time.
                                             II
       Based on the evidence taken during the two-day evidentiary hearing, the
magistrate judge found that Fisher sold DVDs at Lufkin and that he lied to his
supervisors about that fact during the course of their investigation. However,
the magistrate judge also found that Rhoden’s and Jinkins’s actions were
motivated by their desire to retaliate against Fisher for his racial
discrimination or harassment complaint against Saxton. The magistrate judge
explained, first, that there was persuasive evidence that many employees
possessed pornographic magazines at work without any complaint, warning or
discipline by Lufkin, and that employees had sold all manner of goods at work
without complaint or discipline by Lufkin.              Second, the magistrate judge
reasoned that the lengths to which Jinkins went to pursue the investigation of


“Nina Hartley–Stroking to the Oldies,” were written by the same hand who wrote Fisher’s
employment applications in his personnel file, Fisher’s counsel stated that he did not contest
the analyst’s conclusions.


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Fisher, recruiting Rhoden to buy videos from Fisher not once but twice, showed
“an unusual interest in the matter.” Third, the magistrate judge noted that
Lufkin had no clear work rule against Fisher’s conduct other than one that
would require a mere warning for a first offense. 4                    In this context, the
magistrate judge also noted that Lufkin’s witnesses were unsure about the
nature of Fisher’s violation and changed their position a number of times. 5
       Thus, the magistrate judge concluded that Jinkins and Rhoden
undertook their actions against Fisher not simply as a disciplinary matter but
as retaliation against Fisher for his protected activity in complaining about his
alleged racial harassment by Saxton.                 Nevertheless, the magistrate judge
found that Fisher’s termination was justified independent of any other reasons
because he “resisted the investigation by leaving before his car could be
properly searched and by lying to his supervisors about his activities.”
                                               III



       4Although the magistrate judge did not cite, quote, or describe the rule he referenced,
the record indicates that he was referring to Plant Rule 14, which states:
       Employees will not engage in any activity other than assigned work on
       company premises. And in this connection, the unauthorized solicitation of
       funds, selling or soliciting the sale of articles, circulating petitions, balloting,
       distributing, or reading handbills or other literature will not be permitted
       unless same has been authorized in advance by personnel department.
At his deposition, Jinkins testified that although Rule 14 technically prohibited the
distribution and sale of articles without company authorization, an employee was supposed
to receive a written warning for his first infraction; a written warning and layoff for
remainder of his shift for the second infraction; a 3-day disciplinary suspension for the third
infraction; and a 5-day suspension for the fourth infraction. Only after the fifth infraction is
the employee supposed to be terminated.
        5 The magistrate judge found that John Havard, Lufkin’s Compliance Manager, was

unable to persuasively point to a company policy covering or prohibiting Fisher’s conduct in
selling DVDs at work. Havard pointed to Lufkin’s sexual harassment policy and asserted
that the sale of DVDs created an offensive and intimidating work environment. However,
the magistrate judge found that “no one had complained and there was no evidence that
anyone likely to be offended had ever seen the conduct” and noted that Havard was unable
to define when possession of pornography would violate the rule.


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      Fisher’s primary contention on appeal is that the district court erred in
accepting the magistrate judge’s conclusion that Lufkin did not violate Title
VII’s anti-retaliation provisions when it terminated him. Specifically, Fisher
argues that because the investigation into his DVD sales was launched in
response to his complaint about Saxton addressing him as “boy,” he has
satisfied the causation element of his retaliation claim and his resistance to
the investigation cannot be used to justify his termination. Lufkin responds
that “there was no evidence of a retaliatory animus on the part of Ty Thornton,
who conducted the investigation into Fisher’s sale of pornography, or Paul
Perez, who ordered the investigation and made the decision to terminate
Fisher.” It argues that there was sufficient evidence to support the district
court’s conclusion that Fisher would have been terminated even in the absence
of any retaliatory action against him. We conclude that Fisher has shown a
sufficient causal connection between his protected activity and his termination
to warrant reversal.
                                       A
      A Title VII retaliation plaintiff must establish that (1) the employee
engaged in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal connection exists
between that protected activity and the adverse employment action. Zamora
v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015) (citing Thomas v. Tex. Dep’t
of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)). The parties agree that
the first two requirements are satisfied in this case, and thus only the third is
in dispute. To establish the requisite causal connection between the protected
activity and the adverse employment action, a plaintiff must show “that his or
her protected activity was a but-for cause of the alleged adverse action by the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).



