     Case: 15-50655   Document: 00513464093   Page: 1   Date Filed: 04/13/2016




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

                                                                  FILED
                                No. 15-50655                   April 13, 2016
                              Summary Calendar
                                                             Lyle W. Cayce
                                                                  Clerk
RAFAEL DIAZ,

             Plaintiff - Appellant

v.

KAPLAN HIGHER EDUCATION, L.L.C., incorrectly listed as Kaplan Higher
Education Corporation and Kaplan College San Antonio-Ingram,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Western District of Texas


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Raphael Diaz lost his position as a paralegal instructor at Kaplan
College due to Kaplan’s nationwide reduction-in-force. In the months leading
up to his termination, Diaz alerted Kaplan to a student allegation of
impropriety involving the classroom attendance procedures of another
instructor in the paralegal program. Diaz sued Kaplan under the anti-
retaliation provision of the False Claims Act. The district court granted
summary judgment to Kaplan, and Diaz appeals.
    Case: 15-50655   Document: 00513464093     Page: 2   Date Filed: 04/13/2016



                                No. 15-50655
                          I.    BACKGROUND
      Kaplan College hired Diaz as a paralegal instructor at its San Antonio-
Ingram campus in 2010. Diaz was one of only two full-time instructors in the
department, along with Irma Zatarain, the department’s lead instructor and
externship coordinator. A concerned student approached Diaz in April 2012,
telling him that Zatarain allowed the student to miss class but marked her as
present for attendance purposes. Diaz had the student put the complaint in
writing, and then sent it to Kaplan’s Assistant Director of Education, who
immediately notified Liza Canchola, Kaplan’s Executive Director at its Ingram
campus. Canchola reported the complaint to Kaplan’s compliance department
for investigation. Diaz communicated with the compliance department four
times that same month (twice by phone and twice by email) about the
allegation. Ultimately, the compliance department’s investigation was
inconclusive.
      Canchola was a new Executive Director, having been appointed the
previous month—March 2012. One of her first tasks as Executive Director was
to implement Ingram’s share of Kaplan’s nationwide reduction-in-force due to
decreasing student enrollment. After evaluating the number of students in
Ingram’s various programs and the corresponding staff levels, Canchola
determined that the Ingram campus needed to eliminate several positions,
including one full-time position in the Paralegal Studies department—either
Diaz or Zatarain. Canchola and Kaplan’s Director of Education evaluated all
of the employees in the paralegal department, and Diaz had the lowest rating.
Additionally, Zatarain had more direct experience than Diaz, was the lead
instructor and externship coordinator, and had been with Kaplan for more
than ten years, compared to Diaz’s two. Canchola recommended that Diaz’s
position be eliminated, and Kaplan’s leadership approved. Canchola informed


                                     2
     Case: 15-50655       Document: 00513464093          Page: 3     Date Filed: 04/13/2016



                                         No. 15-50655
Diaz that his position was eliminated on June 7. Diaz confirmed that Kaplan
eliminated other positions that same day.
       Diaz sued Kaplan in state court, alleging retaliation under the False
Claims Act and intentional infliction of emotional distress. Kaplan removed
the suit to federal court and filed a motion for summary judgment. Both parties
moved to strike some of the other party’s summary judgment evidence. The
district court denied both motions to strike and granted Kaplan’s motion for
summary judgment. Diaz moved for a new trial, which the district court
properly considered as a motion to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). The court denied his motion. Diaz timely
appealed the district court’s denial of his False Claims Act claim. 1 Having
reviewed the briefs and record, we AFFIRM.
                           II.    STANDARD OF REVIEW
       We review de novo a district court’s grant of summary judgment,
“applying the same standards as the district court.” DePree v. Saunders, 588
F.3d 282, 286 (5th Cir. 2009). Summary judgment is appropriate when “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).
                                  III.    DISCUSSION
       Diaz sued Kaplan for retaliation under the False Claims Act, 31 U.S.C.
§ 3730(h). 2 The district court held and both parties on appeal agree that the


