     Case: 16-20069   Document: 00513913769     Page: 1   Date Filed: 03/15/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                 No. 16-20069                          FILED
                                                                  March 15, 2017

AMMAR ALKHAWALDEH,                                                Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellant

v.

DOW CHEMICAL COMPANY,

             Defendant - Appellee




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


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      This is a Title VII case that the district court dismissed on summary
judgment. For the reasons set out below, we AFFIRM.
                                      I.
      In January 2008, Appellee, Dow Chemical Company (“Dow”), hired
Appellant, Ammar Alkhawaldeh, to serve as a Functional Scientist/Functional
Leader (“FS/FL”) in Dow’s Epoxy Research and Development Group. As
Ammar’s direct supervisor, Dr. Bruce Hook was responsible for annually
evaluating Ammar’s performance.
      In October 2009, Hook rated Ammar a 1 – the lowest possible rating on
Dow’s 1–5 scale. Hook also placed Ammar on a Performance Improvement Plan
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                                        No. 16-20069
(“PIP”) in order to determine whether Ammar’s performance was capable of
rehabilitation.
       Ammar vigorously protested his rating to no avail. On April 2, 2010,
Ammar filed his first EEOC charge, alleging discrimination in violation of Title
VII, 42 U.S.C. § 2000(e) et seq. On November 17, 2010, Ammar filed the now-
controlling EEOC charge, alleging discrimination and retaliation in violation
of Title VII.
       In November 2009, I reported to human resources that a trainer
       made offensive remarks to me because I am of Arab descent, dark
       skinned and/or from Jordan, and that he failed to accommodate my
       dietary restrictions. When my manger, Bruce Hooks, heard that I
       complained to human resources, he became angry, made offensive
       remarks to me and later told another employee that he (Mr. Hooks)
       wanted me to leave Dow. I was subjected to retaliation in multiple
       forms for engaging in protected conduct, including but not limited
       to placing me on a “performance improvement plan” when it was
       not merited. Company management also blocked me from
       transferring to another position with the company that would not
       require me to work for the managers I complained about. I
       successfully completed the performance improvement plan, but I
       was still not permitted to transfer to another position within the
       company; I was terminated by the company without justification,
       with effect October 31, 2010.
       After exhausting all administrative remedies, 1 Ammar sued Dow
alleging discrimination and retaliation in violation of Title VII. Dow
subsequently filed a motion for summary judgment, which the district court
granted on December 31, 2015. We have jurisdiction to decide this appeal
pursuant to 28 U.S.C. § 1291.



       1  The Equal Employment Opportunity Commission (“EEOC”) ultimately issued a
Letter of Determination finding that Dow retaliated against Ammar in violation of Title VII.
The district court’s decision not to address this letter in its ruling was not in error. See Price
v. Fed. Exp. Corp., 283 F.3d 715, 725 (5th Cir. 2002) (distinguishing an EEOC investigative
report, which the district court must consider, from an EEOC letter, which the district court
is free to ignore).
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                                           II.
      We review a district court’s grant of summary judgment de novo, viewing
all facts and drawing all inferences in a light most favorable to the non-moving
party. 2 Summary judgment is proper when there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 3
“On appeal we may affirm a grant of summary judgment on any legal ground
raised below, even if it was not the basis for the district court's decision.” 4
Where, as here, “the burden at trial rests on the non-movant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
non-movant's case.” 5
                                          III.
                                           A.
      Ammar’s Title VII claim relies entirely on circumstantial evidence, and
is therefore subject to the burden-shifting framework outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Pursuant to this framework, the
initial burden rests with the employee to produce evidence that he: (1) is a
member of a protected class, (2) was qualified for the position that he held, (3)
was subject to an adverse employment action, and (4) was treated less
favorably than others similarly situated outside of his protected class. 6 This
constitutes the employee’s prima facie case. The burden then shifts to the
employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. 7 If the employer is able to articulate a legitimate, non-




      2 Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016).
      3 Fed. R. Civ. P. 56(a).
      4 Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010) (quoting Performance

Autoplex II Ltd. v. Mid–Continent Cas. Co., 322 F.3d 847, 853 (5th Cir.2003)).
      5 Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
      6 Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004).
      7 Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000).

