     Case: 10-60405 Document: 00511349976 Page: 1 Date Filed: 01/13/2011




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

                                                 FILED
                                                                          January 13, 2011

                                     No. 10-60405                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ALICE FAYE COX,

                                                   Plaintiff–Appellant,
v.

DESOTO COUNTY, MISSISSIPPI,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Northern District of Mississippi
                     USDC Nos. 1:03-CV-628 c/w 1:05-CV-323


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Alice Cox appeals the decision of the district court granting DeSoto
County’s motion for summary judgment on Cox’s claim that the County
terminated her employment in retaliation for the lawsuit she filed under the Age
Discrimination in Employment Act (ADEA). We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-60405 Document: 00511349976 Page: 2 Date Filed: 01/13/2011



                                        No. 10-60405

                                               I
      This is the second time we have heard an appeal related to these cases.1
In August 2003, Cox was transferred from her secretarial position in the DeSoto
County sheriff’s office to a position in the “med room” of the County jail. In
November 2003, she filed suit against the County in federal district court
alleging that she was wrongfully transferred due to age discrimination
prohibited by the ADEA and in violation of her First Amendment right not to
campaign for the sheriff’s reelection.
      In October of 2004, while her first suit was pending, Cox submitted a
written report to the jail administrator that she had witnessed an incident of
inmate abuse. Specifically, the report stated that “Sgt. Winters hit Marcus in
the back after he was down and handcuffed.” Cox’s report resulted in two
investigations, one conducted internally by Commander James Dunn and the
other by the DeSoto County District Attorney. Both investigations concluded
that no misconduct occurred and that Cox gave inconsistent statements about
the events she allegedly witnessed. When the investigations were complete, Cox
was called before the Sheriff Department’s Supervisory Board to explain her
report. At the hearing, Cox admitted that she did not see Sergeant Winters
make any abusive contact with the inmate.                  Ultimately, the board’s five
members voted to terminate Cox’s employment for giving a false report.
      Cox appealed that decision to the Department’s Executive Board, before
which she also testified.          Seven voting members of the Executive Board
unanimously affirmed the Supervisory Board’s decision to terminate Cox’s
employment.
      Cox then amended her complaint in the wrongful transfer lawsuit,
contending that DeSoto County terminated her in retaliation for filing that suit



      1
          See Cox v. DeSoto Cnty., Miss., 564 F.3d 745 (5th Cir. 2009).

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                                         No. 10-60405

and that the reason given for her firing was pretextual. She also claimed that
she was terminated in violation of her First Amendment rights with respect to
reporting abuse. She later filed a separate suit against several individual
defendants, asserting claims based on her termination; that suit was
consolidated with the original suit against the County.
       Cox also filed for unemployment benefits. The Mississippi Employment
Security Commission (MESC) denied her request for benefits, finding that she
was discharged for work-related misconduct.                  After a hearing, an Appeals
Referee affirmed the denial of benefits on the same grounds. After the Referee’s
decision was subsequently affirmed by a Board of Review, Cox filed an appeal
in state court. However, she later voluntarily dismissed that appeal.
       The United States District Court for the Northern District of Mississippi
granted summary judgment in the County’s favor on Cox’s termination claims
on the basis of collateral estoppel, finding that the MESC ruling barred
relitigation of those claims in federal court. The wrongful transfer claims were
tried to a jury, which found for Cox on the ADEA claim and for the County on
the First Amendment claim related to the sheriff’s reelection. The parties did
not appeal the results of the jury trial, but Cox challenged the court’s application
of collateral estoppel and grant of summary judgment on the termination claims.
This court upheld the grant of summary judgment on all claims except the
ADEA retaliation claim, which we remanded in light of Supreme Court
precedent “that collateral estoppel does not apply to state administrative
decisions where Congress has provided for a detailed administrative remedy
such as that found in the [ADEA].” 2




       2
           Id. at 748-49 (citing Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110-14
(1991)).

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                                            No. 10-60405

         After further discovery, the County again moved for summary judgment
on the ADEA retaliation claim. The district court granted that motion, and this
appeal followed.
                                                   II
         We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.3 Summary judgment shall be
granted when “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.” 4
         The McDonnell Douglas burden-shifting framework applies to retaliation
claims.5 Under that framework, the burden first lies on the plaintiff–employee
to establish a prima facie case of unlawful retaliation.6 An employee establishes
a prima facie case by showing 1) that she engaged in protected activity; 2) that
an adverse employment action occurred; and 3) that a causal link existed
between the protected activity and the adverse employment action.7
         After the employee makes a prima facie showing, the employer must
articulate a legitimate, non-discriminatory reason for the adverse employment
action.8 Once the employer does so, the burden shifts back to the plaintiff to
“adduce sufficient evidence that would permit a reasonable trier of fact to find
that the proffered reason is a pretext for retaliation.”9 Ultimately, the employee


         3
             Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 549 (5th Cir.
2009).
         4
             FED . R. CIV . P. 56(a).
         5
             Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
         6
             Id.
         7
             Id. at n.8.
         8
             Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
         9
             Id. (citing McDonnell Douglas Corp., 411 U.S. at 804).

