                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 February 9, 2004

                                                          Charles R. Fulbruge III
                            No. 02-31175                          Clerk


SANDRA SMITH,

                 Plaintiff - Appellant

v.

AT&T SOLUTIONS, INC., d/b/a AMERICAN TELEPHONE & TELEGRAPH CO.,

                 Defendant - Appellee

_________________________________________________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                          No. 01-CV-2798
_________________________________________________________________

Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*
District Judge.

PER CURIAM:**

     Appellant Sandra Smith appeals the district court’s grant of

summary judgment in favor of Appellee AT&T Solutions, Inc. on her

claims of retaliation under the Louisiana whistleblower statute,

LA. REV. STAT. ANN. § 23:967 (West 2003).   Finding no error, we

affirm.



     *
      District Judge for the Northern District of Texas, sitting
by designation.
     **
        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that this opinion should not be published and is not precedent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.

                                  1
                       I. FACTS AND PROCEEDINGS

     AT&T Solutions, Inc. (“AT&T”)1 entered into a contract with

McDermott International to manage McDermott’s information

technology organization (the “McDermott Project”).     AT&T

employees were to work in McDermott’s offices in New Orleans and

AT&T agreed to pay McDermott an annual fixed amount for office

space, phone services, and utilities.     Appellant Sandra Smith had

been a supervisor for daily adjustments at AT&T Corporation,

working under the supervision of Sandi Michel.     When Michel moved

to the McDermott Project as the human resources manager, she

offered Smith a position as the Project’s sole training

supervisor.     Smith accepted, and began working in her new

capacity in 1999.     From time to time, in addition to her training

responsibilities, Michel gave Smith other human resources work.

     Soon after starting her new position, Smith apparently

became concerned that she was being required to perform an

excessive amount of work.     She expressed her concern to Tom

Tierney, the AT&T manager in charge of the McDermott Project, and

to other AT&T employees involved with the Project.     Eventually,

Smith raised her concern with Michel.     In September or October of

1999, Smith requested to Michel that her position be reevaluated




     1
         AT&T Solutions, Inc. is a subsidiary of AT&T Corporation.

                                   2
in light of her workload, so she could receive a promotion.2

     Smith’s request for reevaluation was documented in an email

to Michel dated May 11, 2000.   On May 12, 2000, Michel forwarded

Smith’s email, along with Michel’s recommendation that Smith be

given a promotion, to the offices of AT&T Corporation in New

Jersey.

     Between October 1999 and May 2000, Smith had become aware

that two of her co-workers, Holly Pape (a temporary employee) and

Kenneth McBarron (a full-time AT&T employee), were making

personal long-distance telephone calls using the AT&T access code

for the McDermott account.   Smith believed these calls were being

charged to McDermott.   In April or May of 2000, Smith asked Brad

Herriage, AT&T’s controller, if the calls were being billed to

McDermott, which she believed would constitute theft.   Smith

claims Herriage told her that the calls were being billed to

McDermott and that theft had therefore occurred.   Herriage

explained in a deposition that the calls did not constitute theft

because AT&T paid McDermott a flat rate for facilities and

services, including long-distance service.   McDermott was not

billed for individual long-distance calls.   Herriage denies

telling Smith it was illegal for an AT&T employee on the

McDermott Project to make personal telephone calls.


     2
      Smith’s position as training supervisor was evaluated as an
A-4 position. Plaintiff sought to have her position reevaluated
to a reflect a grade of A-5 or higher.

                                 3
     Smith did not discuss the calls with Pape or McBarron.

However, Smith claims she reported the telephone calls to Michel

several times, and that Michel told her she would report the

calls to Adrian Lee, AT&T’s business manager on the McDermott

Project.   Smith claims she once reported the calls directly to

Lee, who said he would have a report run on long-distance usage

at McDermott.

