     Case: 12-60224       Document: 00512103469         Page: 1     Date Filed: 01/07/2013




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

                                                                            FILED
                                                                          January 7, 2013

                                     No. 12-60224                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DAVID SANDERS,

                                                  Plaintiff - Appellant
v.

SAILORMEN, INC.,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No: 3:10-CV-606


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       David Sanders appeals the district court’s grant of summary judgment in
favor of defendant Sailormen, Inc. We AFFIRM.
                           FACTS AND PROCEEDINGS
       David Sanders worked as a maintenance technician for Sailormen, Inc. in
Mississippi. He filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) in 2009, alleging that he was paid less than similarly


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60224

situated white employees.     Mediation of his claim in October 2009 was
unsuccessful. Sailormen nevertheless increased his hourly wage from $12.50 to
$18, even though Sanders made clear that he would continue to pursue his claim
for backpay.
      On November 7, 2009, a customer reported seeing Sanders smoking what
smelled like marijuana behind one of Sailormen’s Popeye’s restaurants.
Sailormen required Sanders to take a drug test the next day. The test was
positive for marijuana, and Sanders was suspended from work for 30 days
pursuant to Sailormen’s drug policy. The policy also required, among other
things, that any employee who tested positive must complete any recommended
rehabilitation, pass a follow-up drug test, and sign a return-to-work agreement.
The return-to-work agreement Sanders signed reiterated these requirements
and expressly noted that Sailormen was not obligated to reinstate his
employment, but could do so at its option.
      Sanders submitted a clean follow-up test on December 21, 2009, 32 days
after his suspension. According to Sanders, he called the Sailormen home office
a week later and was told that, notwithstanding this second test, he had been
terminated. After receiving a right to sue letter from the EEOC, he filed claims
against Sailormen for discrimination and retaliation.
      Following discovery, Sailormen filed a motion for summary judgment.
Ruling on this motion, the district court first found that Sanders had abandoned
his discrimination claims and granted summary judgment for Sailormen on
those claims. Next, it considered Sanders’s retaliation claims. It determined
that Sailormen was entitled to summary judgment on these claims as well,
because there was no genuine issue of material fact that would establish a
causal link between Sanders filing his EEOC claim (or his refusal to withdraw
it) and his termination by Sailormen. In reaching this conclusion, the court
observed that the three months between the two events were a sufficiently small

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                                 No. 12-60224

interval to establish temporal proximity. But it determined that intervening
events, namely Sanders’s raise and his drug use, broke the causal link that could
otherwise be inferred from temporal proximity. Sanders appeals the district
court’s summary judgment on his retaliation claims.
                                 DISCUSSION
      We review a grant of summary judgment de novo, applying the same Rule
56 standard as the district court. Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
912 (5th Cir. 1992).
      Sanders argues on appeal that the district court failed to take the evidence
and reasonable inferences therefrom in the light most favorable to him. He
contends that the evidence, when so construed in his favor, creates a genuine
issue of material fact that Sailormen’s proffered reason for terminating him was
pretextual. Such pretext, when combined with temporal proximity, may be
sufficient to establish causation. See Hernandez v. Yellow Transp., Inc., 670
F.3d 644, 660 (5th Cir. 2012).
      However, Sanders did not establish a genuine issue of fact with respect to
pretext.   His evidence for pretext was Sailormen’s allegedly changing
explanation of why it terminated him. He contends that he was first told by the
Sailormen home office that he was fired for not completing a drug rehabilitation
program (even though none was recommended).            Then, during discovery,
Sailormen’s responses to interrogatories stated that Sanders was fired because
he had a positive drug test and subsequently failed to comply with Sailormen’s
return-to-work agreement. Finally, in its 30(b)(6) deposition, Sailormen said he
was terminated because he did not submit his follow-up drug test within thirty
days of his suspension. In addition, Sanders claims that no other employees had
been terminated because they did not attend a rehabilitation program after
testing positive for drugs, which he argues is also evidence of pretext.



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                                  No. 12-60224

      Whether or not these alleged factual discrepancies can be reconciled,
Sanders does not explain why these discrepancies are material to the issue of
pretext when Sailormen’s return-to-work agreement expressly reserved the
company’s discretion to refuse to rehire him at its option. Sanders has provided
no evidence that Sailormen did not avail itself of this discretion in other cases,
as it did with him. In particular, he has proffered no evidence that Sailormen
consistently rehired similarly situated employees who had not brought EEOC
actions. Therefore, Sanders has not shown a genuine issue of material fact on
whether Sailormen’s decision not to rehire Sanders was a pretext for retaliating
against him for filing an EEOC claim. Without evidence of pretext, he has failed
to establish causation. The district court’s grant of summary judgment is
AFFIRMED.




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