Gregory Willis v. Cleco Corporation

Case: 13-30217 Document: 00512589583 Page: 1 Date Filed: 04/08/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-30217 April 8, 2014

Lyle W. Cayce

GREGORY WILLIS Clerk

Plaintiff-Appellant

v.

CLECO CORPORATION

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

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No. 13-30217

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

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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 allegedly told 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.

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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.

II

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 (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

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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).

A

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 (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).

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1

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 the Human Resources department, told him that

he was “very pissed” with Willis for reporting the conversation with Cooper.

Moreover, Ardoin’s affidavit claims that Melancon stated: “If we have to find a

reason, Ed [Taylor] and I have decided; we are going to terminate that nigger

Greg Willis for reporting me and trying to burn my ass.” 2

If credited by a trier of fact, this statement fairly indicates that Taylor,

whose direct supervisor is Melancon, issued the Disciplinary Warning because

of retaliatory intent—that is, because Willis previously engaged in the

protected activity of reporting the racially hostile comments Cooper made in a

conversation with Melancon. Accordingly, Willis has produced the requisite

“evidence indicating that the proffered legitimate nondiscriminatory reason is

a pretext for discrimination.” Laxton, 333 F.3d at 578. Because Willis has

1 The warning letter specifically states: “Your action demonstrated a lack of good

judgment and has harmed a fellow employee who was already under stress. This event

demonstrated a lack of respect for the parties involved, a violation of the Cleco Guiding

Principles, and undermines the high level of trust that one in your position must maintain.”

R. USCA5 3874.

2 Declaration of Jerome C. Ardoin, Jr., R. USCA5 4084 (emphasis omitted).

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shown that there is a genuine dispute of material fact that Cleco’s stated

reasons were pretextual, the district court erred in granting summary

judgment on Willis’s retaliation claim based on the Disciplinary Warning. 3

2

Willis claims that he was actually placed on the Work Improvement Plan

in retaliation for reporting Cooper’s statements, and that the district court

erred in granting summary judgment. This claim is waived because it is

inadequately briefed. In United States v. Scroggins, 599 F.3d 433 (5th Cir.

2010), we summarized our precedents under Fed. R. App. P. 28:

A party that asserts an argument on appeal, but fails to

adequately brief it, is deemed to have waived it. It is not

enough to merely mention or allude to a legal theory. We

have often stated that a party must ‘press’ its claims. At

the very least, this means clearly identifying a theory as a

proposed basis for deciding the case—merely intimating an

argument is not the same as ‘pressing’ it. In addition,

among other requirements to properly raise an argument,

a party must ordinarily identify the relevant legal

standards and any Fifth Circuit Cases. We look to an

3 The record in this case contains numerous depositions and affidavits chronicling

Willis’s employment with Cleco, the circumstances of his discipline, his eventual termination,

and the allegedly racialized nature of the Cleco workplace. However, Willis’s briefs—here

and before the district court—give scant, if not conclusory, attention to the record: citations

are minimal, and legal analysis relating facts to the law is largely absent. The party opposing

summary judgment must do so by citing to specific evidence in the record. See Ragas, 136

F.3d at 458. That party must further “articulate the precise manner in which that evidence

supports” their argument. See Forsyth, 19 F.3d at 1536. Notwithstanding these principles,

Judge Dennis’s separate opinion features lengthy discussion of record evidence that, despite

its appearance in the summary judgment record, Willis did not properly cite or explain—on

appeal or before the district court. However, the district court’s second summary judgment

order, which addressed Willis’s retaliation claims, shows that the district court was

specifically aware of Ardoin’s statement. See Memorandum Ruling, Feb. 12, 2013, ECF No.

157, at 12. Thus, even though “Rule 56 does not impose . . . a duty to sift through the record

in search of evidence to support a party’s opposition to summary judgment,” Ragas, 136 F.3d

at 458, the district court actually considered this evidence. Accordingly, our reversal of this

claim is based on an argument before the district court.

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appellant’s initial brief to determine the adequately

asserted bases for relief.

