                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 13, 2007

                         FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                                 Clerk
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                             No. 06-30396
                           Summary Calendar
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FRANCIS RICHARD; ET AL

                  Plaintiffs

FRANCIS RICHARD

                  Plaintiff-Appellant

     v.

CINGULAR WIRELESS LLC; CINGULAR WIRELESS EMPLOYEE SERVICES LLC

                  Defendants-Appellees


           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. 2:04–CV–2197



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiff-Appellant Francis Richard (“Richard”) brought suit

against Defendants-Appellees Cingular Wireless LLC and Cingular

Wireless Employee Services LLC (collectively, “Cingular”),



     *
       Pursuant to 5TH 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.

                                    1
alleging that his demotion and subsequent termination constituted

unlawful retaliation in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (2000) (“Title

VII”). The district court granted summary judgment to Cingular

and Richard now appeals. For the reasons that follow, we AFFIRM

the judgment of the district court.

                I. FACTUAL AND PROCEDURAL HISTORY

     Richard was employed by Cingular as a Radio Frequency

Performance Engineer IV, a position with responsibilities that

included interviewing and recommending applicants for the

position of Radio Frequency Specialist. In September 2003,

Richard interviewed three applicants for an available Radio

Frequency Specialist position. Richard subsequently sent an email

to his superior, Ramiro Peredo (“Peredo”), recommending that

Dwayne Barnes (“Barnes”) be selected for the position. Cingular

alleges that before sending this email, Richard showed it to

Barnes and told Barnes that he was Richard’s “pick.”1

Subsequently, however, Richard met with Peredo, who expressed

several concerns about Barnes’s fitness for the Radio Frequency

Specialist position. Richard then revised his recommendations,

and someone other than Barnes was hired for the open position.

Richard informed Barnes that he would not be getting the position



     1
      Richard now denies that he voluntarily showed Barnes the
email, though he earlier conceded this.

                                2
because “upper management did not want him.”

     Thereafter, Barnes approached human resources employee Kim

Willey (“Willey”), related to her his conversations with Richard,

and complained about his failure to be offered the Radio

Frequency Specialist position. Willey alerted Richard’s

supervisors to the alleged conversations. When questioned about

whether he had showed Barnes the email or otherwise told Barnes

that Barnes was being recommended, Richard twice denied showing

or telling Barnes anything of the sort. Cingular commenced an

investigation into the matter, led by Susan Horcharik

(“Horcharik”). According to Horcharik, Barnes repeated his

account of his conversations with Richard but later refused to

sign a statement confirming the same. Richard, however, did sign

a statement admitting that he had told Barnes he was being

recommended, showed Barnes the email, and subsequently lied about

both events. In October 2003, Richard was demoted to a non-

managerial position, Radio Frequency Performance Engineer II.

This demotion entailed a salary decrease from $78,000 to $65,000,

which, after an initial oversight, went into effect in February

2004.

     On February 24, 2004, Richard called Cingular’s Ethics Line

and complained that he had been “forced to unfairly disregard an

African-American candidate” (Barnes) and that his demotion had

been in retaliation for his initial recommendation of Barnes.

Cingular investigated this complaint and concluded that the facts

                                3
“fully support[ed] the decision and the reasons for which in

their entirety.” On March 24, 2004, Richard filed an EEOC charge

alleging that he was unlawfully demoted in retaliation for

opposing practices made illegal by Title VII. On May 27, 2004,

the EEOC dismissed the charge and issued Richard a right to sue

letter.

     On May 28, 2004, Barnes began to receive calls from

Richard’s wife, Maria Richard, on his Cingular-issued cellphone.