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                                      No. 16-20069
discriminatory reason for the adverse employment action, the burden shifts
back to the employee to “demonstrate that the” employer’s proffered reason is
a “pretext for discrimination.” 8
       Ammar has failed to produce any evidence that he was treated less
favorably than others “similarly situated” outside of his protected class.
Therefore, his Title VII discrimination claim fails as a matter of law.
       The “similarly situated” prong requires a Title VII claimant to identify
at least one coworker outside of his protected class who was treated more
favorably “under nearly identical circumstances.” 9 This coworker, known as a
comparator, must hold the “same job” or hold the same job responsibilities as
the Title VII claimant; must “share[] the same supervisor or” have his
“employment status determined by the same person” as the Title VII claimant;
and must have a history of “violations” or “infringements” similar to that of the
Title VII claimant.
       Ammar identifies himself as a Muslim Jordanian Arab FS/FL in Dow’s
Epoxy Research and Development Group. Therefore, in order for Ammar to
satisfy the “similarly situated” prong, he must identify at least one non-Muslim
Jordanian Arab FS/FL in Dow’s Epoxy Research and Development Group who
received a 1 rating, as he did, and who completed a PIP, as he did, but who was
not fired, as he was. 10
       Ammar has failed to identify a single non-Jordanian Muslim Arab FS/FL
in Dow’s Epoxy Research and Development Group. This alone justifies
dismissal of his Title VII claim. It is well-established that a Title VII claimant
can only prove disparate treatment by presenting evidence that he was treated



       8 Ibid.
       9 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
       10 Lest there be any doubt, the Title VII comparator must be similarly situated – not

identical.
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                                     No. 16-20069
less favorably than others outside of his protected class. 11 “Title VII was
enacted to prohibit discrimination on the basis of race, gender, and other
legislatively enumerated grounds.” 12 It was not enacted to promote “general
fairness in the workplace, or . . . to protect against” the indiscriminate firing of
employees. 13
      Ammar has also failed to identify a single FS/FL who received a 1 rating,
as he did, and who completed a PIP, as he did, but who was not fired, as he
was. In fact, Ammar admits that no such comparator exists. He affirmatively
states that he was the only Dow employee to receive a 1 rating in 2009, and he
was the only FS/FL to be placed on a PIP throughout his entire tenure at Dow.
Ammar therefore cannot prove that he was treated less favorably than others
“similarly situated” outside of his protected class.
                                            B.
      Under our Title VII retaliation framework, the initial burden rests with
the employee to produce evidence: (1) that he participated in an activity
protected by Title VII, (2) that his employer took an adverse employment action
against him, and (3) that there is a causal connection between the adverse
employment action and the protected activity. 14 This establishes the
employee’s prima facie case, and gives “rise to an inference of retaliation.” 15
The burden then shifts to the employer to articulate a legitimate non-
retaliatory reason for the adverse employment action. 16 Once the employer
articulates a legitimate, non-retaliatory reason for the adverse employment
action, the burden shifts back to the employee to “demonstrate that the



      11 See Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 409 (5th Cir. 2016).
      12 Lightner v. City of Wilmington, N.C., 545 F.3d 260, 262 (4th Cir. 2008).
      13 Ibid.
      14 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999).
      15 Ibid.
      16 Ibid.

