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

                                                                               FILED
                                                                           September 8, 2008

                                         No. 07-30866                    Charles R. Fulbruge III
                                                                                 Clerk

EMMIT DUMAS,

                                                     Plaintiff - Appellant,
v.

UNION PACIFIC RAILROAD COMPANY,

                                                     Defendant - Appellee.



                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 3:05-CV-264


Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.
PER CURIAM:**
       Emmit Dumas (“Dumas”) appeals the district court’s grant of summary
judgment to defendant Union Pacific Railroad Company (“Union Pacific”) on
Dumas’ claims of retaliatory termination under Title VII and 42 U.S.C. § 1981.
For the following reasons, we AFFIRM.




       *
            District Judge of the Western District of Louisiana, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-30866

                                              I
       Dumas, an African-American, was employed by Union Pacific from 1995
until his termination in August 2004. He claims that he was terminated in
retaliation for testifying on behalf of another employee, Eddie Bibbins
(“Bibbins”), who had previously brought race discrimination charges against
Union Pacific.       In January 2003, Bibbins complained to Union Pacific
management that one of his supervisors was using racial slurs. Union Pacific
undertook an investigation of the charge (the “Bibbins investigation”). During
this investigation, Joe Whalen, a Superintendent at Union Pacific, interviewed
Dumas regarding Bibbins’ allegations.1 Dumas corroborated Bibbins’ claims.
Bibbins then filed an EEOC Charge, and eventually filed suit against Union
Pacific in early 2004. Again, Dumas gave a statement supporting Bibbins’
claims. The parties eventually settled the Bibbins action and it was dismissed
with prejudice in September 2006.
       In June 2003, shortly after Dumas’ involvement in the Bibbins
investigation, Dumas was elevated from the position of track foreman to track
inspector. As a track inspector, Dumas was required to inspect Union Pacific
track for compliance with the Track Safety Standard promulgated by the Federal
Railroad Administration (“FRA”) and to file an inspection report on the date any
inspection was made. See 49 C.F.R. §§ 212.203 and 213.241. The FRA is
charged with ensuring railroad compliance with the many applicable
regulations.
       In July 2004, FRA inspector Nick Roppolo performed a routine audit for
an area covered by Union Pacific’s Livonia Service Unit and which included the
track for which Dumas was responsible.                 FRA regulations require track



       1
         Pertinent to this case, Whalen left the Livonia Service Unit, where Dumas worked, in
February 2004 and was replaced at that time by Monty Whatley, the Superintendent who eventually
signed Dumas’ letter of termination in August 2004.

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                                  No. 07-30866

inspectors to check with a dispatcher to ensure that the areas to be inspected are
free of traffic during the time when inspections will be done. During the audit,
Roppolo discovered that the track inspection records entered by Dumas did not
match the authority dispatching records, which indicated that Dumas had
performed track inspections on multiple occasions without receiving authority
from the dispatch center for such inspections. The records entered by Dumas
indicated that he had received proper authority from dispatch. Roppolo’s audit
report recommended the FRA impose fines against Union Pacific for the failure,
and require Union Pacific to provide the FRA with written notice of remedial
action taken in response to the violations.
      Based on Roppolo’s audit findings, Union Pacific charged plaintiff with a
violation of General Code of Operating Rule 1.6, which proscribes employee
dishonesty. A formal investigation, with Dumas aided by union representatives,
was held in August 2004. The formal investigation resulted in a finding that
Dumas engaged in dishonest conduct. If Union Pacific finds a violation of Rule
1.6 based upon an employee’s dishonest conduct, the violation is a Level 5 out of
5 on Union Pacific’s discipline scale. The recommended discipline for a Level 5
violation is permanent dismissal. After this investigation, Union Pacific decided
to terminate Dumas. Monty Whatley, the Superintendent who replaced Joe
Whalen, signed a letter of termination which was sent to Dumas. The letter
indicated that Dumas was being terminated based on his dishonest conduct in
violation of Rule 1.6. Dumas appealed the decision to the Public Law Board,
which affirmed the termination decision.
      Dumas then filed this action in federal court, claiming that he was
unlawfully terminated in retaliation for his participation in the Bibbins
investigation. Dumas alleged that his retaliatory termination violated the
Louisiana Employment Discrimination Law, Title VII of the Civil Rights Act of
1964, and 42 U.S.C. § 1981. Union Pacific moved for summary judgment on the


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retaliation claims. The district court granted summary judgment in favor of
Union Pacific, adopting the recommendations of the magistrate judge, holding
that Dumas failed to demonstrate a causal connection between Dumas’ protected
activity and his termination and thus did not establish a prima facie case of
retaliation.


