     Case: 16-60760      Document: 00514259408         Page: 1    Date Filed: 12/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-60760                                 FILED
                                                                            December 4, 2017

FREDERICK L. ROBINSON,                                                        Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellant

v.

JACKSON STATE UNIVERSITY; VIVIAN FULLER, Doctor (Individually);
JOHN 1-10 DOES,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:13-CV-7


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Fred Robinson brought a Title VII and First Amendment retaliation
lawsuit against Jackson State University and its Athletic Director, Dr. Vivian
Fuller, alleging Dr. Fuller fired him because he provided unfavorable
testimony to the Equal Employment Opportunity Commission. A jury found
retaliation and awarded damages to Robinson. The district court, however,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60760    Document: 00514259408      Page: 2   Date Filed: 12/04/2017



                                 No. 16-60760
granted judgment as a matter of law in favor of Jackson State, concluding
Robinson submitted insufficient evidence that Dr. Fuller knew about
Robinson’s testimony at the time of the termination.
      Because we conclude Robinson submitted legally sufficient evidence of
both decisionmaker knowledge and ultimate causation, we REVERSE both the
district court’s judgment as a matter of law and order denying Robinson
attorney’s fees, and we REMAND the case to the district court for proceedings
consistent with this opinion.
                           I.     BACKGROUND
      In August 2011, Jackson State University appointed a new athletic
director, Dr. Vivian Fuller. Shortly thereafter, Lolita Ward, a secretary in the
athletics department, claimed Dr. Fuller gave her looks and gestures of a
sexual nature. Two coworkers alleged to have witnessed Dr. Fuller’s conduct.
First, Fred Robinson, a certified trainer and the then-longtime Director of
Sports Medicine, saw Dr. Fuller “undressing” Ward with her eyes. Second,
Dalandus Henderson, a budget accountant for the athletics department,
observed Dr. Fuller approach Ward’s office and lick her tongue out at Ward.
      Dr. Fuller fired Ward in October 2011, and Ward then filed a retaliation
charge with the Equal Employment Opportunity Commission (EEOC). After
Ward’s     termination,    Robinson        and   Henderson       attended      an
athletics-department meeting organized by Dr. Carolyn Meyers, President of
Jackson State. According to Henderson, President Meyers accused the
department of mistreating Dr. Fuller and told the entire department “that she
would take legal matters and they would let anybody go who opposed Dr.
Fuller.”
      The EEOC investigated Ward’s allegations and organized interviews
with six Jackson State employees, including Robinson, Henderson, and Dr.
Fuller. Prior to the interview, Robinson met with two Jackson State attorneys:
                                       2
    Case: 16-60760     Document: 00514259408      Page: 3   Date Filed: 12/04/2017



                                  No. 16-60760
David Buford, the school’s then-general counsel, and Latoya Merritt, the
school’s retained outside counsel. Robinson told the attorneys about Dr.
Fuller’s conduct. Both attorneys were also present when Robinson relayed his
observations to the EEOC investigator on April 30, 2012. Henderson, too, told
the EEOC about his observations. Robinson and Henderson were the only
interviewees to corroborate Ward’s allegations. Meanwhile, Dr. Fuller met
with the same attorneys to discuss her own EEOC testimony. And Dr. Fuller
continued to meet with those attorneys regarding Ward’s EEOC complaint.
      Approximately one month later, Dr. Fuller fired both Robinson and
Henderson. Neither termination letter supplied a justification. In later
responses to the EEOC, however, Jackson State gave the same two reasons for
both terminations: (1) reorganization of the athletic department and (2) Dr.
Fuller had difficulty finding Robinson and Henderson throughout the workday.
      Robinson then filed suit against Jackson State and Dr. Fuller
(collectively, “Jackson State”), alleging retaliation under Title VII and the First
Amendment. The district court denied Jackson State’s motion for summary
judgment. At the subsequent trial, two primary questions arose: (1) whether
Dr. Fuller had actual knowledge of Robinson’s EEOC interview and
(2) whether Dr. Fuller’s proffered justifications were pretextual.
      On the decisionmaker-knowledge issue, Dr. Fuller denied any prior
awareness of Robinson’s testimony. Buford, too, denied telling Dr. Fuller about
Robinson’s interview. Merritt, operating as trial counsel for Jackson State,
provided no testimony at all. As a result, Robinson was without direct evidence
of decisionmaker knowledge. Robinson relied instead on a circumstantial case
composed of testimony pertaining to (1) the temporal proximity of Robinson’s
firing to his interview; (2) the knowledge of Jackson State’s attorneys; (3) Dr.
Fuller’s marked change in behavior toward Robinson after the EEOC interview
(avoiding him “at all costs”); (4) the existence of pretext; (5) President Meyers’s
                                        3
    Case: 16-60760    Document: 00514259408       Page: 4   Date Filed: 12/04/2017



