     Case: 13-20562   Document: 00512644550   Page: 1   Date Filed: 05/28/2014




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

                                                                         FILED
                               No. 13-20562                          May 28, 2014
                                                                    Lyle W. Cayce
AMY R. GORMAN,                                                           Clerk


                                         Plaintiff - Appellant
v.

VERIZON WIRELESS TEXAS, L.L.C.; VERIZON WIRELESS SERVICES,
L.L.C.; GTE MOBILNET OF SOUTH TEXAS, LIMITED PARTNERSHIP,

                                         Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Amy Gorman contends she was discharged by Verizon in retaliation for
complaining of discrimination and harassment, in violation of the Texas
Commission on Human Rights Act. She filed this suit in Texas state court.
Verizon removed it to federal court on the basis of diversity. Thus Texas law
must apply in this appeal; which leads us to the question of whether the
exhaustion of administrative remedies under Texas law is jurisdictional or
merely a condition precedent that may be forgiven.        We hold that the
exhaustion requirement here—the requirement to receive a right to sue letter
before filing suit—is only a condition precedent. Thus, when we consider the
appeal on its merits, we find no merit, based on the absence of causation
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between Gorman’s complaints and her discharge; the decisionmaker had no
knowledge of the alleged protected activity claimed by Gorman. Although the
Verizon executive terminating her had no knowledge of her complaint, she did
have knowledge of a complex commission-generating scheme in which Gorman
was implicated and from which she profited.
                                       I.
      Amy Gorman worked in government sales for the related corporate
entities Verizon Wireless Texas, L.L.C., Verizon Wireless Services, L.L.C.,
and GTE Mobilnet of South Texas, L.P. (collectively, “Verizon”). Gorman
supervised a team of six. Her immediate superior was Darryl Williams, who
also worked in government sales. Still further above her was her supervisor
Jason Smith, who oversaw business sales.
      Gorman alleged that Smith discriminated against her on the basis of her
sex. In the district court’s words, she alleged that, “Smith consistently treated
her worse than her male colleagues. For example, she alleges that he excluded
her from meetings, social events, networking functions, and dinners; excluded
her from important business emails and other communications; and, in
general, treated her in a more derogatory fashion, including cursing and name-
calling.” Gorman v. Verizon Wireless Texas, LLC, No. 4:11-CV-729, 2013 WL
4520187, at *1 (S.D. Tex. Aug. 24, 2013) (internal quotation marks and
citations omitted).
      In September 2009, Smith advised Gorman she should consider taking a
different, perhaps less prestigious position that did not involve managing a
team. This advice was prompted because Gorman and her team had failed to
meet sales quotas throughout 2009. Gorman initially agreed that she would
move to this position. Before changing positions, however, Gorman met with
the Verizon human resources department.          There, she complained about
Smith’s allegedly discriminatory conduct.     This complaint is the protected
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                                No. 13-20562
activity that she engaged in, and which she claims resulted in her eventual
termination.
      Gorman’s meeting with human resources led her to decide not to take
the new job after all and to remain in her current job. Several months later,
in December or January 2010, Gorman voluntarily accepted a third position at
Verizon, which could have resulted in a salary cut, depending on her
performance.
      Verizon acted on Gorman’s complaints about Smith. Deeone McKeithan
of Verizon’s human resources department met with Smith to investigate
Gorman’s allegations. McKeithan did not mention Gorman as the source of
the complaint. McKeithan asked questions about several of the two hundred
employees Smith had under him, and one of the employees discussed was
Gorman.    McKeithan concluded there was no basis to believe Smith had
discriminated against or harassed anyone.
      Around the time of the complaint, in October 2009, Gorman became
enmeshed in a manipulative scheme by Verizon employees to enlarge their
commissions at Verizon’s expense. This misdeed came to light in March 2010,
when the Texas Department of Criminal Justice (“TDCJ”), the state agency
customer who benefited indirectly from the employee scheme, contacted
Verizon about an invoice it believed it had mistakenly received. This complaint
set off an investigation that revealed a scheme dating back to October 2009. It
implicated Gorman, Gorman’s supervisor Williams, Gorman’s subordinate
Robert Whittleman, and another Verizon employee Chris Medlenka (“TDCJ
Team”). Through this team, Verizon committed to give the TDCJ 200 phones
for free as well as a $20,000 credit. At the same time, Verizon was to activate
200 lines but then immediately suspend them for six months, ensuring TDCJ,
the customer, would be charged nothing. This arrangement would be cancelled
after six months. The Verizon employees involved would receive commissions,
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                                   No. 13-20562
because after six months any contract cancellations would not undo
commissions previously awarded to employees. TDCJ was an innocent party
in the scheme, as far as the record shows.
