     Case: 18-30641      Document: 00514764347         Page: 1    Date Filed: 12/17/2018




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

                                      No. 18-30641                              FILED
                                                                        December 17, 2018
                                                                           Lyle W. Cayce
DARIN WILLIAMS,                                                                 Clerk

              Plaintiff–Appellant,

v.

UNITED PARCEL SERVICE, INCORPORATED,

              Defendant–Appellee.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CV-450


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Darin Williams appeals the dismissal of his Title VII gender
discrimination claim against United Parcel Service, Inc., claiming the district
court erred by dismissing his case on grounds not before it. We disagree and
AFFIRM the dismissal, as Williams failed to establish his prima facie case and
had notice that this could be grounds for dismissal. Williams also appeals the
dismissal of his state law defamation claim against Shraya Williams. Here too
we AFFIRM, as Williams’ arguments are contrary to Louisiana law.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               I. BACKGROUND
      Williams was a “Business Manager” at UPS. He had a duty to report
injuries that received medical attention beyond first aid. In late June or early
July of 2015, Williams learned that Mia Baptiste, an employee under his
management, had been injured by her supervisor, Charles Wooten, when the
two had been “playing” with a can of compressed air. Williams told Baptiste to
report the injury, but she made it clear that she did not want to. The Human
Resource Supervisor, Shraya Williams, allegedly told Williams that he could
not force Baptiste to report the injury. Williams relied on Shraya’s advice and
did not report it.
      In late September, UPS investigated the injury. It was then that
Williams learned that Baptiste had received medical attention beyond first aid,
meaning he had a duty to report it. Williams claims Shraya lied to UPS
investigators by saying that she had told Williams multiple times to report the
injury. Williams uses these statements as the basis for his defamation claim
against Shraya. UPS then fired Williams for failing to report the injury.
      Williams sued UPS for gender discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and Shraya for defamation under
Louisiana law. The district court dismissed Williams’ claims against Shraya
under Federal Rule of Civil Procedure 12(b)(6). UPS moved for summary
judgment on the discrimination claim. The district court granted summary
judgment for UPS, finding that Williams had not pointed to evidence that
Baptiste and Shraya were similarly situated to him—prong four of Williams’
prima facie case. Williams timely appealed.

                          II. STANDARD OF REVIEW
      We review a district court’s grant of summary judgment under Rule 56
de novo. Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if the summary judgment
evidence is such that a reasonable jury could return a verdict for the non-
movant.” Hyatt, 843 F.3d at 177 (cleaned up).
       Cases of discrimination based on circumstantial evidence are subject to
the McDonnell Douglas 1 burden-shifting framework. Davis v. Dall. Area Rapid
Transit, 383 F.3d 309, 316–17. “To survive summary judgment under
McDonnell Douglas, the plaintiff must first present evidence of a prima facie
case of discrimination.” Id. at 317 (citing Patel v. Midland Mem’l Hosp. & Med.
Ctr., 298 F.3d 333, 342 (5th Cir. 2002). To establish a prima facie case, the
plaintiff must show: (1) he was in a protected class; (2) he was qualified for the
position; (3) he suffered an adverse employment action; and (4) he was treated
less favorably than similarly situated employees. Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001). If the plaintiff presents
a prima facie case, discrimination is presumed, and the burden shifts to the
employer. Davis, 383 F.3d at 317. The employer must then articulate a
legitimate, nondiscriminatory reason for the underlying employment action.
Id. If the employer can state a legitimate reason for its action, the inference of
discrimination disappears, and the burden shifts back to the plaintiff to
present evidence that the employer’s proffered reason was merely pretextual.
Id.