Id. at 446–47 (citations and quotations omitted). Willis’s legal argument about

the Work Improvement Plan claim is asserted in these two sentences:

A reasonable jury looking at the facts in a light most

favorable to Willis could infer that Cleco’s reasons for

placing Willis on the Work Improvement Plan were

pretextual. Therefore, the court granting Cleco’s Motion

for Summary Judgment as to Willis retaliation claims

should be reversed. 4

In this, Willis fails to identify a theory as a proposed basis for deciding the

claim, and does not explain, in any perceptible manner, why the facts would

allow a reasonable jury to decide in his favor. This claim is inadequately

briefed, and we hold that it is waived. 5

B

Willis also appeals from the district court’s adverse grant of summary

judgment on his Title VII wrongful termination claim. Wrongful termination

claims are also evaluated under the McDonnell Douglas framework. See

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To establish a

4 Three additional sentences in Willis’s brief provide introductory and factual content

for the claim: “On August 15, 2007, Mr. Willis was placed on a Work Improvement Plan. Up

until his reporting Melancon, Willis had been a model employee for the HR department. The

District Court’s [sic] found that Melancon and Taylor harbored retaliatory/discriminatory

animus toward Willis.” The entirety of Willis’s briefing on the Work Improvement Plan claim

is contained in this short, conclusory paragraph, which does not include any citations to the

record or internal references to other sections of his brief.

5 In Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007), Nichols

failed to provide “any evidence or any legal argument beyond bare assertions” showing how

a contract term was unconscionable. Id. “Where analysis is so deficient, this court has

considered the issue waived for inadequate briefing.” Id. See also Mullins v. TestAmerica,

Inc., 564 F.3d 386, 407 (5th Cir. 2009) (a single sentence claim that a subrogation clause

required payment, without further explanation, justified waiver on grounds of inadequate

briefing).

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prima facie case, a plaintiff must demonstrate that he, “(1) is a member of a

protected group; (2) was qualified for the position at issue; (3) was discharged

or suffered some adverse employment action by the employer; and (4) was

replaced by someone outside his protected group or was treated less favorably

than other similarly situated employees outside the protected group.” Id.

Under the fourth prong’s “similarly situated employees” requirement, a

plaintiff must show that he was treated less favorably than others “under

nearly identical circumstances.” Love v. Kan. City S. Ry., 574 F.3d 253, 259–

60 (5th Cir. 2009). Once a prima facie case is established, the defendant can

offer a non-discriminatory reason for the termination, which may then be

rebutted by the plaintiff as pretext. See supra Part II.A.

The district court determined that Willis had not established a prima

facie case. Specifically, the court found that Willis did not demonstrate that

he was “treated less favorably than other similarly situated employees outside

the protected class.” The district court found that Willis did not identify a

similarly situated comparator—another employee who was treated differently

“under nearly identical circumstances.” The district additionally further

concluded that Willis failed to establish that Cleco’s stated non-discriminatory

reason for his termination was pretextual.

On appeal, Willis does not challenge the district court’s holding that he

failed to establish a prima facie case—he only challenges the district court’s

pretext conclusion. Thus, he has waived appellate review of the district court’s

prima facie case determination. See Adams v. Unione Mediterranea Di Sicurta,

364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised or inadequately briefed on

appeal are waived.”). Because a plaintiff must establish a prima facie case to

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prevail on a claim of wrongful termination under Title VII, analysis of the

pretext stage cannot change the disposition of this claim. 6

C

Willis last contends that the district court erred in failing to reconsider

its ruling on his wrongful termination claim, following the first summary

judgment order. Willis did not formally seek reconsideration by motion.

Rather, the request was couched at the end of an eighteen page memorandum

of law. 7 Assuming, without deciding, that this was sufficient to raise the issue,

we find no merit in his argument. See supra Part II.B. Additionally, contrary

to Willis’s several contentions on appeal, nothing in the record shows that the

district court provided an unfair “second bite at the apple” to Cleco in allowing

a second motion for summary judgment. Rather, the record reflects that all

parties were allotted additional, and equal, time for discovery and motions

after the ruling on the first motion for summary judgment.

III

For the foregoing reasons we REVERSE the district court’s grant of

summary judgment on Willis’s retaliation claim arising from the April 16, 2007

Disciplinary Warning, AFFIRM the district court’s grant of summary

judgment on the remaining retaliation and discrimination claims, and

REMAND for further proceedings consistent with this opinion.

