     Case: 18-50677       Document: 00515028671         Page: 1    Date Filed: 07/10/2019




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

                                    No. 18-50677                             FILED
                                  Summary Calendar                       July 10, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
DWIGHT H. MILES,

               Plaintiff – Appellant,

v.

TEXAS DEPARTMENT OF MOTOR VEHICLES,

               Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CV-130


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Appellant Dwight Miles brought retaliation claims against his former
employer, the Texas Department of Motor Vehicles (DMV). Miles appeals the
summary judgment in favor of the DMV. We AFFIRM.




       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
     Case: 18-50677    Document: 00515028671     Page: 2   Date Filed: 07/10/2019


                                  No. 18-50677

                                       I.
        Miles provided customer service on behalf of the DMV as a lead worker.
Following a 2010 agency reorganization, Miles was demoted to facilitator in
2014.    In 2014, alleging that he was improperly demoted, Miles filed a
discrimination lawsuit against the DMV. In 2015, the district court dismissed
the discrimination lawsuit for failure to state a claim. Miles, proceeding pro
se, filed a second lawsuit in 2018, which is now on appeal before us. Miles
alleges that because of his previous lawsuit, the DMV retaliated against him
by denying him the service desk manager position and ultimately terminating
him in June of 2016. He also alleges that the DMV violated his constitutional
right to free speech, due process, and equal protection.
        A magistrate judge issued a report recommending that the district court
grant summary judgment in the DMV’s favor because Miles failed to establish
a prima facie case for retaliation. Specifically, the magistrate judge observed
that Miles failed to present any evidence of a causal connection between the
2014 lawsuit and his termination and failure to be considered for the service
desk manager position. The district court adopted the magistrate judge’s
report and recommendation and granted summary judgment on all claims in
the DMV’s favor.
                                       II.
        We review orders granting summary judgment de novo and apply the
same standard as the district court. Smith v. Reg’l Transit Auth., 827 F.3d 412,
417 (5th Cir. 2016). 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.    If a reasonable
jury could return a verdict for the nonmoving party, then there is a genuine


                                       2
     Case: 18-50677     Document: 00515028671     Page: 3   Date Filed: 07/10/2019


                                  No. 18-50677

dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43,
106 S. Ct. 2505, 2507, 91 L. Ed. 2d 202 (1986).
       Once the moving party has shown there is an absence of evidence to
support the non-moving party's claims, the non-moving party must provide
specific facts showing a genuine factual issue for trial. Renwick v. PNK Lake
Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018). The non-moving party must
“identify specific evidence in the record and articulate the manner in which that
evidence supports that party's claim.” Johnson v. Deep E. Texas Reg'l Narcotics
Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004). It cannot simply rest
on the mere allegations of its pleadings. Duffie v. United States, 600 F.3d 362,
371 (5th Cir. 2010).    “[T]he evidence should be viewed in the light most
favorable to the nonmoving party . . . .” Parrish v. Premier Directional Drilling,
L.P., 917 F.3d 369, 378 (5th Cir. 2019) (quoting Gary v. Powers, 673 F.3d 352,
354 (5th Cir. 2012)).
                                       III.
       To establish a retaliation claim under Title VII, an employee must show:
(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. Gardner v. CLC of Pascagoula, LLC, 915 F.3d 320, 327–28 (5th Cir.
2019). If the employee does not have direct evidence of retaliation, he may rely
on circumstantial evidence under the McDonnell Douglas burden-shifting
framework to support his retaliation claim. See id.; see also Montemayor v. City
of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). First, the employee must
establish a prima facie case of unlawful retaliation. Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).        Then, the employer may
articulate a legitimate, non-discriminatory reason for the adverse employment

                                        3
     Case: 18-50677    Document: 00515028671     Page: 4   Date Filed: 07/10/2019


                                  No. 18-50677

action. Id. The burden shifts back to the employee to show that the employer’s
explanation is a pretext for unlawful retaliation. Id.
      The district court correctly determined that Miles did not establish a
prima facie case of retaliation. Miles fails to connect the denial of the service
desk manager position and the ultimate termination to his filing of the 2014
lawsuit. The DMV has maintained that Miles was fired for cause following
multiple violations of the employee handbook. Specifically, the DMV provided
evidence that Miles made false statements to and about his coworkers,
misreported a state-wide outage that led to multiple employees working over
a weekend, had overall poor job performance, and did not improve even after
being placed on a corrective action plan. Miles failed to provide summary
judgment evidence to raise a fact issue on this point.
      Furthermore, the timing of the events does not support the claim. Nearly
10 months elapsed between the filing of Miles’ 2014 discrimination lawsuit and
his unsuccessful application for the managerial position, and nearly 18 months
elapsed between the lawsuit and his termination. See Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001); Raggs v. Miss. Power & Light Co., 278 F.3d
463, 471–72 (5th Cir. 2002) (a five-month laps did not create a causal
connection between the lawsuit and the alleged retaliatory act). Accordingly,
Miles’ retaliation claim cannot survive summary judgment. AFFIRMED.




                                        4
