     Case: 18-40445      Document: 00515014625         Page: 1    Date Filed: 06/28/2019




                           REVISED June 28, 2019

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

                                      No. 18-40445                              FILED
                                                                            June 26, 2019
                                                                           Lyle W. Cayce
MARIE KRAFT,                                                                    Clerk

              Plaintiff-Appellant,

v.

THE UNIVERSITY OF TEXAS MEDICAL BRANCH; UNIVERSITY OF
TEXAS MEDICAL BRANCH HEALTHCARE SYSTEMS, INCORPORATED,

              Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CV-15


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
       This is a Title VII retaliation case. In a thorough and well-reasoned
opinion, the district court granted summary judgment to Defendants
University of Texas Medical Branch and University of Texas Medical Branch
Healthcare Systems, Inc. It concluded Plaintiff Marie Kraft could not meet her



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 18-40445
burden of demonstrating Defendants’ stated reason for firing her was
pretextual. We agree and affirm.
                                      I.
      The parties are already familiar with the facts and procedural history in
this case. Accordingly, we recount only the most relevant details here.
      In May 2014, Kraft complained about age and sex discrimination.
Defendants hired outside counsel to assist with an investigation into Kraft’s
complaint. Defendants also hired the same outside counsel to investigate a
separate complaint involving two other employees (Stephanie Hayes and
Gerald Cagle).
      During the Hayes-Cagle investigation, outside counsel nonetheless
“received numerous complaints of misconduct against” Kraft. Outside counsel
issued a report concluding “Kraft violated the Conduct Guide and UTMB’s Non
Retaliation policy” by (1) “frequently threaten[ing] to terminate Ms. Hayes if
she filed a report with Human Resources,” (2) “tr[ying] to coerce Ms. Hayes
into retracting the complaint,” and (3) telling “other employees that they
should not trust” Hayes.     The report further found Kraft had failed to
investigate complaints against Cagle and suggested she failed to enforce other
UTMB policies because she “actually violated” them herself. Additionally, the
report raised other potential violations of UTMB policies by Kraft. In the end,
it recommended Kraft “be subjected to severe disciplinary action, up to and
including termination.”
      Kraft’s supervisor, Carolee King, testified that she decided to terminate
Kraft “based on the findings of th[is] report.” On September 2, 2014, Kraft
received a Notice of Intent to Terminate that said it was “[b]ased on the[ ]
findings” in the outside-counsel report. Kraft responded by disputing the
findings the following day. On September 4, 2014, she was fired.


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                                     No. 18-40445
      Kraft sued Defendants for age and sex discrimination as well as
retaliation. But she does not appeal the dismissal of her discrimination claims.
Instead, she “seeks review only of the dismissal of her retaliation claims.”
                                           II.
      Kraft has narrowed her appeal to one crucial question: Why was she
fired? Kraft says it was because she complained about discrimination on the
basis of age and sex. Defendants say it was because she violated numerous
company policies, as detailed in the outside-counsel report.               Kraft’s only
response is that Defendants’ proffered reason for her termination was
pretextual.
      Kraft attempts to “show[ ] that [Defendants’] proffered explanation is
false or ‘unworthy of credence.’ ” Thomas v. Johnson, 788 F.3d 177, 179 (5th
Cir. 2015) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). To
do so, Kraft had to “produce evidence that could lead a reasonable fact-finder
to conclude that ‘the adverse employment action would not have occurred “but
for” ’ [her] decision to engage in an activity protected by” law. Alkhawaldeh v.
Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017) (brackets omitted) (quoting
Feist v. La., Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013)). 1
      But as the district court ruled, Kraft has no such evidence. We are in
substantial agreement with the district court’s reasoning and thus address
only Kraft’s most significant arguments here.
      First, Kraft points to her own declaration. The district court concluded
the declaration was “not valid summary judgment evidence” because it was
“wholly conclusory.” We agree. In her declaration, Kraft asserted “it was



      1  The parties’ briefs suggest we should apply the retaliation standards developed
under Title VII to Kraft’s claims under the ADEA and the Texas Labor Code. In light of the
parties’ agreement, we do so without considering whether those statutes may require
different approaches.
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                                 No. 18-40445
apparent that King . . . was simply using the [outside-counsel report] as a
pretextual basis to terminate my employment.”         The only basis for this
assertion was Kraft’s belief that King must have been uninterested “in
learning the truth” because she “refused to provide [Kraft] any additional
information in response to [Kraft’s] request for details.”     That was pure
speculation.   A supervisor may have non-retaliatory reasons—including a
desire to protect the privacy of other employees—for declining to disclose
information to the subject of an investigation.      Thus, Kraft’s conclusory
assertion was not “made on personal knowledge.” FED. R. CIV. P. 56(c)(4)
(requiring a “declaration used to . . . oppose a motion” for summary judgment
to “be made on personal knowledge” and “set out facts that would be admissible
in evidence”); see also Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179
F.3d 164, 168–69 (5th Cir. 1999).
      Second, Kraft points to circumstantial evidence that, at best, goes to
whether other employees at UTMB would have been interested in retaliating
against her. But none of that evidence relates to King, the supervisor who fired
Kraft. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)
(concluding statements could not be evidence of discrimination because “the
speakers were not responsible . . . for his termination”). Notably, Kraft does
not argue that these other employees caused King to fire her. See Castlino v.
Thomas, 141 F. App’x 255, 257 (5th Cir. 2005) (per curiam) (finding prejudiced
statements by a non-decisionmaker insufficient summary judgment evidence
where plaintiff produced no evidence the decisionmaker was influenced by the
non-decisionmaker).
      Third, Kraft argues that the outside-counsel report was inaccurate and
that the underlying investigation was inadequate. Whether Kraft actually
violated company policy is immaterial. The relevant question is whether Kraft
was fired because the report said she violated company policy. If King was
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                                 No. 18-40445
motivated by the report rather than retaliation, her decision to fire Kraft was
not retaliatory regardless of whether the report was accurate. See Bryant v.
Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (“Management does
not have to make proper decisions, only non-discriminatory ones.”); Deines v.
Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999)
(“Whether the employer’s decision was the correct one, or the fair one, or the
best one is not a question within the jury’s province to decide.”). And contrary
to Kraft’s contention, none of her evidence suggests the investigation was so
“inexplicably unfair” that a reasonable jury could infer Defendants did not
actually rely on its findings. Mastro v. Potomac Elec. Power Co., 447 F.3d 843,
855 (D.C. Cir. 2006).
                                      III.
      The district court correctly granted summary judgment to Defendants.
We need not address Defendants’ alternative arguments for affirmance.
      The judgment is AFFIRMED.




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