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

                                                                               FILED
                                      No. 19-40340                      February 10, 2020
                                                                          Lyle W. Cayce
GUY RICHARDS,                                                                  Clerk


              Plaintiff - Appellant

v.

LUFKIN INDUSTRIES, L.L.C.,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:14-CV-136


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Guy Richards brought this employment discrimination action against his
former employer, Lufkin Industries, L.L.C., alleging that Lufkin violated 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2–2000e-3, by terminating him in retaliation for his complaint that he was
harassed on account of his race. On appeal, Richards contends that the district
court erred in granting partial summary judgment, dismissing his retaliation
claim; by correcting only one of Lufkin’s three peremptory strikes of African


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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American potential jurors allegedly based on pretextual explanations; and by
making critical comments about his counsel’s conduct during the jury trial. We
AFFIRM.
                                          I.
      Richards, an African American man, was employed by Lufkin from July
2010, first as a welder and then as a production supervisor, until he was fired
on December 7, 2012. 1 Richards alleges that while working as an hourly
welder, a white supervisor named Justin McMahon and some other white co-
workers “routinely used racial slurs when addressing Richards.” By March
2011, Richards had been promoted to a first-level supervisor position but was
still incurring racially motivated and derogatory comments from his white co-
workers, specifically McMahon.        On March 8, 2011, Richards approached
McMahon and asked McMahon not to call him “n*gger.”                  Following this
interaction, McMahon and Richards each spoke with the manager to whom
they reported.
      Richards, dissatisfied with his direct manager’s response, reported
McMahon’s harassment to more senior Lufkin managers, as well as to the
Human Resources (HR) Department. Lufkin told Richards that his complaint
would be investigated. Over the next few days, Lufkin personnel, including its
Vice President over HR and its Compliance Officer, spoke with Richards about
McMahon’s alleged harassment.            During these conversations, Richards
requested that he not have to work with McMahon.                      Following its
investigation, Lufkin gave McMahon a five-day suspension and transferred
Richards to a lateral position in a different location. In late 2011, Richards
filed a charge of discrimination with the EEOC, complaining of racial



      1Richards had been previously employed by Lufkin for some time during 2008–2009;
however, that employment is not the subject of an issue on appeal.
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                                  No. 19-40340
harassment. About a year later, in late 2012, Lufkin terminated Richards’
employment after an investigation into Richards’ time reporting indicated that
he had falsified his time records.
                                        II.
      Richards timely filed suit in the Eastern District of Texas on September
12, 2014, pursuant to § 1981. In May 2016, Richards added claims for race
discrimination and retaliation pursuant to Title VII. After answering and
some discovery, Lufkin filed a motion for summary judgment on all of Richards’
claims of race discrimination and retaliation. 2 The magistrate submitted a
report on Lufkin’s motion for summary judgment, recommending, in relevant
part, that the motion be granted as to Richards’ retaliation claims but denied
as to Richards’ discrimination claims. The district court, considering and
overruling the parties’ objections, adopted the magistrate’s report and
recommendation.
      Richards’ remaining claims for racial discrimination went to a trial by
jury. During jury selection, Lufkin used all three of its peremptory strikes on
African American potential jurors. Richards lodged a late Batson challenge.
The district court upheld the first two of Lufkin’s peremptory strikes, but
sustained Richards’ Baston challenge as to the third strike. The court, after
modifying the jury to reflect the one sustained Batson challenge, commenced
with the trial. Richards alleges that during trial, the district court made
various prejudicial comments in front of the jury. After the conclusion of the
trial, the jury returned a verdict for Lufkin on Richards’ discrimination claims.
The district court entered judgment in accordance with the jury verdict.




      2  Richards filed his own motion for summary judgment on Lufkin’s affirmative
defenses; however, that motion is not at issue on appeal.
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Thereafter, Richards filed a motion for a new trial, which the court denied.
This appeal followed.
                                       III.
A. Summary Judgment on Richards’ Retaliation Claims
      We review de novo a district court’s grant of summary judgment. Evans
v. City of Houston, 246 F.3d 344, 347 (5th Cir. 2001). Summary judgment is
appropriate when the record demonstrates “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). The movant has the initial burden of showing there is no
genuine issue of material fact; however, once carried, the burden shifts to the
nonmovant to “produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Allen v. Rapides Par. Sch. Bd., 204 F.3d
619, 621 (5th Cir. 2000). The evidence set forth by the nonmovant is to be
believed with all justifiable inferences to be drawn in the nonmovant’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). That being said, the
nonmovant may not rest on mere allegations or denials of its pleadings, but
rather, must set forth specific facts indicating a genuine issue for trial. Webb
v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 536 (5th Cir.
1998).
      On appeal, Richards contends that the district court erred in granting
summary judgment on his claims for retaliation.             Title VII prohibits
discrimination by employers “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Section 1981 provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right . . . to the full and equal benefit of all
laws and proceedings . . . as is enjoyed by white citizens.” Id. § 1981(a).


