     Case: 11-20199     Document: 00511623179         Page: 1     Date Filed: 10/05/2011




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

                                                                            FILED
                                                                          October 5, 2011

                                     No. 11-20199                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILLIE RAY JOHNSON,

                                                  Plaintiff–Appellant
v.

MANPOWER PROFESSIONAL SERVICES, INCORPORATED; AIR
LIQUIDE USA, L.L.C.,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2423


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        This case involves claims arising out of Appellant Willie Johnson’s
termination from his position as a contract recruiter for one of Appellee Air
Liquide USA’s divisions, Air Liquide Process & Construction (“ALPC”). Johnson
obtained the position through Appellee Manpower Professional Services, a
staffing company. Because we find that Air Liquide is Johnson’s employer and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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that it failed to articulate a legitimate, non-discriminatory reason for Johnson’s
loss of overtime pay, we REVERSE the district court.’s grant of summary
judgment as to Johnson’s Title VII claim against Air Liquide and REMAND for
further proceedings consistent with this opinion. Additionally, because we find
that Air Liquide was Johnson’s employer and Johnson’s Title VII/§ 1981 claim
against Manpower regarding pre-hiring screening procedures lacks merit, we
AFFIRM district court’s grant of summary judgment for Manpower as to the
Title VII/§ 1981 claims. Finally, because we find that Johnson’s retaliation
claims have been waived, we AFFIRM the district court’s grant of summary
judgment to Manpower and Air Liquide on the FLSA retaliation claims.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In October 2006, Manpower and Air Liquide entered into a staffing
arrangement whereby Manpower would provide temporary employees to Air
Liquide when Air Liquide required such employees. Under this arrangement,
Manpower would recruit employees for Air Liquide and would handle the
administrative and payroll issues, while Air Liquide would decide which of
Manpower’s recruits to hire and would manage and supervise them once hired.
Air Liquide required a recruiter for its ALPC division, and Manpower was
charged with filling that position.
      Johnson,      an    African-American    man,   responded    to   Manpower’s
advertisement for the ALPC recruiter position.         As a part of Manpower’s
application process, Johnson submitted to a background check and a drug test.
Manpower then referred Johnson to Air Liquide, who hired him to fill the ALPC
recruiter position. Johnson started at ALPC in April 2007.
      For the first five weeks that Johnson worked at Air Liquide, he received
overtime for those hours he worked in excess of forty per week, but in May 2007,
Johnson stopped receiving the higher hourly wage for overtime hours. In
October 2007, Johnson asked Jennifer Murphy, his Manpower supervisor and

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                                  No. 11-20199

a Caucasian woman, about why he was no longer receiving increased overtime
pay. Murphy sent Johnson an email on October 15, 2007 stating that his status
from “overtime non-exempt” had been changed to “overtime exempt” at the
request of Dennis Schwartz, Air Liquide’s director of finance and accounting.
Johnson’s overtime status was never restored. Johnson continued to work at
ALPC receiving no extra overtime pay. In November 2007, Johnson’s Air
Liquide supervisor Roger Mayes, an African-American man, gave Johnson a
good performance review, and in December 2007, Johnson received two extra
days of holiday pay due to his good work at Air Liquide. Throughout this time,
however, Air Liquide claims that various staff members expressed
dissatisfaction with Johnson’s work, specifically his pace of filling the positions
for which he was recruiting.
      On April 1, 2008, Murphy sent Air Liquide an email requesting a raise for
Johnson. Around the same time, Manpower’s legal counsel was reviewing its
policy on overtime for workers in their professional business line—the same line
of work that Johnson was in. Meanwhile at Air Liquide, John Andresen, a
Caucasian man, replaced Mayes as Johnson’s Air Liquide supervisor. Andresen
received more negative feedback about Johnson’s job performance. As a result,
Air Liquide asked Manpower to replace Johnson. Johnson was terminated on
April 29, 2008. Manpower filled Johnson’s old position at ALPC with Patricia
LaSalle, a Caucasian female. LaSalle was paid extra overtime pay and did not
have to take a drug test or undergo a background check.
      Johnson sued Manpower and Air Liquide in August 2008 under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for his back overtime pay.
He later settled that suit with Manpower.         As a part of that settlement,
Manpower requested that Johnson execute a broad release of “any and all
claims,” including future claims, against Manpower; Johnson refused. He did,
however, sign a “Limited Release” that “waive[d]” his claims against Manpower,

