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Willis v Cleco Corporation

Case No. 13-30217 (C.A. 5, Apr. 8, 2014)

Gregory Willis (“Willis”), who is an African-American, filed suit against his former employer, Cleco Corporation (“Cleco”), alleging race discrimination and retaliation under Title VII and 42 U.S.C. § 1981. After two rounds of motions, the district court granted summary judgment to Cleco on all of Willis’s claims. On appeal, Willis raises three points of error. First, he argues that his retaliation claims, based on a Disciplinary Warning and being placed on a Work Improvement Plan, should not have been dismissed because he raised a genuine dispute of material fact concerning his supervisor’s retaliatory motive. Second, he asserts that the district court erred in granting summary judgment on his wrongful termination claim because he offered summary judgment evidence tending to show that the stated reasons for his termination were merely pretext for discrimination. Lastly, he contends that the district court should have reconsidered its wrongful termination ruling based on his request, which was couched within a memorandum of law submitted in opposition to Cleco’s second motion for summary judgment. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I



Willis worked in Cleco’s Human Resources department as a Senior Human Resources Representative. At all times relevant to this appeal, he was supervised by Ed Taylor (“Taylor”), Manager of Human Resources. Taylor reported to John Melancon (“Melancon”), the general Manager of Human Resources. Two years before his eventual termination, Willis reported to senior Cleco officials that he overheard a racially hostile conversation between Robyn Cooper (“Cooper”), a Cleco employee, and Melancon. Willis was standing outside Cooper’s office when he heard Cooper assert that African-American students at a local historically black college were “dumb” and “lazy,” just like the current African-Americans working for Cleco. According to Willis, Melancon remained silent when he heard Cooper make this statement. Willis claims that reporting this incident created significant retaliatory animus against him, which was the true motivation for a subsequent Disciplinary Warning, being placed on a remedial Work Improvement Plan, and his eventual termination.

Two weeks after reporting Cooper’s statement, Willis sent an email to twenty-four other Cleco employees informing them that another employee’s son had been hospitalized because of an overdose on a large volume of pills. That other employee, James Eli (“Eli”), allegedly informed Taylor that he did not authorize the email and that its dissemination caused him significant distress. Willis, however, claims he sent the message with Eli’s permission. Thereafter, Taylor issued a formal Disciplinary Warning to Willis by placing a letter in his personnel file on April 16, 2007. The letter indicated that the Disciplinary Warning was based on Willis’s mass distribution of a co-worker’s private information, lack of good judgment, and lack of respect for others. Willis claims that these proffered justifications are merely pretext for retaliatory animus resulting from his earlier report.
 

 

Judge(s): Emilio M. Garza
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Civil Rights , Communications , Constitutional Law , Contracts , Criminal Justice , Damages , Education , Employment
 
Circuit Court Judge(s)
Eugene Davis
James Dennis
Emilio Garza

 

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statements by taylor and melancon that were charged with racism: 16 id. its appearance in the summary judgment record, willis did not properly cite or explain—on as you are aware, those students are dumb. they are inappropriate phone conversation he had with sylvia) together. this that he overheard a racist conversation between the head of his department, managed an important hiring initiative. willis, on the other hand, claims that a fact is material if it “might affect the outcome of the suit.” id. summary prima facie case, a plaintiff must demonstrate that he, “(1) is a member of a taylor and melancon issued a disciplinary warning to willis, stating that retaliation and race discrimination claims, willis must establish that there is affirm in part, reverse in part, and remand for further proceedings. citing his purportedly poor job performance.33 according to willis, as a result 40 id. he learned that willis reported him for participating in the racist conversation, john melancon, and another coworker about the company’s hiring practices robyn cooper (“cooper”), a cleco employee, and melancon. willis was case: 13-30217 document: 00512589583 page: 19 date filed: 04/08/2014 institution. willis says that cooper continued: plaintiff must show that he was treated less favorably than others “under 35 id. at 3837 (willis dep.). showing pretext requires a plaintiff to “produce substantial evidence willis to satisfy his burden on summary judgment to demonstrate genuine does not impose upon the district court [or the court of appeals] a duty to sift placing willis on the work improvement plan were james l. dennis, circuit judge, concurring in part, dissenting in part: adequately brief it, is deemed to have waived it. it is not or racist ones) and legitimate ones (i.e., the perception, correct or not, that motions, the district court granted summary judgment to cleco on all of willis’s refused to allow his family to live in alexandria, lousiana because argument is not the same as ‘pressing’ it. in addition, letter in his personnel file on april 16, 2007. the letter indicated that the summary judgment on willis’s retaliation claim arising from the april 16, 2007 into an employee’s promotion and salary-increase calculations. taylor claims favorable to willis could infer that cleco’s reasons for no. 13-30217 protected group; (2) was qualified for the position at issue; (3) was discharged 2 declaration of jerome c. ardoin, jr., r. usca5 4084 (emphasis omitted). parties were allotted additional, and equal, time for discovery and motions 37 id. at 479-82 (sylvia decl.). 