Rogers v. Bromac Title Servs., L.L.C.

Decision Date18 June 2014
Docket NumberNo. 13–31097.,13–31097.
Citation755 F.3d 347
CourtU.S. Court of Appeals — Fifth Circuit
PartiesWanda ROGERS, Plaintiff–Appellant v. BROMAC TITLE SERVICES, L.L.C., doing business as Platinum Title & Settlement Services, L.L.C.; Title Resource Group, L.L.C., Defendants–Appellees.

OPINION TEXT STARTS HERE

Alan Fisher Kansas (argued), Terrytown, LA, for PlaintiffAppellant.

Kim Maria Boyle, Esq. (argued), Brandon E. Davis, Esq., Phelps Dunbar, L.L.P., New Orleans, LA, for DefendantsAppellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Wanda Rogers appeals the district court's grant of summary judgment in favor of her former employer, Bromac Title Services, and its owner, Title Resource Group, LLC (collectively, “Bromac” or appellees), dismissing her claims under the Jury System Improvement Act (“JSIA”), 28 U.S.C. § 1875. For the following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

From April 29, 2009 until April 20, 2012, Rogers worked as a closing officer for Bromac's (a real-estate closing service) office in Mandeville, Louisiana. On August 19, 2011, she was summoned to jury service. After her first appearance on August 22, 2011, she informed her co-workers and supervisors via email that she was selected as an alternate grand juror, and that her service would end on February 19, 2012. On October 13, 2011, she was selected to be an active member of the grand jury. Until her termination, Rogers missed a total of eight Fridays due to her jury service. In addition to the eight days she was physically unable to work because of jury duty, Rogers explains that the uncertainty of her availability on those days affected her ability to schedule and participate in closings scheduled for a Friday, which she states is the most popular day to close a home purchase. In mid-February 2012, she informed her employers that her grand jury service was extended until August 19, 2012.

During her time with Bromac, Rogers was involved in two incidents that appellees identify as the reason for her termination. On August 31, 2011, Rogers spoke at a meeting with real estate agents from Latter & Blum.1 While the parties dispute the motivation and context of this statement, it is undisputed that Rogers opened her talk by saying: “Raise your hand if you have had unprotected sex.” The parties dispute whether Rogers's superiors counseled her or even spoke to her concerning this statement. But it is undisputed that Latter & Blum's CEO, Rick Haase, immediately exclaimed “What?” after Rogers made the statement. And Bromac contends that on November 17, 2011, Karen Peterson (Rogers's supervisor) “reprimanded” her, stating that it was Rogers's “job to work to change that perception and that it can only be done through constant and careful communication.” Rogers maintains she was never counseled about the comments she made at the first meeting.

The second event occurred on April 18, 2012, when Rogers again spoke at a meeting with Latter & Blum associates. In that meeting, Rogers stated: “You guys know you are always welcome to call me after hours or on weekends. I always answer my phone unless I'm drinking.” Rogers was fired two days later, on April 20, 2012.

Rogers sued Bromac under the JSIA, alleging that the company impermissibly terminated her employment as a result of her jury service. Appellees filed a motion for summary judgment, arguing that they terminated Rogers not because of her jury service, but because of her unprofessional behavior.2 Rogers filed her own motion for partial summary judgment.

On September 23, 2013, the district court granted Bromac's motion, dismissing Rogers's action with prejudice. It applied a “but-for” causation standard, holding that under the JSIA [t]he plaintiff must prove that her jury service was the ‘but for’ cause of her employment termination.” Rogers v. Bromac Title Serv., LLC, No. 12–02493, 2013 WL 5348448, at *2 (E.D.La. Sept. 23, 2013). The court found that Bromac “provided undisputed evidence of a legitimate reason for the termination such that plaintiff's jury service cannot be the ‘but for’ caus[e] of her termination. Given the alternative reasons for plaintiff's termination, the Court is suspect that her jury service was even a motivating factor in her termination.” Id. at *3.

Rogers appeals the district court's application of the but-for causation standard and its grant of summary judgment in favor of appellees.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, applying the same standard on appeal as that applied below. Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir.2014). Summary judgment is proper “if the movant shows that 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). A genuine dispute as to a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). [T]his court construes ‘all facts and inferences in the light most favorable to the nonmoving party.’ McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir.2012) (quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.2010)). But [s]ummary judgment may not be thwarted by conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence.” Id.

We are not limited to the district court's reasons for its grant of summary judgment and may affirm the district court's summary judgment on any ground raised below and supported by the record.” Boyett v. Redland Ins. Co., 741 F.3d 604, 606–07 (5th Cir.2014) (internal quotation marks omitted).

DISCUSSION

Rogers claims that the district court misapplied the but-for causation standard by holding that Rogers had to prove that her jury service was the only reason for her termination. Rogers claims further that the district court failed to apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). She also argues that the district court granted summary judgment only by ignoring evidence of discriminatory motive and failing to view the evidence in the light most favorable to the nonmoving party. We address each of her arguments in turn.

I. But–For Causation

Because this circuit has yet to apply the but-for causation standard in the JSIA context, we first address whether the district court correctly held that it applied to Rogers's claim. We then determine whether it properly applied the standard in the proceedings below. We hold that the district court was correct to apply the but-for causation standard from Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), given the similarity in language between the Age Discrimination in Employment Act (ADEA) and the JSIA. We also hold that it did not err in its application of the standard to Rogers's facts.

The JSIA provides: “No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States.” 28 U.S.C. § 1875(a) (emphasis added). As the district court noted, [t]here is very little case law interpreting this statute.” Rogers, 2013 WL 5348448 at *2. As such, it interpreted the JSIA's use of the phrase “by reason of” the same way [m]any other district courts have,” id., and relied on the Supreme Court's guidance found in Gross, where the Court interpreted similar language found in the ADEA.

Using language similar to that found in the JSIA, the ADEA provides that [i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1) (emphasis added). The Gross court concluded that “the ordinary meaning of the ADEA's requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross, 557 U.S. at 176, 129 S.Ct. 2343. In reaching this conclusion, the Court surveyed various dictionaries whose definition for “because of” included the words “by reason of” or “by reason,” id., the very words used in the JSIA.

Based on this reading of the ADEA's use of “because of,” the Court held that [t]o establish a disparate-treatment claim under the plain language of the ADEA ... a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision.” Id. In describing what it means to be a “but-for” cause, the Gross court cited Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), which held that a successful claim required showing that “the employee's protected trait actually played a role ... and had a determinative influence on the outcome. Gross, 557 U.S. at 176, 129 S.Ct. 2343.3 Writing for the majority, Justice Thomas rejected an argument that the burden of persuasion shifts in cases involving “mixed motives”: “The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Gross, 557 U.S. at 180, 129 S.Ct. 2343 (emphasis added).

Although no federal appellate court has applied its holding in the JSIA context since the Court decided Gross in 2009, numerous federal district courts that have addressed this question have held that the Gross but-for standard applies to JSIA claims.4 Because the plain and ordinary meaning of the JSIA's use of “by reason of” supports a but-for causation standard, we adopt Gro...

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