     Case: 19-10837      Document: 00515407904         Page: 1    Date Filed: 05/07/2020




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

                                      No. 19-10837
                                                                              Fifth Circuit

                                                                            FILED
                                                                         May 7, 2020

JEREMY FARMER,                                                         Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

TURN KEY INSTALLATION, L.L.C.;
MATTHEW CHAYER, individually,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                USDC 4:18-CV-851


Before JONES, ELROD, and HIGGINSON, Circuit Judges..
PER CURIAM:*
       Appellant Jeremy Farmer (Farmer) timely appeals the district court’s
order granting Turn Key Installation, LLC’s (“Turn Key”) and Matthew
Chayer’s (“Chayer”) (collectively “Defendants”) motion for summary judgment.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10837   Document: 00515407904     Page: 2    Date Filed: 05/07/2020



                                No. 19-10837
                                      I.
      Turn Key provides commercial installation services such as installing
automation and conveyor equipment within an office building. Chayer and
Brad Hager (“Hager”) are Turn Key’s co-owners. As part of its operations, Turn
Key hires independent contractors like Farmer.           Farmer was hired in
December 2017 as a steel laborer for a conveyer belt project within a United
Parcel Service (“UPS”) facility in Texas. He was promoted to crew leader one
month later.
      According to his affidavit, shortly after being hired, Hager informed
Farmer that he would eventually become a Turn Key employee. Farmer began
recruiting other contractors to Turn Key, relaying Hager’s message regarding
the re-classification because it would provide independent contractors with
“overtime pay, health insurance benefits, and other employee benefits.”
Farmer later discussed the classification plans with Turn Key’s human
resources department, and he was informed that there were no plans to
reclassify the contractors as Turn Key employees. Farmer then brought this
employee classification issue (and other concerns) to Chayer’s attention, but
Chayer “brushed off” Farmer’s inquiries.
      On March 28, 2018, Farmer called a lawyer to seek counsel regarding his
and his co-workers’ misclassification status. Several minutes after making
this call, Farmer’s foreman questioned Farmer as to what he was doing, and
Farmer told the foreman he was speaking with an attorney about his rights as
an independent contractor. That same day, Chayer and Turn Key’s human
resources department called Farmer and terminated him because his services
were no longer needed.
      Affidavits submitted by the appellees state that during his tenure with
Turn Key, Farmer exhibited disrespectful and aggressive behavior to his co-
workers and management, including Chayer. In one instance Farmer got into
                                      2
    Case: 19-10837    Document: 00515407904     Page: 3   Date Filed: 05/07/2020



                                 No. 19-10837
a fight with a co-worker and law enforcement had to be called. Appellees
submitted declarations of Farmer’s co-workers elaborating on his “negative”
and “condescending” attitude toward others.
      Farmer denies these allegations (including being involved in an
altercation in which the police were called), but he asserts that as a crew
leader, he often had to confront his coworkers for being off-task and using
drugs on-site.
      Chayer asserts that he “decided to terminate Mr. Farmer . . . because of
his repeated attitude issues and inappropriate behavior toward other workers,
which was affecting their overall morale and the team’s overall performance
on the project.” Chayer also states that Farmer “never made any complaints
to [him] about [Farmer’s] classification or rights under the [Fair Labor
Standards Act] FLSA, and [he is] not aware of him ever making any such
complaints to anyone else.”
      Farmer initiated this action against Appellees for “unlawfully retaliating
against Plaintiff for engaging in activity protected under the FLSA.” Appellees
moved for summary judgment. At issue before the district court was whether
Farmer provided raised a genuine fact issue that his termination was
retaliatory. The district court found that Appellees’ reasons for terminating
Farmer were legitimate. It also held that Farmer failed to show that Appellees’
reason for his termination were merely pretextual.        The court therefore
granted summary judgment. This appeal followed.
                                      II.
      We review a district court’s grant of a motion for summary judgment de
novo. Thomas v. Tregre, 913 F.3d 458, 461 (5th Cir. 2019).
      To evaluate a FLSA retaliation claim, we may rely on circumstantial
evidence under the framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). For a retaliatory termination claim, Farmer must make “a prima
                                       3
     Case: 19-10837         Document: 00515407904           Page: 4     Date Filed: 05/07/2020