                                   No. 16-60760
threat of termination to Dr. Fuller’s opponents; and (6) the parallel experiences
of Henderson.
      As for the justification itself, Dr. Fuller and Buford testified that Dr.
Fuller had already made the decision to fire Robinson prior to March 2012 and
thus before the April interview. Furthermore, Dr. Fuller added four new
justifications at trial (in addition to reorganization and Robinson’s
absenteeism): (1) Robinson left an ill student at a hospital with the director of
football operations; (2) Robinson did not attend certain events he was supposed
to attend; (3) Robinson put an African proverb on his trainer uniform; and (4)
Robinson once called Dr. Fuller an “African Nubian queen.” These
justifications each relate to events occurring in fall 2011. Jackson State relied
also on Robinson’s deposition testimony, in which he identified other potential
reasons for his termination: organizational changes and a February 2012
complaint letter he sent to Human Resources. Robinson countered with much
of the same evidence he used to show decisionmaker knowledge. In addition,
Robinson submitted evidence that the athletics department was already below
the recommended number of certified trainers, Dr. Fuller’s explanation shifted
over time, Dr. Fuller failed to comply with relevant termination procedure, and
Robinson’s name appeared as an employee on the very reorganization plan
used to justify his termination.
      Jackson State twice moved for judgment as a matter of law during trial,
and the district court denied both motions. The jury returned a verdict for
Robinson, finding decisionmaker knowledge and concluding that Robinson
would not have been fired but for his EEOC interview. As for damages, the jury
awarded Robinson $7,100 in lost income, $25,000 in emotional pain and
suffering, and $75,000 in punitive damages.
      Post-verdict, Jackson State renewed its motion for judgment as a matter
of law, this time coupling it with an alternative motion for new trial and
                                        4
    Case: 16-60760    Document: 00514259408       Page: 5   Date Filed: 12/04/2017



                                   No. 16-60760
remittitur. When the district court failed to rule for over a year, Robinson
moved to transfer the case. One month later, however, the court granted
Jackson State’s motion for judgment as a matter of law, concluding only that
Robinson lacked sufficient evidence of decisionmaker knowledge (evidence
beyond mere speculation). In turn, the court denied Robinson’s motion for
attorney’s fees. Robinson timely appealed.
                             II.    DISCUSSION
A. Issues Before the Court
      Before reaching the substance of the decision below, Jackson State seeks
to narrow the claims. Specifically, Jackson State argues Robinson abandoned
his First Amendment retaliation claim on appeal because he “does not even
mention the First Amendment in his appellate brief” and “failed to raise and
brief the issue of whether the district court erred in reversing the jury’s
$75,000 punitive damage award against Dr. Fuller.”
      This circuit has articulated the standard for abandonment in a couple
ways. In one instance: “An appellant abandons all issues not raised and argued
in its initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994). In another: “If a party fails to mention a district court’s disposition of
certain claims in its briefing, such claims are considered abandoned.” Stem v.
Gomez, 813 F.3d 205, 213 (5th Cir. 2016) (internal quotations omitted).
      Whatever the standard, Robinson met it in his initial brief. Though
Robinson did not mention the “First Amendment” in that phraseology, his
initial brief specified, “[t]his is a 42 U.S.C.A. § 1983 and 42 U.S.C.A.
§ 2000e-3(a) suit,” a suit that resulted in a “verdict in favor of Robinson and
awarded him $32,100.00 in actual damages and $75,000.00 in punitive
damages.” Jackson State acknowledges correctly that Robinson’s § 1983 claim
(i.e., the First Amendment claim) provided the sole basis for his punitive
damages award. As a result, Robinson’s explanation of both the claims and the
                                        5
    Case: 16-60760     Document: 00514259408     Page: 6   Date Filed: 12/04/2017