     In mid-April of 2000, Smith reported McBarron’s and Pape’s

telephone calls to AT&T Corporation’s Corporate Security

Department.   On June 29, 2000, Andrea Wade, a Security Department

employee, conducted an internal investigation.    She interviewed

McBarron, Pape, Evelyn Demoruelle (another employee who reported

telephone misuse), Herriage, Lee, Michel, Tierney, and Ken

Konningsor (AT&T’s Chief Financial Officer).   Wade reported the

results of her investigation, leaving the decision of whether to

discipline McBarron and Pape to Lee, Tierney, and Michel.

Thereafter, Pape’s temporary agency was informed that her

services were no longer required by AT&T, and Michel and Lee

formally reprimanded McBarron and instructed him to stop making

personal phone calls.

     Smith claims Wade’s investigation made Michel and Lee angry

because it undermined their authority and made them look

irresponsible.   Smith acknowledges she does not know whether

Michel or Lee knew she was the employee who prompted the

investigation by contacting Corporate Security.   However, Smith

                                 4
asserts that Michel and Lee could deduce that she had done so.

Michel and Lee avow they were unaware until the filing of Smith’s

lawsuit that Smith had contacted Corporate Security.   Michel and

Lee were never reprimanded or otherwise criticized by AT&T for

how they handled McBarron’s and Pape’s telephone usage.

Nonetheless, Smith contends that Michel and Lee began harassing

her because of her report to Corporate Security.

     Smith claims that, in July of 2000, she met with Lee about

her job reevaluation, and that he refused to give her the

promotion she had requested.   Smith also claims that in the same

month, she asked Michel to review her job reevaluation, but that

Michel refused, and that Michel refused her a promotion.

However, later in July 2000, Smith was promoted to the A-5 level,

retroactive to May 2000, when Michel had forwarded Smith’s

request to AT&T Corporation with her positive recommendation.

Tierney testified that it was difficult to get promotions

finalized in the summer of 2000 due to a hiring freeze at AT&T.

     Smith also complains that soon after she was promoted, she

volunteered to assist two co-workers in planning an off-premises

party.   She contends that Michel sent out an email, accessible to

managers, stating that Smith could not assist with the party

because of her inability to handle her workload.

     In August 2000, AT&T executives, including Tierney, met with

McDermott about the Project.   Neither Lee nor Michel were

present.   McDermott expressed its intention to transfer several

                                 5
functions in-house, including training, human resources,

procurement, and program management.   As a result of McDermott’s

decision, AT&T planned to give Forced Management Plans(“FMPs”) to

employees whose positions with AT&T would be terminated when

their functions were transferred to McDermott.3    Smith’s and

Michel’s positions were to be terminated.   Tierney received

permission from AT&T to distribute the FMPs over a period of

time, rather than to notify the affected employees immediately.

Also during August, Michel conducted a favorable mid-year

performance evaluation of Smith.

     On August 23, 2000, Smith contacted the Equal Employment

Opportunity Department of AT&T to complain about her treatment by

Michel and Lee.   That Department advised Smith that her complaint

did not involve issues of discrimination or retaliation.

     Smith contends that in mid-September of 2000, allegedly

angered by Smith’s complaint to Tierney about Michel’s and Lee’s

treatment, Michel and Lee informed her that she had thirty days

to find another job, or she would be discharged.    Smith claims

that in late September, Konningsor told her he noticed a change

in Michel’s and Lee’s behavior towards Smith following her report



     3
      When an employee receives a FMP, the employee has a
designated time frame, between thirty and sixty days, to look for
alternative employment within AT&T. When the time period
expires, the employee’s position is terminated, and the employee
is let go, unless he or she had been able to locate other AT&T
employment.

                                   6
to Corporate Security.    Smith also claims that on September 26,

Lee informed her that her job was being decentralized and that

she had until the end of December 2000 to find alternative

employment within AT&T.

     Michel scheduled a meeting with Smith for September 27,

2000.   Smith claims she left work that day and did not attend the

meeting because she was afraid that Michel was going to harm her,

and contends she sent Tierney an email to that effect.   Smith did

not return to work on September 28.   Instead, she went on

disability leave due to stress and depression and remained on

leave for almost a year.