         Verizon lost $75,000 as a result of the scheme. It began to investigate
the scheme’s details in April 2010. Victor Fettes, who worked in Verizon’s
finance department, assigned Sandra Cocetti, another Verizon employee, to
investigate the TDCJ transaction. During the investigation, one of the TDCJ
team confessed that the scheme’s purpose was to gain commissions. He also
stated that Gorman was fully aware of the transaction’s details. Although
Gorman questioned the deal and raised concerns about the transaction to her
immediate superior, Williams, she did nothing more. Williams was part of the
TDCJ team and apparently in on the scheme as well. Gorman was on vacation
when the scheme was initiated. She did, however, gain $1,200 in commissions
from the transaction.
         Cocetti’s findings were reported to Fettes (finance department), Smith
(Gorman’s superior), and McKeithan (human resources department). These
three relayed the findings to Kay Henze, Verizon’s regional president. Henze
decided to fire the entire TDCJ team. Her first reason was that the TDCJ team
violated the honesty policy of Verizon’s code of conduct in structuring the
transaction. Her second reason was that even if those fired did not know the
full details of the transaction, they should have known given the large size of
the deal. Fettes, Smith and McKeithan concurred in the termination decision.
Gorman was fired on July 7, 2010. The other TDCJ team members were also
fired.
         Gorman filed suit in Texas state court on November 19, 2010, alleging
claims of gender discrimination and retaliation under the Texas Commission
on Human Rights Act (“TCHRA”). Tex. Labor Code Ann. § 21.001 et seq. (West
2013). Before filing suit, Gorman had also filed charges of discrimination with
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                                  No. 13-20562
the federal Equal Employment Opportunity Commission (“EEOC”) and had
received a right to sue from that agency. At the time of filing suit, she had also
filed a charge of discrimination with the Texas Workforce Commission (“TWC”)
but had not yet received her right to sue from that agency. After filing, she
received a right to sue letter from the TWC.
      Verizon removed the case to the United States District Court for the
Southern District of Texas and eventually moved for dismissal or, in the
alternative, summary judgment. The district court declined to dismiss the
claims based on Gorman’s failure to receive a TWC right to sue letter before
filing her suit, holding that her eventual receipt of the letter had cured her
initial failure. Gorman, 2013 WL 4520187 at *3, n.1. The court then granted
summary judgment in favor of the defendants on Gorman’s gender
discrimination and retaliation claims. It held that Gorman failed to make her
prima facie case on either claim. Id. at *3–6. Alternatively, on the retaliation
claim, Gorman had also failed to rebut Verizon’s non-pretextual reason for
firing her.   Id. at *6.    Gorman now appeals the judgment regarding her
retaliation claim only.
                                       II.
      We first address Verizon’s argument that we should dismiss Gorman’s
case on jurisdictional grounds. The district court declined to do so. We review
jurisdictional questions de novo. Pederson v. Louisiana State Univ., 213 F.3d
858, 869 (5th Cir. 2000).
      So, turning to the statute at issue. The TCHRA is modeled on Title VII.
Like Title VII, the TCHRA provides that certain administrative steps are
required before pursuing judicial remedies. Schroeder v. Texas Iron Works,
Inc., 813 S.W.2d 483, 488 (Tex. 1991). Among these is filing a complaint with
the TWC. Afterwards, a judicial complaint may be filed only after the TWC
either dismisses the administrative complaint or the TWC fails to resolve the
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                                     No. 13-20562
complaint within 180 days. Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir.
2001). It is undisputed that Gorman did not meet either of these requirements
before filing suit. 1    The district court, however, excused this failure as
subsequently cured by Gorman’s receipt of a TWC right to sue letter after the
suit commenced. Gorman, 2013 WL 4520187 at *3, n.1. The court reasoned
that curing the initial defect was possible because the TCHRA right to sue
requirement was not jurisdictional. See id.
       At issue on appeal is whether, under Texas law, failure to receive a right
to sue letter is a jurisdictional defect, which cannot be excused, or a condition
precedent, which may. The Texas Supreme Court held in Schroeder v. Texas
Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991), that failure to file an
administrative complaint and pursue administrative remedies was a
jurisdictional prerequisite. At the time of Schroeder, a TCHRA provision also
mandated that a civil action must be filed within one year from the filing of the
administrative complaint. Schroeder held that this requirement, too, was
jurisdictional. Id. at 487, n.10.
       The Fifth Circuit subsequently relied on Schroeder in holding that,
under the TCHRA, exhaustion of state remedies was a jurisdictional
requirement. Jones, 235 F.3d at 974. Jones held that the court could not
excuse a plaintiff’s failure to obtain a right to sue letter from the TWC, as this
requirement was jurisdictional. Id.
       Since our opinion in Jones, however, the Texas Supreme Court has
overturned Schroeder, explicitly and implicitly. In re: USAA, 307 S.W.3d 299,
311 (Tex. 2010), expressly overturned Schroeder’s holding that the TCHRA
statute of limitations was jurisdictional. First, USAA reasoned that the Texas