                                  No. 16-60760
singular complained-of judgment—the district judge’s decision to overturn the
verdict—was, in fact, an explanation of the “district court’s disposition of” the
relevant First Amendment claim. Stem, 813 F.3d at 213. Furthermore,
Robinson asks not for a “partial reinstatement,” a “reinstatement of actual
damages,” or a “reinstatement of Title VII relief”; he asks this Court to
“reinstate the jury verdict.” He lobbies for that relief by addressing and arguing
the relevant legal “issue” (indeed, the only issue) upon which the district court
passed judgment—a supposed lack of decisionmaker knowledge. Cinel, 15 F.3d
at 1345. On those grounds, we find no abandonment.
B. The District Court’s Judgment as a Matter of Law
1. Standard of Review
      “We review a district court’s grant of judgment as a matter of law de
novo, applying the same standard as the district court.” Laxton v. Gap Inc., 333
F.3d 572, 577 (5th Cir. 2003). Judgment as a matter of law is appropriate when
“a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.” FED. R. CIV. P. 50(a)(1). This occurs only when “the
facts and inferences point so strongly and overwhelmingly in favor of one party
that the Court believes that reasonable men could not arrive at a contrary
verdict.” Laxton, 333 F.3d at 577 (internal quotations omitted).
      When “review[ing] all of the evidence in the record,” we “must draw all
reasonable inferences in favor of the nonmoving party, and [we] may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). As a consequence, we “must
disregard all evidence favorable to the moving party that the jury is not
required to believe.” Id. at 151. But we do credit “evidence supporting the
moving party that is uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.” Id. (internal
quotations omitted).
                                        6
    Case: 16-60760    Document: 00514259408     Page: 7   Date Filed: 12/04/2017



                                 No. 16-60760
2. Retaliation Standards
      Robinson’s case involves two types of retaliation claims, Title VII and the
First Amendment, each with its own elements. That said, this appeal turns
ultimately on a shared component of the claims—that there must be a causal
connection between Robinson’s EEOC interview and his termination.
      A Title VII retaliation plaintiff who relies on circumstantial evidence to
prove discrimination (as Robinson does) must initially abide by the McDonnell
Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). That framework requires the plaintiff to make out a
three-element prima facie case of unlawful retaliation: (1) the plaintiff
“engaged in protected activity”; (2) the plaintiff “suffered from an adverse
employment action”; and (3) “there was a causal connection between the
activity and the adverse employment decision.” Adams v. Groesbeck Indep.
Sch. Dist., 475 F.3d 688, 691 (5th Cir. 2007). Once the plaintiff meets this
prima facie burden, the burden shifts to the employer to articulate a
“legitimate, nondiscriminatory reason” for the adverse employment action.
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002). And
finally, once the employer supplies such a justification, the “burden then shifts
back to the plaintiff to show by a preponderance of the evidence that the
employer’s nondiscriminatory explanation is pretextual.” Id.
      Following a jury trial, however, the McDonnell Douglas burden-shifting
framework “becomes moot,” and we evaluate only whether “legally sufficient
evidence supported the jury’s finding.” Adams, 475 F.3d at 691. That “ultimate
determination is whether, ‘but for’ the protected conduct, the employer would
not have engaged in the adverse employment action.” Douglas v.
DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998).
      A First Amendment retaliation plaintiff is subject to the (slightly
different) Mt. Healthy burden-shifting framework. See Mt. Healthy City Sch.
                                       7
    Case: 16-60760    Document: 00514259408     Page: 8   Date Filed: 12/04/2017



