                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
             IN THE UNITED STATES COURT OF APPEALS           January 21, 2004
                      FOR THE FIFTH CIRCUIT
                    _________________________            Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-31240
                    _________________________


                          Edwin O. Ware, IV,

                        Plaintiff - Appellant,

                                versus

                           CLECO Power LLC,

                        Defendant - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                   District Court No. 01-CV-1844
_________________________________________________________________

Before DEMOSS, DENNIS, and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     Appellant Edwin O. Ware IV (“Ware”) sued his former

employer, CLECO Power (“CLECO”), alleging that CLECO had

discriminated against him on the basis of race and had terminated

him in retaliation for his complaints about racial

discrimination, in violation of Title VII, 42 U.S.C. § 2000e-2

et seq. (“Title VII”), and LA. REV. STAT. § 51:2256.   Ware’s



     1
     Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                 -1-
complaint also contained claims for intentional infliction of

emotional distress, and for violation of Louisiana’s

Whistleblower Statute, LA. REV. STAT. § 23:967.    Ware now appeals

the district court’s grant of summary judgment against him on all

of his claims.

Factual Background

     Ware began working at CLECO in 1987 and was transferred to

the credit and collections department in 1993.      In the fall of

2000, Ron Smith was hired as his supervisor.      Both parties

concede that the relationship between the two was contentious

from the beginning.   Ware told several co-workers he believed

Smith was hired because he was African-American.      After a staff

meeting on November 27, 2000, Smith called Ware into his office

and counseled him for exhibiting negative body language and for

being argumentative during the meeting.   Immediately after this

meeting, Ware visited one of Smith’s superiors, Anthony Bunting,

to complain about Smith.   On December 1, 2000, several

supervisors, including Smith, met with Ware and asked him to stop

criticizing Smith to co-workers.

     On January 11, 2001, Ware complained to Cathy Powell, a

CLECO Senior Vice-President.   Ware told her he believed there was

a “Black Coalition” at CLECO in which African-American employees

were hiring and promoting their African-American friends.        Ware

alleges that between December 5, 2000, and January 12, 2001,

another employee in his department, Ellen Scroggs, informed Smith

                                -2-
that Ware was saving Smith’s e-mail messages in order to build a

case against Smith.   On January 17, 2001, Smith wrote a memo

concluding that Ware should be suspended without pay for three

days, or be given notice in lieu of termination.2

     When Ware returned to work on Monday, January 22, 2001, he

met with the CLECO employee who was following up his complaint to

Powell, and was instructed to take the next week off with pay.

During the week of January 22, 2001, CLECO supervisors conducted

two separate investigations into Ware’s complaints and his work

history. Smith interviewed all of the employees in Ware’s

department to see if Ware had been complaining to them about

Smith’s management.   While the employees reported hearing Ware

criticize management, it was not clear if these comments were

made before or after Ware had been asked to stop criticizing

management on December 1, 2000.

     On January 26, 2001, Smith met with other CLECO supervisors

and proposed that Ware be terminated.   Smith supported his

decision by arguing that Ware was causing a morale problem in the

department and not completing his assigned work.    On January 29,

2001, a CLECO human resources employee met privately with Ware

and told him that he was being terminated for “not being a team

player.”




     2
      Ware was on vacation at this time.

                                  -3-
Standard of Review

     A grant of summary judgment is reviewed de novo.     Hanks v.

Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).

In reviewing summary judgment motions, courts are to make all

reasonable inferences in favor of the non-moving party and may

not make credibility determinations or weigh the evidence.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Summary judgment is proper if the movant can show that there is

no genuine issue as to any material fact.    FED. R. CIV. P. 56(c).

To defeat a motion for summary judgment, the non-movant must show

that there is indeed a genuine issue of material fact, based on

evidence greater than mere conclusory allegations or

unsubstantiated assertions.   Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994);   Taylor v. Gregg, 36 F.3d 453, 457

(5th Cir. 1994).

Retaliation Claim

     In his complaint, Ware alleged violations of both LA. REV.

STAT. § 51:2256 and Title VII.3    To make a prima facie case of

retaliation under Title VII, a plaintiff must show that: 1) he

engaged in activity protected by Title VII; 2) there was an



     3
      Because Louisiana courts look to Title VII standards    to
apply § 51:2256, those are the only standards that need to    be
examined here. See Devillier v. Fidelity & Deposit Co. of     Md.,
709 So.2d 277, 280 (La. Ct. App. 3 Cir. 1998); McMillan v.
Corridan, No. Civ. A. 97-3981, 1999 WL 729250, at *2 (E.D.    La.
Sept. 15, 1999).

                                  -4-
adverse employment action; and 3) there was a causal nexus

between the protected activity and the adverse employment action.

Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339

(5th Cir. 1999).   To show a causal nexus, a plaintiff must show

only that the protected activity was among the factors motivating

the adverse employment action, not that it was the sole

motivating factor.    See Long v. Eastfield College, 88 F.3d 300,

305 n.4 (5th Cir. 1996).   Temporal proximity between the

protected activity and the adverse employment action may be a

significant factor in showing this causal link.    See Evans v.

City of Houston, 246 F.3d 344, 356 (5th Cir. 2001; Swanson v.

Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).     A prima

facie case may also be supported by a showing that the person who

ultimately decided on the adverse employment action was

improperly influenced by the person against whom a retaliatory

motive was alleged.   Gee v. Principi, 289 F.3d 342, 346 (5th Cir.

2002).

     If the plaintiff succeeds in making a prima facie case of

retaliation, the burden then shifts to the defendant to show a

legitimate non-discriminatory rationale underlying the employment

action.   Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001).

