     Case: 18-20197      Document: 00514695156         Page: 1    Date Filed: 10/24/2018




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


                                    No. 18-20197                            FILED
                                  Summary Calendar                   October 24, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
CHERYL SIMANI,

              Plaintiff - Appellant

v.

BEECHNUT ACADEMY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2193


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Cheryl Simani, a white, Orthodox Jew, worked as a teacher for Beechnut
Academy from August 2009 until June 2014, when she was terminated. During
the 2013–2014 school year, Simani had issues entering her grades on time, and
the failure rate in her English class continually increased. School




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20197
administrators met with Simani multiple times to counsel her on her grading
practices, which did not meet the school’s grading policy.
      The final straw for Beechnut apparently came in April 2014, when school
administrators reviewed student work and Simani’s gradebook, finding that
the work did not have grades or feedback on it, the titles and dates of the
assignments did not match those in the gradebook, and generally there was no
indication whether student work had been meaningfully assessed at all.
      Beechnut scheduled a meeting with Simani to discuss her grading
practices. On the morning of the meeting, Simani’s lawyer sent the school an
email stating she had filed an Equal Employment Opportunity Commission
(EEOC) charge against the school. Simani was terminated, and replaced with
a non-Jewish teacher.
      Simani sued Beechnut under Title VII and 42 U.S.C. § 1981, alleging
racial and religious discrimination and retaliation for protected activity. The
district court granted summary judgment to Beechnut on all claims. The court
found that even if Simani had made a prima facie case of discrimination, the
school had proffered legitimate, non-discriminatory reasons for its actions,
which Simani had not been able to rebut. The court further held that Simani
had not shown that her protected activity was the cause of her termination.
      Simani appeals, contending the district court improperly granted
summary judgment. We review the district court’s grant of summary judgment
de novo. Mercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 546 (5th Cir. 2001).
      Discrimination and retaliation claims asserted under Title VII and
§ 1981 are analyzed “under the same rubric of analysis,” the McDonnell
Douglas burden-shifting framework. Raggs v. Miss. Power & Light Co., 278
F.3d 463, 468 (5th Cir. 2001). To sustain a discrimination claim, a plaintiff
must establish that she is a member of a protected class and qualified for the
position from which she was discharged, and that she was replaced by a person
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                                       No. 18-20197
who is not a member of the protected class. Id. If she establishes a prima facie
case, the burden shifts to the employer to produce evidence showing the
termination was justified by a legitimate, non-discriminatory reason. If the
employer can do so, the burden shifts back to the plaintiff to offer sufficient
evidence to create an issue of material fact that the reason is pretextual. Id.
       The district court granted summary judgment on all Simani’s
discrimination claims, but analyzed only her claim based on not getting a
promotion. 1 On appeal, Simani primarily contends that her termination was
discriminatory. Even if Simani did state a prima facie claim, Beechnut
proffered a legitimate, non-discriminatory reason for terminating Simani—her
repeated failures to follow the grading policy. Simani has not met her burden
to show this explanation is pretextual. Evidence of technological issues
hindering her ability to timely record grades does not rebut Beechnut’s
evidence of broader issues with her grading. Further, Simani’s ability to
explain how she graded a single student’s work is insufficient to rebut the
legitimacy of the problems identified with her grading of many students’ work.
       Nor has Simani shown that other actions taken by Beechnut—
reprimanding her for using candy in the classroom and filing a worker’s
compensation claim without her permission—rise to the level of actionable
discrimination. Simani must show she was subject to an “adverse employment
action,” i.e., an “ultimate employment decision” such as “hiring, firing,
demoting, promoting, granting leave, and compensating.” Thompson v. City of
Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014) (internal quotation marks



       1 In her statement of the issues, Simani includes whether the district court erred when
it found that she had not produced evidence of pretext with respect to the school promoting
another individual instead of her. However, she did not address this issue in her brief.
Therefore, she has waived this issue. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th
Cir. 2000) (“It has long been the rule in this circuit that any issues not briefed on appeal are
waived.”).
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                                 No. 18-20197
omitted). Simani has not shown that disallowing the use of candy or filing a
worker’s compensation claim constitute an adverse employment action.
      Finally, Simani has not shown a genuine issue whether her termination
was retaliatory. To establish a prima facie case of retaliation, a plaintiff must
show she engaged in a protected activity, she was subjected to an adverse
employment action, and the protected activity was the but-for cause of the
adverse employment action. Davis v. Dall. Area Rapid Transit, 383 F.3d 309,
319 (5th Cir. 2004). Temporal proximity alone cannot be sufficient proof of but-
for causation. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th
Cir. 2007). Beechnut produced evidence that administrators had made the
decision to fire Simani days before the meeting at which she was terminated.
Even if Beechnut administrators saw Simani’s email about her EEOC charge
the morning of the termination meeting, this is insufficient to show but-for
causation, and Simani has produced no other evidence to establish causation.
      We AFFIRM the district court’s grant of summary judgment.




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