     While Smith was on leave, she asked for a performance

evaluation for the period when she was working as an A-5.     Michel

completed a draft of the evaluation in November of 2000.     It

contained negative comments about Smith’s performance.   It was

signed only by Michel, and did not include the requisite

signatures needed to finalize an AT&T evaluation.   Upon receiving

the draft, Tierney made several revisions to it, eliminating

Michel’s remarks.   Michel’s draft evaluation was never made a

part of Smith’s personnel file.   Smith claims that Michel tried

to “break into” Smith’s email and voicemail accounts while she

was on leave.

     In December of 2000, McDermott terminated its contract with

AT&T and, several employees, including Smith, were given FMPs.

     In September of 2001, Smith was cleared for work by her

                                  7
doctor, and she returned to AT&T.     Upon her return, her FMP

became effective, and as a result, Smith had sixty days to find

other employment within AT&T.   Smith claims that Michel impeded

her ability to find other employment.     She claims Michel altered

Smith’s computer records to make AT&T’s internal hiring managers

contact Michel, rather than Smith, about positions that might be

suitable for Smith.   Smith contends that Michel changed the

records in order to sabotage Smith’s chances of locating other

work within AT&T.

     Smith was unable to find alternative employment at AT&T.

She contends that several of her co-workers were given extensions

on their FMP periods so they could fill positions set to become

available after the expiration of the sixty-day period.      Smith

was not given an extension and was discharged when her FMP period

expired.

     On September 12, 2001, Smith filed suit against AT&T,

alleging a violation of Louisiana’s whistleblower statute, LA.

REV. STAT. ANN. § 23:967, because Michel and Lee allegedly

retaliated against Smith as a direct result of the report she

made to Corporate Security about McBarron’s and Pape’s personal

telephone calls.    Smith alleges that AT&T retaliated against her

in two ways: first, by harassing her in response to her report,

and second, by having her discharged as a result of her report.

     AT&T filed a motion for summary judgment, which the district

court granted on October 23, 2002.     Smith appeals from that

                                  8
ruling.


                       II. STANDARD OF REVIEW

     We review a district court’s grant of summary judgment de

novo.    Ackel v. Nat’l Communications, Inc., 339 F.3d 376, 381

(5th Cir. 2003) (citing Tango Transp. v. Healthcare Fin. Servs.

LLC, 332 F.3d 888, 890 (5th Cir. 2003)).     Fed. R. Civ. P. 56(c)

provides that “[s]ummary judgment is appropriate only if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

In determining whether a genuine issue of fact exists, the court

views the evidence in the light most favorable to the nonmovant.

Halls v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996).     “In

the language of the Rule, the nonmoving party must come forward

with specific facts showing that there is a genuine issue for

trial.    Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is

no genuine issue for trial.”    Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citations,

quotations, and emphasis omitted).


                           III. DISCUSSION

     Smith’s Complaint is based solely on Louisiana’s


                                  9
whistleblower statute, LA. REV. STAT. ANN. § 23:967.    In pertinent

part, the statute reads:

     A.     An employer shall not take reprisal against an employee
            who in good faith, and after advising the employer of
            the violation of law:
            (1) Discloses or threatens to disclose a workplace act
                 or practice that is in violation of state law.
            (2) Provides information to or testifies before any
                 public body conducting an investigation, hearing,
                 or inquiry into any violation of law.
            (3) Objects to or refuses to participate in an
                 employment act or practice that is in violation of
                 law.

     The statute states: “Reprisal includes firing, layoff, loss

of benefits, or any discriminatory action the court finds was

taken as a result of an action by the employee that is protected”

under the statute.    Id.    § 23:967(C)(1).   An employee who suffers

reprisal under the statute may bring a civil action against the

employer for damages, reasonable attorneys’ fees, and court

costs.    Id. § 23:967(B).