364 f.3d 646, 653 (5th cir. 2004) (“issues not raised or inadequately briefed on who worked together closely.42 on february 2, 2009, taylor and melancon merely pretext for discrimination. lastly, he contends that the district court clerk the majority faults willis for not identifying a “similarly situatuated or suffered some adverse employment action by the employer; and (4) was explained above, this is a necessary predicate for success on his wrongful termination claim. evidence is sufficient for a reasonable jury to return a verdict for the non- 44 id. f.3d 309, 319 (5th cir. 2004). under title vii’s familiar burden shifting the very least, this means clearly identifying a theory as a evidence tending to show that the stated reasons for his termination were corp., 475 u.s. 574, 585-86 (1986). an examination of willis’s evidence melancon remained silent when he heard cooper make this statement. willis no. 13-30217 twenty-four other cleco employees informing them that another employee’s earlier reporting of cooper’s racially hostile statements in conversation with stated reasons are merely pretextual—that his firing was actually motivated on appeal, willis does not challenge the district court’s holding that he 32 id. the disciplinary warning states that it is “from: ed taylor,” but the document because willis made recurring mistakes, missed meetings, and inefficiently recruitment trip and when willis was fired, the jury could reasonably infer year.34 willis says that taylor told him that the improvement plan was party—here, willis. see, e.g., first am. title ins. co. v. cont’l cas. co., 709 enough to merely mention or allude to a legal theory. we replaced by someone outside his protected group or was treated less favorably by retaliatory or discriminatory animus. argued by the parties before them.” coggin v. longview independent school 15 id. protected activity of reporting the racially hostile comments cooper made in a against him, which was the true motivation for a subsequent disciplinary forget” willis’s slight, and that he had decided to “terminate that nigger.” over inadequately briefed. in united states v. scroggins, 599 f.3d 433 (5th cir. employment action.” davis, 383 f.3d at 319. if a legitimate reason is proffered, to african-americans as “niggers” and “coons.” willis overheard and reported whose direct supervisor is melancon, issued the disciplinary warning because has put forth sufficient evidence to create a genuine dispute as to whether that the son of a colleague, james eli, overdosed on “thirty one pills.”29 willis’s 28 id. at 4084 (ardoin decl.). at 458, the district court actually considered this evidence. accordingly, our reversal of this a party must ordinarily identify the relevant legal denied that the alleged call ever happened.44 the next day, taylor and no. 105), 3372-73 (district court doc. no. 106). on march 8, 2012, cleco corporation filed a this lawsuit, willis claims that cleco corporation, through taylor and judgment on his title vii wrongful termination claim. wrongful termination for reporting me.”28 on march 15, 2007, willis sent an email to twenty-four coworkers saying standing outside cooper’s office when he heard cooper assert that african- claims. 2 id. at 384-86 (willis dep.), 455 (taylor decl.). prods., 530 u.s. 133, 150 (2000). placed and that it lasted for thirty-five minutes. willis accused sylvia of lying. between melancon and robyn cooper, a corporate communications iii articulated reason for the employment action was a pretext for retaliation.” id. two weeks after reporting cooper’s statement, willis sent an email to and taylor found their “reason.” his former employer, cleco corporation (“cleco”), alleging race discrimination 21 id. no. 13-30217 2 discrimination if race is a “motivating factor” in the termination. 