       1Gorman had received an EEOC right to sue letter before filing her lawsuit, but this
cannot be substituted for a TWC right to sue letter. See Jones, 235 F.3d at 974.
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Supreme Court had been “reluctant to conclude that a provision is
jurisdictional, absent clear legislative intent to that effect” since a landmark
2000 Texas case that post-dated Schroeder.       Id. at 306 (discussing Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000)) (internal quotation marks
omitted). Second, USAA noted that “[t]he United States Supreme Court [had]
consistently construed Title VII’s requirements as mandatory and not
jurisdictional.” Id. at 308. This was significant, the court said, because Title
VII and its interpretations serve as a guide to interpreting the TCHRA. See
id. at 308–09.
      Although not explicit, USAA also overturned Schroeder’s holding that
the TCHRA right to sue letter requirement is jurisdictional. Two reasons lead
us to this conclusion. First, the TCHRA’s exhaustion of remedies requirement
is not expressly required by the statute but is inferred by the courts from the
statute’s structure. See Schroeder, 813 S.W.2d at 487. Consequently, the
“clear legislative intent” that USAA held was necessary to render a provision
jurisdictional is lacking. USAA, 307 S.W.3d at 306. If the TCHRA’s exhaustion
of remedies requirement is not jurisdictional, neither is the right to sue
requirement, which is part of the exhaustion requirement.
      Second, USAA emphasized the importance of harmonizing the
interpretations of the TCHRA and Title VII. Id. at 308–09. Prior to USAA,
Texas law deviated from federal law. Under federal law, “the receipt of a right-
to-sue letter is a condition precedent” that can be cured by subsequent receipt
of the letter. Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th Cir.
1982). It is anomalous that receiving a right to sue letter is a jurisdictional
requirement for the TCHRA but is not jurisdictional under Title VII. Compare
Schroeder, 813 S.W.2d at 488, with Pinkard, 678 F.2d at 1215. Reading USAA
to eliminate this anomaly is the only way to satisfy USAA’s concern that the
TCHRA and Title VII should be harmonized.
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          We hold that in the light of USAA, the failure to receive a Texas right to
sue letter is not a jurisdictional defect. Our previous case, Jones, relied on
Schroeder, which USAA has since abrogated. Consequently, Jones’s holding
that the Texas right to sue requirement is jurisdictional has no basis in Texas
law, upon which Jones relied; Jones lost its precedential value when USAA
became the rule under Texas law. See Farnham v. Bristow Helicopters, Inc.,
776 F.2d 535, 537 (5th Cir. 1985) (“A panel of this court cannot ‘overturn’ the
decision of another panel.         In diversity cases, however, we are to follow
subsequent state court decisions that are clearly contrary to a previous
decision of this court”).
          Because the right to sue requirement is not jurisdictional, and because
Gorman belatedly fulfilled the requirement, we can reach the merits of her
case. 2
                                            III.
          We next review Gorman’s claim that she made out a prima facie case for
a retaliation claim. We hold that she has not.
          The district court granted summary judgment in favor of the defendants,
which we review de novo. Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th
Cir. 2012). If there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law, summary judgment is
proper. 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Evidence is viewed in the light most favorable to the nonmovant. Royal v.
CCC&R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).