       1  The district court dismissed Diaz’s intentional infliction of emotional distress claim
because Diaz failed to address it in his response to Kaplan’s motion to dismiss. Diaz does not
brief this issue on appeal and therefore has waived it. See In re Tex. Mortg. Servs. Corp., 761
F.2d 1068, 1073 (5th Cir. 1985) (“issues ‘not raised or argued in the brief of the appellant may
be considered waived and thus will not be noticed or entertained by the court of appeals.’”
(quoting 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure
§ 3974, at 421 n.1 (1977))).
        2 Section 3730(h)(1) states:

        Any employee, contractor, or agent shall be entitled to all relief necessary to
        make that employee, contractor, or agent whole, if that employee, contractor,
                                               3
     Case: 15-50655        Document: 00513464093           Page: 4     Date Filed: 04/13/2016



                                        No. 15-50655
McDonnell Douglas framework applies to § 3730(h) retaliation claims. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 3
       Under this framework, the plaintiff must first prove a prima facie case
of retaliation by showing “(1) that he engaged in protected activity, (2) that he
suffered an adverse employment action, and (3) ‘that a causal link existed
between the protected activity and the adverse action.’” Ortiz v. City of San
Antonio Fire Dep’t, 806 F.3d 822, 827 (5th Cir. 2015) (quoting Davis v. Fort
Bend City, 765 F.3d 480, 489–90 (5th Cir. 2014)). Once an employee establishes
a prima facie case, “the burden shifts to the employer to state a legitimate, non-
retaliatory reason for its decision. After the employer states its reason, the
burden shifts back to the employee to demonstrate that the employer’s reason
is actually a pretext for retaliation.” LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383, 388–89 (5th Cir. 2007) (citation omitted). Here, the district court
found that Diaz established a prima facie case, which Kaplan does not dispute
on appeal. The district court then found that Kaplan presented a legitimate,
non-retaliatory reason for terminating Diaz: Kaplan’s campus-wide reduction-
in-force. The district court relied on this court’s decision in Roberson v. Alltel




        or agent is discharged, demoted, suspended, threatened, harassed, or in any
        other manner discriminated against in the terms and conditions of
        employment because of lawful acts done by the employee, contractor, agent or
        associated others in furtherance of an action under this section or other efforts
        to stop 1 or more violations of this subchapter.
        3 Five of our sister circuits, United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228,

1240–41 (D.C. Cir. 2012); Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31
(1st Cir. 2012); Scott v. Metro. Health Corp., 234 F. App’x. 341, 346 (6th Cir. 2007); Hutchins
v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 186 (3d Cir. 2001); Norbeck v. Basin Electric
Power Coop., 215 F.3d 848, 850–51 (8th Cir. 2000), and at least three additional district
courts in our circuit, United States v. City of Dallas, No. 3:09–CV–1452, 2011 WL 4912590,
at *5 (N.D. Tex. Sept. 27, 2011); Turner v. DynMcDermott Petroleum Operations Co., No. 06–
1455, 2010 WL 4363403, at *2 (E.D. La. Oct. 21, 2010); United States ex rel. Dyson v.
Amerigroup Tex., Inc., No. H–03–4223, 2005 WL 2467689, at *3 (S.D. Tex. Oct. 6, 2005), have
adopted this approach with none identifying conflicting authority. We likewise apply the
McDonnel Douglas framework to the False Claims Act’s anti-retaliation provision.
                                                4
    Case: 15-50655    Document: 00513464093     Page: 5   Date Filed: 04/13/2016



