Willis v. Cleo Corp.

Decision Date08 April 2014
Docket NumberNo. 13–30217.,13–30217.
Citation749 F.3d 314
PartiesGregory WILLIS, Plaintiff–Appellant v. CLEO CORPORATION, Defendant Appellee.
CourtU.S. Court of Appeals — Fifth Circuit


Larry English, English & Associates, L.L.C., New York, NY, for PlaintiffAppellant.

Charles H. Hollis, Esq., Heather F. Crow, Kullman Firm, New Orleans, LA, for Defendant Appellee.

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

Before DAVIS, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

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.


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.

Several months after the Disciplinary Warning, Willis was placed on a “Work Improvement Plan” by Taylor. Taylor alleges he took this step because Willis's job performance was inadequate during the first half of 2007. According to Cleco, a Work Improvement Plan is a developmental tool used to assist an employee in meeting performance standards. Willis claims that Work Improvement Plans are essentially punitive, because they factor negatively into an employee's promotion and salary-increase calculations. Taylor claims his implementation of a Work Improvement Plan for Willis was necessary because Willis made recurring mistakes, missed meetings, and inefficiently managed an important hiring initiative. Willis, on the other hand, claims that he was actually placed on the Work Improvement Plan in retaliation for his earlier reporting of Cooper's racially hostile statements in conversation with Melancon.

The next year, Willis helped a personal acquaintance, Franklin Sylvia (“Sylvia”), obtain a job with Cleco. Sylvia is biracial. A number of months into his employment, Sylvia called Willis to ask a work-related question. During the call, Sylvia claims that Willis made inappropriate race-based comments. Among other things, Willis allegedlytold Sylvia to spend more time with other African–American employees, and to better embrace his racial heritage. Sylvia was already concerned about his job security, and was further disquieted by this conversation. Sylvia reported the remarks to Taylor and other Cleco supervisors. Taylor and Melancon then arranged a meeting with Willis and related Sylvia's allegations. Willis denied that any conversation took place. However, Sylvia produced cell phone records showing that a call had been placed and that it lasted for thirty-five minutes. Willis accused Sylvia of lying. After additional investigation, Taylor and Melancon credited Sylvia's version of events, and terminated Willis. The reasons Cleco stated for Willis's termination were that he engaged in inappropriate behavior during the phone call with Sylvia, that he lied to his supervisors about the call, and that he revealed Sylvia's allegations to a non-Cleco employee. Willis claims these stated reasons are merely pretextual—that his firing was actually motivated by retaliatory or discriminatory animus.


This court reviews a district court's grant of summary judgment de novo. See Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.2013). Summary judgment should be granted when the moving party 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 of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a fact is material if it “might affect the outcome of the suit.” Id. Summary judgment evidence is viewed in the light most favorable to the non-moving party—here, Willis. See, e.g., First Am. Title Ins. Co. v. Cont'l Cas. Co., 709 F.3d 1170, 1173 (5th Cir.2013).

To satisfy its burden, the party opposing summary judgment is “required to identify specific evidence in the record, and to articulate the ‘precise manner’ in which that evidence support[s] their claim.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994). This court has regularly reminded litigants that Rule 56 does not impose upon the district court [or the court of appeals] a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). We have further observed that the “premise of the adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Coggin v. Longview Independent School Dist., 337 F.3d 459 (5th Cir.2003) (en banc).


Willis's complaint stated retaliation claims arising under Title VII and § 1981. The legal framework governing these claims is coextensive. See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir.2007). “To present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.” Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir.2004). Under Title VII's familiar burden shifting framework, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), once the plaintiff presents a prima facie case, the burden shifts to the defendant-employer to “proffer a legitimate rationale for the underlying employment action.” Davis, 383 F.3d at 319. If a legitimate reason is proffered, the burden returns to the plaintiff to demonstrate that “the employer's articulated reason for the employment action was a pretext for retaliation.” Id. Showing pretext requires a plaintiff to “produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003). Finally, in light of Title VII's “because of” requirement, the plaintiff must show that the protected activity was the “but for” cause of the retaliation. Long v. Eastfield Coll., 88 F.3d 300, 305, 305 n. 4 (5th Cir.1996).

Willis claims that the Disciplinary Warning was issued in retaliation for his reporting of Cooper's racially hostile statements. Cleco asserts that the warning issued because Willis demonstrated a “lack of good judgment” and a “lack of respect for others” when he sent the mass email disclosing that his co-worker son overdosed on pills.1 But Willis has proffered summary judgment evidence sufficient to show a genuine dispute of material fact about whether these stated reasons are pretext for an underlying retaliatory motive. Specifically, Willis references an affidavit from Jerome C. Ardoin, Jr. (“Ardoin”), another Cleco employee, in which Ardoin explains that Melancon, Taylor's direct supervisor in...

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