                                 No. 16-60760
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The plaintiff must make
an initial four-part showing: “(1) the plaintiff suffered an adverse employment
decision, (2) the plaintiff's speech involved a matter of public concern, (3) the
plaintiff’s interest in speaking outweighed the governmental defendant’s
interest in promoting efficiency, and (4) the protected speech motivated the
defendant’s conduct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004). Once
the plaintiff meets this burden, an employer “may still avoid liability by
showing, by a preponderance of the evidence, that it would have taken the
same adverse employment action even in the absence of the protected
speech”—i.e., a lack of but-for causation. Haverda v. Hays Cty., 723 F.3d 586,
591–92 (5th Cir. 2013). The plaintiff can, however, “refute that showing by
evidence that his employer’s ostensible explanation for the discharge is merely
pretextual.” Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991).
      Jackson State concedes all but the causal components of Robinson’s
retaliation claims. Thus, despite the nuances in the burden-shifting schemes
at play, we arrive, under either retaliation theory, at the same intersection:
whether there was legally sufficient evidence that Robinson’s EEOC interview
(his protected activity) caused his termination (the adverse employment
action). Douglas, 144 F.3d at 372; Haverda, 723 F.3d at 591. That causation
issue manifests itself in two ways on appeal. First, we confront the district
court’s stated rationale for judgment as a matter of law: Robinson’s protected
activity could not have caused the termination if Dr. Fuller had no knowledge
of the activity. And second, Jackson State argues (as an alternative basis for
affirmance) that Robinson failed to counter Dr. Fuller’s nondiscriminatory
justification with competent evidence of pretext, meaning there was no
ultimate proof of causation.




                                       8
    Case: 16-60760    Document: 00514259408       Page: 9   Date Filed: 12/04/2017



                                 No. 16-60760
3. Decisionmaker Knowledge
      The causation prong of any retaliation claim requires proof that the
“employer knew about the employee’s protected activity.” Manning v. Chevron
Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). The rationale is a simple one: “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.” Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999).
      Yet, direct proof of decisionmaker knowledge can be elusive, particularly
when the decisionmaker (like Dr. Fuller here) disclaims prior knowledge
entirely. It is unsurprising then that “[a] decisionmaker’s awareness may be
established by circumstantial evidence.” E.E.O.C. v. EmCare, Inc., 857 F.3d
678, 683 (5th Cir. 2017). But carrying that burden requires “more evidence
than mere curious timing coupled with speculative theories,” and isolated
“evidence of generalized discussions between a decisionmaker and someone
with knowledge of the plaintiff’s protected activity creates only a speculative
inference regarding the decisionmaker’s awareness.” Id. (internal quotations
omitted). Consequently, the question we must answer is whether Robinson’s
quantum of circumstantial evidence created a reasonable inference of
decisionmaker knowledge.
      But first, a brief clarification of our standard is in order. Robinson
suggests we need only find “general corporate knowledge,” a standard adopted
by the Second Circuit. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d
Cir. 2013). Not so in this circuit, for we have consistently required proof of
“actual” decisionmaker knowledge. E.g., Beattie v. Madison Cty. Sch. Dist., 254
F.3d 595, 604 (5th Cir. 2001). Whatever the law may be elsewhere, mere
“constructive notice” does not suffice in this circuit. Corley v. Jackson Police
Dep’t, 639 F.2d 1296, 1300 n.6 (5th Cir. 1981).
                                       9
   Case: 16-60760    Document: 00514259408      Page: 10    Date Filed: 12/04/2017



