     Case: 11-30799     Document: 00511811367          Page: 1    Date Filed: 04/04/2012




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

                                                                             FILED
                                                                             April 4, 2012

                                     No. 11-30799                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MICHELE YANCY,

                                                   Plaintiff - Appellant
v.

US AIRWAYS, INC.,

                                                   Defendant - Appellee



                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:10-CV-983



Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Before the Court is Plaintiff-Appellant Michelle Yancy’s (“Yancy”) appeal
of the district court’s grant of summary judgment on her unlawful retaliation
claims against her former employer, Defendant-Appellee U.S. Airways, Inc.
(“U.S. Airways”). 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not be published and is not precedent except under the limited circumstances set forth in Fifth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.
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                    FACTUAL AND PROCEDURAL BACKGROUND
      During the relevant time period, Yancy was employed by U.S. Airways as
a Customer Service Agent in the New Orleans Airport. In May 2009, Yancy
learned from a supervisor, Valkeisha Polk (“Polk”), that another coworker,
Michael Macaluso (“Macaluso”), had posted a photograph of her on his Facebook
page. The picture depicted Yancy leaning over a table while at work, revealing
a portion of Yancy’s underwear.
      On June 2, 2009, Yancy complained about the photo to U.S. Airways’s
Human Resources Manager, Kimberly Sharpe (“Sharpe”). Shortly thereafter,
Sharpe conducted an investigation of the incident and found three employees,
including Macaluso and Greg Oden (“Oden”), responsible. The three employees
were disciplined, although none was terminated or suspended. Dissatisfied with
the result, Yancy filed a charge of discrimination with the EEOC at the end of
June 2009, alleging that she had been subjected to sexual harassment.
      On July 1, 2009, Yancy sustained a non-work related injury, requiring her
to take medical leave until September 12, 2009. According to Yancy, on August
5, 2009, she received a call from Polk, who, in addition to being her supervisor,
was also Yancy’s union representative for Yancy’s union; Polk informed Yancy
that Polk had spoken with Janice Garris (“Garris), the union president, and that
Garris had told Polk to convince Yancy to drop her charges because fingers were
being pointed, Yancy wasn’t “squeaky clean” herself, and, if investigations
continued, a lot of people would be fired. Thereafter, on August 10, 2009, Yancy
spoke with Garris, and Garris confirmed Oden had threatened to reveal that
Yancy had sent a sexually explicit photo to his cell phone. Sometime thereafter,
Oden reported the photo, which depicted a tattooed penis and was accompanied
by sexually explicit text, to U.S. Airways’s Human Resources. The photo and
text appeared to have been sent from Yancy’s cell phone on April 24, 2009.



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      When Yancy returned from medical leave, she learned that she had been
scheduled for a training session on September 25, 2009. On that day, Yancy met
with Sharpe, who was visiting from Arizona, and Bryan Smith, her superior.
Yancy’s attorney and Polk, as Yancy’s union representative, also attended the
meeting. Either just prior to or at the beginning of the meeting, Sharpe
informed Yancy that Macaluso intended to apologize for taking the photo of her
and posting it to Facebook. Yancy, however, refused to discuss Macaluso’s
apology. Thereafter, Sharpe confronted Yancy with the photo Oden alleged that
she had sent to him. Yancy denied sending the photo, although she admitted the
photo was sent from a former number of hers. According to Sharpe, Yancy was
uncooperative and belligerent in the meeting. Yancy denies being uncooperative
and belligerent, and, instead, states Sharpe accused her of belligerence because
Yancy would not admit to sending the photo. Yancy admits, however, that the
meeting was “very heated.”
      Sharpe left the meeting to confer with her supervisor, and, on returning
to the meeting, informed Yancy that she was being suspended pending a
conclusion of the investigation into the photo. According to Yancy, Sharpe
explained that she was being suspended due to her belligerent, insubordinate,
and uncooperative behavior. The suspension lasted twelve days, and Yancy was
paid after the suspension ended. On October 15, 2009, Yancy filed a second
charge with the EEOC, alleging that the investigation into the lewd photo
amounted to sex and race discrimination, and was done in retaliation for her
first complaint with the EEOC.
      Around that time, the U.S. Airways CEO notified the company’s employees
that the company could be conducting a company-wide reduction in force. The
reduction would be conducted according to the union’s Collective Bargaining
Agreement. Pursuant to the Agreement, reductions were to be based on
employees’ “Passenger Service Seniority,” effectively an employee’s length of

