     Case: 13-40525      Document: 00512695624         Page: 1    Date Filed: 07/11/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 13-40525
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 11, 2014
JIEA M. RUTLAND-SIMPSON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

ELI LILLY and COMPANY,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:12-CV-158


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
           Jiea Rutland-Simpson appeals from the district court’s grant of
summary judgment in her Title VII retaliation action against her former
employer Eli Lilly. We AFFIRM.
                            FACTUAL BACKGROUND
       Rutland-Simpson—a 45-year-old African-American female with 17 years
of experience as a pharmaceutical sales representative—began working for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40525    Document: 00512695624      Page: 2   Date Filed: 07/11/2014


                                 No. 13-40525

Lilly as a Senior Sales Representative (“SSR”) on June 13, 2008. Rutland-
Simpson’s job as an SSR required her to market Lilly’s drugs by making “sales
calls” on “health care providers.” Rutland-Simpson initially reported to District
Sales Manager Michael Zatopek, but began reporting to Thomas Raborn in
May 2010.
      Raborn accompanied Rutland-Simpson on a field visit on November 9,
2010. Rutland-Simpson claims that, during the field ride, Raborn made several
comments that caused her concern. First, Raborn asked Rutland-Simpson
which employees in a visiting doctor’s offices were “Mexican” and which were
not “Mexican.” Rutland-Simpson responded that Raborn “couldn’t ask who was
Mexican,” as Mexicans “can have blond hair and blue eyes.” Raborn apparently
agreed that you could not determine a person’s nationality by appearance alone
and explained that he had seen a physician earlier that week who was dark-
skinned and wore a big belt buckle and boots, and he was Iranian. Later that
day, Rutland-Simpson mentioned that her daughter spoke Spanish because
her babysitter was raising her. According to Rutland-Simpson, Raborn
responded by stating, “She can be an African-Mexican.” Also later that day,
while calling on a Black Rwandan doctor and his Spanish speaking staff,
Raborn told the staff that he did not speak Spanish and was just a “good ol’
Georgia American boy” or something to that effect. During the ride, Raborn
also told Rutland-Simpson that she had great relationships with customers,
but they should be writing more prescriptions.
      Shortly after the field visit, Rutland-Simpson called fellow sales
representative Jennie Anthony to tell her what transpired during the field visit
with Raborn, but did not tell Anthony that she felt discriminated against.
Raborn subsequently learned from Anthony or sales representative Nikki
DiLiddo that Rutland-Simpson was frustrated and believed Raborn had made



                                       2
    Case: 13-40525      Document: 00512695624        Page: 3    Date Filed: 07/11/2014


                                    No. 13-40525

racial comments. 1 When Raborn contacted human resources regarding the
situation, he was told not to do anything as it may have been a
miscommunication.
      Rutland-Simpson alleges that Raborn immediately retaliated against
her for opposing his racist comments by assigning her to complete five new
speaker programs by the end of the year, while no other sales representative
was required to complete any programs. Raborn counters that Rutland-
Simpson’s team had failed to meet its speaker contractual obligations before
the end of the year, hence the assignment.
      On December 1, 2010, Rutland-Simpson called the Human Resources
hotline to report her issues with Raborn; the hotline transferred Rutland-
Simpson’s complaint to the investigations team for follow-up. In her initial call
to the hotline and subsequent conversation with Human Resources
Representative Miles Houze on January 25, 2011, Rutland-Simpson relayed
Raborn’s so-called “racist comments” and allegedly maintained she felt singled-
out. According to Rutland-Simpson, Houze informed her that “Lilly had issues
with race” and that Raborn’s conduct constituted race discrimination. Houze
offered to speak to Raborn for Rutland-Simpson, but she felt it was better to
do so herself. Houze closed Rutland-Simpson’s race-discrimination case on
January 30, 2011, without interviewing any of Rutland-Simpson’s co-workers
or otherwise undertaking an investigation; he concluded that “[t]here was no
evidence to substantiate discrimination toward EE Simpson at this time.”
Houze did not speak to Raborn about Rutland-Simpson’s concerns, and Raborn
did not learn about the call until Rutland-Simpson had been discharged.




      1Raborn maintains that he does not remember which sales representative told him of
Rutland-Simpson’s complaints. The source is immaterial.