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      In Staub v. Proctor Hospital, 562 U.S. 411 (2011), the Supreme Court
held that, under the “cat’s paw” theory, an employer can be held liable for a
retaliation    claim    under     the   Uniformed       Services     Employment       and
Reemployment Rights Act even if the ultimate decisionmaker herself holds no
retaliatory animus as long as the plaintiff can demonstrate that her decision
was influenced by another who does hold such animus. Applying general
principles of tort law, the Court explained, “Animus and responsibility for the
adverse action can both be attributed to the earlier agent . . . if the adverse
action is the intended consequence of that agent’s discriminatory conduct.” Id.
at 419. The Court clarified that “the exercise of judgment by the decisionmaker
does not prevent the earlier agent’s action . . . from being the proximate cause
of the harm,” as it does not “automatically render[ ] the link to the supervisor’s
bias ‘remote’ or ‘purely contingent.’” Id. at 419. The Court further explained
that the ultimate decisionmaker’s judgment cannot automatically be deemed
a “superseding cause” that breaks the causal chain of the harm. Id. at 420.
Rather, the decisonmaker’s judgment should only be considered a superseding
cause if it is “a cause of independent origin that was not foreseeable.” Id. at
420 (quoting Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996)).
       In recent years, our court has had a few opportunities to apply Staub.
In Gorman v. Verizon Wireless Texas, L.L.C., 753 F.3d 165, 171 (5th Cir. 2014),
we recognized that the “earlier agent” who harbors retaliatory animus may be
a coworker, rather than a supervisor. 6 And in Zamora, we joined a majority of
our sister circuits in holding that a Title VII retaliation plaintiff is entitled to
use the cat’s paw theory of liability if he can demonstrate that a person with a


      6  Although Gorman involved the interpretation of the Texas Commission on Human
Rights Act, we noted, “The substantive law governing Title VII and TCHRA retaliation claims
is identical.” 753 F.3d at 170 (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
403 n.2 (5th Cir. 1999)).


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retaliatory motive “used the decisionmaker to bring about the intended
retaliatory action.” 798 F.3d at 331. We explained that such a plaintiff must
produce sufficient evidence that “(1) his . . . supervisors, motivated by
retaliatory animus, took acts intended to cause an adverse employment action;
and (2) those acts were a but-for cause of his [termination].” 7 Id. at 333.
Discussing the second prong, we noted that “an investigation that ‘result[ed]
in an adverse action for reasons unrelated to the . . . [supervisors’]’ retaliatory
statements” could be a superseding cause, breaking the causal chain. Id. at
334 (alterations in original) (quoting Staub, 562 U.S. at 421). However, we
emphasized that “if an independent investigation ‘takes [a supervisor’s biased
report] into account without determining that the adverse action was, apart
from the supervisor’s recommendation, entirely justified,’ the supervisor’s
action ‘may remain a causal factor.’” Id. at 334-35 (alterations in original)
(quoting Staub, 562 U.S. at 421).
                                             B
       “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.” Coe v.
Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). “A finding
is clearly erroneous when the appellate court, viewing the evidence in its
entirety, is left with the definite and firm conviction that a mistake has been
made.” Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 356 (5th Cir. 2016)
(quoting Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258-
59 (5th Cir. 2006)). “The issues of proximate causation and superseding cause




       7 We read the Zamora court’s use of the word “supervisor” to conform to the facts of
that case, which involved retaliatory action taken by several of the plaintiff’s supervisors,
rather than to conflict with the Gorman court’s recognition that a non-supervisory coworker
may be the earlier agent who sets off the causal chain.