                                 No. 16-60760
      We now conclude legally sufficient evidence supported the jury’s finding
of decisionmaker knowledge. We observe first that Robinson’s record is unlike
our past cases involving plaintiffs who failed “to produce any evidence that a
decisionmaker was aware of the protected activity.” EmCare, 857 F.3d at 683
(citing Bain v. Ga. Gulf Corp., 462 F. App’x 431, 433–34 (5th Cir. 2012) (per
curiam) (affirming judgment as a matter of law when plaintiff did not present
“any evidence that [the decisionmaker] knew of the protected deposition
testimony” at the time of the adverse employment decision)).
      Jackson State must instead liken Robinson’s proof to those cases
involving a merely speculative inference of decisionmaker knowledge. See, e.g.,
Chaney, 179 F.3d at 168–69 (rejecting inference of decisionmaker knowledge
from a supervisor’s single curious comment when the employee never told
anyone at his place of employment about his protected activity and two years
elapsed before his termination); Turner v. Jacobs Eng’g Grp., Inc., 470 F. App’x
250, 253 (5th Cir. 2012) (per curiam) (rejecting inference of decisionmaker
knowledge from the decisionmaker’s single negative comment and general
conversations   between    the   decisionmaker    and      other   knowledgeable
employees).
      But Jackson State’s comparison falls short; Robinson’s evidence gave the
jury a more-than-adequate basis to infer decisionmaker knowledge. Drawing
all reasonable inferences in favor of Robinson, the record established the
following. Before Robinson attended the EEOC interview, Dr. Fuller’s direct
superior, President Meyers, had already threatened the athletics department
“that she would take legal matters and they would let anybody go who opposed
Dr. Fuller.” Robinson and Henderson were the only interviewees to exhibit
such “opposition” through testimony unfavorable to Dr. Fuller. Moreover, two
Jackson State attorneys witnessed the Robinson and Henderson interviews
firsthand and thus learned of the testimony given therein. Dr. Fuller met with
                                      10
    Case: 16-60760         Document: 00514259408          Page: 11   Date Filed: 12/04/2017



                                        No. 16-60760
both attorneys prior to her own interview, and she continued to meet with
those attorneys to discuss the Ward legal matter—the very topic at the heart
of Robinson and Henderson’s testimony. It was by no means unreasonable for
the jury to infer from these attorney-and-accused conversations that Dr. Fuller
learned the identities of the sole corroborators. 1 This is particularly true in
light of what followed; Dr. Fuller began to treat Robinson differently following
the interview, avoiding him at all costs. 2 And ultimately, just as President
Meyers foreshadowed, Dr. Fuller fired both Robinson and Henderson the
following month, supplying the same boilerplate, arguably pretextual 3
justification.
      All the categories of evidence outlined above—temporal proximity,
specific conversations with knowledgeable colleagues, changed decisionmaker
behavior      following     complaints,      pretext,     and   parallel   outcomes     for
similarly-situated employees—are among the prototypical circumstantial
indicators of decisionmaker knowledge (and of causation in a broader sense).
See EmCare, 857 F.3d at 684 & n.2. In that vein, we have twice before upheld
knowledge findings premised on records similar to Robinson’s. See, e.g., id.
(affirming decisionmaker-knowledge finding when (1) a supervisor criticized
the employee following each complaint; (2) the supervisor worked in the same
division as the decisionmaker; (3) the supervisor and decisionmaker discussed
the employee’s performance; and (4) the decisionmaker fired the three


      1 The parties litigated below whether the attorneys’ knowledge should be imputed, as
a matter of law, to Dr. Fuller. We need not reach the imputation question, however, because
we conclude the collective circumstantial record created a sufficient inference of
decisionmaker knowledge.
      2 We note here that we rely on Robinson’s testimony about a change in Dr. Fuller’s
behavior and not on Robinson’s separately expressed belief in Dr. Fuller’s awareness. The
former may indicate decisionmaker knowledge. See EmCare, 857 F.3d at 684. The latter is
pure speculation.
      3   We discuss pretext below. See infra § II.B.4.
                                               11
    Case: 16-60760    Document: 00514259408      Page: 12    Date Filed: 12/04/2017