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service with the company. Karen Cunningham, a Senior Analyst with U.S.
Airways, selected Yancy and another employee at New Orleans Airport for
furlough, as they had they had the least seniority at that location.1
Consequently, on February 14, 2010, Yancy was furloughed. On March 3, 2010,
Yancy submitted a third charge to the EEOC, alleging that her furlough was in
retaliation for her previous EEOC charges.2
       On March 26, 2010, Yancy filed the instant action in United States district
court. Yancy alleged unlawful retaliation in violation of Title VII, 42 U.S.C.
§ 1981, and Louisiana’s anti-discrimination and whistleblower statutes, as well
as tortious interference with an employment contract and intentional infliction
of emotional distress. On August 18, 2010, the district court, on U.S. Airways’s
motion, dismissed Yancy’s claim for tortious interference, but allowed the other
claims to proceed. Thereafter, on July 20, 2011, the district court granted U.S.
Airways’s motion for summary judgment on all of Yancy’s claims. This timely
appeal followed.
                                  STANDARD OF REVIEW
       “We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th
Cir. 2009) (internal quotation marks omitted). Summary judgment should be
rendered if the record demonstrates that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.


       1
        Yancy disputes whether any other employee at New Orleans Airport was selected for
furlough, relying on Polk’s declaration that other union officials told Polk that New Orleans
was not part of the reduction in force. As Polk does not aver to any first-hand knowledge of the
furlough decision, however, her statement about what other union officials told her is
inadmissible hearsay, and thus fails to create a genuine dispute with Cunningham’s
declaration. See Garcia v. Reeves Cnty., Tex., 32 F.3d 200, 204 (5th Cir. 1994) (finding
inadmissible hearsay insufficient to create material dispute to avoid summary judgment).
       2
        Although Yancy returned to work, part-time, on May 27, 2010, she resigned on
October 30, 2010.

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R. CIV. P. 56(a). “An issue is material if its resolution could affect the outcome
of the action.” Daniels v. Cty. of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001). “In deciding whether a fact issue has been created, the court must view
the facts and the inferences to be drawn therefrom in the light most favorable
to the nonmoving party.” Id. This Court may affirm 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).
                                         ANALYSIS
       Yancy appeals the district court’s grant of summary judgment on her
retaliation claims.3 She argues that the district court improperly evaluated her
claims under the pretext-prong of Title VII’s retaliation analysis, and failed to
conduct a sufficient analysis under the mixed-motive prong.
       To establish a claim for retaliation under Title VII,4 the Court applies a
modified McDonnell Douglas approach. See Smith v. Xerox Corp., 602 F.3d 320,
330 (5th Cir. 2010) (holding mixed-motive analysis applies to retaliation). A
plaintiff must first show a prima facie case of retaliation by establishing that: (1)
she “participated in an activity protected by Title VII”; (2) her “employer took an
adverse employment action against [her]”; and (3) “a causal connection exists
between the protected activity and the adverse employment action.” McCoy v.
Cty. of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). “If the plaintiff makes
a prima facie showing, the burden then shifts to the employer to articulate a
legitimate, . . . nonretaliatory reason for its employment decision.” Id. at 557.
If the employer meets the burden of production, the plaintiff bears the ultimate

       3
        Yancy does not raise any error in the district court’s grant of summary judgment on
her intentional inflection of emotional distress claim.
       4
         The same analysis applies to claims under § 1981, see Shackleford v. Deloitte &
Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999), and Louisiana’s anti-discrimination and
whistleblower statutes, see Smith v. AT&T Solutions, Inc., 90 F. App’x 718, 723 (5th Cir. 2004)
(per curiam).

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burden of proving (1) “the employer’s proffered reason is not true but instead is
a pretext for the real . . . retaliatory purpose,” id., or (2) “that the defendant’s
reason, while true, is only one of the reasons for its conduct, and another
‘motivating factor’” is retaliation (i.e., “mixed-motive”), Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004). The plaintiff may meet this burden with
circumstantial evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101–02
(2003).
       As noted, Yancy argues that the district court failed to sufficiently analyze
her claim under the mixed motive prong, instead finding that the she had failed
to show that U.S. Airways’s proffered reasons for suspending and furloughing
here were pretext.5 Nonetheless, “[t]he question of pretext versus mixed-motive
treatment is only reached after a plaintiff has met [her] prima facie showing
under the modified McDonnell Douglas standard and the defendant has
responded with a legitimate nondiscriminatory reason.” Keelan v. Majesco
Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005). As the district court also
found, however, Yancy failed to establish a prima facie case of retaliation for
either the suspension or the furlough because she failed to show a causal
connection between her protected activities and those actions. Accordingly, even
assuming a mixed-motive analysis would be appropriate, Yancy’s failure to
establish a prima facie case precludes such analysis.6
       Yancy argues that the causal connection is supported by the phone calls
she received while on medical leave requesting she drop her charges, and by the
fact that Sharpe discussed, during the September 25, 2009 meeting, the earlier