42 u.s.c. willis says that he retrieved the memorandum he had sent to bausewine in this case. the evidence that willis’s discharge was motivated by retaliation judgment and has harmed a fellow employee who was already under stress. this event nearly identical circumstances.” love v. kan. city s. ry., 574 f.3d 253, 259– weeks later, willis was disciplined for sending an email involving private case: 13-30217 document: 00512589583 page: 14 date filed: 04/08/2014 sylvia complained about willis’s allegedly inappropriate conduct, melancon court granted the motion in part and denied it in part. id. at 3335-71 (district court doc. determinations or weigh the evidence. see reeves v. sanderson plumbing true, when willis was fired, the termination decision may have been discriminatory and retaliatory termination. i concur in allowing willis’s claim rebutted by the plaintiff as pretext. see supra part ii.a. phone, on january 21, 2009 to discuss issues involving workplace rumors about among other things, willis allegedly told sylvia to spend more time with other cleco’s second motion for summary judgment. for the following reasons, we a racist conversation about company hiring policies between melancon and bausewine, the senior vice president of corporate services.15 he drafted and that melancon, working with taylor, had accomplished exactly what melancon indicating that the proffered legitimate nondiscriminatory reason is a pretext for the foregoing reasons we reverse the district court’s grant of for the fifth circuit warning, being placed on a remedial work improvement plan, and his ignore or compartmentalize. i respectfully dissent from the denial of these a over their years working at the company, willis and two of his 50 it has been said that, in discrimination cases, “there will seldom be ‘eyewitness’ united states court of appeals 1 comparator,” that is, another cleco employee “who was treated differently stopped speaking to him for months.18 coworkers advised willis to try to “build and before the district court—give scant, if not conclusory, attention to the record: citations should have reconsidered its wrongful termination ruling based on his request, majority’s argument is without merit. where the evidence is that an system is that appellate courts do not sit as self-directed boards of legal inquiry 25 id. at 3834 (willis dep.), 4185-86 (willis decl.). african-american employees, and to better embrace his racial heritage. sylvia 5 in nichols v. enterasys networks, inc., 495 f.3d 185, 190 (5th cir. 2007), nichols issues as to material fact. case: 13-30217 document: 00512589583 page: 18 date filed: 04/08/2014 human resources representative. at all times relevant to this appeal, he was motion. id. at 3812-17 (district court doc. no. 137). willis opposed the motion and asked and retaliation under title vii and 42 u.s.c. § 1981. after two rounds of e. discharge and raises genuine issues as to what motivated the discharge, prevail on a claim of wrongful termination under title vii, analysis of the 17 id. at 3834 (willis dep.). willis’s email caused eli and his wife “considerable pain and distress” and that senior cleco officials that he overheard a racially hostile conversation between • according to ardoin, who is white and who worked with melancon 45 id. 6 promised: “if we have to create a reason,” “we are going to terminate that will keep your mouth shut now.” this and additional evidence adduced by termination of willis’s employment. in 2008, willis helped franklin sylvia dist., 337 f.3d 459 (5th cir. 2003) (en banc). claims are also evaluated under the mcdonnell douglas framework. see until his reporting melancon, willis had been a model employee for the hr department. the against him for objecting to race discrimination at the company. in considering willis was dishonest in the company’s investigation of the alleged taylor and melancon came to his home to deliver the news and that, after cleco corporation the call, sylvia claims that willis made inappropriate race-based comments. year and a half later, melancon and taylor came to willis’s home, told willis appeal or before the district court. however, the district court’s second summary judgment the conversation to jeff hall, the company’s chief diversity officer, and george supervised by ed taylor (“taylor”), manager of human resources. taylor after additional investigation, taylor and melancon credited sylvia’s version that he was fired for having an inappropriate phone conversation with sylvia cleco corporation discriminated against him on the basis of race or retaliated grambling state university, so that she could consider writing melancon, his supervisors in the human resources department, did both. no. 13-30217 (“ardoin”), another cleco employee, in which ardoin explains that melancon, briefing). he was actually placed on the work improvement plan in retaliation for his 7 for over two decades, melancon referred to african-americans as evidence sufficient to show a genuine dispute of material fact about whether in search of evidence to support a party’s opposition to summary judgment,” ragas, 136 f.3d a contract term was unconscionable. id. “where analysis is so deficient, this court has melancon told a colleague that he was “very pissed,” that he was “not going to distress. willis, however, claims he sent the message with eli’s permission. appeal are waived.”). because a plaintiff must establish a prima facie case to 12 willis claims that the disciplinary warning was issued in retaliation for moreover, ardoin’s affidavit claims that melancon stated: “if we have to find a no. 13-30217 4 conversation with melancon. accordingly, willis has produced the requisite emilio m. garza, circuit judge: 8 disciplinary warning, affirm the district court’s grant of summary willis alleges that, on march 2, 2007, he overheard a conversation april 8, 2014 we find no merit in his argument. see supra part ii.b. additionally, contrary that other employee, james eli (“eli”), allegedly informed taylor that he did disciplinary warning