                                  No. 16-60760
complaining employees on the same day); Ellerbrook v. City of Lubbock, 465 F.
App’x 324, 332–33 (5th Cir. 2012) (per curiam) (affirming decisionmaker-
knowledge finding when a supervisor with knowledge of the protected activity
discussed with the decisionmaker how to interview the plaintiff).
      We need not speculate whether any single category of Robinson’s
evidence would have sufficed—that is not our standard. See Miller v. Raytheon
Co., 716 F.3d 138, 145 (5th Cir. 2013) (acknowledging that evidence,
“[c]onsidered in isolation,” might be inadequate and instead looking at the
“accumulation of circumstantial evidence” to evaluate a retaliation claim). We
need only conclude (and we do conclude) that evidence in the quantity and
character present in Robinson’s record is legally sufficient. At bottom, the jury
could have accepted as mere coincidence that Dr. Fuller unknowingly (indeed,
fortuitously) happened to eliminate the sole dissenting employees shortly after
they spoke up. But, given the totality of the record, the jury was not obligated
to do so, and for that reason, we leave their decisionmaker-knowledge finding
intact. See id. (affirming a verdict when “reasonable men could differ”).
4. Ultimate Causation
      Before we may reinstate the verdict, however, we must consider an
alternative basis for affirmance—a lack of ultimate causation. See Mo. Pac.
R.R. Co. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 538 (5th Cir. 1994) (“[W]e
can affirm the district court on . . . alternate grounds.”). Ultimately, we decline
Jackson State’s invitation to affirm on that basis.
      Because a trial on the merits occurred below, “the evaluation process is
streamlined and we proceed directly to the ultimate question of whether the
plaintiff presented enough evidence for a jury to find that discrimination
occurred.” Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)
(internal quotations omitted). But what does proof of the ultimate question
entail? When an employer “proffer[s] a nondiscriminatory purpose for the
                                        12
   Case: 16-60760     Document: 00514259408      Page: 13   Date Filed: 12/04/2017



                                  No. 16-60760
adverse employment action,” the employee may seek to carry its ultimate
burden by “offer[ing] some evidence . . . that permits the jury to infer that the
proffered explanation was a pretext for discrimination.” Id. (internal
quotations omitted). Said differently by the Supreme Court, “the plaintiff may
attempt to establish that he was the victim of intentional discrimination ‘by
showing that the employer’s proffered explanation is unworthy of credence.’”
Reeves, 530 U.S. at 143 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)). Jackson State and Dr. Fuller proffered such a
justification (several, actually), and Robinson sought to meet his ultimate
burden via proof of pretext.
      Evidence of pretext “may take a variety of forms.” Patterson v. McLean
Credit Union, 491 U.S. 164, 187 (1989). First, an employer’s rationale is
“suspect where it ha[s] not remained the same between the time of the EEOC’s
investigation and the ultimate litigation.” Burton v. Freescale Semiconductor,
Inc., 798 F.3d 222, 237 (5th Cir. 2015) (internal quotations omitted). Second,
“an employer’s departure from typical policies and procedures” can bolster an
inference of pretext. Feist v. La., Dep’t of Justice, Office of the Attorney Gen.,
730 F.3d 450, 455 (5th Cir. 2013). And third, the “[c]lose timing between an
employee's protected activity and an adverse action” may “satisfy the causal
connection element,” though it is not always independently sufficient. Id. at
454 (alteration in original and internal quotations omitted). However, a
plaintiff’s mere belief that his employer acted on an illegitimate reason is
inadequate absent other evidence of pretext. Sherrod v. Sears, Roebuck & Co.,
785 F.2d 1312, 1316 (5th Cir. 1986).
      Robinson must first overcome a key causal hurdle: the timing of Dr.
Fuller’s decision-making process. That is, if the jury were obligated to accept
Buford’s testimony that Dr. Fuller already made the reorganization-based
decision to fire Robinson before March 2012 (and before the April 2012
                                       13
    Case: 16-60760    Document: 00514259408       Page: 14   Date Filed: 12/04/2017



                                  No. 16-60760
interview), then proof of causation would be an uphill battle. After all,
protected activity is unlikely to cause a termination if an employer already
decided to terminate the employee. See Clark Cty. Sch. Dist. v. Breeden, 532
U.S. 268, 272 (2001) (per curiam) (“Employers need not suspend previously
planned transfers upon discovering [protected activity], and their proceeding
along lines previously contemplated, though not yet definitively determined, is
no evidence whatever of causality.”).
      Alas, Dr. Fuller’s reorganization plan itself created the doubt sufficient
for the jury to discount Jackson State’s alleged timeline. The plan—authored
by Dr. Fuller and published after she had purportedly made her decision to fire
Robinson—listed Robinson as the Director of Sports Medicine, a person
“responsible for success of this action plan and its main activities.” At trial, Dr.
Fuller and a former Jackson State administrator both attempted to explain
away Robinson’s inclusion by describing the plan as a mere “snapshot” of those
officers currently employed, not a guarantee of future employment.
      Two problems. First, nowhere in the plan does Jackson State’s
“snapshot” qualification appear. And second, the very language of the plan
belies Jackson State’s explanation; the plan refers to itself as a forward-looking
instrument, one that “shall be implemented” by those “responsible” officers.
Thus, the jury was entitled to reject Jackson State’s extra-textual explanation
and infer instead that Dr. Fuller anticipated Robinson’s continued employment
as of March 2012, the time of the plan’s publication. The import of such an
inference is obvious: an employer does not anticipate the continued
employment of someone she already decided to fire. And with Jackson State’s
timeline called into question, the jury was free to infer Dr. Fuller fired
Robinson based on a post-March 2012 occurrence—the April EEOC interview
being a logical culprit. See Reeves, 530 U.S. at 147 (“[O]nce the employer’s