                                           3
    Case: 13-40525     Document: 00512695624     Page: 4   Date Filed: 07/11/2014


                                  No. 13-40525

      On February 8, 2011, Raborn lodged a complaint against Rutland-
Simpson with Lilly’s Human Resources department. While reviewing Rutland-
Simpson’s expense reports, Raborn noticed that Rutland-Simpson submitted
claims for cash expenses for customer lunches that did not match the date on
which she reported the lunch occurring in the call reporting system. Upon
further review of Rutland-Simpson’s call activities and related reports, Raborn
discovered additional issues, including that Rutland-Simpson (1) entered her
sales calls late, e.g. entered all December calls on December 20 and entered 69
out of 79 total January calls on January 28; (2) did not record sales calls during
the last week of December and also did not notify Raborn of any vacation time;
(3) recorded only one call per day on three occasions and only three calls per
day on nine occasions; and (4) submitted expense reports late and with
expenses over the allowable limit. When Raborn reported these possible
violations of Lilly policy, human resources referred the matter to HR
Representative Jamie Preston for investigation. In response to Raborn’s
inquiries, Rutland-Simpson provided some explanation for the discrepancies
and admitted that she had made several mistakes, including entering the
wrong date for lunch programs.
      During the investigation, Raborn and Preston discovered numerous
conflicts between Rutland-Simpson’s call reporting and out-of-territory
reports, e.g. recording multiple sales calls on days for which she also recorded
that she was out-of-territory at a quota trip. Preston also called health care
providers for whom Rutland-Simpson’s recorded lunch dates did not match her
expense report to determine whether Rutland-Simpson had held lunches at
their offices; the providers reported that Rutland-Simpson did hold lunches at
their offices but not on the day reported. Raborn and Preston met with
Rutland-Simpson to get her explanation of the discrepancies. Raborn and



                                        4
    Case: 13-40525     Document: 00512695624     Page: 5   Date Filed: 07/11/2014


                                  No. 13-40525

Preston then conferred with Elizabeth Ackley, Manager of EEO and
Affirmative Action, who agreed that Rutland-Simpson’s input did not explain
the discrepancies. After a follow-up meeting with Rutland-Simpson, Preston
and Raborn terminated her for falsifying documents.
      Following her termination, Rutland-Simpson met with compliance
officer Don Mason and “explained the entire situation.” Rutland-Simpson
maintains that the investigation was tainted by Raborn’s bias against her, that
the investigation failed to corroborate Raborn’s claim that she had engaged in
sales call/expense report falsification, and that she had vigorously denied any
wrongdoing. She further maintained that, in terminating her for falsification,
Lilly failed to credit extensive evidence that numerous white sales
representatives “falsely” reported sales calls and Lilly failed to discipline or
terminate those employees. HR Representative Ryan Robinson investigated
each allegation, and ultimately determined that the investigation and
subsequent termination of Rutland-Simpson did not violate company policy.
      Rutland-Simpson filed a Charge of Discrimination against Lilly with the
EEOC. After exhausting her EEOC administrative remedies, Rutland-
Simpson filed suit against Lilly. She alleged that Lilly subjected her to race
discrimination and retaliation for opposing race discrimination in violation of
Title VII of the Civil Rights Act of 1964. The district court granted Lilly’s
motion for summary judgment.
      Rutland-Simpson timely appeals the district court’s dismissal of her
retaliation claim. She maintains the district court erred in granting Lilly’s
motion for summary judgment on her Title VII retaliation claim, because she
raised a genuine issue of material fact that, in retaliation for her opposition to
Raborn’s race discrimination, Raborn subjected her to materially adverse
actions culminating in her termination. Rutland-Simpson further maintains



