                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                         F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                            February 13, 2004

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                 No. 03-30168


                         RICKY JOSEPH THIBODEAUX,

                                         Plaintiff-Appellant-Cross-Appellee,

                                     versus

            CLECO UTILITY GROUP, INC.; CLECO POWER LLC,

                                 Defendants-Appellees-Cross-Appellants,

                         CLECO POWER CORPORATION,
                                                               Cross-Appellant.


            Appeal from the United States District Court
                for the Western District of Louisiana
                             (01-CV-2674)


Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

     For   this   appeal      from   a    summary   judgment    for    defendants

(jointly, CLECO), the primary issue is whether material fact issues

preclude the judgment against Ricky Joseph Thibodeaux’s Title VII

retaliation claim.       A second issue, presented by CLECO’s cross-

appeal,    concerns     the    district       court’s   dismissing,        without

prejudice, Thibodeaux’s state law claims; CLECO wants those claims

decided by that court instead.            Because material fact issues exist



     *
      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this opinion should not be published and is not precedent except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.
for   the   retaliation    claim,       summary     judgment     against   it    was

improper; accordingly, this moots CLECO’s cross-appeal.                    VACATED

and REMANDED.

                                         I.

      The pertinent parts of the summary judgment record, viewed in

the requisite light most favorable to the non-movant (Thibodeaux),

follow.      Thibodeaux,    a    white    male      hired   by   CLECO   in   1973,

supervised meter readers, including appointing lead meter readers

when a vacancy occurred.          These positions were historically not

posted to invite applications; Thibodeaux had never known one to be

posted.     In 1999, a lead meter reader position became available;

Thibodeaux intended to appoint either of two employees; each was

white.

      Thibodeaux   became       aware    that   a   black   meter   reader      whom

Thibodeaux supervised, Gant, met with a black CLECO vice president,

Hall.    After becoming aware of this meeting, Thibodeaux was called

to meet with his supervisor, Bunting.

      Bunting informed Thibodeaux that Hall had instructed Bunting

and a human resources manager, Barnes, to interview the employees

Thibodeaux supervised.      Upon Thibodeaux’s expressing his confusion

to Bunting, he replied:            “we’re just very concerned about a

racial/black lawsuit”; “[a] black employee raised the issues, and

we’re scared of a lawsuit”.         Upon Thibodeaux’s asking what issues

Gant had raised with Hall, Bunting declined to tell Thibodeaux.


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     Later, Bunting and Barnes instructed Thibodeaux to post the

position in order to permit applications.               When Thibodeaux asked

why his authority to appoint was being taken away, Bunting and

Barnes   responded:     “that’s    the    way    it   was   gonna   [sic]    be”.

(Thibodeaux was told that the position was being posted because

Gant was black and because Gant might sue, but he has not presented

evidence of when he was told this.)        Thibodeaux objected to posting

the position because he believed Gant was receiving privileges

because of his race, which would adversely affect non-minority

employees.     Nevertheless, Thibodeaux complied.

     The   vacancy    posting   included    a    deadline    for    receipt   of

applications; CLECO had a written policy that there would be no

exceptions for missing an application deadline. Gant’s application

did not meet the deadline, and Thibodeaux informed Barnes of that.

Nevertheless,     Barnes   instructed       Thibodeaux       to     accept    the

application.     When Thibodeaux inquired why, Barnes replied:               “you

are to do it”.

     When Thibodeaux spoke to Bunting about being required to

accept   the   application,     Bunting   said    the    situation    could   be

“touchy” and could “come back and bite” Thibodeaux.                  Thibodeaux

again objected because he believed Gant was receiving preferential

treatment because of his race, but Thibodeaux again complied.                 (At

an unknown point in time, Thibodeaux was told the reason for

accepting Gant’s late application was that he was black.)


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     Thibodeaux evaluated Gant and the other applicant (white).

After his doing so, the intended white appointee outscored Gant.

Thibodeaux was instructed by Bunting to revise Gant’s evaluation to

make it less critical. Thibodeaux protested because he thought his

evaluation was accurate.    Bunting said, for the first time, that

Gant would not get the job, but that his evaluation should be

improved to make him look better.

     After submitting a revised evaluation, which provided less

critical narrative evaluation but gave Gant the same numerical

score as the first evaluation, Thibodeaux was instructed by Bunting

to revise the evaluation again.      He was instructed to increase

Gant’s score.     Thibodeaux objected because he had “looked at it

objectively” and made a “judgment call” but did make the revision.

     Thibodeaux was told a third time to change the evaluation; he

was told that Gant’s score must be further increased.   Thibodeaux

refused because to further alter the evaluation would falsify it.

Thibodeaux was told that the reason for the re-evalutions was

because Gant was black and CLECO “was gonna [sic] get sued”.

     After Thibodeaux refused to perform this requested — fourth —

evaluation, Bunting performed it.     He interviewed Gant and the

white employee.    Bunting’s evaluation gave each applicant higher

scores than Thibodeaux had given them.   Nevertheless, on Bunting’s

evaluation, the white employee still outscored Gant and was given

the job.