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                                         No. 10-60405

must “prove that the adverse employment action would not have occurred ‘but
for’ the protected activity.”10 “The plaintiff must reveal a conflict in substantial
evidence on the ultimate issue of retaliation in order to withstand a motion for
summary judgment.”11 “Evidence is substantial if it is of such quality and
weight that reasonable and fair minded persons in the exercise of impartial
judgment might reach different conclusions.” 12
       The district court held that Cox failed to establish a prima facie case. The
court determined that Cox’s original lawsuit and termination fulfilled the first
two prongs, but that Cox failed to show that the lawsuit and termination were
causally linked, as required by the third prong.
       Cox argues that the temporal proximity between the original lawsuit and
her termination is sufficient to support a causal link. This argument fails.
Though we have previously held that “[c]lose timing between an employee’s
protected activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of retaliation,” 13 the lengthy
period of time between Cox’s filing of the lawsuit and her termination—thirteen
months—is insufficient to support an inference of causation.14




       10
            Id.
       11
            Id.
       12
            Id. (internal quotation marks and citation omitted).
       13
            Swanson v. Gen’l Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
       14
          See, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (five
month period alone not sufficient to support inference of causal link); see also Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that “[t]he cases that accept
mere temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close’” (citing cases holding that
three- and four-month periods are insufficient to establish causality)).

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                                       No. 10-60405

       Absent an inference of causation due to temporal proximity, we have
“determined that, in order to establish the causation prong of a retaliation claim,
the employee should demonstrate that the employer knew about the employee’s
protected activity.”15 “It is well established that, ‘in determining whether an
adverse employment action was taken as a result of retaliation, our focus is on
the final decisionmaker.’”16 Cox has failed to show that any member of the
disciplinary boards responsible for her termination was aware of her wrongful
transfer lawsuit.
       Cox has also failed to present admissible evidence demonstrating that the
disciplinary boards acted under the direction of a party with knowledge of Cox’s
ADEA lawsuit.17        She presented no evidence that the sheriff or any other
employee with knowledge of her protected activity recommended to the board
that she be terminated. Cox did present an affidavit of a former Sheriff’s
Department employee who sat on the disciplinary boards prior to Cox’s
termination.      The affiant stated that either the sheriff or his top deputy
instructed the boards to reach certain results. The district court excluded this




       15
           Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003) (citing
Medina v. Ramsey Steel Co., Inc. 238 F.3d 674, 684 (5th Cir. 2001)); see also Sherrod, 132 F.3d
at 1122 (“In order to establish the causal link between the protected conduct and the illegal
employment action as required by the prima facie case, the evidence must show that the
employer’s decision to terminate was based in part on knowledge of the employee’s protected
activity.”).
       16
          Ackel v. Nat’l Commc’n, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Gee v.
Principi, 289 F.3d 342, 346 (5th Cir. 2002)).
       17
         See Sherrod, 132 F.3d at 1122 (“A causal link can be established by evidence that the
ultimate decision maker, with final authority to hire and fire subordinate employees, merely
‘rubber stamped’ a recommendation to terminate made by an employee with knowledge of the
complaint.” (citing Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996))).

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                                         No. 10-60405

evidence, however, and because Cox does not challenge its exclusion on appeal,
we do not consider it here.18
       Finally, Cox argues that we should infer a causal link between her lawsuit
and termination because the County’s proffered reason for firing her—that she
submitted false statements concerning inmate abuse—is false. After reviewing
the record, it is clear that it was Cox’s report of inmate abuse—and not her
ADEA lawsuit—which set in motion the chain of events that culminated in her
termination. Absent any specific evidence to the contrary, we cannot infer from
the boards’ decision to terminate Cox’s employment that any board members had
knowledge of Cox’s original lawsuit. Accordingly, Cox cannot show that a causal
link exists, a factor necessary to establish a prima facie case of retaliation.
       Moreover, even assuming that a causal link could be established, Cox
cannot show that her ADEA lawsuit was a “but for” cause of her termination, as
she has not demonstrated “a conflict in substantial evidence on the ultimate
issue of retaliation.”19 The district court, therefore, properly granted summary
judgment in favor of the County.
                                               III
       Cox also urges us to revisit two issues resolved against her in her first
appeal. Specifically, Cox challenges our holding that she is collaterally estopped
from pursuing her other termination claims by the MESC’s misconduct
determination, as well as our refusal to consider her mixed-motive termination
argument. Under the law of the case doctrine, neither the district court on
remand nor the appellate court on a subsequent appeal may reexamine an issue
of law or fact decided on an initial appeal.20 One exception to the doctrine, which

      18
         Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 462 n.4 (5th
Cir. 2003) (“Failure to raise an issue on appeal constitutes waiver of that argument.”).
       19
            Sherrod, 132 F.3d at 1122.
      20
            See, e.g., Gene & Gene, LLC, v. BioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010).

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                                     No. 10-60405

Cox argues should apply, allows a court to reexamine a previously decided issue
if the previous decision “was clearly erroneous and would work a manifest
injustice.”21    However, Cox has not demonstrated that this court’s previous
determinations were clear error, and we are therefore prevented from revisiting
them now.
                                 *        *         *
      The judgment of the district court is AFFIRMED.




      21
           Id.

                                          8