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“its parent, subsidiary, related, and affiliated companies” of “any and all . . .
claims . . . arising under the [FLSA] or any state of local law concerning payment
of wages . . . includ[ing] but not limited to all claims for payment of wages,
compensatory damages, liquidated damages, or attorney’s fees arising under the
aforesaid statutes.”
      Johnson then went to the Equal Employment Opportunity Commission
and submitted charges against Manpower and Air Liquide. He received a right
to sue letter and commenced this action in July 2009, pursuing claims under
Title VII, Section 1981, and the FLSA.              After discovery was completed,
Manpower and Air Liquide both moved for summary judgment. The district
court granted both motions, Johnson v. Manpower Prof. Servs., Inc., No. 4:09-
CV-2423, 2011 WL 689375 (S.D. Tex. Feb 17, 2011), and Johnson timely
appealed.
                          II. STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)); see also Fed. R. 56(c)
(2010).1 In making this determination, all inferences are drawn in favor of the
non-movant. Id. Our cases require that if the burden at trial rests on the non-
movant, then the movant must “demonstrate an absence of evidentiary support
in the record for the non-movant’s case.” Bayle v. Allstate Ins. Co., 615 F.3d 350,
355 (5th Cir. 2010) (footnote omitted). If the movant does that and “meets the


      1
         Because the summary judgment motions in this case were filed before the effective
date of the most recent amendments to the Federal Rules of Civil Procedure, the previous
version of the Rule 56 was applied.

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initial burden of demonstrating that there exists no genuine issue of material
fact,” then absent rebutting evidence by the non-movant, summary judgment
should be granted. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317[, 322]
(1986)).    Moreover, the non-movant must do more than just raise “‘some
metaphysical doubt’ as to the material facts” to prevail. Thibodeaux v. Vamos
Oil & Gas Co., 487 F.3d 288, 295 (5th Cir. 2007) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
                                   III. DISCUSSION
        Johnson raised many claims in the district court but has only appealed
three claims to this court: (1) his denial of overtime benefits because of his race
under Title VII and § 1981, (2) his being subjected to a background check and
drug test because of his race under Title VII and § 1981, and (3) his allegedly
retaliatory termination under the FLSA.2
A.      Title VII and Section 1981
        Title VII makes it unlawful for an employer to “to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). Additionally,
section 1981 affords all persons within the United States the “same right . . . to
make and enforce contracts” without respect to race. Id. § 1981. Here, Johnson
does not offer any direct evidence of discrimination but rather brings a claim
based on disparate treatment. In McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), the Supreme Court first established a framework for adjudicating
Title VII discrimination claims where the plaintiff lacks such direct evidence.



       2
          Johnson failed to specify in his complaint under what law he is bringing his
retaliation claim. The district court treated Johnson’s claim as one under the FLSA, and we
do the same as Johnson has admitted in his brief to this court that his claim arises under the
FLSA.

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This is the same standard used to analyze claims of disparate impact
discrimination brought under § 1981. Payne v. Travenol Labs., 673 F.2d 798,
818 (5th Cir. 1982); compare Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259
(5th Cir. 2009) (setting out the elements of a prima facie case under Title VII)
with Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (setting out the
elements of a prima facie case under § 1981).
      Under that framework, an employee establishes a prima facie case of
racial discrimination if he can demonstrate that

      (1) he is a member of a protected class, (2) he was qualified for the
      position at issue, (3) he was the subject of an adverse employment
      action, and (4) he was treated less favorably because of his
      membership in that protected class than were other similarly
      situated employees who were not members of the protected class,
      under nearly identical circumstances.

Lee, 574 F.3d at 259. Adverse employment actions under this test are limited
to “ultimate employment decisions such as hiring, granting leave, discharging,
promoting, and compensating” and do not include employment actions that do
not “affect job duties, compensation, or benefits.” Pegram v. Honeywell, Inc., 361
F.3d 272, 282 (5th Cir. 2004). In establishing the similarly situated element, a
plaintiff must identify an employee under “nearly identical” circumstances who
did not have adverse employment action taken against him. Okoye v. Univ. of
Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). Our cases do
recognize that the comparator can be someone employed at a different time than
the plaintiff. Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir.
1984).
      If the plaintiff proves his prima facie case, then “the inference of
intentional discrimination is raised, and the burden of production shifts to the
employer” to offer a legitimate, non-discriminatory reason for the adverse
employment action. Lee, 574 F.3d at 259 (footnotes omitted). If the employer

