IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-60815 Summary Calendar
THEATRICE TAYLOR,
Plaintiff-Appellant,
versus
MARSHALL DURBIN FOOD CORPORATION,
Defendant-Appellee.
-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:99-CV-12-PG -------------------- May 3, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Theatrice Taylor (“Taylor”) appeals the district court’s grant
of summary judgment in favor of Marshall Durbin Food Corporation
(“Marshall Durbin”) on all claims. She contends that the district
court (1) erred in finding that Plaintiff failed to timely file her
sexual harassment/discrimination claim with the Equal Employment
Opportunity Commission (EEOC); (2) erred in finding that Plaintiff
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 failed to establish that Marshall Durbin retaliated against her in
violation of Title VII; and (3) erred in finding that Plaintiff’s
state-law claim of intentional infliction of emotional distress was
preempted by the Labor Management Relations Act (“LMRA”) and that
no genuine issue of material fact existed regarding this claim.
After carefully reviewing the record and briefs of both
parties, we find that Taylor’s first and third contentions are
clearly without merit. The district court’s October 3, 2001 order
correctly concluded that Taylor failed to timely file her sexual
harassment/discrimination claim with the EEOC and that Taylor’s
state law claim of intentional infliction of emotional distress was
preempted by the LMRA. Therefore, we affirm the district court’s
grant of summary judgment on Taylor’s sexual harassment claim and
intentional infliction of emotional distress claim for essentially
the same reasons stated in the district court’s October 3, 2001
order. We also find that the district court properly granted
summary judgment in favor of Marshall Durbin on Taylor’s
retaliation claim. However, because the retaliation claim presents
a much closer question than the other two claims, we will discuss
the retaliation claim in greater detail.
I. FACTUAL BACKGROUND
Taylor was a long-time employee at Marshall Durbin. At some
point, she was subjected to unwelcome sexual advances by a
supervisor, Katherine Smith (“Smith”). Taylor alleges that she
2 complained of these unwelcome advances to the human resources
director at the plant to no avail. However, on March 27, 1997, she
reported the harassment through a hotline at Marshall Durbin’s
facility in Birmingham. The company subsequently investigated the
allegations and ultimately terminated Smith for inappropriate
conduct on April 16, 1997.
After Smith was terminated, Taylor asserts that her co-workers
and supervisors were hostile towards her because she had been the
moving force behind the firing of Smith. Consequently, she filed
a sexual harassment and hostile work environment charge with the
EEOC on October 17, 1997. On October 24, 1997, Taylor declined to
follow a supervisor’s order and was taken to a meeting to discuss
the problem with the supervisor. The meeting included the plant
personnel manager and the company president. During the meeting,
Taylor allegedly engaged in loud, hostile behavior. On October
27, 1997, Marshall Durbin fired her for alleged insubordination
relating to the events which transpired on October 24.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment on
the retaliation claim de novo, applying the same standards as the
district court. Ehrlicher v. State Farm Ins. Co., 171 F.3d 212,
214 (5th Cir. 1999).
III. ANALYSIS
Taylor’s retaliation claim comes in two forms. First, Taylor
3 alleges that she was ostracized and treated unfairly by her co-
workers and supervisors because they held a grudge against her for
taking action which ultimately led to Smith’s termination.1
Second, Taylor claimed she was terminated on October 27, 1997 for
filing the October 17, 1997 EEOC charge. It is this second claim
that we now address.
Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001)
reiterated the standard for evaluating a Title VII retaliation
claim in a summary judgment context. First, a plaintiff must
satisfy her prima facie case by showing that (1) that she engaged
in activity protected by Title VII; (2) that an adverse employment
action occurred; and (3) that a causal link existed between the
protected activity and the adverse employment action.2 Id. at 352.
Once the plaintiff has satisfied her prima facie case, the employer
must produce evidence of a legitimate, non-retaliatory reason for
its decision. If the employer meets this burden of production, the
inference of discrimination produced by the plaintiff’s prima facie
showing then drops from the case. At this point, to survive
summary judgment, the plaintiff must produce sufficient evidence
from which a reasonable fact-finder could conclude that the adverse
1 We deem this “ostracism” claim to be unpersuasive as explained by the district court’s October 3, 2001 order and therefore will not address it. 2 The “causal link” requirement in prong three of the prima facie case is not as stringent as the “but for” standard. Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).
4 employment action would not have occurred “but for” her protected
conduct. Id. at 354. To make this showing, the plaintiff can
introduce evidence to prove that the legitimate, non-retaliatory
reason offered by the employer for the adverse employment action is
merely a pretext for the unlawful retaliatory action. Id. at 354-
55.
In the instant case, it is undisputed that Taylor filed an
EEOC charge on October 17, 1997 and was fired on October 27, 1997.