was based on willis’s mass distribution of a co-worker’s case: 13-30217 document: 00512589583 page: 4 date filed: 04/08/2014 20 willis was “advised to use better judgment,” and a failure to do so “could result 13 id. melancon denies that cooper said anything inappropriate to him. he says: in retaliation for reporting cooper’s statements, and that the district court of retaliatory intent—that is, because willis previously engaged in the nigger greg willis for reporting me.” it is a reasonable inference that, once hiring.40 sylvia reported the conversation to taylor, prompting an favor of willis, the non-moving party, and may not make credibility fifth circuit reported melancon’s involvement in the racist conversation. then, about a necessary because willis “caused morale problems” at the company when he considered inappropriate “race instruction,” and feared that it may have of events, and terminated willis. the reasons cleco stated for willis’s see antoine v. first student, inc., 713 f.3d 824, 830 (5th cir. 2013). summary ashamed of his african-american roots, that he should not reject who he is, company’s recruitment practices without taking exception.14 willis reported judgment. 26 id. at 3834 (emphasis added). reference to a company recruitment trip, “why are you all going to grambling whether sylvia had, as some believed, reported a coworker for sleeping during call with sylvia, that he lied to his supervisors about the call, and that he f.3d 1170, 1173 (5th cir. 2013). willis says that he was troubled by the fact that melancon, the general 19 human resources department in 2000.2 several years later, he was promoted willis also appeals from the district court’s adverse grant of summary should proceed to trial on his claim that the disciplinary warning constituted v. jordan, 497 f.3d 433, 437 (5th cir. 2007). “to present a prima facie case of coworkers, jerome c. ardoin, jr. and patrick lacour, claim to have overheard 18 id. r. usca5 3874. the termination. see, e.g., brown v. e. miss. elec. power ass’n, 989 f.2d 858, concluded that willis failed to establish that cleco’s stated non-discriminatory for the western district of louisiana the grambling recruitment trip and that, “if we have to create a reason, ed this conversation. sylvia reported the remarks to taylor and other cleco no. 13-30217 facie case. specifically, the court found that willis did not demonstrate that case: 13-30217 document: 00512589583 page: 6 date filed: 04/08/2014 4 id. at 389-92 (willis dep.). animus toward willis.” the entirety of willis’s briefing on the work improvement plan claim naacp?12 framework, see, e.g., mcdonnell douglas corp. v. green, 411 u.s. 792 (1973), 6 id. at 4082 (ardoin decl.). his implementation of a work improvement plan for willis was necessary of tex. sw. med. ctr. v. nassar, 133 s.ct. 2517, 2534 (2013). again, it is clear c. was “very pissed” with willis for reporting his conversation with cooper about retaliation under either title vii or § 1981, a plaintiff must show that: (1) he 2 claim, and does not explain, in any perceptible manner, why the facts would keep your mouth shut now.” this evidence is, without question, sufficient for no. 13-30217 cooper never made disparaging remarks regarding african- when willis’s employment was terminated by melancon, who allegedly opprobrium [that] stigmatiz[es] african-americans because of their race,” is i respect to the terms, conditions, or privileges of employment because of race. 38 id. 7 id. at 4146 (lacour decl.). “lack of respect for others” when he sent the mass email disclosing that his co- 14 id. at 392-99, 440 (willis dep.), 453-54 (letter from willis to george bausewine, no. 13-30217 he was “very pissed” with willis for reporting the conversation with cooper. assist an employee in meeting performance standards. willis claims that work engaged in an activity protected by title vii; (2) he was subjected to an adverse taylor’s direct supervisor in the human resources department, told him that 39 id. summary judgment.” ragas v. tenn. gas pipeline co., 136 f.3d 455, 458 (5th 3 shown that there is a genuine dispute of material fact that cleco’s stated proposed basis for deciding the case—merely intimating an melancon remained silent while cooper was speaking, which willis several months after the disciplinary warning, willis was placed on a rather, the request was couched at the end of an eighteen page memorandum with melancon and that taylor told him, “you should not have reported john 27 id. obtain a job at the company.37 sylvia says that he called willis, on willis’s cell prima facie case determination. see adams v. unione mediterranea di sicurta, eastfield coll., 88 f.3d 300, 305, 305 n.4 (5th cir. 1996). email asked the coworkers to pray for eli’s son.30 according to willis, eli asked he was “treated less favorably than other similarly situated employees outside the protected class.” the district court found that willis did not identify a direct evidence of discrimination). 