                                         No. 19-10837
facie showing of: (1) participation in a protected activity under the FLSA; (2) an
adverse employment action; and (3) a causal link between the activity and the
adverse action.” Starnes v. Wallace, 849 F.3d 627, 631–32 (5th Cir. 2017). If
Farmer satisfies his burden, the burden shifts to Appellees “to articulate a
legitimate nonretaliatory reason” for his termination. Id. at 632. If they
provide such evidence, the burden shifts back to Farmer to identify evidence
of pretext behind the termination.
                                               III.
       The issues before this court are whether the Defendants’ articulated a
nonretaliatory reason for his termination 1 and whether Farmer presented
sufficient evidence of pretext. Farmer’s arguments do not warrant reversal.
       Farmer first contends that Appellees failed to offer a nonretaliatory
reason for his termination because only bare-bones allegations support their
decision. This contention is deeply flawed. First, there are six declarations
from Turn Key employees, including Chayer, supporting the assertion that
Farmer’s aggressive attitude negatively affected the workplace.                              More
importantly, Chayer and Turn Key’s human resources employee both attested
that Farmer was terminated in light of these attitude problems. 2 This evidence
satisfies Defendants’ burden, shifting it back to Farmer.




       1   Like the district court, we assume that Farmer met his initial burden.

       2  Farmer submits that he was never informed that his termination was due to his
work behavior. He was simply told that his services were no longer needed. Farmer argues
that Appellees’ shifting reasons for his termination is evidence of pretext. “The pretext
inquiry focuses on the authenticity of the employer’s proffered reason [for the adverse
action] . . . [but] ‘the trier of fact can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory purpose.’” Nasti v. CIBA Specialty
Chems. Corp., 492 F.3d 589, 594 (5th Cir. 2007) (quoting Wright v. West, 505 U.S. 277, 296
(1992)). Farmer fails to explain how being informed that his services were no longer needed
is inconsistent with Appellees’ justification regarding his work behavior. Accordingly, we do
not find conflicting explanations with regard to this employment decision.
                                                 4
    Case: 19-10837     Document: 00515407904      Page: 5   Date Filed: 05/07/2020



                                  No. 19-10837
      Farmer’s second argument is that he established a fact issue concerning
pretext because his declaration disputes all of Defendants’ declarations
detailing his insubordination. Farmer also emphasizes how soon and abruptly
he was terminated after making the phone call to a lawyer regarding his
classification rights. Neither contention suffices.
       Farmer’s affidavit denies that he had a bad attitude or was aggressive
to coworkers and claims that some of the allegations against him are false.
However, his affidavit does not challenge several material assertions offered
by Appellees.    Even discounting the allegedly false charges, the evidence
stands uncontradicted that coworkers complained about his supervision and
believed him condescending; that he often yelled at the coworkers; that he
refused to do work that his boss had ordered; that he told one employee to leave
the premises in contradiction to what the boss ordered; and that there was low
morale on the worksite stemming from his conduct.           Moreover, as to the
employer’s characterization of his bad attitude, “[t]he question is not whether
an employer made an erroneous decision; it is whether the decision was made
with discriminatory motive. ‘[E]ven an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, nondiscriminatory
reason.’” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
Farmer, in sum, does not raise a triable fact issue as to whether Appellees had
a basis to believe that his negative attitude and behavior harmed his
performance and Turn Key’s work environment.
      The only additional fact Farmer raises in support of his allegation of
pretext is the temporal proximity between the protected activity and his
termination.    It is well established, however, that “temporal proximity
standing alone is insufficient to establish an issue of fact as to pretext after an
employer has provided a non-retaliatory reason.” Aryain v. Wal-Mart Stores
Texas LP, 534 F.3d 473, 487 (5th Cir. 2008); see also Roberson v. Alltel Info.
                                        5
    Case: 19-10837     Document: 00515407904    Page: 6   Date Filed: 05/07/2020



                                 No. 19-10837
Serv., 373 F.3d 647, 656 (5th Cir. 2004) (“[w]ithout more than timing
allegations . . . summary judgment in favor of [the defendant] was proper.”).
      Because Farmer fails to meet his burden of submitting evidence of
pretext challenging the legitimacy of his termination, his retaliation claim was
correctly dismissed.
      Accordingly, the judgment is AFFIRMED.




                                       6