6 Judge Dennis’ partial dissent does not account for Willis’s fundamental failure to

appeal the district court’s determination that he had not established a prima facie case. As

explained above, this is a necessary predicate for success on his wrongful termination claim.

The compelling narrative Judge Dennis draws from the record—despite the inadequacy of

Willis’s appellate arguments—is insufficient to overcome this legal obstacle.

Willis’s Second Memorandum in Opposition to Cleco’s Second Motion for Summary

7

Judgment.

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JAMES L. DENNIS, Circuit Judge, concurring in part, dissenting in part:

I concur in the majority’s decision that plaintiff-appellant Gregory Willis

should proceed to trial on his claim that the disciplinary warning constituted

illegal retaliation. The heart of this retaliation-and-race-discrimination case,

however, is not the disciplinary warning, which is alleged to have been a mere

stepping stone, but is rather the later termination of Willis’s employment in

Cleco Corporation’s human resources department. According to Willis and his

supporting evidence in the record, he reported to Cleco corporate executives

that he overheard a racist conversation between the head of his department,

John Melancon, and another coworker about the company’s hiring practices

and whether the company should recruit African-American employees. After

he learned that Willis reported him for participating in the racist conversation,

Melancon told a colleague that he was “very pissed,” that he was “not going to

forget” Willis’s slight, and that he had decided to “terminate that nigger.” Over

the next two years, allegedly for other reasons, Willis was disciplined, given a

poor performance review, and, finally, fired. On the day he was fired, Willis

says that Melancon came to his home to deliver the news and added, “Boy, you

will keep your mouth shut now.” This and additional evidence adduced by

Willis, as outlined below, conflicts with the employer’s reasons for the

discharge and raises genuine issues as to what motivated the discharge,

making summary judgment for the employer inappropriate based on the record

in this case. The evidence that Willis’s discharge was motivated by retaliation

and, at least in part, by racial discrimination is too strong and pervasive to

ignore or compartmentalize. I respectfully dissent from the denial of these

claims.

I.

To survive Cleco Corporation’s motions for summary judgment on his

retaliation and race discrimination claims, Willis must establish that there is

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a genuine issue of material fact. 1 Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 585-86 (1986). An examination of Willis’s evidence

submitted in opposition to Cleco Corporation’s motions reveals that there can

be little question that Willis has carried his burden. Willis’s evidence, with

supporting citations to the record on appeal, is as follows.

A.

Willis, who is African-American, started working in Cleco Corporation’s

human resources department in 2000. 2 Several years later, he was promoted

to the position of senior human resources representative. 3 From 2005 until his

termination in 2009, his direct supervisor was Ed Taylor, manager of human

resources. 4 Taylor, in turn, reported to John Melancon, general manager of

human resources. 5

Over their years working at the company, Willis and two of his

coworkers, Jerome C. Ardoin, Jr. and Patrick Lacour, claim to have overheard

statements by Taylor and Melancon that were charged with racism:

Melancon

1 On September 17, 2010, Cleco Corporation moved for summary judgment on all of

Willis’s claims. R. 373-77 (District Court Doc. No. 35). On September 22, 2011, the district

court granted the motion in part and denied it in part. Id. at 3335-71 (District Court Doc.

No. 105), 3372-73 (District Court Doc. No. 106). On March 8, 2012, Cleco Corporation filed a

second motion for summary judgment addressing Willis’s claims that survived the first

motion. Id. at 3812-17 (District Court Doc. No. 137). Willis opposed the motion and asked

the district court to reconsider the district court’s resolution of the first motion. Id. at 4045-

63 (District Court Doc. No. 149). The district court denied Willis’s request and granted the

company’s second motion for summary judgment, thus disposing of all of Willis’s claims of

retaliation and race discrimination. Id. at 4724-45 (District Court Doc. No. 157), 4746

(District Court Doc. No. 158).

2 Id. at 384-86 (Willis Dep.), 455 (Taylor Decl.).

3 Id.

4 Id. at 389-92 (Willis Dep.).

5 Id. at 394 (Willis Dep.), 4424 (Taylor Dep.).

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• According to Ardoin, who is white and who worked with Melancon

for over two decades, Melancon referred to African-Americans as

“niggers” and “coons” on “numerous occasions.” 6

• According to Lacour, who is white, Melancon once told him that he

refused to allow his family to live in Alexandria, Lousiana because

“there are too many black people who live over there.” 7

Taylor

• According to Willis, Taylor referred to African-Americans

sometimes as “colored people.” 8

• According to Willis, Taylor told him on several occasions that the

first time he saw an African-American man, he thought the man

“looked like a gorilla.” 9

B.

