     Case: 18-50247      Document: 00514889007         Page: 1    Date Filed: 03/26/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-50247                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           March 26, 2019
QUIANNA S. CANADA, Individually,
                                                                            Lyle W. Cayce
              Plaintiff - Appellant                                              Clerk


v.

TEXAS MUTUAL INSURANCE COMPANY; STACY PARASTAR
GONZALEZ, in her official capacity; MARSHA THIBODAUX, in her official
capacity; KRISTEN KIRKPATRICK; EDWARD "ED" COATES; DEMETRIC
"DE" LEVIAH; RYAN JOHNSON; LYNETTE CALDWELL,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CV-148


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       For over two years, pro se plaintiff Quianna S. Canada has fought Texas
Mutual Insurance Company’s (TMIC) refusal to hire her. During the litigation,
she amended her complaint seven times, repeatedly engaged in duplicative—
and sometimes frivolous—motions practice, impugned the integrity and sought


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the disqualification of the district court judge, tried to disqualify defense
counsel, filed a frivolous interlocutory appeal, and at one point attempted to
voluntarily dismiss her claim because she believes “the legal proceedings in
the United States is racist, supports racism, [and] staffs racist[s].” This
decision will bring her odyssey to an end.
      Although Canada claims that TMIC’s decision was motivated by racial
animus and although she asserts an ever-evolving series of claims—against
anyone with even a tangential connection to the circumstances at issue—the
district court was correct that none of the claims should reach a jury. For the
reasons explained below, we affirm the district court’s grant of summary
judgment.
                                       I.
                                      A.
      Canada is a black woman. For 28 days between June 28, 2016, and
August 8, 2016, she was temporarily assigned to TMIC by Evins Personnel
Consultants to fill a vacant policy-support-clerk position. During her
temporary assignment, Canada was required to report to work every day from
8:00 a.m. to 5:00 p.m., using a badge to enter the building. The system recorded
that on 13 of the 28 days, Canada swiped the badge after 8:00 a.m.
      While temporarily employed, Canada applied for three permanent
positions at TMIC. The application centrally at issue here was for the position
of permanent policy support clerk—essentially, the same job she was
provisionally staffing. Canada applied for the support clerk position on June
29, her second day of work, after speaking with Marsha Thibodaux, the policy
support supervisor and Canada’s immediate supervisor.
      On July 21, Thibodaux told Canada that TMIC had hired Ryan Johnson,
a white man, for the support clerk position. It is unclear from the record


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whether Thibodaux specifically mentioned Johnson’s race to Canada when she
told her the position had been filled. Regardless, that same day, without
informing anyone at TMIC, Canada filed a complaint with the City of Austin’s
Equal Employment and Fair Housing Office.
     On August 8, Canada met Johnson when he reported for his first day of
work. During her lunch break, Canada requested to speak to a human
resources employee concerning her applications. Edward Coates, a human
resources staff member, met with Canada and listened to her concerns that
she had been improperly passed over for the jobs. When Canada requested to
speak with the individuals who reviewed her job applications, Coates refused.
      Some time before 3:44 p.m. on that same day, Thibodaux contacted
Kristen Kirkpatrick, a human resources senior administrative assistant, to
request that Canada’s temporary assignment to TMIC be ended because the
position had been filled. Kirkpatrick then spoke by phone with an Evins
representative, and at 3:44 p.m., Kirkpatrick emailed Evins confirming her
request to end Canada’s temporary assignment at the close of business.
      Shortly before 4:00 p.m., Canada received an email from the Equal
Employment and Fair Housing Office asking Canada to contact them to discuss
her July 21 complaint. At 3:59 p.m., Canada left the building to call a staff
member at the Equal Employment and Fair Housing Office. She spoke with
the representative for approximately 25 minutes before reentering the building
at 4:24 p.m. After reentering, Canada told Thibodaux for the first time that
Canada believed she was being discriminated against in the hiring process and
that she had filed a complaint with the Equal Employment and Fair Housing
Office. Canada then finished her shift. On August 25, Canada received an
email from TMIC rejecting her for the document clerk position.