                                       II
      We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. Hockman v. Westward Commc’ns, LLC,
407 F.3d 317, 325 (5th Cir. 2004). A party is entitled to summary judgment “if
the pleadings, depositions, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact.” Fed.
R. Civ. P. 56(c). In reviewing a grant of summary judgment, we view the facts
in the light most favorable to the nonmoving party, in this case Dumas. See
Hockman, 407 F.3d at 325. A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-
movant. See LeMaire v. La. Dep’t of Trans. and Dev., 480 F.3d 383, 387 (5th Cir.
2007).


                                       III
      Title VII forbids an employer from “discriminat[ing] against” an employee
or job applicant because that individual “opposed any practice” made unlawful
by Title VII or because the individual “made a charge, testified, assisted, or
participated in” a Title VII proceeding or investigation. See Burlington Northern
& Santa Fe Rwy. Co. v. White, 548 U.S. 53, 59 (2006) (citing 42 U.S.C. § 2000e-
3(a)). We apply the evidentiary framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973) to Title VII retaliation claims that
rely on circumstantial evidence. See Turner v. Baylor Richardson Med. Ctr., 476

                                       4
                                           No. 07-30866

F.3d 337, 348 (5th Cir. 2007).2 Under the McDonnell Douglas burden-shifting
framework, a plaintiff must first present a prima facie case of unlawful
retaliation. See Rios v. Rosetti, 252 F.3d 375, 380 (5th Cir. 2001). To establish
a prima facie case, the plaintiff must show that: (1) he engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action. See Turner,
476 F.3d at 348. A plaintiff need not show that the protected activity was the
“but for” cause of the adverse action to make his prima facie showing. See Gee
v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
       If the plaintiff successfully establishes a prima facie case, the burden
shifts to the employer to articulate a legitimate, non-retaliatory reason for the
adverse employment action. See Lemaire, 480 F.3d at 388. If the employer
meets its burden and produces such a reason, the burden shifts back to the
plaintiff. See id. At this point, the plaintiff can pursue two options. The
plaintiff must show either: “(1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or (2) that the
defendant’s reason, while true, is only one of the reasons for its conduct, and
another ‘motivating factor’ is the plaintiff’s protected characteristic (mixed-
motive[s] alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004) (alteration in original); see Desert Palace, Inc. v. Costa, 539 U.S. 90,
92-94 (2003) (holding that plaintiffs pursuing a mixed-motive theory should not
face a heightened evidentiary burden). Under the pretext alternative, the



       2
           While the plaintiff based his unlawful retaliation claims on both Title VII and 42 U.S.C. §
1981, we refer only to Title VII in this opinion. When a plaintiff pursues both as parallel causes of
action, Title VII and § 1981 require the same proof to establish liability. Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999). The plaintiff raises no issue with respect to his
claim for retaliation under Louisiana law. As a consequence, the plaintiff has abandoned any claim for
retaliation arising under Louisiana law. See Priester v. Lowndes County, 354 F.3d 414, 420 n.6 (5th
Cir. 2004) (noting that an appellant “abandons all issues not raised and argued in its initial appellate
brief”).

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plaintiff has the burden of proving that but for the discriminatory purpose, the
adverse employment action would not have been taken. See Septimus v. Univ.
of Houston, 399 F.3d 601, 608 (5th Cir. 2005). If the plaintiff pursues a mixed-
motive theory, and shows that the plaintiff’s protected characteristic or conduct
was a motivating factor, then the burden shifts to the employer to show that the
adverse employment decision would have been made regardless of the
discriminatory animus. See Rachid, 376 F.3d at 312.3
       There is no dispute that Dumas has satisfied the first two elements of his
prima facie case. However, the district court ruled that Dumas failed to create
a genuine issue of material fact as to whether there was a causal link between
his protected activity and his termination, and thus concluded that Dumas’
prima facie case failed as a matter of law.4 “In order to establish the causation
prong of a retaliation claim, the employee should demonstrate that the employer
knew about the employee’s protected activity.” Manning v. Chevron Chem. Co.,
332 F.3d 874, 883 (5th Cir. 2003). “[I]n determining whether an adverse
employment action was taken as a result of retaliation, our focus is on the final
decisionmaker.”         Gee, 289 F.3d at 346.             While we focus on the ultimate
decisionmaker, a plaintiff can make out a prima facie case by showing that other
employees, with discriminatory motives, “had influence or leverage over the



       3
          We question whether Dumas attempts to pursue a mixed-motive argument on appeal. His
brief is unclear on the matter. We also question whether he raised a mixed motive argument below in
opposing summary judgment. If he failed to do raise the theory below, it cannot be raised for the first
time on appeal. See Turner, 476 F.3d at 347 (finding mixed motive theory waived on appeal because
it was not presented until the plaintiff’s motion for new trial). However, we need not answer these
questions because, in any event as explained below, Dumas failed to make out a prima facie case of
retaliation.