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involve application of law to fact, which is left to the factfinder, subject to [clear
error] review.” Exxon, 517 U.S. at 840-41.
      It is clear from the Report and Recommendation that Fisher satisfied
both prongs of Zamora’s cat’s paw analysis. The magistrate judge expressly
found that “a desire to retaliate against Fisher” motivated Rhoden to complain
about Fisher and motivated Jinkins to launch the investigation of Fisher. The
magistrate judge also found that the “subsequent discipline was motivated by
a desire to retaliate for Fisher’s protected activity.” The magistrate judge’s
findings therefore also lead to the necessary conclusion that the investigation
would not have taken place but for Rhoden’s and Jinkins’s retaliatory actions.
However, the magistrate judge concluded that Fisher’s lack of cooperation with
the investigation was “sufficient to justify his termination independent of any
other proferred [sic] reasons.” We read this statement by the magistrate judge
as concluding that Fisher’s resistance somehow broke the causal chain. To
review this conclusion, we turn to the traditional tort-law principles of
proximate cause and superseding cause and conclude that the district court
clearly erred in accepting the magistrate judge’s proposed finding. Staub, 562
U.S. at 417.
      “Proximate cause requires only ‘some direct relation between the injury
asserted and the injurious conduct alleged,’ and excludes only those ‘link[s]
that are too remote, purely contingent, or indirect.’” Id. at 419 (alteration in
original) (quoting Hemi Grp., LLC v. City of N.Y., 559 U.S. 1, 9 (2010)). Here,
Fisher’s lack of cooperation with an investigation that was launched for
retaliatory purposes was inextricably tied to his coworker’s and supervisor’s
retaliatory animus. It would be implausible, in light of this record, to conclude
that Rhoden’s retaliatorily motivated initial complaint and Jinkins’s
subsequent efforts to initiate and pursue a retaliatory investigation were so



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“remote” as to not be the cause of the ensuing discipline of Fisher. Rhoden’s
and Jinkins’s retaliatory actions therefore served as a proximate cause of
Fisher’s termination. See Staub, 562 U.S. at 419.
       Nor can it be said that Fisher’s refusal to acquiesce fully in the
retaliatory investigation and search of his personal effects served as a
superseding cause. “A cause can be thought ‘superseding’ only if it is a ‘cause
of independent origin that was not foreseeable.’” Id. at 420 (quoting Exxon,
517 U.S. at 837). While we do not endorse Fisher’s response, we view his mild
resistance to a retaliatory investigation as entirely foreseeable. 8                   The
magistrate judge’s conclusion that Fisher’s lack of cooperation with Lufkin’s
retaliatorily motivated investigation, based on a dubious work rule violation,
severed the causal chain between Fisher’s protected activity, for which Rhoden
and Jinkins retaliated against him, and his ultimate termination by Lufkin is
thus implausible in light of the record read as a whole, and the district court
clearly erred in accepting it. See Deperrodil, 842 F.3d at 356.
       Because     Fisher    has demonstrated that “(1)              his . . . supervisors,
motivated by retaliatory animus, took acts intended to cause an adverse
employment action; and (2) those acts were a but-for cause of his
[termination],” he is entitled to relief. See Zamora, 798 F.3d at 333.
                                            IV
       We REVERSE the district court’s judgment and REMAND for further
proceedings and rendition of judgment consistent with this opinion. In light of
this disposition, the remainder of the issues raised in Fisher’s appeal and
Lufkin’s cross-appeal are DISMISSED as moot.

       8 Indeed, to shield employers from liability for adverse actions taken in response to
such resistance would be to incentivize supervisors motivated by retaliatory animus to
initiate groundless investigations with the purpose of causing the targeted employees to
resist them, thereby leading to the employer’s adverse actions. We decline to provide such
an incentive.


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