     Both parties agree that the appropriate framework for

analyzing a retaliation claim under the Louisiana whistleblower

statute is the same as that applied in Title VII retaliation

cases.    While the Louisiana Supreme Court has not spoken directly

on whether that framework applies to section 23:967 cases,

Louisiana courts have often looked to federal anti-discrimination

jurisprudence in interpreting Louisiana’s anti-discrimination

statutes.    See, e.g., Plummer v. Marriott Corp., 654 So.2d 843,

848 (La.App. 4 Cir. 1995); Alphonse v. Omni Hotels Mgmt. Corp.,

643 So.2d 836, 838 (La.App. 4 Cir. 1994); Bennett v. Corroon and

                                   10
Black Corp., 517 So.2d 1245, 1246-47 (La.App. 4 Cir. 1987).

Accordingly, we find that the Title VII framework is applicable

to the Louisiana statute.

     In order to establish a prima facie case of retaliation

under Title VII, a plaintiff must show that (1) she engaged in

activity protected by the statute, (2) an adverse employment

action occurred, and (3) a causal link exists between the

protected activity and the adverse employment action.    Fierros v.

Texas Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001).     If a

plaintiff presents direct evidence that her employer’s motivation

was at least in part retaliatory, the burden shifts to the

employer to demonstrate, by a preponderance of the evidence, that

the same decision would have been made in the absence of the

discriminatory motive.   Id. at 192.   Alternatively, if a

plaintiff presents only circumstantial evidence of causation, the

McDonnell Douglas burden-shifting framework applies.    Id. at 191.

Under the McDonnell Douglas framework, the plaintiff has the

initial burden of demonstrating a prima facie case of

retaliation.   McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S.Ct. 1817, 36 L.E.2d 668 (1973).   At this stage, the

standard for satisfying the causation element is less stringent

than “but for” causation.   Fierros, 274 F.3d at 191.   If the

plaintiff establishes a prima facie case, an inference of

retaliatory motive is created.   Id.   The employer can rebut this

inference by producing evidence of a legitimate, non-retaliatory

                                 11
reason for the adverse employment action.     Id.   Once the employer

produces such evidence, the burden shifts back to the plaintiff

to prove that her protected activity was a “but for” cause of the

adverse action.    Id.   If the plaintiff produces evidence

establishing a prima facie case and evidence that the reasons

proffered by the employer for engaging in the adverse action are

pretextual, a jury may infer the existence of “but for”

causation.    Id. at 191-92.

     In the present case, Smith has presented only circumstantial

evidence of causation.    Smith’s contention that Michel’s and

Lee’s statements to Smith that she had thirty days to find

another job constitute direct evidence of retaliation is in

error.   Even assuming that Michel and Lee threatened Smith’s

employment, Smith has not presented any direct evidence linking

Michel’s and Lee’s statements to her report to Corporate

Security.    Therefore, McDonnell Douglas provides the appropriate

framework for an analysis of Smith’s claims.

     Under the McDonnell Douglas framework, to make out a prima

facie claim of retaliation, Smith would have to produce evidence

that she engaged in activity protected under the Louisiana

whistleblower statute, that an adverse employment action

occurred, and that there is a causal link between the protected

activity and the adverse action.

     Smith argues that the district court’s grant of summary

judgment was inappropriate because Smith presented sufficient

                                  12
evidence to create a material issue of fact as to whether AT&T

was actually reducing its workforce at the time of the alleged

retaliatory acts.   Smith argues that the district court erred by

failing to draw reasonable inferences in her favor regarding her

termination and Michel’s and Lee’s alleged harassment.

Specifically, Smith argues that the evidence that other employees

received extensions on their FMP expiration periods and that Lee

and Michel threatened Smith’s job demonstrates that Smith’s FMP

was pretextual.   Smith also contends that the evidence is

sufficient to warrant a reasonable inference that Michel and Lee

acted with animus towards Smith because of her report to

Corporate Security, and that this animus resulted in a delay in

Smith’s promotion and, ultimately, in Smith’s mental breakdown.4

     AT&T contends that summary judgment is appropriate for three

reasons.    First, AT&T argues that Smith’s allegations do not show

that Smith suffered any actionable adverse employment action.