       5
        The district court actually did consider and dismiss her claim under the mixed-motive
prong, albeit in cursory fashion.
       6
        Similarly, as the Court finds Yancy failed to establish a prima facie showing of
causation, the Court does not decide whether Yancy’s twelve-day suspension qualified as an
adverse employment action.

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Facebook photo. With regard to the phone calls, even if one could infer from
them that some retaliatory motive belonged to Garris or Polk, the individual who
suspended Yancy, Sharpe, participated in neither of the calls. In evaluating a
Title VII retaliation claim, “we . . . look to who actually made the decision or
caused the decision to be made . . . .” Russell v. McKinney Hosp. Venture, 235
F.3d 219, 227 (5th Cir. 2000). Yancy identifies no evidence demonstrating either
Garris or Polk were responsible for the decision to suspend her, or that either
exerted any leverage over Sharpe.7               Consequently, the phone calls fail to
establish any causal connection between her protected activities and Sharpe’s
decision to suspend her.
        Yancy’s other argument is equally unavailing. The fact that Sharpe raised
the issue of the Facebook photo during the September 25, 2009 meeting provides
no basis to infer that she sought to retaliate against Yancy for her protected
activities. Nothing in the record indicates Sharpe raised the EEOC charge or
Yancy’s complaint to Human Resources, or appeared to have any concern about
them.
        Consequently, the only remaining ground to support Yancy’s prima facie
showing of cause is the temporal proximity between her protected activities and
her suspension. Yancy’s suspension occurred almost four months after her
second EEOC charge, however, and prior to her third EEOC charge. With such
a delay, the temporal proximity of the events is insufficient to establish Yancy’s
prima facie case alone. See Clark Cnty. School Dist. v. Breeden, 532 U.S. 268,
273–74 (2001) (citing, with approval, cases finding three-and-four-month periods
between protected activity and adverse employment action failed to establish
prima facie case under Title VII based on temporal proximity); Raggs v. Miss.




        7
            Indeed, from the record, it appears Polk objected to Yancy’s suspension.

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Power & Light Co., 278 F.3d 463, 471–72 (5th Cir. 2002) (holding five-month
lapse precluded inference of causal link from temporal proximity).
       Accordingly, an inference that Sharpe decided to suspend Yancy due to her
protected activities would be “tenuous,” at best, and such an inference is
insufficient to establish a prima facie case of retaliation. See Crawford v.
Formosa Plastics Corp., La., 234 F.3d 899, 902–03 (5th Cir. 2000) (holding
plaintiff must introduce more than “scintilla” of evidence to create material
dispute to survive summary judgment).
       Yancy’s argument regarding her furlough fairs no better. The district
court found that Yancy failed to contest U.S. Airways’s summary judgment
arguments regarding her furlough.              On appeal, Yancy only points to her
“Statement of Disputed Facts,” in which she stated that she filed a third charge
with the EEOC alleging that she was furloughed in retaliation for her earlier
charges. The Statement, however, did not “assert a legal reason why summary
judgment should not be granted,” and, consequently, Yancy waived any
argument against summary judgment on that claim. See Keenan v. Tejeda, 290
F.3d 252, 262 (5th Cir. 2002).8
       Accordingly, Yancy fails to identify a genuine dispute of material fact, and,
thus, fails to show that the grant of summary judgment for U.S. Airways was
erroneous.
                                       CONCLUSION
       For the reasons stated above, the judgment of the district court is
AFFIRMED.

       8
         Nonetheless, even had Yancy not waived the argument, it would still be unsuccessful.
Cunningham averred that, at the time she choose Yancy for a furlough, she had no knowledge
of Yancy or of her protected activities. Yancy introduces no admissible evidence to dispute
that, and therefore cannot establish a causal link between her charges and the furlough. See
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 n.6 (5th Cir. 2003) (“Although
plaintiff’s burden at the prima facie stage is not onerous, the plaintiff must produce at least
some evidence that the decisionmakers had knowledge of his protected activity.”).

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