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                                         B.
      On August 26, Canada filed a charge with the Equal Employment
Opportunity Commission (EEOC), receiving her right to sue letter in
December. 1 In January 2017, Canada filed a pro se petition and amended
petition against TMIC and various TMIC employees in state court alleging
racial discrimination in hiring practices and asserting claims under both
federal civil rights statutes and state labor laws. TMIC removed the case to
federal court, and it was assigned to District Judge Sam Sparks. Canada then
filed a motion to remand to state court, followed by an amended motion to
remand, both of which the district court denied. Canada also filed what she
styled as third, fourth, fifth, sixth, and seventh amended complaints, each
reasserting discrimination claims under federal and state law. She also moved
to disqualify defense counsel.
      In June 2017, Canada filed another motion to remand to state court and
sought leave to file an eighth amended complaint to delete her federal claims.
According to Canada, deleting her federal claims would leave only state-law
claims over which the district court should decline to exercise supplemental
jurisdiction. The district court denied the motion to remand and to file the
eighth amended complaint on grounds that Canada was attempting to
circumvent the court’s jurisdiction and had already amended her complaint
numerous times. In the same ruling, the court denied the motion to disqualify
defense counsel and placed limits on Canada’s discovery efforts considering the
“volume” of interrogatories and requests for admission the defendants had
already answered. The court did allow Canada to select 24 interrogatories to




      1The record does not indicate—and the parties do not mention—what happened with
Canada’s complaint to Austin’s Equal Employment and Fair Housing Office.

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be answered from previously served discovery and to seek court action if the
answers were wanting.
      Four days later, Canada moved to disqualify Judge Sparks. She argued
that he had a relationship with defense counsel’s law firm, and had
demonstrated bias against her by making condescending comments about her
pro se status during a status conference and by ruling against her on numerous
matters. The motion was referred to Senior District Judge David A. Ezra.
      While the disqualification motion was pending, Canada filed a motion
seeking reconsideration of the prior order denying remand and leave to amend
her complaint. On July 31, 2017, Judge Ezra denied Canada’s motion to
disqualify Judge Sparks. On that same date, Judge Sparks denied Canada’s
motion to reconsider. Undeterred, Canada filed another motion to remand and
for leave to amend and a motion for reconsideration of the prior denial, which
the district court denied.
      Canada immediately filed a petition for a writ of mandamus in this court
challenging the district court’s denial of her motion to file an eighth amended
complaint, denial of her motion to remand, denial of her motions to disqualify
Judge Sparks and opposing counsel, and, finally, the limits placed on her
discovery. We denied the motion.
      Because we refused to stay the district court proceedings while
considering Canada’s writ petition, those proceedings continued apace during
the pendency of the appeal. Judge Sparks soon dismissed the remaining
individual defendants for failure to state a claim. Three weeks later, Judge
Sparks referred the case to a magistrate judge, who subsequently
recommended that summary judgment be granted to TMIC, the sole remaining
defendant. Canada objected to the magistrate’s report and recommendation,