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                                 No. 19-40340
      To establish a Title VII retaliation claim, Richards must demonstrate
that (1) he engaged in a protected activity under Title VII; (2) Lufkin took an
adverse employment action against him; and (3) a causal connection existed
between the protected activity and the adverse employment action.            See
Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (citing Thomas v.
Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)). We apply
the McDonnell Douglas burden-shifting framework in determining whether
Richards has established a prima facie case of retaliation. See Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999) (citing
McDonell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). If Richards
makes a prima facie showing, the burden then shifts to Lufkin to articulate a
legitimate, nonretaliatory reason for Richards’ termination. Id. Once Lufkin
has done so, the burden then shifts back to Richards to identify evidence from
which a jury could conclude that Lufkin’s purported reason for termination is
a pretext for retaliation. Id.
      As to Richards’ prima facie case, the parties do not dispute that Richards
engaged in a protected activity and was later terminated. The primary issue
before us therefore centers on the causation element: whether Richards
presented evidence showing a causal link between his protected activity and
his termination from Lufkin. In his brief, Richards contends that the district
court erred in its causation analysis because it applied an improper, overly
stringent, ultimate liability standard at the prima facie summary judgment
stage and further that the court erred in not treating the retaliation claims as
a hostile environment case. We do not find that the court so erred.
      Unlike a discrimination cause of action based on harassment within a
hostile work environment, a retaliation cause of action requires a showing of a
causal connection between the plaintiff’s protected activity and the employer’s
adverse employment action. Compare Hernandez v. Yellow Transp., Inc., 670
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F.3d 644, 657 (5th Cir. 2012) (giving the elements for a prima facie retaliation
case), with id. at 654 (giving the elements for a claim of hostile work
environment), and Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)
(giving the elements for a prima facie discrimination case). Here, the district
court found no genuine issue of material fact existed as to the causation
element of Richards’ retaliation claim, citing a lack of knowledge on the part
of David Duford, Bob Day, or John Streety, as well as a lack of temporal
proximity between Richards’ protected activity and his termination.
      Richards, on appeal, attempts to use our circuit’s decision in Starnes v.
Wallace, 849 F.3d 627, 635 (5th Cir. 2017) to support his contention that the
district court’s causation analysis at the summary judgment stage was too
stringent. This comparison, however, is inapposite. In Starnes, this court held
that evidence allowing a reasonable jury to find that the purported reason for
termination was a pretext for retaliation at the third stage of the inquiry could
also establish the “much less stringent” causation requirement at the prima
facie stage. See id. at 634–35. The circumstances of Starnes are factually
distinct from the instant case. Here, Richards cannot make any showing that
his termination was motivated by a desire to retaliate against him for his
protected activities. Richards contends that because the district court, on his
discrimination claim, found sufficient evidence to establish a factual issue as
to pretext, that pretext evidence is “related” and could satisfy the causation
element of his retaliation claim, as well. Yet, the district court’s finding here
is not analogous to the pretext finding relied upon by the Starnes panel. There,
the court relied on a finding of possible pretext in a related retaliation claim,
the same claim that Starnes sought to prove. Id. at 635. Here, Richards has
two distinct claims – harassment and retaliation – which implicate different
elements to make a prima facie showing at the summary judgment stage. The
district court, finding evidence of pretext on Richards’ discrimination claim,
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                                 No. 19-40340
concluded that a nexus existed between Richards’ termination and his status
as a member of a protected class. By contrast, on Richards’ retaliation claim,
any evidence of pretext which could have been used to supplant the causation
element would have needed to demonstrate a causal link between Richards’
termination and his protected activity. The district court, however, did not find
such a causal connection, and neither do we.
      As to Duford’s, Day’s, and Streety’s knowledge that Richards engaged in
protected activities, the record evidence supports a finding of some knowledge.
A few weeks before his termination, Richards reported to Duford an incident
in which a coworker showed Richards a black dildo, according to his own
testimony and the testimony of a third party. Also, Duford investigated “the
Schumaker incident” that Richards reported in July 2011, wherein Richards
complained to HR that McMahon told Richards that James Schumaker,
another Lufkin employee, had used racial epithets to refer to Richards.
Finally, Day was aware that Richards was involved in the class action alleging
that Lufkin’s promotion practices had a disparate impact on black employees’
promotions, and Streety learned of Richards’ involvement before he was
