     Case: 19-20312      Document: 00515204389         Page: 1    Date Filed: 11/19/2019




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


                                    No. 19-20312                                    FILED
                                  Summary Calendar                          November 19, 2019
                                                                               Lyle W. Cayce
                                                                                    Clerk
JESSIE MOORE,

              Plaintiff - Appellant

v.

MEGAN J. BRENNAN, Postmaster General of the United States,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                USDC 4:17-CV-85


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jessie Moore, a United States Postal Service (USPS) employee, appeals
from the district court’s summary-judgment dismissal of his Title VII
retaliation claims. Because Moore has failed to meet his burden to show
pretext, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-20312    Document: 00515204389     Page: 2   Date Filed: 11/19/2019



                                 No. 19-20312
                                           I.
      In 2011, Moore began work as a maintenance mechanic, level 7, at the
USPS’s General Post Office in downtown Houston. Around March 2015, the
General Post Office was sold, and USPS began to reassign the employees who
worked at that facility to other positions. Because Moore is a veteran, he was
not required to move to a lower level position. USPS did, however, request
that Moore volunteer for a lower level position and sign a letter waiving his
right to contest the lower level assignment. Moore refused to sign the letter
and told other employees that they did not have to sign the waiver letter.
Although Moore bid for a position at his same pay level, he did not receive the
job. USPS then attempted to reassign Moore to a mail carrier position.
      Moore complained to Kenneth Spence, one of the USPS officials
responsible for the reassignment process, that the mail carrier position was too
physically demanding for him. After Moore provided Spence with medical
forms from his doctor, Spence agreed that Moore could not physically work as
a mail carrier. In April 2015, based on this medical documentation, USPS
asked Moore to go back to the doctor to ensure that he was fit to continue to
work as a maintenance mechanic. Moore’s supervisor instructed Moore to
remain home until USPS could confirm that Moore could continue his job as a
maintenance mechanic. Ultimately, USPS allowed Moore to return to work as
a maintenance mechanic. Even so, on April 29, 2015, Moore filed an informal
EEO complaint alleging discrimination based on race, religion, and age.
      Once Moore returned to work, USPS required him and other employees
to help move postal equipment and furniture out of the General Post Office.
According to Moore, only those employees who refused to sign the waiver letter
had to do this heavy lifting. He contends that USPS sent its other employees
to work at its North Houston facility. Moore complains that, during this time
period, the air conditioner at the General Post Office was turned off, and that
                                       2
    Case: 19-20312     Document: 00515204389     Page: 3   Date Filed: 11/19/2019



                                  No. 19-20312
USPS exposed him to extreme heat and hazardous materials. Moore also
complains that, although a manager stated that all employees who helped
USPS move out of the General Post Office would receive a week of out-
of-schedule pay, he never received his promised $500.
      In July 2015, USPS moved Moore from the General Post Office to the
Field Maintenance Office. Around two months later, Moore made a successful
bid for a maintenance mechanic, level 7 position at USPS’s North Houston
Office. Despite being notified that he would start in this position on October
31, 2015, Moore contends that he remained at the Field Maintenance Office
until May 2016.      According to Moore, he was the only employee with a
maintenance mechanic, level 7 position required to stay at the Field
Maintenance Office and move heavy equipment. Moore then filed another
EEO complaint related to the assignment of these tasks, alleging
discrimination and retaliation.
      In May 2016, USPS assigned Moore to work in automation at the North
Houston Office. Although this job required Moore to work on USPS’s delivery
bar code sorter machines, USPS did not give Moore the proper tools to work on
these machines until approximately one month after he started the
assignment.
      Moore sued, alleging that USPS had engaged in numerous acts of
retaliation in violation of Title VII. The complaint also included references to
potential breach of contract and age discrimination claims, but Moore later
consented to dismissal of those claims, leaving only his retaliation claims.
Moore also acknowledged that his allegations of retaliation related only to
incidents occurring after May 1, 2015.      Thus, the district court granted
Brennan’s motion to dismiss Moore’s allegations of retaliation regarding
incidents prior to May 1, 2015. On March 19, 2019, the district court granted