Willis alleges that, on March 2, 2007, he overheard a conversation

between Melancon and Robyn Cooper, a corporate communications

representative. 10 Willis says that he overheard Cooper ask Melancon, in

reference to a company recruitment trip, “Why are you all going to Grambling

State University?” 11 Grambling State University is a historically black

institution. Willis says that Cooper continued:

As you are aware, those students are dumb. They are

no different than the dumb and lazy blacks that work

at this company. If you don’t hire any of them, what

are they going to do? Are they going to go to the

NAACP? 12

Melancon remained silent while Cooper was speaking, which Willis

interpreted to mean that Melancon was a “willing audience.” 13

6 Id. at 4082 (Ardoin Decl.).

7 Id. at 4146 (Lacour Decl.).

8 Id. at 4189 (Willis Decl.).

9 Id. at 4191 (Willis Decl.).

10 Id. at 392-99, 440 (Willis Dep.), 453-54 (Letter from Willis to George Bausewine,

Sr., Vice President of Support Services, Cleco Corp.).

11 Id.

12 Id.

13 Id. Melancon denies that Cooper said anything inappropriate to him. He says:

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Willis says that he was troubled by the fact that Melancon, the general

manager of human resources, had listened to such sentiments about the

company’s recruitment practices without taking exception. 14 Willis reported

the conversation to Jeff Hall, the company’s chief diversity officer, and George

Bausewine, the senior vice president of corporate services. 15 He drafted and

gave a memorandum describing the conversation to Bausewine. 16

According to Willis, during the following months of spring of 2007, his

relationship with Melancon broke down severely. 17 Melancon was furious and

stopped speaking to him for months. 18 Coworkers advised Willis to try to “build

a bridge” with Melancon, but Willis was “uncomfortable” doing so because

Melancon had started making “derogatory” comments about him around the

office. 19 Willis says that he sought advice from Taylor about his difficulties

with Melancon and that Taylor told him, “You should not have reported John

[Melancon].” 20 Taylor continued, “You wouldn’t have these problems you’re

having right now.” 21 Taylor’s only advice, Willis says, was to try to work things

out with Melancon. 22

Cooper never made disparaging remarks regarding African-

Americans. In that conversation between Cooper and myself, I

simply explained to Cooper some of the actions and initiatives

Cleco was taking with regard diversity, which included visiting

Grambling State University, so that she could consider writing

an update regarding Cleco’s diversity efforts.

Id. at 462 (Melancon Decl.).

14 Id. at 392-99, 440 (Willis Dep.), 453-54 (Letter from Willis to George Bausewine,

Sr., Vice President of Support Services, Cleco Corp.).

15 Id.

16 Id.

17 Id. at 3834 (Willis Dep.).

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

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Willis says that he retrieved the memorandum he had sent to Bausewine

describing the conversation about the trip to Grambling and he brought it into

Melancon’s office, set it on the table, and said that he wanted to talk about it. 23

According to Willis, Melancon ordered him to close the office door. 24 Then,

Melancon slammed his hand on the table and declared, “You tried to burn my

ass and I am not going to forget that.” 25 Willis responded, “Look, I did not

report you. My memo said, she [i.e., Cooper] was making the comments and

you were her audience.” 26 This did not assuage Melancon’s anger. 27

Around this same time, Ardoin claims that Melancon told him that he

was “very pissed” with Willis for reporting his conversation with Cooper about

the Grambling recruitment trip and that, “If we have to create a reason, Ed

[Taylor] and I have decided—we are going to terminate that nigger Greg Willis

for reporting me.” 28

C.

