     Case: 15-50214      Document: 00513221209         Page: 1    Date Filed: 10/06/2015




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

                                      No. 15-50214
                                                                               Fifth Circuit

                                                                             FILED
                                                                       October 6, 2015

CHARLES BURTON CRISP,                                                   Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellant

v.

SEARS ROEBUCK & COMPANY; SEARS HOLDINGS CORPORATION;
ROBERT HOSIER,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-962


Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Charles Crisp appeals the district court’s order granting summary
judgment in favor of Sears Roebuck & Company, Sears Holdings Corporation,
and Robert Hosier on his Title VII and Texas Labor Code claims of national
origin discrimination and retaliation. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50214
                                         I.
      Crisp was a regional sales manager at Sears from 2004 until 2011. 1 His
responsibilities included supervising the district and store managers in his
region, which encompassed about 75 stores, and also ensuring the profit
margins and merchandising standards for each store.                  During Crisp’s
employment, Sears had a strict markdown policy that required the district
managers to report markdowns every Thursday to Sears’s Accounting Center
in Dallas. Markdown reports were to reflect, among other things, merchandise
that was lost, went missing, or was damaged. By Crisp’s own admission,
however, in 2010 he ordered his district managers not to take markdowns
without his approval, even if losses had been sustained, to increase the region’s
profit margins. 2 In November 2010, the Divisional Vice President of Finance
for Home Services, Steve Ferrone, discovered that the stores in Crisp’s region
were reporting unusually low markdowns. As a result, Ferrone instructed
Paul Jankowski, the National Loss Prevention Manager, to look into whether
Crisp had violated company policy. In the following months, Jankowski and
other Loss Prevention associates investigated Crisp’s markdown practices.
      In February 2011, Crisp learned that during the investigation
Jankowski had told another employee, Jacob Solis, that Crisp was managing
the region “like Hitler,” the district managers were “like Nazis,” and that they
were treating the store managers “like Jews.” Crisp is of German heritage,
although there is no indication that his ancestry was apparent or ever
discussed. Jankowski also purportedly remarked that he was Polish and that



1 Because of the summary judgment stance, this recitation takes facts in the light
most favorable to Crisp.
2 During Crisp’s deposition he was asked, “If others were to say that you— your efforts

to manage markdowns, your own, were intended to increase the region’s gross margin
dollars or profit, would you disagree?” He answered, “I would agree.”

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                             No. 15-50214
he was “going to get that bastard Charlie Crisp.”         A week later, Crisp
confronted Jankowski directly about the Hitler and Nazi comments. In March
2011, he also made a complaint to Sears’s Office of Compliance and Ethics.
This complaint made no mention of the Hitler or Nazi comments or any other
comments that could be construed as national origin discrimination; rather,
Crisp expressed concerns that Jankowski threatened his personal safety and
that the markdown investigation was not confidential. With the investigation
still ongoing in April 2011, Crisp was paid a $16,001.60 bonus as a result of his
region’s profit margins. The investigation finally concluded in May 2011. As
a result of its findings that Crisp had violated Sears’s markdown policy, Pam
Balistee, one of Sears’s Human Resource Directors, and Robert Hosier, then a
National Director of Operations, terminated Crisp’s employment.
      After exhausting EEOC procedures, Crisp brought this lawsuit against
Sears Roebuck and Co., Sears Holdings Corp., Hosier, and Jankowski. 3 The
district court granted summary judgment on the numerous claims Crisp
alleged. On appeal, Crisp challenges the district court’s grant of summary
judgment on just the following claims: national origin discrimination, national
origin retaliation, and aiding and abetting discriminatory practices.
                                          II.
      We review a grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). In doing so, we “draw all reasonable
inferences in favor of the nonmoving party, and avoid credibility
determinations and weighing of the evidence.” Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 150 (2000)).


3 The district court subsequently granted Crisp’s unopposed motion to dismiss all
claims against Jankowski and Jankowski is not a party to this appeal.