Maria Richard left Barnes a voicemail stating, among other

things, that he was evil, arrogant, and had ruined her husband’s

career, and that she wanted to meet him so “she could look him in

the eyes.” On June 1, 2004, Barnes reported the phone calls and

voicemail to Willey. Barnes indicated that he did not welcome the

phone calls and did not want to meet Mrs. Richard, and that

Barnes’s wife had heard the message and feared for Barnes’s

safety. Willey has stated that while Richard initially denied

that his wife made the calls, he then admitted that he had given

her Barnes’s cellphone number. Willey reported Barnes’s complaint

to Horcharik, who began another investigation. Horcharik

discovered that additional calls to Barnes’s cellphone had been

placed from Richard’s home and Richard’s own Cingular-issued

cellphone. On June 8, 2004, Richard met with his superiors,

including Peredo and Horcharik. Richard refused to answer many of

the questions posed to him regarding the phone calls. Following

the meeting, Richard’s employment at Cingular was terminated.

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     On August 5, 2004, Richard and Maria Richard filed suit

against Cingular in the Eastern District of Louisiana, alleging

that Richard’s demotion and termination constituted unlawful

retaliation under Title VII. Cingular filed a motion for summary

judgment seeking dismissal of both Richard and Maria Richard’s

claims. On February 22, 2006, the district court issued an order

granting Cingular’s motion as to both plaintiffs. The district

court held that because Maria Richard had never been an employee

of Cingular and her claims were wholly derivative of Richard’s,

she could not maintain an action against Cingular under Title

VII. Maria Richard has not appealed. The district court also held

that Richard had not satisfied his burden of creating a genuine

issue of material fact regarding whether Cingular’s proffered

non-retaliatory reasons for his demotion and termination were

pretextual. Richard now appeals.

                          II. JURISDICTION

     The district court’s February 22, 2006 ruling was a final

judgment that disposed of all of Richard’s claims. Accordingly,

this court has jurisdiction pursuant to 28 U.S.C. § 1291.

                           III. ANALYSIS

1.   Standard of Review

     We review a district court’s grant of summary judgment de

novo.   Dallas County Hosp. Dist. v. Assocs. Health & Welfare

Plan, 293 F.3d 282, 285 (5th Cir. 2002). Summary judgment is


                                   5
proper when the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”    FED. R. CIV. P. 56(c).   A dispute about a

material fact is genuine if the evidence is such that a

reasonable fact-finder could return a verdict for the non-moving

party.    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).    When deciding whether there is a genuine issue of

material fact, this court must view all evidence in the light

most favorable to the non-moving party.     Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir. 2001).

2.     Title VII Retaliation Framework

        Under Title VII, it is “an unlawful employment practice for

an employer to discriminate against any of his employees . . .

because [the employee] has opposed any practice made an unlawful

employment practice” by the statute or “because [the employee]

has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” under Title

VII.    42 U.S.C. § 2000e-3(a). To establish a claim of retaliation

under Title VII, a plaintiff must demonstrate that: (1) he

engaged in a protected activity; (2) an adverse employment action

occurred; and (3) a causal link exists between the protected

activity and the adverse employment action. Fabela v. Socorro



                                  6
Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).

     A plaintiff alleging Title VII retaliation may establish a

causal link in two ways: either by presenting direct evidence of

retaliatory motive or by providing circumstantial evidence that

creates a rebuttable presumption of retaliatory motive. Id. at

414-15.   Where the plaintiff provides only circumstantial

evidence of causation, the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies.

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.

2002). Under that framework, the employee must first make a prima

facie case for the three elements of retaliation. This prima

facie case is satisfied by the production of evidence; persuasion

is not necessary at this stage. Baker v. Am. Airlines, Inc., 430

F.3d 750, 753 (5th Cir. 2005). If the employee succeeds in making

a prima facie case, the burden of production shifts to the

employer to state a legitimate, non-retaliatory reason for the

employment action. Id. at 754-55.   If the defendant meets its

burden, the presumption of discrimination created by the prima

facie case disappears, and the plaintiff is left with the

ultimate burden of proving that the protected activity was the

but-for cause of the adverse employment action.   See Montemayor

v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001). In

other words, the employee must show that the employer’s putative

justification is unworthy of credence and is instead a pretext



                                7
for retaliation. Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir.