officially terminated. All of these activities likely fall within the realm of
protected activity.   See 42 U.S.C.A. § 2000e-3 (prohibiting discrimination
toward an employee who “opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
[Title VII]”); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir.
1999) (treating participation in a class action as protected activity); Long v.
Eastfield Coll., 88 F.3d 300, 305, 308 (5th Cir. 1996) (treating internal
complaints as protected activity).
      Yet, despite finding some knowledge of protected activities, we conclude
that Richards has not established a causal connection between his protected
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                                  No. 19-40340
activities and his termination. First, Streety testified that other employees,
including white employees, were also fired for filing false timesheets. Second,
Richards gave no explanation for the discrepancies in several of his time sheets
when confronted about them. The only evidence that Richards points to as
showing that his termination for timesheet falsification was illegitimate is the
testimony of two other employees, Thompson and Santana. But Thompson
merely testified that she did not remember most of the events from that time,
and that she never knew Richards to do “anything wrong.” Santana testified
that he didn’t remember speaking to Duford about Richards’ timesheets. This
testimony has little bearing on whether the timesheet investigation and
Richards’ termination were pretextual. Finally, while the dildo incident was
close in time to Richards’ termination, Duford had knowledge of Richards
making similar internal complaints, e.g. the Schumaker complaint, a year and
a half before his termination. Richards gives no reason why Duford would
retaliate against him for his most recent complaint but not for previous, similar
complaints. Taken together, this evidence does not support a causal connection
between Richards’ protected activity and his termination. See Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 169 (5th Cir. 1999) (holding
that plaintiff had not proven causation when the employer’s “perfectly rational
justification” for discharge was “a workplace infraction which is not seriously
disputed” and plaintiff provided only “[t]he speculations of a few co-workers”
in support of his retaliation theory).
      Furthermore, the time that had elapsed between Richards’ complaint
about McMahon and his termination was nearly twenty-two months, and
between Richards’ EEOC filing and his termination was twelve months. While
not always determinative, the lack of temporal proximity between Richards’
termination and these two protected activities “undermine(s) any causal
connection” between the events. See Raggs v. Miss. Power & Light Co., 278
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F.3d 463, 471–72 (5th Cir. 2002). We, therefore, find no error in the district
court’s grant of summary judgment on Richards’ retaliation claims.
B. Lufkin’s Peremptory Strikes
      Next, Richards contends that the district court erred in correcting only
one of Lufkin’s three peremptory strikes to exclude jurors allegedly based on
their race. In Batson, the Supreme Court outlined a three-step process for
determining whether peremptory strikes have been applied in a racially
discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 93–98 (1986). First,
the party making the claim of purposeful discrimination must make a prima
facie showing that the peremptory challenges were based on race. Id. Then,
the burden shifts to the party accused of discrimination to provide race-neutral
reasons for the peremptory challenges.        Id.   Finally, the district court
determines whether purposeful discrimination has been established.            Id.
Because the district court’s determination is a finding of fact, we cannot
overturn its decision absent clear error. United States v. Bentley-Smith, 2 F.3d
1368, 1372 (5th Cir. 1993). Furthermore, the district court’s determination is
“entitled to great deference” because the district court is better positioned to
evaluate the credibility and demeanor of the attorneys involved. Id. at 1373.
      Based on our review of the record, the district court did not commit
reversible error in rejecting Richards’ challenges to two of Lufkin’s three
peremptory strikes.    As an initial matter, the district court noted in its
memorandum opinion that Richards made the Batson objection belatedly. See
United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996). Nevertheless,
the court considered Richards’ Batson challenges “in light of the importance of
a party’s right to equal protection” and because Lufkin did not ask the court to
reject the claim as untimely. The court noted that Richards had made a prima
facie showing of racial bias because all three struck jurors were African
American; however, after conducting a thorough analysis of the issues, the
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                                 No. 19-40340
court concluded that Lufkin had articulated credible race-neutral reasons for
two of its three peremptory strikes.     The court further analyzed whether
Lufkin’s peremptory strikes showed a pattern that indicated purposeful
discrimination. In its analysis, the court acknowledged that Lufkin had used
all three of its peremptory strikes on African American jurors but ultimately
concluded that it was not enough, on its own, for the court to discount Lufkin’s
good and sufficient race-neutral reasons for two of the three strikes. The court
further noted that it was not required to discount Lufkin’s reasons for two of