                                        14
    Case: 16-60760     Document: 00514259408        Page: 15   Date Filed: 12/04/2017



                                     No. 16-60760
justification has been eliminated, discrimination may well be the most likely
alternative explanation . . . .”).
      Timeline aside, we note further that Robinson’s evidence tracks each of
the three traditional indicators of pretext: changing explanations, departure
from termination protocol, and temporal proximity. Jackson State justified
Robinson’s termination first on the basis of the reorganization plan and his
absenteeism. But, at trial, Dr. Fuller’s explanation grew substantially,
including four previously undisclosed justifications. In addition, Dr. Fuller
neither submitted a letter to Human Resources nor received approval from
Robinson’s department head prior to termination—both prerequisites under
Jackson State’s policies. And finally, Dr. Fuller fired Robinson just one month
after Robinson’s testimony. These traditional indicators of pretext gave the
jury further reason to doubt the veracity of Dr. Fuller’s proffered justifications.
      Next, we reject Jackson State’s suggestion that Robinson’s own
speculation about the reasons for his firing somehow precluded the jury from
finding actual discrimination. We find no authority for that proposition, and
instead, it conflicts with the essence of our retaliation inquiry: we look to the
“real reason” for the termination, not an employee’s “subjective belief” about
its impetus. Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999)
(internal quotations omitted).
      Lastly, Jackson State offers no rebuttal to two additional causal
indicators: (1) the explicit threat of retaliatory termination by President
Meyers and (2) the parallel treatment of Henderson, the only other employee
to corroborate allegations against Dr. Fuller. Needless to say, both support
further an inference of discrimination. See Powell v. Rockwell Int’l Corp., 788
F.2d 279, 283 (5th Cir. 1986) (finding sufficient evidence of pretext when,
among other things, “officials made specific threats against [the employee] for”
engaging in protected activity); EmCare, 857 F.3d at 684 n.2 (emphasizing “the
                                         15
   Case: 16-60760     Document: 00514259408       Page: 16   Date Filed: 12/04/2017



                                   No. 16-60760
fact that the three employees who complained together were all fired the same
day” as support for causation).
      In sum, Robinson offered “sufficient evidence to find that the employer’s
asserted justification is false,” and as a consequence, the jury was entitled “to
conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148.
This is simply not a case in which “the plaintiff created only a weak issue of
fact as to whether the employer’s reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had
occurred.” Id. In turn, judgment as a matter of law was inappropriate.
                            III.    CONCLUSION
      Because sufficient evidence supports a finding of both decisionmaker
knowledge and ultimate causation, the district court erred in overturning the
jury’s verdict. We therefore REVERSE the district court’s judgment as a
matter of law and its order summarily denying Robinson attorney’s fees, and
we REMAND for the district court to (1) reinstate the jury’s verdict and
(2) consider both an amended motion for Robinson’s attorney’s fees and
Jackson State’s unresolved motion for new trial and remittitur. Appellant’s
motion for reassignment is granted, and on remand, Judge Wingate is directed
to deliver this case to the Chief Judge of the Southern District of Mississippi
for reassignment. Pennypacker v. City of Pearl, 689 F. App’x 332, 333 (5th Cir.
2017) (per curiam); see also In re State of Miss., No. 16-60610 (5th Cir. Sept.
29, 2016).




                                       16