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but the district court adopted it in full and issued judgment in favor of TMIC.
This appeal shortly followed.
                                      II.
      Canada first challenges the district court’s grant of summary judgment
to TMIC on her Title VII claims—specifically, her disparate-impact claim, her
disparate-treatment claim, and her retaliation claim. We review a district
court’s decision to grant summary judgment de novo. Manuel v. Turner Indus.
Grp., L.L.C., 905 F.3d 859, 863 (5th Cir. 2018).
                                      A.
      “Title VII prohibits both intentional discrimination (known as ‘disparate
treatment’) as well as, in some cases, practices that are not intended to
discriminate but in fact have a disproportionately adverse effect on minorities
(known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
One of TMIC’s chief defenses to Canada’s Title VII claims is that Canada
cannot show she was qualified for the positions she sought because Canada
could not have passed a criminal background check. Although her briefing is
confusing in places, the court understands Canada to be arguing that TMIC’s
use of background checks to exclude job candidates with certain criminal
histories violates Title VII by disproportionately impacting black applicants.
      Of Canada’s disparate-impact claim, the district court said only that she
had failed to provide any authority indicating that an employer may not use a
background check to screen candidates. But Canada’s argument is not that
employers may never use background checks to screen candidates; it is instead
that an employer’s use of a background check policy that disproportionately
affects black applicants violates Title VII. The fundamental problem with
Canada’s argument, however, is that she has offered no evidence that the
TMIC policy disproportionately affects black applicants.


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      “To establish a prima facie case of discrimination under a disparate-
impact theory, a plaintiff must show: (1) an identifiable, facially neutral
personnel policy or practice; (2) a disparate effect on members of a protected
class; and (3) a causal connection between the two.” McClain v. Lufkin Indus.,
Inc., 519 F.3d 264, 275 (5th Cir. 2008). Satisfying the second element typically
requires establishing that the practice or policy had a statistically significant
adverse impact on the protected class. Stout v. Baxter Healthcare Corp., 282
F.3d 856, 860 (5th Cir. 2002). “[T]he comparison must be made between the
employer’s work force and the pool of applicants.” Crawford v. U.S. Dep’t of
Homeland Sec., 245 F. App’x 369, 379 (5th Cir. 2007). The only evidence
Canada relies on to establish a disparate impact is her belief that any kind of
background check disproportionately affects black individuals. She infers that
TMIC’s policy must be having an adverse impact on black applicants due to
her claim (without support) that less than 9% of TMIC employees are black.
      Even if the court were to accept at face value Canada’s premise that
background checks, generally, have a disproportionate impact on the black
population, generally, her claim would still fail. Reliance on a policy’s disparate
impact on the general population, rather than on the applicant pool, is
misplaced. Crawford, 245 F. App’x at 379. Among other things, to establish a
disparate impact, Canada needed to show that the specific type of background-
check policy TMIC uses to screen candidates disproportionately impacts black
applicants who are otherwise qualified. She needed to establish a racial
disparity between the employer’s work force and the pool of applicants, and
then tie that disparity to the use of background checks. See id. at 379–80.
Canada has done neither. Her disparate-impact claim fails.




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                                       B.
      To establish a prima facie case of discrimination, the plaintiff must
either present direct evidence of discrimination or, in the absence of direct
evidence, rely on circumstantial evidence using the McDonnell Douglas
burden-shifting analysis. Under McDonnell Douglas, the plaintiff carries the
burden to prove that (1) she belongs to a protected class; (2) she applied for and
was qualified for the position; (3) she was rejected despite being qualified; and
(4) others similarly qualified but outside the protected class were treated more
favorably. McDonnell Douglas, 411 U.S. at 802; see also Wittmer v. Phillips 66
Co., 915 F.3d 328, 332 (5th Cir. 2019). Next, the burden shifts to the employer
to “articulate a legitimate nondiscriminatory reason for the adverse
employment action.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586,
590 (5th Cir. 2016). Finally, the burden shifts back “to the plaintiff to produce
evidence from which a jury could conclude that the employer’s articulated
reason is pretextual.” Id.
      The district court held that Canada could not prevail on her disparate
treatment claim because she cannot show that she was qualified for a position
at TMIC. The court ruled that both her chronic tardiness and her criminal
history precluded Canada from obtaining the positions. Because we agree that
Canada’s lack of punctuality negated her eligibility for the positions, we do not
address whether TMIC’s after-acquired evidence that Canada could not pass a
background check insulates its decision not to hire her.
                                        1.
      Canada first argues that the district court erred by analyzing her claim
only under the McDonnell Douglas framework because she also introduced
“direct evidence” of discrimination. “Direct evidence is evidence that, if
believed, proves the fact of discriminatory animus without inference or