On March 15, 2007, Willis sent an email to twenty-four coworkers saying

that the son of a colleague, James Eli, overdosed on “thirty one pills.” 29 Willis’s

email asked the coworkers to pray for Eli’s son. 30 According to Willis, Eli asked

him to send the email to his friends at the company. 31 But, on April 16, 2007,

Taylor and Melancon issued a disciplinary warning to Willis, stating that

Willis’s email caused Eli and his wife “considerable pain and distress” and that

23 Id.

24 Id.

25 Id. at 3834 (Willis Dep.), 4185-86 (Willis Decl.).

26 Id. at 3834 (emphasis added).

27 Id.

28 Id. at 4084 (Ardoin Decl.).

29 Id. at 3858-59 (Willis Dep.), 3874-75 (Disciplinary Warning), 3876-77 (Taylor Decl.).

30 Id.

31 Id.

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Willis was “advised to use better judgment,” and a failure to do so “could result

in further disciplinary action including suspension or termination.” 32

D.

On August 15, 2007, Taylor put Willis on a work improvement plan,

citing his purportedly poor job performance. 33 According to Willis, as a result

of the improvement plan, he was unlikely to receive a salary increase that

year. 34 Willis says that Taylor told him that the improvement plan was

necessary because Willis “caused morale problems” at the company when he

reported the conversation about the Grambling recruitment trip between

Cooper and Melancon. 35 Willis says that Taylor told him, “Cooper is upset.” 36

E.

During late 2008 and early 2009, a series of events culminated in the

termination of Willis’s employment. In 2008, Willis helped Franklin Sylvia

obtain a job at the company. 37 Sylvia says that he called Willis, on Willis’s cell

phone, on January 21, 2009 to discuss issues involving workplace rumors about

whether Sylvia had, as some believed, reported a coworker for sleeping during

a training class. 38 According to Sylvia, during that conversation, Willis veered

off topic and lectured Sylvia about his racial heritage (Sylvia has one black

parent and one white parent), telling him generally that he should not be

ashamed of his African-American roots, that he should not reject who he is,

and that he should spend more time with black coworkers. 39

32 Id. The disciplinary warning states that it is “From: Ed Taylor,” but the document

is signed by both Taylor and Melancon.

33 Id. at 3877-78 (Taylor Decl.).

34 Id. at 3828-29 (Willis Dep.).

35 Id. at 3837 (Willis Dep.).

36 Id.

37 Id. at 479-82 (Sylvia Decl.).

38 Id.

39 Id.

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Sylvia says that he was troubled by the conversation, which he

considered inappropriate “race instruction,” and feared that it may have

implications for his future employment at Cleco given Willis’s position in the

human resources department and the influential role Willis played in his

hiring. 40 Sylvia reported the conversation to Taylor, prompting an

investigation. 41 The investigation was carried out by Taylor and Melancon,

who worked together closely. 42 On February 2, 2009, Taylor and Melancon

summoned Willis into Melancon’s office and confronted him about Sylvia’s

allegations of an inappropriate phone conversation. 43 At the meeting, Willis

denied that the alleged call ever happened. 44 The next day, Taylor and

Melancon met with Sylvia and confirmed that Sylvia’s cell phone showed a

record of a call between Sylvia’s and Willis’s cell phones on January 21, the

day the alleged inappropriate conversation occurred. 45 Willis, however,

continued to deny that the call ever occurred. 46 Taylor and Melancon decided

to credit Sylvia’s allegations over Willis’s denials. 47

On February 4, 2009, Willis was fired purportedly for the inappropriate

phone conversation and for lying about his involvement in it. 48 Willis says that

Taylor and Melancon came to his home to deliver the news and that, after

Melancon told him that he was fired, Melancon said, “Boy, you will keep your

mouth shut now.” 49

40 Id.

41 Id. at 481 (Sylvia Decl.), 456 (Taylor Decl.).

42 Id. at 457-58 (Taylor Decl.).

43 Id.

44 Id.

45 Id.

46 Id.

47 Id. at 458 (Taylor Decl.), 464 (Melancon Decl.).

48 Id.

49 Id. at 4186 (Willis Decl.).

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II.

Under Title VII of the Civil Rights Act of 1964, it is illegal for an

employer to discharge an employee or otherwise discriminate against him with

respect to the terms, conditions, or privileges of employment because of race.

42 U.S.C. § 2000e-2. It is also illegal for an employer to retaliate against an

employee for objecting to illegal workplace discrimination. Id. § 2000e-3. In

this lawsuit, Willis claims that Cleco Corporation, through Taylor and

Melancon, his supervisors in the human resources department, did both.