       4
          The district court also ruled that Dumas failed to create an issue of fact as to whether his
protected activity was a “but for” cause of his termination. Therefore, even assuming that Dumas
satisfied the prima facie case requirements, the district court determined that Dumas could not meet
the ultimate burden placed on him after Union Pacific proffered its legitimate, non-discriminatory
reason for Dumas’ termination. Because we agree with the district court’s first conclusion as to Dumas’
failure at the prima facie case stage, we need not reach its alternative conclusion.

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                                   No. 07-30866

official decisionmaker.” Id.; see also Long v. Eastfield Coll., 88 F.3d 300, 307 (5th
Cir. 1996) (noting that if the final decisionmaker serves as the “cat’s paw” of
those acting with retaliatory motives, the causal link remains intact).
      Monty Whatley, the Superintendent who signed Dumas’ notice of
termination, started with the Livonia Service Unit about eight months after
Dumas’ involvement in the Bibbins investigation. Although Whatley was not a
part of the unit when the investigation occurred, Dumas argues that others
played a role in the decision to terminate him in retaliation for participation in
the Bibbins investigation.         Dumas contends that Joe Whalen, the
Superintendent prior to Whatley, and two other employees senior to Dumas,
Jerry Rugg and Dale Kriefels, influenced the termination decision.
      However, Dumas fails to provide any evidence that these individuals
influenced Whatley’s termination decision, or that Whatley had knowledge of
Dumas’ participation in the Bibbins investigation. The record includes no
deposition testimony from Whatley that would provide insight into what he
knew at the time of Dumas’ termination. The termination letter indicates only
that Dumas was fired for dishonesty in violation of rule 1.6. Undisputed
evidence shows that Whalen transferred out of the Livonia Service Unit and was
replaced by Whatley in February 2004, six months prior to the FRA audit and
Dumas’ termination. As to Rugg, even assuming he played an influential role
in the decision, his uncontroverted deposition testimony indicates that he did not
know of Dumas’ participation in the investigation at the time Dumas was
terminated. Kreifels is the only Union Pacific employee that the evidence
suggests had knowledge of Dumas’ participation in the Bibbins investigation,
the FRA audit, and Dumas’ termination. However, Dumas offers no evidence
that Kreifels made any suggestion to Whatley regarding termination, or that he
relayed any information to Whatley regarding Dumas’ involvement in the
Bibbins investigation. Based on the summary judgment record, Whatley, the


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final decisionmaker, had no knowledge of Dumas’ involvement; and Kreifels, the
only employee with the information to influence Whatley, did not attempt to do
so.
      While not determinative, the timing of an employer’s adverse action can
be considered in analyzing the causal link in a retaliation claim. See Gee, 289
F.3d at 346 n.3. Union Pacific terminated Dumas on August 27, 2004, nineteen
months after his participation in the Bibbins investigation, which took place in
January 2003. In his deposition, Dumas testified that prior to the FRA audit,
he was never harassed, intimidated, demoted, or disciplined based on his
participation in the Bibbins investigation. Further, the employment action that
most closely followed Dumas’ participation in the Bibbins investigation was a
positive action: his June 1, 2003 promotion from Track Foreman to Track
Inspector. While not conclusive, the lapse of time and the intervening positive
employment action further weaken the already tenuous causal link between
Dumas’ protected activity and his termination. See Grizzle v. Travelers Health
Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (noting that 18-month lapse and
intervening raise showed that retaliatory motive was unlikely).
      Dumas argues that a causal link may be implied because other Union
Pacific employees committed similar violations but were not terminated. This
argument overlooks the fact that Dumas is required to establish that he was
terminated in retaliation for engaging in protected activity. The discipline
exercised against other employees is inapposite because Dumas has not provided
any evidence that the decisionmaker in his case had any knowledge of his
protected activity, or that the decisionmaker was improperly influenced by
someone who did have such knowledge.
      Dumas’ evidence fails to create a genuine issue of material fact as to
whether a causal link exists between his protected activity and the adverse
employment action taken against him, and thus he cannot make out his prima

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facie case for retaliation. Accordingly, we AFFIRM the district court’s grant of
summary judgment in favor of Union Pacific.




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