33 id. at 3877-78 (taylor decl.). willis claims that these proffered justifications are merely pretext for you were her audience.”26 this did not assuage melancon’s anger.27 case: 13-30217 document: 00512589583 page: 11 date filed: 04/08/2014 cleco was taking with regard diversity, which included visiting melancon told him that he was fired, melancon said, “boy, you will keep your as for willis’s retaliation claim, cleco commits illegal retaliation if the pretext stage cannot change the disposition of this claim.6 and the adverse employment action.” davis v. dallas area rapid transit, 383 before davis, garza, and dennis, circuit judges. gregory willis record of a call between sylvia’s and willis’s cell phones on january 21, the retaliation claims, based on a disciplinary warning and being placed on a (“sylvia”), obtain a job with cleco. sylvia is biracial. a number of months into of the improvement plan, he was unlikely to receive a salary increase that i respectfully dissent from the majority’s denial of willis’s claims of the evidence in the record, this court must draw all reasonable inferences in 1981. the legal framework governing these claims is coextensive. see decorte according to cleco, a work improvement plan is a developmental tool used to supervisors. taylor and melancon then arranged a meeting with willis and no. 13-30217 2010), we summarized our precedents under fed. r. app. p. 28: 9 id. at 4191 (willis decl.). day the alleged inappropriate conversation occurred.45 willis, however, the district court determined that willis had not established a prima relationship with melancon broke down severely.17 melancon was furious and principles, and undermines the high level of trust that one in your position must maintain.” mouth shut now.”49 willis’s slight. he told ardoin that he had decided “to terminate that nigger.”50 as for willis’s race discrimination claim, cleco commits illegal sylvia says that he was troubled by the conversation, which he no. 13-30217 v. case: 13-30217 document: 00512589583 page: 8 date filed: 04/08/2014 willis, as outlined below, conflicts with the employer’s reasons for the improvement plans are essentially punitive, because they factor negatively review because, as taylor put it, he “caused morale problems” when he no. 13-30217 17 should be reversed.4 i concur in the majority’s decision that plaintiff-appellant gregory willis mccoy v. city of shreveport, 492 f.3d 551, 556 (5th cir. 2007). to establish a a bridge” with melancon, but willis was “uncomfortable” doing so because judgment evidence is viewed in the light most favorable to the non-moving based on the combination of both illegitimate considerations (i.e., retaliatory 46 id. specifically, willis references an affidavit from jerome c. ardoin, jr. case: 13-30217 document: 00512589583 page: 16 date filed: 04/08/2014 § 2000e-2(m). here, it is clear that there is sufficient evidence to find that, sr., vice president of support services, cleco corp.). on august 15, 2007, taylor put willis on a work improvement plan, retaliatory animus resulting from his earlier report. 19 id. district court’s [sic] found that melancon and taylor harbored retaliatory/discriminatory to credit sylvia’s allegations over willis’s denials.47 for discrimination.” laxton v. gap inc., 333 f.3d 572, 578 (5th cir. 2003). case: 13-30217 document: 00512589583 page: 5 date filed: 04/08/2014 10 id. at 392-99, 440 (willis dep.), 453-54 (letter from willis to george bausewine, 60 (5th cir. 2009). once a prima facie case is established, the defendant can among other requirements to properly raise an argument, employee for objecting to illegal workplace discrimination. id. § 2000e-3. in him to send the email to his friends at the company.31 but, on april 16, 2007, willis’s employment with cleco, the circumstances of his discipline, his eventual termination, is signed by both taylor and melancon. “work improvement plan” by taylor. taylor alleges he took this step because employee’s boss announces that he has decided to “terminate that nigger,” related sylvia’s allegations. willis denied that any conversation took place. the district court to reconsider the district court’s resolution of the first motion. id. at 4045- moving party, anderson v. liberty lobby, inc., 477 u.s. 242, 248 (1986), and his employment, sylvia called willis to ask a work-related question. during c in further disciplinary action including suspension or termination.”32 63 (district court doc. no. 149). the district court denied willis’s request and granted the demonstrated a lack of respect for the parties involved, a violation of the cleco guiding describing the conversation about the trip to grambling and he brought it into claims that reporting this incident created significant retaliatory animus his reporting of cooper’s racially hostile statements. cleco asserts that the illegal retaliation. the heart of this retaliation-and-race-discrimination case, and, at least in part, by racial discrimination is too strong and pervasive to case: 13-30217 document: 00512589583 page: 9 date filed: 04/08/2014 willis’s appellate arguments—is insufficient to overcome this legal obstacle. termination were that he engaged in inappropriate behavior during the phone willis claims that he was actually placed on the work improvement plan through the record in search of evidence to support a party’s opposition to no. 13-30217 11 id. possibility of “mixed motives,” however, does not defeat willis’s claims. however, is not the disciplinary warning, which is alleged to have been a mere american students at a local historically black college were “dumb” and “lazy,” case: 13-30217 document: 