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                                 No. 15-50214
                                      III.
      Title VII and the Texas Labor Code both prohibit an employer from
discharging an employee on account of the employee’s national origin. 42
U.S.C. § 2000e–2(a)(1) (2013); Tex. Lab. Code § 21.051 (2013). Claims under
these laws may be brought using either direct or circumstantial evidence.
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). Crisp attempts to prove
his case by using both types of evidence.
                                            A.
      To establish national origin discrimination using workplace remarks as
direct evidence, a plaintiff must show that the remarks: (1) relate to the
plaintiff’s national origin; (2) were proximate in time to the adverse
employment decision; (3) were made by an individual with authority over that
decision; and (4) relate to that decision. See Brown v. CSC Logic, Inc., 82 F.3d
651, 655 (5th Cir. 1996); cf. Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470,
474 (5th Cir. 2015) (noting that a less stringent test applies when remarks are
being used as one piece of a circumstantial case). The district court found that
evidence was lacking for the last two requirements.
      The Defendants argue as a preliminary matter that the Hitler and Nazi
comments do not relate to Crisp’s German origin, but rather were comments
about his autocratic (that is, fascist) management style that could have been
directed at a supervisor of any national origin with a similar attitude. Think
of the “Soup Nazi” from Seinfeld who earned that nickname not for his national
origin, but instead for his tyrannical management of his soup line. This may
well be the most likely interpretation of the comments, especially given the
lack of evidence indicating that Jankowski knew Crisp is a German–American.
Complicating the question, however, is Crisp’s assertion, which we must accept
at this stage, that Jankowski noted his own Polish origin close in time to his
making these remarks. It may therefore be a plausible, if unlikely, inference

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                               No. 15-50214
that the comments did not relate to management style, but instead to ethnic
tension between these bordering countries. We need not decide whether the
remarks related to national origin, however, if the district court correctly
granted summary judgment on the third requirement that the remarks be
made by an individual with authority over the employment decision.
      Jankowski was not directly involved in the termination decision and
made no recommendation for termination. Balistee and Hosier terminated
Crisp.   Yet to show that the discriminatory remarks were made by an
individual with authority over the adverse employment decision, we look not
only to the formal decisionmaker, but also to lower-level employees who had
“influence or leverage over the [formal] decisionmaker, such that it is proper
to impute their discriminatory attitudes to the formal decisionmaker.” Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). The relevant
inquiry thus is whether Jankowski had influence over Balistee and Hosier’s
decision to fire Crisp. See id.
      Under the governing case law, Janikowski did not have influence over
the termination decision that would allow his alleged anti-German remarks
alone to establish the entire case of discrimination. The only basis for such a
ruling would be a finding that Janikowski’s role as a factfinder of the
investigation was tainted by his alleged discriminatory animus. Although in
some instances such influence is sufficient to be imputed to the formal
decisionmaker, we have held that when the plaintiff admits to the facts that
would otherwise be tainted by the factfinder’s animus, the factfinder no longer
exhibits influence over the formal decisionmaker because any improper bias is
removed by the plaintiff’s own admission. Laxton v. Gap Inc., 333 F.3d 572,
584 (5th Cir. 2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 217–




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                                 No. 15-50214
18 (5th Cir. 2001)). 4 Crisp admitted to ordering his district managers in 2010
to not take markdowns without his approval, even if losses had been sustained,
to increase the region’s profit margins.           This was clearly and quite
understandably against Sears’s policy, which required that markdowns be sent
to the Dallas Accounting Center “[e]very Thursday.” Crisp now contends that
Sears’s policy required him to train managers in the markdown procedures,
and that he was requiring his approval on all markdowns simply to ensure that
the managers were adequately trained. But this is only an excuse for violating
the every Thursday rule. It does not change Crisp’s admission of the violation.
The excuse also makes little sense as Crisp did not begin this markdown
manipulation until 2010, two years after the formal policy was circulated in
2008. Accordingly, Jankowski’s discriminatory remarks are not imputed to the
formal decisionmakers, Balistee and Hosier, because any discriminatory taint
in the investigation’s factfinding was removed by Crisp’s own admission. The
district court correctly granted summary judgment on Crisp’s attempt to prove
national origin discrimination through direct evidence.
                                         B.
      Crisp also tried to prove national origin discrimination the more common
way: using circumstantial evidence.             Under the McDonnell–Douglas
framework, a plaintiff must first make a prima facie case of national origin
discrimination. Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001). Then the
burden shifts to the employer to articulate a legitimate nondiscriminatory
reason for the termination. See id. at 378–79. If the employer provides a
legitimate nondiscriminatory reason, then the plaintiff must establish that
this reason was pretextual by producing evidence of disparate treatment or by