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employer's [stated] reason is actually a pretext for retaliation.” 17 In order to
demonstrate pretext sufficient to defeat a motion for summary judgment, an
employee must produce evidence that could lead a reasonable fact-finder to
conclude that “the adverse [employment] action would not have occurred ‘but
for’” the employee’s decision to engage in an activity protected by Title VII. 18
       Dow told the EEOC that it fired 19 Ammar because of “his poor
performance in 2009 and his failure to complete a Performance Improvement
Plan” in 2010. Ammar, however, claims that Dow’s stated reason is
“inconsistent” with the sworn testimony of numerous Dow employees, who
have testified that Ammar did, in fact, complete the PIP in 2010 and that in
order to complete the PIP, a Dow employee must be performing at a
satisfactory level. Ammar suggests that this alleged inconsistency necessarily
raises a genuine dispute of material fact as to the issue of pretext. For the
following reasons, we disagree.
       We have held that a court may infer pretext where an employer “has
provided inconsistent or conflicting explanations for its conduct.” 20 We have
also, however, held that a court deciding a motion for summary judgment in a
Title VII case should consider “numerous factors, including the strength of the
plaintiff’s prima facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the employer’s



       17 Feist v. La., Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.
2013) (quoting LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007)).
       18 Ibid. (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)).
       19 Dow’s firing of Ammar is the only “adverse employment action” actionable under

Title VII. See Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 n.11
(5th Cir. 1998) (noting that a negative performance evaluation does not constitute “an
adverse employment action actionable under Title VII”); Cannon v. St. Paul Fire & Marine
Ins. Co., No. CIV.A. 3:03CV2911-N, 2005 WL 1107372, at *3 (N.D. Tex. May 6, 2005) (holding
that placing an “employee in a remedial program” does not constitute an “adverse
employment action” actionable under Title VII).
       20 Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 594 (5th Cir. 2007).

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case.” 21 The ultimate question is not one of pretext, but whether a reasonable
fact-finder could conclude that the employer would not have fired the employee
“but for” the employee’s decision to engage in an activity protected by Title
VII. 22
          Ammar alleges he engaged in “protected activity” for the first time in
November 2009, when he reported to his then-manager, Hook, that two Dow
employees made what he interpreted to be racially insensitive remarks at a
Dow training session. 23 One allegedly joked, after Ammar won a briefcase in a
Dow raffle, that he could fill it with ten million dollars cash, ten kilograms of
cocaine, or an assault rifle, which Ammar took to be an insult to his Muslim
heritage. The other allegedly chastised Ammar for arriving fifteen minutes late
to a post-lunch meeting. When Ammar attempted to explain that he was late
because he, unlike his coworkers, had to go out to eat, the Dow employee


          21   Price, 283 F.3d at 720 (internal quotations omitted).
          22   See Feist, 730 F.3d at 454 (quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir.
1996)).
          Protected activities under Title VII “fall into two distinct categories: participation
          23

or opposition.” Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir.
1998) (citing 42 U.S.C. § 2000e-3(a)). We assume without deciding that Ammar’s November
2009 conversation with Hook constitutes opposition activity such that it warrants “protection
under Title VII.” See id. at 260 (citing Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th
Cir. 1981) (“The opposition clause has been held to encompass informal protests, such as
voicing complaints to employers or using an employer's grievance procedures.”)). We note,
however, that Dow did not terminate Ammar until October 30, 2010, which in and of itself
raises serious temporal-proximity concerns. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (citing circuit case law holding three- and four-month periods to be
insufficient); see also Barkley v. Singing River Elec. Power Ass'n, 433 Fed. Appx. 254, 260
(5th Cir. 2011) (unpublished) (holding that a “four-month gap in time, standing alone, is
insufficient to establish prima facie evidence of causation”).
        Ammar alleges that he repeatedly engaged in protected activity from November 2009
to June 2010. But a Title VII claimant cannot, with each protected activity, re-start “the
temporal-proximity clock.” See Hanks v. Shinseki, No. 3:08-1594-G, 2010 WL 3000835, at *7
(N.D. Tex. July 28, 2010); see also Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 487
(5th Cir. 2008) (noting that “temporal proximity standing alone is insufficient to establish an
issue of fact as to pretext”).