00512589583 page: 13 date filed: 04/08/2014 retaliation and race discrimination. id. at 4724-45 (district court doc. no. 157), 4746 a genuine issue of material fact.1 matsushita elec. indus. co. v. zenith radio failed to provide “any evidence or any legal argument beyond bare assertions” showing how 11 3 the record in this case contains numerous depositions and affidavits chronicling to identify specific evidence in the record, and to articulate the ‘precise manner’ once the plaintiff presents a prima facie case, the burden shifts to the and lying about it (which willis denies), and melancon added, “boy, you will no. 13-30217 according to willis, during the following months of spring of 2007, his order, which addressed willis’s retaliation claims, shows that the district court was cir. 1998). we have further observed that the “premise of the adversarial rare cases in which there is “eyewitness” testimony—here, ardoin’s. 8 id. at 4189 (willis decl.). infuriated melancon by reporting his conversation about the grambling 5 id. at 394 (willis dep.), 4424 (taylor dep.). are they going to do? are they going to go to the required payment, without further explanation, justified waiver on grounds of inadequate gregory willis (“willis”), who is an african-american, filed suit against than other similarly situated employees outside the protected group.” id. genuine dispute as to any material fact and the movant is entitled to judgment summary judgment must do so by citing to specific evidence in the record. see ragas, 136 first time he saw an african-american man, he thought the man under the fourth prong’s “similarly situated employees” requirement, a offer a non-discriminatory reason for the termination, which may then be greg willis for reporting me and trying to burn my ass.”2 judgment order. willis did not formally seek reconsideration by motion. to willis’s several contentions on appeal, nothing in the record shows that the another. melancon was furious. he told willis that he would “not forget” melancon. ii which was couched within a memorandum of law submitted in opposition to worker son overdosed on pills.1 but willis has proffered summary judgment finally, in light of title vii’s “because of” requirement, the plaintiff must show appellant’s initial brief to determine the adequately no. 13-30217 case: 13-30217 document: 00512589583 page: 3 date filed: 04/08/2014 no. 13-30217 22 id. case: 13-30217 document: 00512589583 page: 10 date filed: 04/08/2014 and that he should spend more time with black coworkers.39 plaintiff-appellant 34 id. at 3828-29 (willis dep.). to survive cleco corporation’s motions for summary judgment on his the burden returns to the plaintiff to demonstrate that “the employer’s 1 the warning letter specifically states: “your action demonstrated a lack of good investigation.41 the investigation was carried out by taylor and melancon, melancon met with sylvia and confirmed that sylvia’s cell phone showed a these stated reasons are pretext for an underlying retaliatory motive. specifically aware of ardoin’s statement. see memorandum ruling, feb. 12, 2013, ecf no. willis last contends that the district court erred in failing to reconsider no. 13-30217 willis’s claims. r. 373-77 (district court doc. no. 35). on september 22, 2011, the district for the claim: “on august 15, 2007, mr. willis was placed on a work improvement plan. up no different than the dumb and lazy blacks that work at this company. if you don’t hire any of them, what b pretextual. therefore, the court granting cleco’s motion ass and i am not going to forget that.”25 willis responded, “look, i did not i. 41 id. at 481 (sylvia decl.), 456 (taylor decl.). sometimes as “colored people.”8 allow a reasonable jury to decide in his favor. this claim is inadequately “niggers” and “coons” on “numerous occasions.”6 case: 13-30217 document: 00512589583 page: 2 date filed: 04/08/2014 30 id. under title vii of the civil rights act of 1964, it is illegal for an and the allegedly racialized nature of the cleco workplace. however, willis’s briefs—here 31 id. standards and any fifth circuit cases. we look to an willis’s, lacour’s, and ardoin’s testimony, drawing all reasonable case: 13-30217 document: 00512589583 page: 1 date filed: 04/08/2014 861 (5th cir. 1993) (use of the term “nigger,” a “universally recognized 3 id. representative.10 willis says that he overheard cooper ask melancon, in melancon implications for his future employment at cleco given willis’s position in the a party that asserts an argument on appeal, but fails to “there are too many black people who live over there.”7 report you. my memo said, she [i.e., cooper] was making the comments and a second motion for summary judgment. rather, the record reflects that all 15 remand for further proceedings consistent with this opinion. manager of human resources, had listened to such sentiments about the appeal from the united states district court reasons were pretextual, the district court erred in granting summary f.3d at 458. that party must further “articulate the precise manner in which that evidence supporting citations to the record on appeal, is as follows. making summary judgment for the employer inappropriate based on the record similarly situated comparator—another employee who was treated differently in which that evidence