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     Thibodeaux was suspended and offered a choice of either

immediate termination or demotion with a 50 percent pay cut.            He

chose the demotion; but, after several months in the new position,

he resigned.      According to Barnes, the actions taken against

Thibodeaux were because of his handling of the entire situation

with Gant.

     Thibodeaux sued under federal and state law, presenting, inter

alia, a Title VII retaliation claim premised on his objecting to

unlawful     racial   discrimination.      42     U.S.C.    §   2000e-3(a).

(Concerning Title VII, he also claimed racial discrimination but

does not appeal the summary judgment against that claim.)

     On CLECO’s motion for summary judgment, the district court

applied    the   well-established    three-step    burden   shifting   test

(whether:    prima facie case; justification; pretext).         Concerning

the Title VII retaliation claim, it held:         Thibodeaux had failed to

establish a prima facie case; in the alternative, he had failed to

create a material fact issue that CLECO’s claimed justification for

his demotion — insubordination — was a pretext for retaliation.

Among   other    things,   the   court   dismissed,   without   prejudice,

Thibodeaux’s state law discrimination and retaliation claims.          (As

discussed supra, vacating the judgment moots CLECO’s cross-appeal

about those claims.)




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                                    II.

     A summary judgment is reviewed de novo; it is proper only if,

inter alia, there is no material fact issue.         FED. R. CIV. P. 56(c);

e.g., Ackel v. National Communications, Inc., 339 F.3d 376, 381

(5th Cir. 2003).    As stated, for that review, we view the evidence,

and draw all inferences, in the light most favorable to the non-

movant (Thibodeaux).     Ackel, 339 F.3d at 381.       Pursuant to our de

novo review, material fact issues exist on:            whether Thibodeaux

presented a prima facie case; and whether CLECO’s justification for

the demotion was a pretext.       Hence, summary judgment was improper

on that claim.

                                    A.

     To establish a prima facie case for Title VII retaliation,

Thibodeaux must show:       he engaged in activity protected by Title

VII; an adverse employment action occurred; and there is a causal

link between the adverse action and the protected activity.            E.g.,

Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

Obviously,   the   second   and   third   factors   are   satisfied:    the

demotion was an adverse employment action; and there was a causal

link between all of Thibodeaux’s actions with respect to the lead

meter reader position and the demotion.             (Barnes stated in her

deposition that the “whole situation” of Gant’s application led to

Thibodeaux’s demotion:      posting, accepting, and evaluating.)



                                     6
     Concerning the disputed protected activity factor, Thibodeaux

was so engaged if he opposed actions he reasonably believed to be

violative of anti-discrimination statutes.         E.g., id.   Thibodeaux

believed Gant was receiving preferential treatment, because of his

race, in two respects:       the position’s being posted; and his

application’s being accepted.

     Viewing the summary judgment record in the requisite light

most favorable to Thibodeaux, he could reasonably have believed

that his protests were in opposition to unlawful discrimination.

He was aware that Gant had spoken with a black CLECO officer, who

then initiated an investigation into Thibodeaux’s team by Bunting

and Barnes; Bunting directed Thibodeaux to post a position that had

never, to Thibodeaux’s knowledge, been posted previously; and, when

Gant failed to apply on time, Barnes ordered Thibodeaux to accept

his application, despite a written company policy to the contrary.

In sum, there is a genuine issue of material fact whether, prior to

being told that Gant would not get the job, Thibodeaux reasonably

believed that he was opposing unlawful actions.

                                   B.

     For pretext vel non, at issue is whether Thibodeaux created a

material   fact    issue   for   CLECO’s   proffered     non-retaliatory

justification     for   Thibodeaux’s    demotion    —   insubordination.

According to Bunting, his instructions to Thibodeaux were issued

out of concern that a disparity between the low rating given by


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Thibodeaux and Gant’s clean personnel file raised the possibility

that Gant would file a workplace discrimination action or that

CLECO’s    own    review    board    would      reject    Thibodeaux’s       decision.

Bunting’s affidavit provides:             Thibodeaux was insubordinate “in

refusing    to    comply    with    my   direct    order       to   redo   ...   Gant’s

evaluation to properly reflect his competencies as reflected in his

personnel file”; and this insubordination led to the demotion.

     As reflected by the foregoing discussion of the summary

judgment record, material fact issues exist for whether that

justification for the adverse employment action was pretext.                        In

addition, regarding Bunting’s claimed concern about Thibodeaux’s

evaluation       creating    a   disparity      with     Gant’s     personnel    file,

Thibodeaux stated:          CLECO had a policy that personnel files were

not to     have    negative      materials    placed      in   them;   any    negative

materials in the personnel files were to be expunged; Bunting was

aware of this policy; and Barnes had investigated a complaint

against Gant.

                                         III.

     For the foregoing reasons, the judgment is VACATED and this

action is REMANDED to district court for further proceedings.

                                                         VACATED and REMANDED




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