     Case: 14-10148      Document: 00512819280         Page: 1    Date Filed: 10/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 14-10148
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 29, 2014
CHASITY MEDLOCK,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

ACE CASH EXPRESS, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2616


Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant, Chasity Medlock (“Medlock”), appeals the district court’s
grant of summary judgment in favor of Appellee, Ace Cash Express, Inc. (“Ace”)
in this Title VII retaliation action. The issue on appeal is whether the district
court was correct in concluding that Ace had a legitimate, non-retaliatory




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 14-10148
reason for terminating Medlock’s employment. We agree with the district
court and AFFIRM.
                                        I.
      Medlock was employed by ACE from February 2005 until she was
terminated for sexual harassment in August 2011. Medlock held the position
of Supervisor in the back-end collections department at the time of her
discharge.   Medlock was one of 25 employees in the back-end collections
department that Ace terminated from March 2011 through December 2011 for
policy violations including, but not limited to, neglect of duty, insubordination,
falsification of records, inappropriate sexual conduct, and drug and alcohol use.
Medlock was terminated after a report that she exposed her breasts to another
department supervisor.      After exhausting her administrative remedies,
Medlock filed a Title VII discrimination lawsuit based on race, sex and
retaliation against Ace in the U.S. District Court for the Northern District of
Texas, but the race discrimination claim was ultimately dismissed by joint
stipulation of the parties. Ace then filed a motion for summary judgment as to
Medlock’s remaining sex discrimination and retaliation claims, which the
district court granted.
                                       II.
      We review the grant of summary judgment de novo, viewing the evidence
in a light most favorable to the non-moving party. Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). Summary judgment is
appropriate only “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(a). “A genuine dispute of material fact means that ‘evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Royal, 736 F.3d at 400 (citation omitted).


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                                 No. 14-10148
                                       III.
      On appeal, Medlock fails to raise or argue the Title VII sex
discrimination claim. Thus we consider this issue abandoned. See Webb v.
Investacorp, Inc., 89 F.3d 252, 257, n.2 (5th Cir. 1996).
      Accordingly, we proceed to the retaliation claim. Medlock argues that
she was fired because: (1) she encouraged two subordinate employees to report
sexual harassment by Supervisor Harold Walker to Human Resources; and
(2) she confronted Walker about one of those allegations. This court has held
that the McDonnell Douglas burden shifting framework applies to Title VII
retaliation claims. See Royal, 736 F.3d at 400 (citation omitted). McDonnell
Douglas requires that:
      (1) first, the employee must demonstrate a prima facie case of
      retaliation; (2) the burden then shifts to the employer, who must
      state a legitimate non-retaliatory reason for the employment
      action; and (3) if that burden is satisfied, the burden then
      ultimately falls to the employee to establish that the employer’s
      stated reason is actually a pretext for unlawful retaliation.
Id. In order to demonstrate a prima facie case of retaliation, Medlock must
prove “(1) she engaged in protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the protected activity and the
adverse employment action.” Id. The district court, reviewing the evidence in
a light most favorable to Medlock, assumed, arguendo, that Medlock
established a prima facie case of retaliation. While Medlock’s termination was
clearly an adverse employment action and, by opposing sexual harassment,
Medlock was engaged in protected activity, the evidence does not clearly show
that Medlock met the causation standard.
      “Title VII retaliation claims must be proved according to traditional
principles of but-for causation, not the lessened causation test stated in
§ 2000e–2(m).” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533

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                                  No. 14-10148
(2013). In order to show that retaliation was the “but-for” reason for her
termination, Medlock would have to show that Ace was aware of her
involvement in the protected activity.      This court has held that “[i]f an
employer is unaware of an employee’s protected conduct at the time of the
adverse employment action, the employer plainly could not have retaliated
against the employee based on that conduct.” Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (citation omitted).
      The decision to terminate Medlock was made by Elizabeth Lalli Reese,
the Human Resources Director and Robert King, the Vice President of Loan
Collections.   Both Reese and King testified that they were unaware of
Medlock’s involvement in opposing sexual harassment allegations against
Walker. Medlock admittedly did not report the allegations against Walker to
Human Resources or to either of her superiors. Further, the evidence does not
show that any other employee reported these instances to Reese or King.
Alternatively, Medlock attempts to impute Walker’s retaliatory animus to
King using the cat’s paw theory of liability. See Haire v. Bd. of Supervisors of
La. Univ. Agric. & Mech. Coll., 719 F.3d 356, 366 n.11 (5th Cir. 2013) (citations
omitted). The district court carefully analyzed this assertion and correctly
concluded that even if this theory still applied to Title VII retaliation cases in
light of Nassar’s heightened causation standard, Medlock did not meet the
“but-for” causation standard. With no evidence that retaliation was the “but-
for” cause of her discharge, Medlock does not establish a prima facie case of
retaliation.
      However, even assuming, arguendo, that Medlock established a prima
facie case of retaliation, Ace met its burden to provide a legitimate, non-
retaliatory reason for Medlock’s termination. Both Reese and King testified
that in addition to the stated reason for Medlock’s termination, they also relied
on previous reports of inappropriate conduct by Medlock in making their
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                                 No. 14-10148
decision. The burden then shifts back to Medlock to prove pretext. In order to
show pretext for retaliation, Medlock asserts that Ace did not have a good faith
belief in Walker’s report that she exposed her breasts. Medlock reasons that
Ace did not conduct a proper investigation or that the investigation came to
the wrong conclusion.     While Medlock’s proffered evidence might lead a
reasonable person to agree that the investigation was deficient, the district
court correctly concluded that evidence of an improper investigation does not
establish a discriminatory motive. See Bryant v. Compass Grp. USA Inc., 413
F.3d 471, 478 (5th Cir. 2005). “Management does not have to make proper
decisions, only non-discriminatory ones.” Id. (citing Little v. Republic Refining
Co., 924 F.2d 93, 97 (5th Cir. 1991)). Thus, a deficient investigation does not
prove pretext for retaliation.
                                      IV.
      Accordingly, the district court prudently examined the issues and
properly granted summary judgment for Ace. We AFFIRM.




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