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provides such a reason, then the inference “drops out and the burden shifts back
to the employee to demonstrate that the employer’s explanation is merely a
pretext for racial bias.” Id. (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 255–56 (1981)). To prove pretext, plaintiff must rebut the non-
discriminatory reason with “substantial evidence.” Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir. 2003).
      In determining whether a given defendant is an employer, we use the
standards laid out in Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117 (5th Cir.
1993) and summarized in Muhammed v. Dall. Cnty. Cmty. Supervision &
Corrections Dep’t:

      Determining whether a defendant is an “employer” under Title VII
      involves a two-step process. First, the court must determine
      whether the defendant falls within Title VII’s statutory definition
      of an “employer.” Title VII defines an “employer” as “a person
      engaged in an industry affecting commerce who has fifteen or more
      employees . . . , and any agent of such a person . . . .” If the
      defendant meets this definition, the court must then analyze
      whether an employment relationship exists between the plaintiff
      and the defendant.

      To determine whether an employment relationship exists within the
      meaning of Title VII, we apply a hybrid economic realities/common
      law control test. The most important component of this test is the
      right to control the employee’s conduct. When examining the
      control component, we have focused on whether the alleged
      employer has the right to hire, fire, supervise, and set the work
      schedule of the employee. . . . The economic realities component of
      the test focuses on whether the alleged employer paid the
      employee’s salary, withheld taxes, provided benefits, and set the
      terms and conditions of employment.

479 F.3d 377, 380 (5th Cir. 2007) (footnotes and internal quotation marks
omitted).




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       1.     Overtime Denial
       Denial of overtime pay is an adverse employment action because it relates
to Johnson’s compensation. Peagram, 361 F.3d at 282; cf. Shannon v. Bell
Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (holding that denial of the
opportunity to work overtime is an adverse employment action sufficient to
make out a priam facie case under Title VII). Moreover, when using LaSalle, a
Caucasian female who did receive overtime pay, as the comparator, Johnson has
made out a prima facie case for discrimination. Because of this, we are required
to determine who Johnson’s employer was.3
       Both Manpower and Air Liquide meet the statutory definition of an
employer under Title VII so resolution of this question turns on the application
of the hybrid economic realities/right to control test. The staffing arrangement
agreement sets out the respective responsibilities of Manpower and Air Liquide.
Manpower’s responsibilities after it placed a worker at Air Liquide were:

       1) Maintaining personnel and payroll records; 2) Paying,
       withholding, and transmitting payroll taxes; 3) Making
       unemployment contributions; 4) Handling unemployment and
       workers' compensation claims involving Assigned Employees with
       respect to compensation that [Manpower] has agreed to pay; 5) and
       removing any Assigned Employee at the request of [Air Liquide],
       provided there is a valid legal reason for doing so.

       We consider first the factors that go towards the more important
assessment of right to control. Manpower, while technically in charge of hiring
and firing, does so only at Air Liquide’s approval with respect to hiring and at
Air Liquide’s request with respect to firing. Moreover, while Johnson had
supervisors at both Air Liquide and Manpower, it seems that Murphy, Johnson’s



      3
        The district court did not analyze who Johnson’s employer was because it found that
both Air Liquide and Manpower had provided legitimate, non-discriminatory reasons for
denying Johnson overtime.

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Manpower supervisor, merely responded to the requests of Johnson’s Air Liquide
supervisors—Schwartz, Mayes, and Andresen.         Additionally, Johnson’s job
performance was reviewed by Air Liquide. To be sure, almost all of the factors
under the economic realities test point to Manpower being Johnson’s employer,
as Manpower paid Johnson and withheld taxes on his behalf. Nonetheless,
because the majority of the more important right to control factors point to Air
Liquide as Johnson’s employer, we conclude that Air Liquide and not Manpower
is Johnson’s employer for the purposes of his overtime denial claim. See Deal,
5 F.3d at 119. Therefore, we affirm the district court’s grant of summary
judgment to Manpower as to Johnson’s overtime denial claim against it.
      Reviewing the summary judgment record reveals that Air Liquide offered
no reason for changing Johnson’s status to overtime exempt. Although, as the
district court concluded, there does not appear to be any evidence that Air
Liquide’s decision was based on Johnson’s race, Johnson has raised an inference
of discrimination by establishing a prima facie case under McDonnell Douglas.
Lee, 574 F.3d at 259 (footnote omitted). Such a showing requires the employer
to give a legitimate, non-discriminatory reason for the adverse employment
action, and where no such reason is given the employer cannot be awarded
summary judgment. See Alvarado v. Tex. Rangers, 492 F.3d 605, 617 (5th Cir.
2007).     Therefore, we reverse the district court with respect to Johnson’s
overtime denial claim against Air Liquide.
      2.      Background Check and Drug Testing – Manpower
      As stated above, for an employment action to form the basis of either a
Title VII or a § 1981 claim, it must be an “ultimate employment decision,” which
includes those affecting “job duties, compensation, or benefits.” Pegram, 361
F.3d at 282. Although Johnson did show that LaSalle, his replacement, did not
undergo these pre-hire screening procedures, these are not the type of actions
that give rise to a disparate treatment claim, as neither the background check