The question before the court on summary judgment is whether Willis

has put forth sufficient evidence to create a genuine dispute as to whether

Cleco Corporation discriminated against him on the basis of race or retaliated

against him for objecting to race discrimination at the company. In considering

the evidence in the record, this court must draw all reasonable inferences in

favor of Willis, the non-moving party, and may not make credibility

determinations or weigh the evidence. See Reeves v. Sanderson Plumbing

Prods., 530 U.S. 133, 150 (2000).

Willis’s, Lacour’s, and Ardoin’s testimony, drawing all reasonable

inferences therefrom, establishes that Willis’s boss, Melancon, often referred

to African-Americans as “niggers” and “coons.” Willis overheard and reported

a racist conversation about company hiring policies between Melancon and

another. Melancon was furious. He told Willis that he would “not forget”

Willis’s slight. He told Ardoin that he had decided “to terminate that nigger.” 50

Weeks later, Willis was disciplined for sending an email involving private

matters of a colleague (Eli’s son’s overdose) that Willis believed he was

authorized to send. A few months later, Willis was given a poor performance

50It has been said that, in discrimination cases, “there will seldom be ‘eyewitness’

testimony as to the employer’s mental processes.” Reeves, 530 U.S. at 141. This is one of the

rare cases in which there is “eyewitness” testimony—here, Ardoin’s.

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review because, as Taylor put it, he “caused morale problems” when he

reported Melancon’s involvement in the racist conversation. Then, about a

year and a half later, Melancon and Taylor came to Willis’s home, told Willis

that he was fired for having an inappropriate phone conversation with Sylvia

and lying about it (which Willis denies), and Melancon added, “Boy, you will

keep your mouth shut now.” This evidence is, without question, sufficient for

Willis to satisfy his burden on summary judgment to demonstrate genuine

issues as to material fact.

True, when Willis was fired, the termination decision may have been

based on the combination of both illegitimate considerations (i.e., retaliatory

or racist ones) and legitimate ones (i.e., the perception, correct or not, that

Willis was dishonest in the company’s investigation of the alleged

inappropriate phone conversation he had with Sylvia) together. This

possibility of “mixed motives,” however, does not defeat Willis’s claims.

As for Willis’s retaliation claim, Cleco commits illegal retaliation if the

termination would not have occurred “but for” Willis’s protected activity. Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). Again, it is clear

that there is sufficient evidence to support a reasonable inference that Willis

would not have been terminated if he had not reported discrimination at the

company. Although some time had passed between when Willis allegedly

infuriated Melancon by reporting his conversation about the Grambling

recruitment trip and when Willis was fired, the jury could reasonably infer

that Melancon, working with Taylor, had accomplished exactly what Melancon

promised: “If we have to create a reason,” “we are going to terminate that

nigger Greg Willis for reporting me.” It is a reasonable inference that, once

Sylvia complained about Willis’s allegedly inappropriate conduct, Melancon

and Taylor found their “reason.”

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As for Willis’s race discrimination claim, Cleco commits illegal

discrimination if race is a “motivating factor” in the termination. 42 U.S.C.

§ 2000e-2(m). Here, it is clear that there is sufficient evidence to find that,

when Willis’s employment was terminated by Melancon, who allegedly

referred to Willis as “that nigger,” race was a “motivating factor” in the

decision.

The majority faults Willis for not identifying a “similarly situatuated

comparator,” that is, another Cleco employee “who was treated differently

[than Willis] under nearly identical circumstances.” Ante, at 9, 10 n.6. The

majority’s argument is without merit. Where the evidence is that an

employee’s boss announces that he has decided to “terminate that nigger,”

neither the law nor common sense requires the employee to show “similarly

situated comparators” in order to prove that race was a motivating factor in

the termination. See, e.g., Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858,

861 (5th Cir. 1993) (use of the term “nigger,” a “universally recognized

opprobrium [that] stigmatiz[es] African-Americans because of their race,” is

direct evidence of discrimination).

Summary judgment in favor of Cleco Corporation is inappropriate here.

I respectfully dissent from the majority’s denial of Willis’s claims of

discriminatory and retaliatory termination. I concur in allowing Willis’s claim

regarding the disciplinary warning to go to trial.

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