                                       3
     Case: 19-20312       Document: 00515204389         Page: 4    Date Filed: 11/19/2019



                                      No. 19-20312
Brennan summary judgment on Moore’s Title VII retaliation claims, and
dismissed the suit. Moore timely appealed. 1
                                                 II.
       We review the district court’s grant of summary judgment de novo,
viewing all the facts and evidence in the light most favorable to the non-
movant. Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir.
2013). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
                                                 III.
       We apply the McDonnell Douglas burden-shifting framework to Title VII
retaliation claims based on circumstantial evidence. See Wheat v. Fla. Par.
Juvenile Justice Comm’n, 811 F.3d 702, 705 (5th Cir. 2016).                    Under this
framework, the aggrieved employee creates a presumption of unlawful
retaliation by first establishing a prima facie case of retaliation.                    See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then
shifts to the employer “to articulate some legitimate, nondiscriminatory



       1  Moore makes no argument that the district court erred in dismissing his age
discrimination and breach of contract claims. Although Moore discusses, at length, USPS’s
proposal to transfer Moore to a mail carrier position and requirement that Moore obtain
medical documentation, he does not challenge the district court’s order dismissing his
allegations of retaliation regarding incidents prior to May 1, 2015. Thus, we deem those
claims to have been waived. See Fed. R. App. P. 28(a)(8) (“The appellant’s brief must contain
. . . appellant’s contentions and the reasons for them, with citations to the authorities and
the parts of the record on which the appellant relies.”). Because Moore’s briefing addresses
only his Title VII retaliation claims, he has also abandoned any claim that USPS
discriminated against him in violation of Title VII. See Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003).
                                             4
    Case: 19-20312      Document: 00515204389     Page: 5   Date Filed: 11/19/2019



                                   No. 19-20312
reason”   for   its   actions. Id. If   the   employer   proffers   a   legitimate,
nondiscriminatory reason, the burden returns to the employee to prove that
the employer’s reason is pretext for unlawful retaliation. See Septimus v. Univ.
of Houston, 399 F.3d 601, 607 (5th Cir. 2005).
      To prevail in a Title VII retaliation case, a plaintiff must ultimately
prove that but for his employer’s desire to retaliate he would not have suffered
an adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 362 (2013). A plaintiff successfully establishes a prima facie case of
retaliation if he demonstrates that (1) he engaged in statutorily protected
activity; (2) he suffered an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse employment action.
Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). At
the prima facie stage, “a plaintiff can meet his burden of causation simply by
showing close enough timing between his protected activity and his adverse
employment action.” Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 243
(5th Cir. 2019). But on its own, close temporal proximity between protected
activity and an adverse employment action is insufficient to establish pretext.
Id. However, “the combination of suspicious timing with other significant
evidence of pretext, can be sufficient to survive summary judgment.”
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 393, 409 (5th Cir. 1999).
      Here, the district court granted Brennan summary judgment because it
found that Moore’s sole evidence of causation was the temporal proximity
between his protected activity and various allegedly adverse employment
actions. This holding implicates the pretext stage of the McDonnell Douglas
burden-shifting framework. Focusing on that stage of the burden-shifting
framework, we address each adverse employment action in turn.