If the defendant is able to show a legitimate rationale for the

employment action, the burden shifts back to the plaintiff to

show that defendant’s stated rationale is a mere pretext for the


                                 -5-
real, discriminatory purpose that motivated the action.     See

Aldrup, 274 F.3d at 286.   This Court has noted that an employer’s

reliance on subjective criteria to make employment decisions can

provide “a ready mechanism” for racial discrimination.    Rowe v.

Gen. Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972).

     The parties concede that Ware’s complaint to Powell was a

protected activity and that Ware’s termination was an adverse

employment action.   To make a prima facie case of retaliation,

Ware must only show that there was a causal nexus between his

complaint and his termination.    See Casarez, 193 F.3d at 339.

Ware made his complaint on January 11, 2001 and the decision to

terminate him was made on January 26, 2001.   This close timing

suffices to shift the burden to CLECO to state a legitimate non-

discriminatory reason for terminating Ware.    See Evans, 246 F.3d

at 356; Swanson, 110 F.3d at 1188.

     CLECO claims that Ware was fired because of insubordination

in continuing to criticize Smith after being asked to stop.

However, Smith acknowledged that his decision to recommend

terminating Ware was based, at least partially, on Ware’s

attitude towards Smith, and Ware’s effect on department morale.

These highly subjective judgments, could easily be pretext for

retaliation.   See Rowe, 457 F.2d at 358.   Smith’s influence on

the decision to fire Ware also contributes to showing a

retaliatory motive because Ware had complained to Powell and


                                 -6-
Scroggs about Smith.   See Gee, 289 F.3d at 346.    As a result, a

genuine issue of material fact exists about whether CLECO

retaliated against Ware in violation of Title VII and LA. REV.

STAT. § 51:2256.   Therefore, the district court erred in granting

summary judgment to CLECO on these claims.

Intentional Infliction of Emotional Distress

     Ware alleged that his termination from CLECO amounted to

intentional infliction of emotional distress.     Under Louisiana

law, a plaintiff alleging intentional infliction of emotional

distress must prove that: 1) defendant’s conduct was so extreme

in degree and character that it went beyond all bounds of decency

and was utterly intolerable in a civilized community; 2) that

such conduct caused severe emotional distress; and 3) that the

defendant intended, by performing the acts complained of, to

inflict severe emotional distress upon the plaintiff, or that the

defendant knew that such severe distress would be certain or

substantially certain to result from the conduct.      White v.

Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).     In employment

situations, Louisiana courts generally limit this showing to

situations of repetitive harassment.    See id.    Suffering must be

extreme to meet this standard.    Smith v. Amedisys, 298 F.3d 434,

449 (La. App. 4 Cir. 2002).

     Ware alleged that he suffered depression, sleeplessness,

stomach problems and the loss of self-esteem as a result of his


                                 -7-
termination from CLECO and the manner in which the termination

was conducted.    Ware did not seek professional treatment for any

of these problems, nor did he take any medication for them.

Ware’s deposition indicates that a CLECO supervisor met privately

with Ware and explained the termination decision, and gave Ware

the opportunity to resign in lieu of termination.     Ware did not

allege any misconduct by the supervisor during this meeting, nor

did he allege any history of repetitive harassment by CLECO.

Making all reasonable inferences in favor of Ware, his

allegations of intentional infliction of emotional distress fail

because they cannot be considered actions that go “beyond all

bounds of decency” and are “utterly intolerable in a civilized

community.”    See White, 585 So.2d at 1205.    The district court

correctly granted summary judgment in favor of CLECO on this

claim.

Ware’s Claim under Louisiana Civil Code Article 2315

     Ware made a further claim that CLECO breached its legally

recognized duty to avoid intentionally inflicting emotional

distress upon him, thereby committing a tort under LA. CIV. CODE

art. 2315.    LA. CIV. CODE art. 2315 is a general tort statute

which provides a cause of action for plaintiffs alleging the

breach of a legally recognizable duty.    Gluck v. Casino Am.,

Inc., 20 F. Supp.2d 991, 995 (W.D. La. 1998).     Ware’s claim does

not meet the Louisiana standard for a cause of action for



                                 -8-
intentional infliction of emotional distress.    Therefore his

claim under LA. CIV. CODE art. 2315, based on the same

allegations, cannot withstand summary judgment.

Whistleblower Claim

     In his amended complaint, Ware alleged that CLECO violated

Louisiana’s Whistleblower Statute, LA. REV. STAT. § 23:967.

Specifically, Ware claims he made good-faith objections to what

he alleges was the practice within CLECO of expunging the debts

of black politicians.   LA. REV. STAT. § 23:967 protects employees

who disclose or threaten to disclose an act or practice at their

place of employment that violates of state law.     Puig v. Greater

New Orleans Expressway Comm’n, 772 So.2d 842, 845 (La. App. 5

Cir. 2000).   To state a claim under LA. REV. STAT. § 23:967, a

plaintiff must allege the violation of state law.     Id.   Nowhere

in his amended complaint does Ware indicate which state law, if

any, was violated by CLECO and therefore he fails to state a

claim under La. Rev. Stat. § 23:967.   See id.    The district court

correctly granted summary judgment in favor of CLECO on this

claim.

Conclusion

     For the reasons discussed herein, this Court AFFIRMS the

summary judgment of the district court as to all claims except

for the claims under Title VII and LA. REV. STAT. § 51:2256.     This

Court REVERSES the summary judgment as to Ware’s claims under


                                -9-
Title VII and LA. REV. STAT. § 51:2256, and REMANDS this case for

further action consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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