                                        5
    Case: 13-40525    Document: 00512695624     Page: 6   Date Filed: 07/11/2014


                                 No. 13-40525

that the district court failed to credit substantial evidence establishing that
Lilly’s “legitimate, nondiscriminatory reason” of document falsification for
terminating Rutland-Simpson was pretextual and that Raborn’s oppositional
conduct was the “but-for” cause of her termination.
                         STANDARD OF REVIEW
      We review de novo the district court’s grant of a summary judgment,
applying the same legal criteria used by the district court. Gowesky v. Singing
River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is
appropriate where the evidence, construed in the light most favorable to the
non-moving party, shows that there is “no genuine dispute as to any material
fact” and that the moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(a); Tolan v. Cotton, 134 S.Ct. 1861 (2014). In assessing the
summary judgment record: (1) all evidence favorable to the non-moving party
must be credited; (2) “all evidence favorable to the moving party that the jury
is not required to believe” must be disregarded unless it is “uncontradicted,”
“unimpeached,” or comes from “disinterested witnesses”; (3) all reasonable
inferences must be drawn in favor of the nonmoving party; (4) the district court
may not make credibility determinations or weigh the evidence; and (5) the
non-moving party’s “prima facie case, combined with sufficient evidence to find
the employer’s asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.” Reeves v. Sanderson
Plumbing Products, Inc., 120 S.Ct. 2097, 2109-2110 (2000).
                                DISCUSSION
      To establish a prima facie case of retaliation under Title VII, Rutland-
Simpson must establish that she engaged in a protected activity, that she was
subjected to an adverse employment action, and that there is a causal link
between the two. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.



                                       6
     Case: 13-40525       Document: 00512695624         Page: 7    Date Filed: 07/11/2014


                                      No. 13-40525

2007). If she makes a prima facie showing, the burden shifts to the defendant
to articulate a legitimate, nonretaliatory reason for the adverse employment
action. McCoy, 492 F.3d at 557 (5th Cir. 2007). If the defendant meets its
burden of production, the burden shifts back to the plaintiff to prove pretext.
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).
       Relying on the district court’s finding, we assume arguendo that
Rutland-Simpson established a prima facie case for retaliation. Specifically,
the district court found that Rutland-Simpson had established a prima facie
case of retaliation because (1) her termination constituted an adverse
employment action; (2) her calls to the human resources hotline on December
1, 2010, and March 3, 2011, were protected activities; 2 and (3) Raborn’s
potential knowledge of Rutland-Simpson’s complaints combined with his
involvement in the termination sufficed to establish a causal link. We likewise
agree with the district court—and Rutland-Simpson does not dispute—that
Lilly met its burden of producing a legitimate, nonretaliatory reason for
Rutland-Simpson’s termination by citing her alleged sales call/expense report
falsification.
       Rutland-Simpson contends, however, that Lilly’s stated reason—her
alleged sales call/expense report falsification—was merely pretext for her
termination. “A plaintiff may establish pretext by showing that a
discriminatory motive more likely motivated her employer’s decision, such as
thorough evidence of disparate treatment, or that [her employer’s] explanation
is unworthy of credence.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001) (internal quotation marks and citations omitted). As evidence


       2 The district court found, however, that Rutland-Simpson’s conversation with Jennie
Anthony about the November 2011 field ride was not a protected activity as there was no
indication that she was either reporting or resisting discriminatory behavior, but rather was
venting to a friend who was neither in management nor human resources.


                                             7
    Case: 13-40525      Document: 00512695624        Page: 8    Date Filed: 07/11/2014


                                    No. 13-40525

of disparate treatment, Rutland-Simpson argues that she received increased
scrutiny of her reports and sales as well as additional work after her November
10 field ride. However, she presents no evidence that she received more
scrutiny or work than other similarly situated employees. Nor does she present
evidence that other employees who allegedly falsified their reporting to the
same extent were not terminated. 3 Rutland-Simpson further maintains that,
under Reeves, 120 S.Ct. at 2109-2110, none of Raborn’s testimony should have
been credited, especially because Raborn knew of Rutland-Simpson’s
complaints from Jenny Anthony. In Rutland-Simpson’s view, absent Raborn’s
testimony, Lilly’s given explanation of falsification is unworthy of credence.
However, it is undisputed that Rutland-Simpson documented sales calls which
in fact did not occur. Rutland-Simpson maintains that she made all the sales
calls recorded, but inputted wrong dates for some, which is not a terminable
offense. But it is Lilly’s policy that calls must be accurately documented. Thus
classifying improperly documented calls as call falsification and grounds for
termination does not constitute pretext.
      As Rutland-Simpson has not demonstrated that classifying improperly
documented calls as falsified calls was at odds with Lilly’s internal policies or
that she was treated differently than similarly situated employees, we hold
Rutland-Simpson has not met her burden of proving the stated reason for her
termination— her alleged sales call/expense report falsification—was pretext.
                                   CONCLUSION
      For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment.


      3  Rutland-Simpson maintains Lilly did not discipline other pharmaceutical sales
representatives who recorded sales calls on Dr. Hernandez despite not having had face-to-
face dialogue with him about Lilly products. But there is no evidence these other sales
representatives had Rutland-Simpson’s pattern of call falsification or misreporting.


                                           8