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nor drug test affected Johnson’s duties, compensation, or benefits. Johnson
admitted in his surreply to Manpower’s motion for summary judgment that
these pre-hiring screening procedures are not actionable under the standard set
forth in Pegram. Therefore, we affirm the district court on this ground.
B.      Retaliation
        The FLSA makes it unlawful for anyone to “to discharge or in any other
manner discriminate against any employee because such employee has filed any
complaint or instituted or caused to be instituted any proceeding under or
related to [the FLSA.]” 29 U.S.C. § 215(a)(3). The McDonnell Douglas burden-
shifting framework has been adapted to apply to claims brought under the
FLSA:
        First, a plaintiff must make a prima facie showing of (1)
        participation in protected activity under the FLSA; (2) an adverse
        employment action; and (3) a causal link between the activity and
        the adverse action. If a plaintiff meets this burden, the defendant
        must then articulate a legitimate, non-discriminatory reason for its
        decision. The burden then shifts to the plaintiff to demonstrate that
        the proffered reason is a pretext for discrimination.

Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008).
        1.    As to Manpower
        The district court held that Johnson was precluded from claiming against
Manpower because when he settled his first lawsuit, he signed a release that
effectively waived any claim under the FLSA. Johnson admits that his claim
arises under the FLSA; the only question is whether this release covers this
FLSA retaliation claim. Texas rules of construction control the interpretation
of this release. Austin Bldg. Co. v. Nat’l Union Fire Ins. Co., 432 S.W.2d 697,
701 (tex. 1968) (“The effect of a contract is to be determined by the law intended
by the parties to control, and in the absence of a contrary manifestation, the
presumption is that the parties contract with reference to where the contract


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was made.”). When called upon to apply state substantive law, we look to the
decisions of the state’s highest court, and where there is no definitive answer, we
“must determine, in its best judgment, how the state’s highest court would
resolve the issue if presented with it.” Holt v. State Farm Fire & Cas. Co.
        Releases can be broad or narrow, but regardless, “[i]n order to effectively
release a claim in Texas, the releasing instrument must ‘mention’ the claim to
be released.” Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.
1991). For a claim to be mentioned, it need only be able to be fairly encompassed
in the language of the release. See Keck, Mahin & Cate v. Nat’l Union Fire Ins.
Co. of Pittburgh, 20 S.W.3d 692, 698 (Tex. 2000). “Under Texas law, a release
is a contract,” Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990), and when
construing a contract, it is well-known that “the primary concern of the court is
to ascertain the true intentions of the parties as expressed in the instrument.”
4
    Compliance Source, Inc. v. GreenPoint Mortg. Funding, Inc., 624 F.3d 252, 259
(5th Cir. 2010) (quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229
(Tex. 2003)) (internal quotation marks omitted).
        The relevant language of the “Limited Release” Johnson signed is:




        4
            There are some Texas cases that seem to suggest that evidence beyond the four
corners of the contract may be relevant to the inquiry: “To give effect to the parties’ intent[,]
a release will be construed in light of the facts and circumstances surrounding its execution.”
Tricentral Oil Trading, Inc. v. Annesley, 809 S.W.2d 218, 221 (Tex. 1991). The cases where
the Texas courts look beyond the express terms of the agreement are ones where a party has
not known about a right at the time it was releasing it. Such a situation is distinct from what
Johnson claims here—district court construed the release more broadly than he intended it.
See, e.g., id. at 221 (in a case dealing with a resulting trust, discussing how one party failed
to disclose its claim to trust property to the other parties); Williams, 789 S.W.2d at 264 (in a
case dealing with a release of medical claims arising from an automobile accident, discussing
how the executing party to the release did not know of his injury at the time he signed the
release). Johnson knew about his retaliation claim against Manpower before he signed the
release because the basis of that claim was his termination, which happened nearly a year
before Johnson signed the release. Therefore, we only need to look to the language of the
release to see if Johnson’s current FLSA claim is “mentioned.”