2001).

3.   Richard’s Demotion

     Richard argues that he has made out a prima facie case that his

demotion was retaliatory and has created a genuine issue of material

fact regarding whether Cingular’s proffered reasons for his demotion

were pretextual. The district court held that Richard had failed to

demonstrate   that   Cingular’s   non-retaliatory   reasons   were   mere

pretext. This court may affirm the district court’s grant of summary

judgment on any grounds supported by the record. Lifecare Hosps.,

Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).

Here, we do not reach the issue of pretext because we hold that

Richard has not made out his prima facie case of retaliation.

     Richard has failed to produce evidence that he engaged in

activity protected by Title VII prior to his demotion. Protected

activity in the context of a retaliation claim is (1) opposing

discriminatory practices or (2) making a charge, testifying,

assisting, or participating in any manner in an investigation,

proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a).

At the time of his demotion, Richard had not yet called the

Cingular Ethics Line to complain, nor had he filed his charge

with the EEOC. Richard presents as protected activity prior to

the demotion his acts of (1) recommending that Barnes be given

the Radio Frequency Specialist position and (2) telling Barnes



                                   8
that he would not be receiving the position and encouraging him

to “seek justice.” Richard’s act of recommending Barnes for the

open position does not qualify as protected activity because it

did not oppose or protest an unlawful employment practice. See

Moore v. United Parcel Serv., Inc., 150 F. App’x 315, 319 (5th

Cir. 2005) (unpublished). Richard’s subsequent conversation with

Barnes also fails to qualify as protected conduct. Even if we

assume, arguendo, that telling a co-worker that he had suffered

unlawful discrimination is protected activity, Richard does not

allege nor produce any evidence that he suggested to Barnes that

Barnes’s failure to receive the available position was due to

racial discrimination. To satisfy the protected activity

requirement, an employee must oppose conduct made unlawful by

Title VII; complaining of unfair or undesirable treatment not

addressed by Title VII will not suffice. See id.; see also

Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913,

916 (5th Cir. 2006) (unpublished). We therefore conclude that

Richard has not demonstrated that he engaged in protected

activity prior to the demotion. Accordingly, the district court

properly granted summary judgment to Cingular on Richard’s claim

that his demotion was retaliatory.

4.   Richard’s Termination

     Richard also brings a claim for retaliation on the basis of his

termination by Cingular. Before his termination, Richard had called



                                 9
the Cingular Ethics Line to complain of retaliatory demotion and had

also filed a complaint with the EEOC. We therefore conclude that

Richard had engaged in activity protected by Title VII. See Walker

v.   Thompson,    214   F.3d     615,    629     (5th    Cir.   2000).   Richard’s

termination      qualifies     as   an   adverse        employment   action,     thus

satisfying the second prong of his prima facie retaliation case.

Dehart v. Baker Hughes Oilfield Operations, No. 05-21087, 2007 U.S.

App. LEXIS 1362, at *10 (5th Cir. Jan. 19, 2007). We therefore turn

to whether Richard has demonstrated that a causal link existed

between his protected activity and subsequent termination. Cingular

argues that Richard has made no such showing. This court allows,

however, for an inference of causation to be drawn where the adverse

employment    action    occurs      in   close    temporal      proximity   to    the

protected conduct. Evans v. City of Houston, 246 F.3d 344, 354 (5th

Cir. 2001). In Evans, we relied upon decisions from district courts

in this circuit that found “a time lapse of up to four months . .

. sufficient to satisfy the causal connection for summary judgment

purposes.” Id.2 In this case, the time span between Richard’s EEOC

complaint and his termination was roughly two and a half months. We

therefore will allow for an inference of causation, and we conclude

that Richard has made out his prima facie case of retaliation.



      2
      We note, however, that the Supreme Court has acknowledged
other circuit court decisions that found three and four month
periods too long to allow for an inference of causation. Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).