Second, AT&T contends that even if Smith alleged an actionable

adverse employment action, Smith has failed to demonstrate a

causal connection between such action and her report to Corporate

Security.   Third, AT&T claims that Smith cannot establish she



     4
      Smith asserts that causing someone to have a mental
breakdown is actionable under section 23:967 because it is
similar to a constructive discharge under federal discrimination
laws. Because we conclude that Smith has failed to meet her
burden on the causation element, we do not address whether such a
claim is cognizable under the Louisiana statute.

                                 13
engaged in protected conduct because McBarron’s and Pape’s

personal telephone calls were not made pursuant to an AT&T

practice or policy, and the phone calls were covered by AT&T’s

flat rate arrangement with McDermott and, therefore, they were

not illegal.    In addition, AT&T maintains that Smith’s

“disclosure” to AT&T Corporate Security is not protected under

the whistleblower statute because the statute requires disclosure

to a third party.

     The Court finds that judgment in favor of AT&T was proper

because even if Smith’s allegations establish that she engaged in

protected activity and that an adverse employment action

occurred, she has failed to establish a sufficient causal

connection between such action and her report to Corporate

Security.    Accordingly, the Court need not address the parties’

other arguments.

     A.     Smith’s Claims of Retaliatory Harassment

     Smith alleges that because of her report to Corporate

Security, Lee and Michel became hostile and retaliated against

her by delaying her promotion, causing her to have a mental

breakdown.    Smith’s allegations must fail, however, because Smith

has failed to meet her burden of establishing a causal connection

between Michel’s and Lee’s allegedly hostile actions and her

report.

     There are no facts demonstrating a causal connection between



                                 14
Smith’s reporting of the telephone calls and the delay in her

promotion.    Further, Smith has not presented any facts showing

that either Michel or Lee had any control over the granting of

promotions, nor that Michel or Lee interfered with Smith’s

efforts to receive a promotion.    In fact, the record establishes

that Michel assisted Smith in obtaining a promotion by forwarding

her request to AT&T’s Corporate Office with a favorable

recommendation.    Further, the record establishes that delay in

the approval of Smith’s promotion was due to hiring conditions at

AT&T Corporation.    Moreover, Smith did not experience any

actionable prejudice due to the delay because her promotion was

approved in July and made retroactive to June.    Because Smith has

failed to present any facts tending to prove that her promotion

was delayed due to her report to Corporate Security, she has

failed to establish a prima facie case of retaliation as to this

allegation.    Therefore, summary judgment in favor of AT&T is

appropriate on this claim.

     Smith also fails to meet her burden on the causation element

as to her claim that Michel and Lee caused her to have a mental

breakdown.    Smith arguably presents sufficient facts to make out

a prima facie case that Michel and Lee acted with animus towards

Smith, and that such animus caused Smith’s mental breakdown.

However, she does not present sufficient evidence to meet her

causation burden under the McDonnell Douglas analysis.

     Smith has produced facts showing that Michel and Lee treated

                                  15
her with hostility.   Smith alleges that Michel raised her voice

to Smith, and that both Michel and Lee threatened her job before

the FMP was given to her.   Smith also claims that Michel sent

emails to other AT&T employees, undercutting her reputation.

According to Smith, Konningsor told her that he noticed a change

in Michel and Lee’s behavior towards Smith after she made her

report to Corporate Security.   As a matter of law, however,

Konningsor’s observation does not constitute evidence that

Smith’s report to Corporate Security caused that change in

treatment.   Nor does Smith’s proffered testimony from a clinical

social worker, who stated that Smith’s medical condition was due

to hostile treatment she received at AT&T.

     Assuming that the reporting of improper telephone calls

constitutes conduct protected by the Louisiana whistleblower

statute, and that the alleged instances of hostile conduct which

resulted in Smith’s mental breakdown constitute a “reprisal”

under the statute, Smith’s initial burden of proving her prima

facie case could be met.    However, AT&T produced ample evidence

that Michel’s and Lee’s hostility was due to Smith’s continued

complaints about her workload and her airing her grievances to

Tierney before presenting them to her immediate supervisors,

Michel and Lee.   Her complaints to fellow employees and to

Tierney long predated her report to Corporate Security.