                                         5
    Case: 19-20312    Document: 00515204389        Page: 6   Date Filed: 11/19/2019



                                 No. 19-20312
                                            A.
      The first allegedly adverse employment action that occurred after May
1, 2015 was the requirement that Moore help move furniture and other
equipment out of the General Post Office. According to Moore, USPS required
only the employees who did not sign the waiver letter to do this work, and these
employees were exposed to extreme heat during this time period. Brennan has
proffered a legitimate, nondiscriminatory reason for requiring Moore to
complete these tasks—it was part of a restructuring effort by the USPS in
Houston. Specifically, Brennan has presented evidence that because there was
no more maintenance work for Moore to perform at the General Post Office and
Moore was unable to transfer to a carrier position, USPS had to assign him the
work that was available, which happened to be assisting with moving
equipment out of the General Post Office. Accordingly, Moore must show that
this reason is pretext for unlawful retaliation.
      As evidence of retaliation, Moore points to the temporal proximity
between this event and his filing of the EEO complaints. Moore also points out
that prior to his reassignment he did not have previous complaints of poor
performance. This fact, however, is irrelevant to the pretext inquiry because
Brennan has not suggested that USPS reassigned Moore due to poor
performance. In his affidavit, Moore also states that his managers “constantly
harassed me and pressured me to sign the waiver letter.” But Moore provides
no evidence to back up this conclusory assertion. Instead, he merely speculates
that management attempted to reassign him to other positions and required
him to complete certain tasks in an attempt to harass him for refusing to sign
the waiver letter. Accordingly, Moore’s only evidence of retaliation is the
temporal proximity between his reassignment and protected activity. As we
have noted, on its own, close temporal proximity is insufficient to establish


                                        6
    Case: 19-20312    Document: 00515204389     Page: 7   Date Filed: 11/19/2019



                                 No. 19-20312
pretext. See Garcia, 938 F.3d at 243. Thus, Moore’s retaliation claims with
respect to the work USPS required him to do at the General Post Office fails.
                                           B.
      Moore next alleges that USPS retaliated against him by denying him
$500 in out-of-schedule pay. According to Moore, USPS promised all workers
who helped move equipment out of the General Post Office that they would
receive a week of out-of-schedule pay in the amount of $500. In his affidavit,
Moore states that “[t]he employees who did sign the waiver letter, did receive
the pay.” Brennan disputes that USPS offered its employees the $500 in out-
of-schedule pay and provides evidence that even if the offer had been made, it
was not connected to Moore’s protected activities. For example, in his
deposition, Moore stated that he was uncertain as to whether the failure to
receive the promised pay was related to his EEO complaints or refusal to sign
the waiver letter.   Moreover, although other employees stated that they
recalled being promised the $500 pay, these employees did not state that they
knew of anyone who received the out-of-schedule pay.
      Moore has failed to show that USPS withheld the $500 due to his EEO
complaints or refusal to sign the waiver letter.     Moore has pointed to no
evidence that Paul Wheeler, the manager who allegedly made the comment
about the payment, knew that Moore had engaged in protected activity.
Additionally, Moore’s statement that other employees received the promised
pay because they signed the waiver letter is purely speculative.        Besides
Moore’s statement, there is no record evidence of any USPS employee having
received this payment, much less evidence that employees received the
payment because they agreed to volunteer for lower level assignments. Thus,
Moore has failed to show that USPS refused to pay him the $500 in out-of-
schedule pay in retaliation for engaging in protected activities.