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     Cingular, however, has satisfied its burden of stating a

legitimate, non-retaliatory justification for Richard’s

termination. Cingular presented several such justifications: (1)

Richard’s wife’s harassing phone calls to Barnes, which were in

violation of Cingular’s policy against employee harassment; (2)

Richard’s refusal to cooperate fully with Cingular’s

investigation into his involvement in the harassing phone calls;

and (3) Richard’s earlier lies to Cingular supervisors regarding

his conversations with Barnes. The burden therefore falls to

Richard to demonstrate that retaliation was the but-for cause of

his termination. See Montemayor, 276 F.3d at 692. Accordingly, at

the summary judgment stage, Richard must demonstrate that a

genuine issue of material fact exists regarding whether

Cingular’s justifications were pretextual.

     Richard first argues that he presented evidence that Barnes

did not find the phone calls from Maria Richards threatening. He

cites to a memorandum by Willey in which she stated that Barnes

told her that Maria Richard’s voicemail was “not very nice.” This

memorandum, however, also stated that Barnes’s wife feared for

his safety after the calls. Based on Barnes’s statements to

Willey, Cingular could have concluded that Richard’s wife had

made phone calls to a Cingular employee that were, if not

physically threatening, certainly harassing and inappropriate.

Cingular also could have concluded, in light of the facts that



                               11
Maria Richards called Barnes’s Cingular-issued cellphone and that

Barnes “heard a male voice in the background” during the

voicemail, that Richard was complicit in his wife’s calls. We

agree with the district court that Richard has not demonstrated

that a genuine issue of material fact exists regarding whether

Cingular’s justification based on Maria Richards’ phone calls was

pretextual.

     Richard then proposes that Cingular’s justification based on

his failure to cooperate with their investigation into the phone

calls was mere pretext because he was, in fact, cooperative.

While Richard concedes that he did not answer numerous questions

posed during the meeting with his supervisors, Richard argues

that he was told that he could have additional time to answer

these questions in writing. The parties dispute how long Richard

was told he would have to submit these answers--Richard claims

forty-eight hours, Cingular claims twenty-four--and when exactly

the decision was made to terminate Richard--Richard argues that

the decision was made before even twenty-four hours had elapsed.

     Even if we were to conclude that Richard had demonstrated

that a genuine issue of material fact exists regarding whether

his alleged lack of cooperation was merely a pretext, however,

Richard “must put forward evidence rebutting each of the

nondiscriminatory reasons the employer articulates” to satisfy

his burden. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220



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(5th Cir. 2001). As we have seen, Richard has not successfully

rebutted Cingular’s justification based on his wife’s phone calls

to Barnes. Richard has also not rebutted Cingular’s justification

based on his earlier lies to his supervisors regarding his

conversations with Barnes. Richard argues that “there’s no

evidence in the record that [he] lied to his superiors, except

for the self-serving reports generated by Cingular.” On the

contrary, Cingular has presented a statement signed by Richard,

dated October 6, 2003, admitting that he lied twice to Cingular

personnel regarding his statements to Barnes because he “was

afraid of what would happen” to him. Even if Richard could

establish that he did not in fact lie, “an incorrect belief that

an employee’s performance is inadequate constitutes a legitimate,

non-discriminatory reason” for termination. Little v. Republic

Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). Based on Richard’s

conduct and admissions at the time, Cingular could have believed

that Richard had lied to his supervisors. We conclude that

Richard has not demonstrated that a genuine issue of material

fact exists regarding whether Cingular’s justification based on

Richard’s false statements to his superiors was unworthy of

credence.

     In sum, Richard has not satisfied his burden under the

McDonell Douglas framework of demonstrating that Cingular’s

proffered reasons for his termination were pretextual and that



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retaliation was the but-for cause of his termination.

Accordingly, the district court properly granted summary judgment

to Cingular on Richard’s claim that his termination was

retaliatory.

                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the order of the

district court granting summary judgment to Cingular.

     AFFIRMED.




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