its peremptory strikes simply because the court found against Lufkin on the
third strike. See, e.g., Bentley-Smith, 2 F.3d at 1376. Upon review of the record
and the district court’s well-reasoned analysis, we conclude that the district
court applied the proper test in considering Richards’ Batson challenges, and
its decision to deny Richards’ challenge on two of Lufkin’s strikes was not
clearly erroneous.
C. Court’s Comments to Richards’ Counsel
      Finally, Richards contends on appeal that the district court’s conduct
throughout trial gave the jury a negative impression of Richards’ counsel and
consequently deprived Richards of a fair and evenhanded trial. After extensive
review of the trial transcript and proceedings, we are not persuaded that the
court’s conduct during trial tainted the verdict.
      When reviewing the effect of the court’s comments, we do not consider
isolated remarks and instead consider the record as a whole. Newman v. A.E.
Staley Mfg. Co., 648 F.2d 330, 334–35 (5th Cir. Unit B June 1981). From there,
the standard of review applied is dependent upon whether a timely objection
to each of the court’s remarks was made at trial. Id. at 335. If Richards lodged
a timely objection, we will inquire whether the court’s remarks impaired a
substantial right of Richards. See id. However, if Richards did not object to
the court’s remarks, our review, though not precluded, will be limited to review
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for plain error. See id. Under a plain error standard of review, reversal is not
required unless there has been a miscarriage of justice. Morreale v. Downing,
630 F.2d 286, 290 (5th Cir. 1980). Here, however, it is not necessary for us to
determine whether Richards lodged a sufficient objection because even under
the more rigid standard of review, we conclude that Richards’ substantial
rights were not affected by the court’s conduct.
      In determining whether the district court’s conduct was appropriate, we
scrutinize the record carefully because the district court has an “enormous
influence” on the jury. United States v. Williams, 809 F.2d 1072, 1086 (5th Cir.
1987). However, we do not require the court to conduct a perfect trial, only
that it afford the parties a fair trial. See id. We recognize too that the court is
not a “mere moderator of the proceedings.” Id. at 1087 (quoting Moore v.
United States, 598 F.2d 439, 442 (5th Cir. 1979)). The court, in its discretion,
may comment on the evidence and may even interrupt or warn counsel during
examination of a witness. Id. Indeed, even if we find some of the court’s
comments to be abrupt, unnecessarily harsh, or even regrettable, we cannot
say that the complaining party is deprived of a fair trial unless the court’s
conduct “strays from neutrality.” Id. at 1087–89 (quoting Moore, 598 F.2d at
442). Yet, judicial remarks made during the course of a trial that are critical
or even hostile to counsel do not ordinarily establish bias or partiality. Liteky
v. United States, 510 U.S. 540, 555–56 (1994).
      Here, the district court did, at times, express impatience, dissatisfaction,
or frustration with Richards’ counsel. Nevertheless, the court’s conduct in
these instances does not support a finding of bias or impartiality against
Richards. See id.; see also Williams, 809 F.2d at 1087–89. The majority of the
court’s comments about which Richards complains clearly fall within the
court’s broad discretion to manage its docket, including trial procedure. See
United States v. Gray, 105 F.3d 956, 964 (5th Cir. 1997) (citing Sims v. ANR
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                                  No. 19-40340
Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996)). The court’s warnings to
Richards’ counsel regarding his arguments or attempted admissions of
evidence, while obviously unfavorable to Richards, showed no bias or
impartiality such that they would taint the jury’s perception of Richards, his
claims, or his counsel. In fact, the record reflects that throughout the trial, the
court’s conduct was motivated by its desire to avoid jury confusion or influence
by either the court or counsel. Further, the court specifically instructed the
jury at the beginning and the end of trial that they should not take the judge’s
comments as indicating any opinion about the merits.
      We found only one comment from the court that was arguably improper.
In response to a flippant comment from Richards’ counsel, the court remarked,
“Counsel, I have warned you before about sidebar remarks. Are you just asking
to be held in contempt or just trying to push me so you can say that there is
some kind of prejudice against you in the court? Which one is it?” This court
has, in no uncertain terms, stated that a district court should not sanction an
attorney in the presence of the jury. Bufford v. Rowan Cos., Inc., 994 F.2d 155,
159 (5th Cir. 1993). However, there is no per se rule requiring reversal for a
threat of contempt. Cf. Williams, 809 F.2d at 1090 (holding that reversal was
not warranted when the trial judge actually fined a lawyer for contempt in
front of the jury). Viewing the proceedings as a whole, we do not find that the
court’s comment so permeated the proceedings such that it cast doubt on the
jury’s verdict. See Bufford, 994 F.2d at 157 n.1 (citing Dixon v. Int’l Harvester
Co., 754 F.2d 573 (5th Cir. 1985)). Accordingly, Richards’ substantial right to
a fair trial was not affected.
                                       IV.
      Finding no reversible error, we AFFIRM the district court’s final
judgment.


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