                                       7
    Case: 19-20312      Document: 00515204389   Page: 8   Date Filed: 11/19/2019



                                 No. 19-20312
                                           C.
      Moore next asserts that USPS retaliated against him by not allowing
him to move to the North Houston facility until May 2016, even though he
received notification that he would be moved to the North Houston facility in
October 2015.       Specifically, Moore complains that from September 2015
through May 2016 USPS forced him to perform tasks that were not within a
maintenance mechanic’s job description, caused him to miss out on overtime
opportunities, and required him to work in locations other than the North
Houston facility.
      Brennan has offered evidence that, even prior to the General Post Office
shutting down, Moore had been expected to perform a variety of tasks that
were not explicitly enumerated in his job description.      Brennan has also
presented evidence that, even though USPS informed Moore that he would be
based at North Houston, operational needs dictated that he work on
assignments outside that facility. Finally, Brennan has presented evidence
that, during this time period, overtime desired lists were made available to
Moore and that he in fact signed up for one such list in early 2016. These
explanations satisfy Brennan’s burden to present legitimate, non-retaliatory
reasons for these allegedly adverse employment actions.
      Thus, Moore must demonstrate pretext. Once again, Moore almost
exclusively relies on the temporal proximity between these allegedly adverse
employment actions and his protected activity to support his claims of
retaliation. Moore’s evidence that (1) his bid notification stated that he would
start work at North Houston in October 2015, (2) after October 2015,
witnesses, who knew Moore had engaged in protected activity, observed him
working outside the North Houston facility on tasks not enumerated in his job
description, and (3) he did not receive overtime during this time period goes
towards only whether Moore suffered an adverse employment action and does
                                       8
    Case: 19-20312     Document: 00515204389      Page: 9   Date Filed: 11/19/2019



                                  No. 19-20312
not rebut Brennan’s explanations for why USPS required Moore to work
outside the North Houston facility.
      Further, Moore has failed to show that the real reason USPS required
him to work outside the North Houston facility was that he had previously
engaged in protected activity. Although Moore speculates that his managers,
Kevin Sheriff and Scott Hilton, may have possessed retaliatory animus, his
only evidence of this is that they knew of his EEO claims. Moore also alludes
to the fact that USPS treated him differently from other maintenance
mechanics, stating that he was the only maintenance mechanic, level 7
required to work at the Field Management Office and that USPS placed all
other maintenance mechanics from the General Post Office in positions
elsewhere.    Evidence of disparate treatment between employees may be
relevant to the pretext inquiry, but a plaintiff who proffers the treatment of
fellow employees as evidence of pretext must show that those employees were
similarly situated to the plaintiff. See Garcia, 938 F.3d at 244. Here, Moore
has provided no evidence regarding his fellow employees except that they held
his same job title and were placed in positions outside the Field Management
Office. He does not explain who decided to transfer these individuals or what
positions they were able to obtain. Thus, the evidence provided by Moore is
insufficient to create a question of fact on the issue of pretext.
                                             D.
      Moore finally argues that USPS retaliated against him when it required
him to work on delivery bar code sorter machines but did not provide him with
a toolbox, lockout/tagout, or personal protective equipment. Brennan asserts
that the delay in receiving the necessary equipment was not because of Moore’s
protected activity but was due to Moore’s equipment being placed in storage
after the General Post Office closed.        Brennan has additionally presented
evidence that USPS management worked to request new equipment for Moore.
                                         9
   Case: 19-20312     Document: 00515204389        Page: 10   Date Filed: 11/19/2019



                                    No. 19-20312
      Moore has failed to rebut this explanation for the delay in receiving his
equipment. In his deposition, Moore stated that he was “not certain” why
USPS delayed providing him with his equipment but that he thought “it had
something to do with what [he] was doing with these EEOs.” This falls short
of demonstrating but-for causation. Indeed, the only evidence of retaliation
with respect to this delay is the temporal proximity between the delay in
receiving equipment and the filing of Moore’s EEO complaints. As stated, a
plaintiff must show more to survive summary judgment in a Title VII
retaliation case. Cf. Shackelford, 190 F.3d at 409. Thus, Moore’s claim that
USPS’s delay in providing him with equipment was due to retaliation for filing
his EEO complaints fails.
      Because Moore has failed to demonstrate that any of his employer’s
explanations for the allegedly adverse employment actions that he claims to
have suffered were pretextual, his Title VII retaliation claims fail as a matter
of law. Thus, the district court did not err when it granted Brennan summary
judgment on these claims.
                                             IV.
      In sum, Moore has not provided sufficient evidence of pretext to survive
summary judgment on his Title VII retaliation claims.             Accordingly, the
judgment of the district court is
                                                                      AFFIRMED.




                                        10