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presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.
2002). In her deposition and in a sworn declaration filed in response to TMIC’s
summary judgment motion, Canada identified several statements by TMIC
employees that she believes qualify as direct evidence. But neither the
statements she relies on nor the direct-evidence theory itself are mentioned in
any of Canada’s complaints, including her lengthy seventh amended
complaint. In fact, the complaint specifically frames her disparate-treatment
claim under the McDonnell Douglas framework. Similarly, in her response to
the EEOC’s request for information regarding the substance of her claim,
Canada did not mention either the alleged statements or the direct-evidence
theory; instead she explained her belief that she can satisfy the McDonnell
Douglas standard.
      We agree with TMIC that Canada has waived her right to argue under
the direct-evidence framework. She did not identify any direct evidence or
mention a direct-evidence theory in either her EEOC charge or her complaint.
She did not mention direct evidence in her opposition to the defendant’s
summary-judgment motion. Her objections to the magistrate’s report and
recommendations mention direct evidence only in passing. Although we
liberally construe briefs of pro se litigants, arguments not raised before the
district court are waived. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864,
877 (5th Cir. 2009) (“[A]rguments not raised before the district court are
waived and cannot be raised.”). The direct-evidence argument is waived.
                                       2.
      Turning now to the McDonnell Douglas framework, we also agree with
the district court that Canada was unqualified for the positions she sought.
TMIC introduced evidence that Canada was repeatedly tardy during her
temporary assignment, in contravention of a written employment policy.


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Although Canada now attempts to backtrack from her complaint’s
acknowledgement that she was late for work on multiple occasions, she has not
created a genuine fact dispute regarding her general tardiness for work during
her short employment at TMIC. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (explaining that a genuine dispute of material fact means that
“evidence is such that a reasonable jury could return a verdict for the
nonmoving party”). Canada’s speculation about the accuracy of the badge
system does not create a genuine factual issue. See Likens v. Hartford Life &
Acc. Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012) (“[A] non-movant . . . cannot
defeat summary judgment with speculation, improbable inferences, or
unsubstantiated assertions.” (citations omitted)). Because she cannot show
that she was otherwise qualified for the positions she applied for, Canada could
not make the required prima facie showing under McDonnell Douglas.
Summary judgment on her disparate-treatment claim was therefore
appropriate.
                                       C.
      Canada’s retaliation claim likewise fails. “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.” Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir.
2014) (quotations omitted). If the plaintiff establishes her prima facie case, the
McDonnell Douglas burden-shifting framework applies. Id.
      Canada claims that adverse employment action was taken in response
to her complaint to the Equal Employment and Fair Housing Office on July 21
and her complaint to Coates on August 8. To satisfy the causation element of
her claim, she needed to prove that her complaints were the but-for cause of


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her termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013). The crucial problem with her argument is that Kristen Kirkpatrick, the
human resources senior administrative assistant who ended Canada’s
assignment to TMIC, was not aware of Canada’s discrimination complaints
until after the decision not to retain her had been made. Accordingly, the
complaints could not have played a role in the decision. See Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If an
employer is unaware of an employee’s protected conduct at the time of the
adverse employment action, the employer plainly could not have retaliated
against the employee based on that conduct.”). 2
       Canada also relies on a “cat’s paw” theory of causation to prove her
retaliation claim. “Plaintiffs use a cat’s paw theory of liability when they
cannot show that the decisionmaker—the person who took the adverse
employment action—harbored any retaliatory animus.” Zamora v. City Of
Houston, 798 F.3d 326, 331 (5th Cir. 2015). Canada’s theory is that even if
Kirkpatrick did not intentionally discriminate against her, Kirkpatrick was
simply a “cat’s paw” of Thibodaux and Coates. She suggests that Kirkpatrick
would not have terminated her but for the malicious, untrue information that
Thibodaux and Coates provided to Kirkpatrick.
       To invoke the cat’s paw analysis, Canada must establish “(1) that a co-
worker exhibited discriminatory animus, and (2) that the same co-worker
possessed leverage, or exerted influence, over the titular decisionmaker.”
Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (quotations
omitted). But Thibodaux did not learn of Canada’s discrimination complaints
until after Kirkpatrick made her decision. And although Canada’s meeting


       Canada fails to brief her rejection for the document clerk position, so any retaliation
       2

arguments with respect to that position are waived.