         Verizon supplies no reason why, in this particular case, we should not excuse the
          2

initial absence of a TWC right to sue letter.
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                                 No. 13-20562
      The substantive law governing Title VII and TCHRA retaliation claims
is identical. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2
(5th Cir. 1999). Making a prima facie case for a retaliation claim requires the
plaintiff to “demonstrate that: (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. Under [the TCHRA], an
employee has engaged in protected activity if she has opposed any practice
made an unlawful employment practice under [the TCHRA].” Royal, 736 F.3d
at 400 (internal quotation marks omitted).
      If the plaintiff establishes her prima facie case, the McDonnell Douglas
burden-shifting framework applies. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 807 (1973). Under McDonnell Douglas, “(1) 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.” Royal, 736 F.3d at 400.
      Gorman fails to establish prong three, causation, in her prima facie case
for two reasons. First, Gorman was fired ten months after her complaint,
significantly discrediting the link between her complaint and firing. “[T]o be
persuasive evidence, temporal proximity must be very close.” Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). Close temporal
proximity is lacking here. Gorman supplies no reason why Verizon would wait
ten months before terminating her based on her complaint.
      Gorman asserts that adverse employment action occurred before her
termination, which would decrease the time between her complaint and
Verizon’s supposed reprisals.    But there is no support in the record for
characterizing the incidents Gorman recites as adverse employment actions.
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For example, Gorman cites her change of jobs in December 2009 as an adverse
employment action. But Gorman stated that she voluntarily accepted this
position. Regarding Smith specifically, we agree with the district court that
“there is nothing in the record to support” that “Smith’s treatment of her
became worse after her accusation [against him].” Gorman, 2013 WL 4520187
at *5.
         The second reason that Gorman’s prima facie case fails is that Henze,
the Verizon executive who fired her, did not know of her complaint about
Smith. Generally, “[i]f the decisionmakers were completely unaware of the
plaintiff’s protected activity, then it could not be said . . . that the
decisionmakers might have been retaliating against the plaintiff for having
engaged in that activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883
n.6 (5th Cir. 2003).     However, a coworker who is aware of the plaintiff’s
protected activity may under certain circumstances supply the causation
requirement. This may be so even when the coworker is not himself the
decisionmaker. See Staub v. Proctor Hospital, 131 S. Ct. 1186, 1191–94 (2011).
One example is when a coworker makes a recommendation to terminate and
the decisionmaker is merely a rubber stamp on that coworker’s decision.
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Another
example is when the coworker “had influence or leverage over the official
decisionmaker.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th
Cir. 2000).
         To address this issue in our case, we begin by noting that Henze did not
have knowledge of Gorman’s complaint. Additionally, Smith denied knowing
of Gorman’s complaint. But viewing the evidence in the light most favorable
to Gorman, Smith reasonably could have gleaned knowledge of the complaint
when he was interviewed by McKeithan, as Gorman came up in the interview.
We thus will assume that Smith knew of Gorman’s complaint.
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                                 No. 13-20562
      We should, however, make note that there is no genuine dispute but that
Henze was the decisionmaker. Furthermore, there is no record support that
Smith, McKeithan or Cocetti were joint decisionmakers along with Henze.
Fettes, Smith, and McKeithan met with Henze and explained the TDCJ
transaction. Henze then told them that anyone involved with the transaction
should be fired. During discovery, Henze specifically stated that, “I made the
decision to terminate Gorman [and the TDCJ team].           Fettes, Smith, and
McKeithan agreed with my decision.” On Henze’s instructions, Smith then
filled out a form to discharge Gorman. Thus, the record supports that Henze,
and only Henze, was in control at all times of the decision to discharge Gorman.
      Because the decisionmaker, Henze, was unaware of Gorman’s complaint,
Gorman can establish her prima facie case only if Smith’s animus was the
cause behind her termination and Henze was a mere “rubber stamp.” See
Sherrod, 132 F.3d at 1122. There is simply no evidence to support such a
conclusion. Smith was part of a team of two other people that presented the
TDCJ deal to Henze and agreed with Henze’s decision to discharge those
involved, including Gorman, only after Henze had made the decision. This
diluted whatever influence Smith may have had over Henze. Additionally,
Henze’s decision was based on an independent investigation into the deal. An
independent investigation fairly conducted usually prohibits the ultimate
decisionmaker from being a “rubber stamp” because it acts as a superseding
cause to the termination decision. See Sherrod, 132 F.3d at 1122–23. Gorman
points out minor deficiencies in the investigation, such as the investigator’s
ignorance of who precisely set up the terms of the TDCJ deal. But these
deficiencies are tangential to the core of the investigation and affect nothing
regarding Henze’s insulation from any influence of Smith.
      Because Gorman fails to demonstrate a genuine dispute of material fact
as to causation between her complaint and her termination, her prima facie
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case fails. This is sufficient for us to conclude that summary judgment in favor
of the defendants is proper. Consequently, we do not reach the McDonnell
Douglas burden shifting framework.
                                      IV.
      For the reasons above, the district court’s judgment is AFFIRMED.




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