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      Willie Johnson . . . hereby waives, and fully releases, Manpower
      Inc., its parent, subsidiary, related, and affiliated companies from
      any and all liability, claims, demands, actions, causes of action,
      suits, grievances, . . . and remedies of any type that Johnson now
      has of may hereafter have from the beginning of time arising under
      the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. or any state or
      local law concerning the payment of overtime wages. This Release
      shall include but not be limited to all claims for payment of wages,
      compensatory damages, punitive damages, liquidate damages, or
      attorney’s fees arising under the aforesaid statutes.

Although stylized as a “Limited Release,” the language is broad, releasing
Manpower and all related company from “any and all liability [and] claims . . .
arising under the [FLSA] or any state or local law concerning the payment of
overtime wages.” Johnson argues that this should be read as limited to FLSA
claims “concerning the payment of overtime wages.” Such a reading is incorrect.
We conclude that the use of the disjunctive “or” between FLSA and the “any
state or local law” means that the modifier “concerning the payment of overtime
wages” only relates to and modifies the latter antecedent, “any state or local
law,” and not also FLSA. See Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d
122, 134 n2. (Tex. App.—Corpus Christi 2006) (“Although the doctrine of last
antecedent has been generally applied as a canon of statutory and constitutional
interpretation, we see no reason why it should not be equally applicable to issues
of contract construction.”); cf. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d
578, 580–81 (Tex. 2000) (applying the doctrine of last antecedent, which states
“a qualifying phrase . . . must be confined to the words and phrases immediately
preceding it to which it may, without impairing the meaning of the sentence, be
applied”). Therefore, Johnson’s execution of the “Limited Release” does operate
to preclude his FLSA retaliation claim and the district court is affirmed on this
ground.




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       2.      As to Air Liquide
       Johnson contends that the reason the district court found for Air Liquide
was that Johnson presented insufficient evidence of pretext to rebut Air
Liquide’s proffered legitimate, non-discriminatory reason for terminating
Johnson. In fact, that was an alternative holding by the district court; the
district court determined that Johnson failed to state a prima facie case for
retaliation because Johnson failed to show his participation in any protected
activity under the FLSA. Johnson has presented no reasons for reversing the
district court as to the failure to make out a prima facie case and therefore, his
claims are waived.5 Fed. R. App. P. 28(a)(9)(A); see also Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994) (“A party who inadequately briefs an issue is
considered to have abandoned the claim.”).
                                     IV. CONCLUSION
       Because we find that Air Liquide is Johnson’s employer and failed to
articulate a legitimate, non-discriminatory reason for Johnson’s loss of overtime
pay, we REVERSE the district court’s grant of summary judgment as to
Johnson’s Title VII denial of overtime claim against Air Liquide and REMAND
for further proceedings consistent with this opinion. Relatedly, we AFFIRM the
district court’s grant of summary judgment for Manpower as to Johnson’s Title
VII denial of overtime claim because we find that Air Liquide was Johnson’s
employer. As to Johnson’s Title VII claim against Manpower regarding pre-
hiring screening procedures, we find that these procedures are not ultimate
employment decisions and therefore are not within the ambit of Title VII, and
we AFFIRM the district court’s grant of summary judgment for Manpower as to



       5
        Johnson also alleged error based on the district court’s allegedly improper admission
of John Andresen’s “declaration.” As that evidence only relates to Air Liquide’s legitimate,
non-discriminatory reason for terminating Johnson and Johnson has waived his retaliation
claim by failing to brief the issue of prima facie case for retaliation, that point of error is moot.

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this claim. Finally, because we find that Johnson’s FLSA retaliation claims have
been waived, by release as to Manpower and by failure to brief it as to Air
Liquide, we AFFIRM the district court’s grant of summary judgment to
Manpower and Air Liquide on the retaliation claims.
      AFFIRMED in part, REVERSED in part; REMANDED.




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