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asserted that it was “not his problem” that Ammar, as a Muslim, could not eat
the provided lunch. When Ammar reported these remarks to Hook, Hook threw
a piece of paper at him and told him, “Ammar,” when you come from the part
of the world that you come from, “there’s a perception, and perception is
reality.”
      Even assuming the veracity of Ammar’s claims, no reasonable fact-finder
could conclude that Ammar would not have been fired but for his November
2009 conversation with Hook. Hook gave Ammar the now-contested 1 rating
in October 2009 – one month before Ammar’s alleged conversation with Hook
took place. It was also Hook who, just months earlier, helped Ammar
successfully appeal the Immigration and Naturalization Service’s (“INS”)
denial of his O-1 visa, which effectively ensured that Ammar was allowed to
remain in the United States. In an email addressed to Hook at the time,
Ammar wrote:
      Bruce,
      I am not sure where or how to start but I just want to express my
      profound gratitude to you for the tremendous support I received
      from you . . . . [I] will never forget your support and kindness for
      the rest of my life. You[r support of me] showed great leadership
      [and] character[,] but what is more important in my view is the
      true and genuine person [that] you are.
      Thank you so much,
      Ammar
      All parties, nonetheless, agree that by the summer of 2010, Ammar
needed to be transferred out of Hook’s group. Ammar had bypassed corporate
channels and sent an email to the Chairman and CEO of Dow claiming that he
was the victim of retaliation. He believed that everything that Hook did was in
furtherance of Hook’s “racist agenda.” He complained that the PIP deadlines
that Hook imposed were unreasonable. He alleged that Hook could not be


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                                 No. 16-20069
trusted to impartially preside over his evaluation. And his animus towards
Hook was beginning to affect “others on the team.”
      Accordingly, on July 6, 2010, Dow transferred Ammar to a new group
and placed him under the direct supervision of David West. Ammar alleges
that at this point, his PIP was complete which, pursuant to corporate policy,
meant that Dow considered him to be a satisfactory employee. Dow, on the
other hand, asserts that Ammar’s PIP was terminated rather than completed
as alleged.
      We resolve this genuine dispute of material fact in Ammar’s favor but
find that it makes no difference, primarily because Ammar was not terminated
on July 6, 2010. Dow, on that date, merely transferred Ammar to West’s group,
where West evaluated him for approximately two months before concluding,
like Hook, that Ammar was an under-performing employee whose deficiencies
were beyond repair.
      [D]uring the [two months that I worked with Ammar], I was
      looking for, you know, some good evidence that I . . . just had
      incomplete knowledge or only secondhand knowledge or whatever,
      and I was looking for – I was looking for any signs . . . that he was
      going to be a good fit in my group or that, you know, perhaps he
      might have some role if not in the process research side, elsewhere
      in the group, and I didn’t find any evidence of that.
      Dow ultimately, pursuant to corporate policy, convened a committee to
evaluate Ammar’s performance. The committee found that:
      On numerous times, Ammar seemed insubordinate.
      He tended to spend more time writing letters and not
      concentrating on his work.
      He does not seem to bring the innovative attribute to the job.
      During [the] past 12 monthly innovation meetings, the expectation
      is that FSFL research employees will write at least 2 patent
      disclosures per year. This means that Ammar should have at least
      4 or 5. Today, he has one, while others with his same length of
      employment have upwards of 8 or more.
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       He does not seem to posses[s] basic engineering skills.
       He does not seem to possess basic mathematical skills for
       engineers.
       Based upon feedback from technical team members and his
       leaders, his relative performance is tracking towards segment “1”
       again for 2010.
Dow officially terminated Ammar on October 30, 2010.
       We find that, in light of all of this evidence, no reasonable fact-finder
could conclude that Ammar would not have been fired but for his decision to
engage in activity protected by Title VII. Poor performance is not an activity
protected by Title VII. Even assuming that Ammar completed the PIP, West’s
negative, post-PIP evaluation independently justifies Ammar’s termination.
The “but for” standard represents a “high burden” that Ammar cannot meet
and has not met. 24
                                            IV.
       The judgement of the district court is AFFIRMED.




       24See THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 995 (9th Cir. 1980)
(quoting Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir. 1976)).
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