                                     III. DISCUSSION

A.     The District Court Did Not Err by Dismissing Williams’ Title VII
       Claim Based on His Prima Facie Case
       Williams argues that he did not receive notice that his prima facie case
was at issue because, while UPS expressly did not concede that he could


       1   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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establish a prima facie case, “for purposes of the motion for summary
judgment, UPS was not challenging his prima facie case.” We disagree.
      While we require that a plaintiff be put on notice that a matter could be
grounds for summary judgment, see Turco v. Hoechst Celanese Corp., 101 F.3d
1090, 1093 (5th Cir. 1996), the standard for notice is quite low. In Turco, we
held that an issue mentioned a single time in a footnote was sufficient notice.
101 F.3d at 1093. Similarly, in Atkins v. Salazar, we held there was notice
where the plaintiff raised the issue in his summary judgment response brief
and where the defendant “made repeated reference to facts relevant to the
[issue the district court ultimately used as the basis for summary judgment] in
its opening brief.” 677 F.3d 667, 679–80 (5th Cir. 2011). Atkins also approvingly
cites to Cripe v. City of San Jose for the proposition that even if a defendant
“mislabel[s] its argument and identifie[s] the wrong standard” he does not
waive the issue if he “argue[s] the relevant facts before the district judge”
because that “sufficiently puts the plaintiffs and the court on notice of the
actual issue the defendant should have specified.” 677 F.3d at 680 (citing Cripe,
261 F.3d 877, 886 n.9 (9th Cir. 2001)).
      Here, the context surrounding UPS’s express non-concession makes it
clear that Williams was on notice. While the district court noted that the
plaintiff bears the burden of establishing his prima facie case “at trial,” the
plaintiff also bears this burden at the summary judgment stage. See Davis, 383
F.3d at 317. In its memorandum in support of the motion for summary
judgment—in the same section where it expressly does not concede the prima
facie issue—UPS clearly explains that the “plaintiff must initially establish a
prima facie case by proving facts sufficient to raise an inference of
discrimination.” In the same paragraph, UPS also pointed out that the
Supreme Court has made it clear that “the only burden that shifts to the
defendant after a prima facie case is made is one of ‘producing evidence’ that
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an adverse employment action was taken for a legitimate, nondiscriminatory
purpose.” One sentence later, UPS explains that “[w]ithout conceding” the
issue of whether Plaintiff can establish a prima facie case, it was choosing to
“focus[]   on   the   legitimate,   non-discriminatory       reason   for   Plaintiff’s
termination.” In context, it is clear that UPS pointed to Williams’ burden of
establishing a prima facie case, noted that its only burden was to establish a
nondiscriminatory reason for firing Williams, and proceeded to focus on its own
burden.
      Moreover, UPS made “repeated reference to facts relevant to” whether
Williams was similarly situated to his coworkers, Shraya and Baptiste, in
accordance with Atkins, 677 F.3d at 680. UPS noted that Williams was not
similar to Baptiste because “Baptiste followed the procedure by reporting her
injury to her supervisor, Wooten.” UPS also pointed out that Shraya’s conduct
was different from Williams’ because she too reported the incident while
Williams did not. Williams then engaged with these facts in his response,
meaning he not only had notice that these facts were at issue but also
substantively responded to them.
      The district court drew heavily from both UPS’s motion and Williams’
opposition to support its conclusion that Baptiste and Shraya were not
similarly situated. It also used facts obvious from the pleadings to note that
both Baptiste and Shraya’s jobs are very different from Williams’. We thus hold
that Williams had notice that his prima facie case could be the basis for
summary judgment and that the district court did not err by dismissing his
Title VII claim.
B.    The District Court Properly Dismissed Williams’ Defamation
      Claim Against Shraya
      To prove defamation, a plaintiff must allege the following elements: (1)
a false and defamatory statement; (2) unprivileged publication to a third party;

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(3) fault on the part of the publisher; and (4) resulting injury. Restatement
(Second) of Torts § 558 (1977). The only element before us is whether the
statements were published to a third party. The alleged defamatory
statements were made exclusively within UPS’s organizational structure
during a company investigation. In Louisiana, “[s]tatements between
employees, made within the course and scope of their employment, are not
statements communicated or publicized to third persons” for purposes of a
defamation claim. Marshall v. Circle K Corp., 715 F. Supp. 1341, 343 n.2 (M.D.
La. 1989); see also Cangelosi v. Schwegmann Bros. Giant Super Markets, 390
So.2d 196, 198 (1980); Comm. Union Ins. Co. v. Melikyan, 424 So.2d 1114, 1115
(La. App. 1st Cir. 1982). Thus, the district court was right to dismiss Williams’
defamation claim.

                               IV. CONCLUSION
      For these reasons, we AFFIRM the district court’s dismissal of Williams’
Title VII and state law defamation claims.




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