     Because AT&T presented evidence of a reason for Michel’s and

Lee’s alleged hostility to Smith that is wholly unrelated to

                                 16
Smith’s exercise of a protected activity, the burden shifts to

Smith to produce evidence that AT&T’s explanation constitutes a

pretext, and that Smith’s report to Corporate Security is the

“but for” cause of Michel’s and Lee’s actions.    Smith fails to

meet this burden.   First, Smith has produced no evidence that

AT&T’s proffered explanations are pretextual.    The record

establishes that Smith’s relationship with Michel and Lee was

problematic before she made her report to Corporate Security.

Second, Smith has produced no evidence that her report was the

“but for” cause of Michel’s and Lee’s actions.    Accordingly, as

to this allegation, we find that Smith has failed to satisfy her

burden of causation under the McDonnell Douglas framework.

Therefore, summary judgment is likewise appropriate as to Smith’s

claim that Michel and Lee harassed Smith due to her report, and

that such harassment resulted in her mental breakdown.


     B.   Smith’s Claim of Retaliatory Dismissal

     Smith also argues that her dismissal from AT&T resulted from

her report to Corporate Security.    Under the plain terms of the

Louisiana statute, discharge constitutes reprisal.    However,

Smith’s allegations are insufficient to withstand summary

judgment because she has not presented sufficient facts to

establish a prima facie case on the causation element.    There is

no evidence in the record to support Smith’s contention that

Michel’s and Lee’s anger towards Smith caused Smith’s discharge.


                                17
The record confirms that Smith’s position was eliminated, along

with many others, as part of a reduction in force unrelated to

Smith’s activity.   While Smith has raised a fact issue over

whether Michel and Lee acted with animus towards Smith, Smith

does not present any facts indicating that Lee and Smith had any

control over Smith’s discharge.5     The record establishes that

Smith’s position was terminated because McDermott decided to

transfer certain functions in-house.

     Smith was discharged under the FMP after she was unable to

find alternative employment within AT&T.     Smith contends that

other employees who received FMPs were granted extensions beyond

the sixty-day expiration period, and suggests she was denied an

extension in retaliation for her report to Corporate Security.

While the record demonstrates that some other employees who

received FMPs were given an extension, the record does not show

that this treatment was causally related to Smith’s report.        Due

to her claim of disability, Smith began her sixty-day FMP period

many months after the other employees involved in the workforce

reduction.   Accordingly, her situation was substantially

different from that of the other employees.     Second, and most

importantly, Smith has not demonstrated that Michel or Lee had


     5
      While Smith alleges that Michel and Lee told her in mid-
September that she had thirty days to find a new job, the record
does not show that Michel and Lee were involved with the decision
to discharge Smith or to transfer the training function back to
McDermott.

                                18
any control over the length of Smith’s FMP, nor has she

demonstrated that whoever did have control failed to grant her an

extension in retaliation for her report to Corporate Security.

     Smith does not directly argue, but speculates, that part of

the reason she was unable to locate alternative employment was

because of the negative performance appraisal Michel drafted and

Michel’s alleged tampering with Smith’s computer data.    However,

there is no evidence of a causal connection between her dismissal

and the negative appraisal and/or the alleged computer tampering.

First, the record shows that Michel’s negative reviews were

contained in a draft that was never placed in Smith’s personnel

file.   There is no evidence that this draft was circulated beyond

Tierney, who changed it.   Second, Smith has not provided any

evidence that hiring managers contacted Michel about Smith during

Smith’s FMP period, nor that Michel provided a negative review of

Smith to any such hiring managers.

     Because Smith has failed to make out a prima facie case that

her dismissal was due to a retaliatory motive on the part of

AT&T, we find that summary judgment was appropriate as to Smith’s

claim that she was discharged as a result of her report to

Corporate Security.


                           IV.CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.


                                19