                                 No. 15-50655
Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004). In Roberson, we held that the
employer’s company-wide reduction-in-force was an “undisputed legitimate,
nondiscriminatory reason” for its decision to terminate an employee. Id. The
district court correctly applied Roberson to this case and shifted the burden
back to Diaz to show that Kaplan’s reason was actually pretext for retaliation.
      The district court entered summary judgment for Kaplan because Diaz
did not show pretext. Specifically, it found that “Diaz ha[d] not even mentioned
the issue of pretext in his response to Kaplan’s motion for summary judgment,
let alone presented sufficient evidence to create a fact issue as to whether
Kaplan’s proffered explanation for his termination was pretextual.” Diaz
appeals this finding, and points to two passages in his response to Kaplan’s
motion for summary judgment as “credible evidence and argument” of pretext.
The first passage Diaz highlights is in his statement of facts section, and the
second is in his discussion of the elements required to prove a prima facie case
of retaliation. Neither passage uses the word pretext, much less discusses
pretext. Even though Kaplan’s motion for summary judgment specifically
argued that “Diaz presents no evidence of pretext,” Diaz still did not address
pretext anywhere in his response.
      On appeal, Diaz argues that the following evidence supports pretext: (1)
a prior audit found that Zatarain was not qualified to teach or be the
externship coordinator; (2) Zatarain fraudulently altered attendance records
and was the focus of Diaz’s complaint; and (3) Diaz was terminated on the same
day as his last email to Kaplan’s compliance department. As the district court
noted, however, “[t]he party opposing summary judgment is required to
identify specific evidence in the record and to articulate the precise manner in
which that evidence supports his or her claim.” Ragas v. Tennessee Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (emphasis added). Because Diaz failed
to discuss pretext at all in response to Kaplan’s motion for summary judgment,
                                       5
    Case: 15-50655     Document: 00513464093     Page: 6   Date Filed: 04/13/2016



                                  No. 15-50655
he necessarily failed “to articulate the precise manner in which [the presented]
evidence supports his [] claim” of pretext. Id. We do not consider Diaz’s pretext
argument on appeal because he failed to raise it in the district court. See
Moreno v. LG Elecs., USA Inc., 800 F.3d 692, 697 (5th Cir. 2015) (“Under our
general rule, arguments not raised before the district court are waived and will
not be considered on appeal unless the party can demonstrate extraordinary
circumstances.” (quoting State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d
450, 456 (5th Cir. 2009))). Diaz has not shown extraordinary circumstances.
      Finally, Diaz argues that the district court erred by (1) considering the
affidavits of Canchola and Laura Bledsoe, Kaplan’s Director of Operations,
because they are “interested witnesses”; (2) “discounting and finding
irrelevant” the affidavit of Julio Lopez; and (3) “discounting and finding
irrelevant” the student allegation that Zatarain fraudulently altered
attendance records. Each of these arguments lacks merit.
      First, the district court properly considered Canchola and Bledsoe’s
affidavits. We previously held that “[t]he definition of an interested witness
cannot be so broad as to require us to disregard testimony from a company’s
agents regarding the company’s reasons for discharging an employee.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002). To hold
otherwise “would foreclose the possibility of summary judgment for employers,
who almost invariably must rely on testimony of their agents to explain why
the disputed action was taken.” Id.
      Second, Diaz is mistaken when he claims that the district court
“seem[ed] to completely disregard” Lopez’s affidavit, which Diaz claims is
evidence that Zatarain “was unqualified by education to either serve as an
instructor or be the externship coordinator.” The district court was clear that
it considered Lopez’s affidavit, but found it “irrelevant” because “the reduction-


                                        6
    Case: 15-50655    Document: 00513464093      Page: 7   Date Filed: 04/13/2016



                                  No. 15-50655
in-force occurred in 2012” while the affidavit “alleged that Zatarain was
unqualified to teach in 2010 or 2011.” The district court did not err.
      Third, Diaz argues that the district court “seem[ed] to ignore the fact
that evidence was offered by Diaz that Zatarain had committed clear fraud
with respect to attendance records.” As discussed above, however, Diaz neither
raised pretext in the district court nor “articulate[d] the precise manner in
which [his] evidence” of alleged attendance fraud—consisting solely of a single
student allegation—supports his claim of pretext. Ragas, 136 F.3d at 458.
                            IV.    CONCLUSION
      For the foregoing reasons, the judgement of the district court is
AFFIRMED.




                                       7