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with Coates occurred several hours before Kirkpatrick’s decision, Canada
offers no evidence that Kirkpatrick and Coates communicated at all during the
intervening period or that Coates had influence over Kirkpatrick. See Stewart
v. Int’l Ass’n of Machinists & Aerospace Workers, 643 F. App’x 454, 457 (5th
Cir. 2016) (per curiam) (affirming summary judgment on a retaliation claim
where the employee failed to show the discriminating employer “had influence
over” the decisionmakers). As such, the district court correctly granted
summary judgment on her retaliation claim.
                                            III.
       Canada also challenges the district court’s dismissal of Thibodaux,
arguing that she has stated a viable claim against Thibodaux for tortious
interference with a prospective business relationship. But the threshold for
establishing a tortious interference action is exceedingly difficult. See Wal-
Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). And where, as
here, the claim is that an individual tortiously interfered with the prospective
business relations of its own employer, the threshold is even more difficult.
Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456–57 (Tex. 1998) (per curiam).
In fact, unless the employer admits that the employee was acting against its
interest, the burden is insurmountable. Id. at 457. Because TMIC has not
conceded that Thibodaux was acting against its interest, Canada’s claim fails. 3
                                             IV.
       Finally, Canada contends that the district court reversibly erred by
denying her Rule 56(d) motion for leave to conduct additional discovery, as well
as by refusing to allow Canada to amend her complaint for an eighth time.


       3To the extent Canada intends to appeal her claim against Thibodaux under 42 U.S.C.
§ 1981, that claim fails for the same reasons Canada’s Title VII claims fail. See Wright v.
Chevron Phillips Chem. Co., L.P., 734 F. App’x 931, 933 n.2 (5th Cir. 2018) (per curiam) (“The
analysis under both Title VII and § 1981 is identical.”).

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      We review a district court’s denial of a Rule 56(d) motion for abuse of
discretion. Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894
(5th Cir. 2013). Although such motions are “broadly favored” and should be
“liberally granted,” Canada was not entitled to additional discovery as a matter
of right. She was instead required to “set forth a plausible basis for believing
that specified facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced, will influence
the outcome of the pending summary judgment motion.” Id. (quotations
omitted). Canada was able to identify no plausible basis for believing that
additional facts might change the outcome of the motion. She also failed to
identify how any additional discovery could be resolved in a timely manner.
Accordingly, given the volume of discovery that had already occurred, the
district court did not abuse its discretion in denying her motion.
      Regarding the district court’s refusal to permit an eighth amended
complaint, the district court concluded that Canada only sought leave to amend
to eliminate her federal claims and circumvent federal jurisdiction. We have
recognized once already in this litigation that the district court’s decision was
correct, see In re: Quianna Canada, No. 17 -50677, at 2–3 (5th Cir. Dec. 29,
2017), and we now do so for a second time.
                           *           *            *
      Discrimination in employment is an invidious practice. We encourage
those who believe themselves harmed by such discrimination to vindicate their
rights. Given the nature of her claim, Canada may be entitled to legitimate
skepticism toward the defendants. But that skepticism does not justify her
extraordinary claims of bias against defense counsel, the district judge
specifically, and the federal judicial system in general. The court’s




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disagreement with Canada does not automatically impute prejudice. In our
legal system, Canada is entitled only to a fair shake. She has received one.
      AFFIRMED.




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