support[s] their claim.” forsyth v. barr, 19 f.3d 1527, 16 willis, who is african-american, started working in cleco corporation’s stepping stone, but is rather the later termination of willis’s employment in • according to willis, taylor referred to african-americans company. although some time had passed between when willis allegedly work improvement plan, should not have been dismissed because he raised a pretext conclusion. thus, he has waived appellate review of the district court’s no. 13-30217 a. company’s second motion for summary judgment, thus disposing of all of willis’s claims of no. 13-30217 was already concerned about his job security, and was further disquieted by 12 id. • according to lacour, who is white, melancon once told him that he claim is based on an argument before the district court. summoned willis into melancon’s office and confronted him about sylvia’s d. (district court doc. no. 158). human resources.5 cooper and melancon.35 willis says that taylor told him, “cooper is upset.”36 resources.4 taylor, in turn, reported to john melancon, general manager of just like the current african-americans working for cleco. according to willis, willis’s complaint stated retaliation claims arising under title vii and § a reasonable jury looking at the facts in a light most and research, but essentially as arbiters of legal questions presented and poor performance review, and, finally, fired. on the day he was fired, willis gave a memorandum describing the conversation to bausewine.16 inc., 564 f.3d 386, 407 (5th cir. 2009) (a single sentence claim that a subrogation clause [than willis] under nearly identical circumstances.” ante, at 9, 10 n.6. the matters of a colleague (eli’s son’s overdose) that willis believed he was failed to establish a prima facie case—he only challenges the district court’s 48 id. resources. two years before his eventual termination, willis reported to cleco corporation’s human resources department. according to willis and his 1537 (5th cir. 1994). this court has regularly reminded litigants that “rule 56 termination in 2009, his direct supervisor was ed taylor, manager of human that the protected activity was the “but for” cause of the retaliation. long v. interpreted to mean that melancon was a “willing audience.”13 5 9 around this same time, ardoin claims that melancon told him that he americans. in that conversation between cooper and myself, i 47 id. at 458 (taylor decl.), 464 (melancon decl.). [taylor] and i have decided—we are going to terminate that nigger greg willis referred to willis as “that nigger,” race was a “motivating factor” in the submitted in opposition to cleco corporation’s motions reveals that there can as a matter of law.” fed. r. civ. p. 56(a). a genuine dispute of fact exists when inferences therefrom, establishes that willis’s boss, melancon, often referred genuine dispute of material fact concerning his supervisor’s retaliatory motive. case: 13-30217 document: 00512589583 page: 20 date filed: 04/08/2014 neither the law nor common sense requires the employee to show “similarly defendant-employer to “proffer a legitimate rationale for the underlying having right now.”21 taylor’s only advice, willis says, was to try to work things 42 id. at 457-58 (taylor decl.). 7 willis’s second memorandum in opposition to cleco’s second motion for summary taylor melancon slammed his hand on the table and declared, “you tried to burn my claims. on appeal, willis raises three points of error. first, he argues that his during late 2008 and early 2009, a series of events culminated in the 1 on september 17, 2010, cleco corporation moved for summary judgment on all of b. 29 id. at 3858-59 (willis dep.), 3874-75 (disciplinary warning), 3876-77 (taylor decl.). summary judgment in favor of cleco corporation is inappropriate here. have often stated that a party must ‘press’ its claims. at judgment on willis’s retaliation claim based on the disciplinary warning. 3 the work improvement plan claim is asserted in these two sentences: case: 13-30217 document: 00512589583 page: 7 date filed: 04/08/2014 49 id. at 4186 (willis decl.). 24 id. in this, willis fails to identify a theory as a proposed basis for deciding the 20 id. in the united states court of appeals 43 id. on his wrongful termination claim because he offered summary judgment no. 13-30217 are minimal, and legal analysis relating facts to the law is largely absent. the party opposing be little question that willis has carried his burden. willis’s evidence, with 6 judge dennis’ partial dissent does not account for willis’s fundamental failure to testimony as to the employer’s mental processes.” reeves, 530 u.s. at 141. this is one of the 13 an update regarding cleco’s diversity efforts. decision. second motion for summary judgment addressing willis’s claims that survived the first eventual termination. • according to willis, taylor told him on several occasions that the 42 u.s.c. § 2000e-2. it is also illegal for an employer to retaliate against an simply explained to cooper some of the actions and initiatives this court reviews a district court’s grant of summary judgment de novo. warning issued because willis demonstrated a “lack of good judgment” and a second, he asserts that the district court erred in granting summary judgment according to willis, melancon ordered him to close the office door.24 then, supports” their argument. see forsyth, 19 f.3d at 1536. notwithstanding these principles, 10 is contained in this short, conclusory paragraph, which does not include any citations to the on february 4, 2009, willis was fired purportedly for the inappropriate no. 13-30217 after the ruling on the first motion for summary judgment. case: 13-30217 document: 00512589583 page: 17 date filed: 04/08/2014 off topic and lectured sylvia about his racial heritage (sylvia has one black a training class.38 according to sylvia, during that conversation, willis veered private information, lack of good judgment, and lack of respect for others. 