4 Although in Laxton the plaintiff relied on circumstantial evidence, rather than
direct evidence, the plaintiff still had to prove that the oral statement she used as
additional evidence of discrimination was made by a person with influence or leverage
over the formal decisionmaker. Laxton, 333 F.3d at 583.
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showing that the employer’s explanation is false or not believable. See id. at
379; Laxton, 333 F.3d at 578.
         We will assume that Crisp made his prima facie case. Sears responded
with ample evidence that it had a legitimate nondiscriminatory reason for
terminating Crisp’s employment: Crisp’s admitted violation of the markdown
policy. We must determine whether Crisp established pretext demonstrating
that he had either experienced disparate treatment or that Sears’s explanation
is false or not believable. The district court correctly noted that Crisp produced
no evidence to even try and show pretext in his summary judgment response,
and as such, his argument on this point is foreclosed.         In any event, the
evidence he identifies on appeal fails to establish pretext.
         Crisp argues that a reasonable juror could conclude that Sears’s
explanation is false or not believable because Sears’s markdown policy also
requires that Crisp train his managers in the markdown procedures. But, as
discussed above, this provides Crisp with only an excuse for breaking Sears’s
every Thursday rule and does not show that Sears’s explanation was false or
not believable. He also argues that the payment of the April 2011 bonus
establishes that the investigation exonerated him. The bonus, however, was
received before the investigation’s conclusion and indicates only that Sears did
not punish him prematurely. Without further evidence, no reasonable juror
could find that the bonus payment demonstrates that Sears’s explanation is
false.
                                        IV.
         Crisp also appeals the district court’s grant of summary judgment on his
retaliation claim. To establish a retaliation claim, a plaintiff must show that:
“(1) he engaged in an activity [in opposing discrimination]; (2) he was subjected
to an adverse employment action; and (3) a causal connection exists between



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                              No. 15-50214
the protected activity and the adverse employment action.”            McDonnell
Douglas & Lemaire, 480 F.3d 383, 388 (5th Cir. 2007).
      Although there is some doubt about whether Crisp engaged in protected
activity, 5 we again assume that Crisp made a prima facie case for retaliation
on the basis of his February 2011 confrontation with Jankowski and his March
2011 formal complaint with Sears’s Office of Compliance and Ethics. Once
again, however, Crisp is unable to rebut Sears’s lawful explanation for
terminating him. Crisp relies on the same pretext argument that Sears’s
markdown policy required him to train his managers, and therefore, he is
excused from following the other parts of the policy, which required
markdowns be submitted every Thursday. This pretext argument fails for the
same reasons it did on the discrimination claim. We thus also affirm summary
judgment on Crisp’s retaliation claim.
                                       V.
      Finally, we address the district court’s granting of summary judgment
on Crisp’s claim that the corporate defendants violated Section 21.056 of the
Texas Labor Code, which prohibits an employer from “aid[ing], abet[ing],
incit[ing], or coerc[ing] a person to engage in a discriminatory practice.” Tex.
Lab. Code § 21.056 (2013).
      It is difficult to discern the basis for this claim. In any event, because
Crisp has failed to show any underlying discriminatory practice that anyone
could have aided or abetted, this claim also fails.
                                       VI.
      For these reasons, the judgment of the district court is AFFIRMED.




5 As discussed above, the March 2011 complaint did not refer to the Nazi or Hitler
comments or otherwise mention animus on the basis of national origin.
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