14 18 continued to deny that the call ever occurred.46 taylor and melancon decided asserted bases for relief. the next year, willis helped a personal acquaintance, franklin sylvia willis worked in cleco’s human resources department as a senior regarding the disciplinary warning to go to trial. out with melancon.22 reported to john melancon (“melancon”), the general manager of human son had been hospitalized because of an overdose on a large volume of pills. sr., vice president of support services, cleco corp.). the compelling narrative judge dennis draws from the record—despite the inadequacy of thereafter, taylor issued a formal disciplinary warning to willis by placing a “evidence indicating that the proffered legitimate nondiscriminatory reason is judgment on the remaining retaliation and discrimination claims, and if credited by a trier of fact, this statement fairly indicates that taylor, id. at 462 (melancon decl.). judge dennis’s separate opinion features lengthy discussion of record evidence that, despite allegations of an inappropriate phone conversation.43 at the meeting, willis situated comparators” in order to prove that race was a motivating factor in id. at 446–47 (citations and quotations omitted). willis’s legal argument about record or internal references to other sections of his brief. employer to discharge an employee or otherwise discriminate against him with phone conversation and for lying about his involvement in it.48 willis says that authorized to send. a few months later, willis was given a poor performance melancon had started making “derogatory” comments about him around the case: 13-30217 document: 00512589583 page: 12 date filed: 04/08/2014 36 id. not authorize the email and that its dissemination caused him significant to the position of senior human resources representative.3 from 2005 until his judgment should be granted when the moving party shows that “there is no 4 three additional sentences in willis’s brief provide introductory and factual content however, sylvia produced cell phone records showing that a call had been human resources department and the influential role willis played in his appeal the district court’s determination that he had not established a prima facie case. as for summary judgment as to willis retaliation claims termination would not have occurred “but for” willis’s protected activity. univ. 23 id. filed supporting evidence in the record, he reported to cleco corporate executives would not have been terminated if he had not reported discrimination at the considered the issue waived for inadequate briefing.” id. see also mullins v. testamerica, defendant-appellee reported the conversation about the grambling recruitment trip between the next two years, allegedly for other reasons, willis was disciplined, given a revealed sylvia’s allegations to a non-cleco employee. willis claims these briefed, and we hold that it is waived.5 a pretext for discrimination.” laxton, 333 f.3d at 578. because willis has that there is sufficient evidence to support a reasonable inference that willis district court provided an unfair “second bite at the apple” to cleco in allowing and whether the company should recruit african-american employees. after of law.7 assuming, without deciding, that this was sufficient to raise the issue, “under nearly identical circumstances.” the district additionally further employment action; and (3) a causal link exists between the protected activity reason, ed [taylor] and i have decided; we are going to terminate that nigger willis’s job performance was inadequate during the first half of 2007. “looked like a gorilla.”9 lyle w. cayce office.19 willis says that he sought advice from taylor about his difficulties [melancon].”20 taylor continued, “you wouldn’t have these problems you’re reason for his termination was pretextual. erred in granting summary judgment. this claim is waived because it is the question before the court on summary judgment is whether willis case: 13-30217 document: 00512589583 page: 15 date filed: 04/08/2014 ii. melancon’s office, set it on the table, and said that he wanted to talk about it.23 157, at 12. thus, even though “rule 56 does not impose . . . a duty to sift through the record its ruling on his wrongful termination claim, following the first summary parent and one white parent), telling him generally that he should not be state university?”11 grambling state university is a historically black says that melancon came to his home to deliver the news and added, “boy, you to satisfy its burden, the party opposing summary judgment is “required


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