Because of the close temporal connection, we presume that Taylor
satisfied her prima facie case. However, Marshall Durbin has
presented substantial evidence to prove that it fired Taylor on
October 27, 1997 for a legitimate, non-discriminatory reason,
insubordination and threatening the company president on October
24, 1997.
As we see it, Taylor has not presented sufficient evidence
from which a reasonable juror could infer that Taylor would not
have been fired from her job at Marshall Durbin “but for” her
filing of the EEOC charge. Taylor does not dispute that she
disobeyed an order from her supervisor, yelled loudly at various
supervisors and the president of the company, and told the company
president that “[y]ou got supervisors walking around here with
chips on their shoulder that’s going to get knocked off.” When the
company president asked “who was going to knock the chip off,”
Taylor implied that she would “knock the chip off.” By all
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-60815 Summary Calendar
THEATRICE TAYLOR,
Plaintiff-Appellant,
versus
MARSHALL DURBIN FOOD CORPORATION,
Defendant-Appellee.
-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:99-CV-12-PG -------------------- May 3, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Theatrice Taylor (“Taylor”) appeals the district court’s grant
of summary judgment in favor of Marshall Durbin Food Corporation
(“Marshall Durbin”) on all claims. She contends that the district
court (1) erred in finding that Plaintiff failed to timely file her
sexual harassment/discrimination claim with the Equal Employment
Opportunity Commission (EEOC); (2) erred in finding that Plaintiff
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 failed to establish that Marshall Durbin retaliated against her in
violation of Title VII; and (3) erred in finding that Plaintiff’s
state-law claim of intentional infliction of emotional distress was
preempted by the Labor Management Relations Act (“LMRA”) and that
no genuine issue of material fact existed regarding this claim.
After carefully reviewing the record and briefs of both
parties, we find that Taylor’s first and third contentions are
clearly without merit. The district court’s October 3, 2001 order
correctly concluded that Taylor failed to timely file her sexual
harassment/discrimination claim with the EEOC and that Taylor’s
state law claim of intentional infliction of emotional distress was
preempted by the LMRA. Therefore, we affirm the district court’s
grant of summary judgment on Taylor’s sexual harassment claim and
intentional infliction of emotional distress claim for essentially
the same reasons stated in the district court’s October 3, 2001
order. We also find that the district court properly granted
summary judgment in favor of Marshall Durbin on Taylor’s
retaliation claim. However, because the retaliation claim presents
a much closer question than the other two claims, we will discuss
the retaliation claim in greater detail.
I. FACTUAL BACKGROUND
Taylor was a long-time employee at Marshall Durbin. At some
point, she was subjected to unwelcome sexual advances by a
supervisor, Katherine Smith (“Smith”). Taylor alleges that she
2 complained of these unwelcome advances to the human resources
director at the plant to no avail. However, on March 27, 1997, she
reported the harassment through a hotline at Marshall Durbin’s
facility in Birmingham. The company subsequently investigated the
allegations and ultimately terminated Smith for inappropriate
conduct on April 16, 1997.
After Smith was terminated, Taylor asserts that her co-workers
and supervisors were hostile towards her because she had been the
moving force behind the firing of Smith. Consequently, she filed
a sexual harassment and hostile work environment charge with the
EEOC on October 17, 1997. On October 24, 1997, Taylor declined to
follow a supervisor’s order and was taken to a meeting to discuss
the problem with the supervisor. The meeting included the plant
personnel manager and the company president. During the meeting,
Taylor allegedly engaged in loud, hostile behavior. On October
27, 1997, Marshall Durbin fired her for alleged insubordination
relating to the events which transpired on October 24.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment on
the retaliation claim de novo, applying the same standards as the
district court. Ehrlicher v. State Farm Ins. Co., 171 F.3d 212,
214 (5th Cir. 1999).
III. ANALYSIS
Taylor’s retaliation claim comes in two forms. First, Taylor
3 alleges that she was ostracized and treated unfairly by her co-
workers and supervisors because they held a grudge against her for
taking action which ultimately led to Smith’s termination.1
Second, Taylor claimed she was terminated on October 27, 1997 for
filing the October 17, 1997 EEOC charge. It is this second claim
that we now address.
Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001)
reiterated the standard for evaluating a Title VII retaliation
claim in a summary judgment context. First, a plaintiff must
satisfy her prima facie case by showing that (1) that she engaged
in activity protected by Title VII; (2) that an adverse employment
action occurred; and (3) that a causal link existed between the
protected activity and the adverse employment action.2 Id. at 352.
Once the plaintiff has satisfied her prima facie case, the employer
must produce evidence of a legitimate, non-retaliatory reason for
its decision. If the employer meets this burden of production, the
inference of discrimination produced by the plaintiff’s prima facie
showing then drops from the case. At this point, to survive
summary judgment, the plaintiff must produce sufficient evidence
from which a reasonable fact-finder could conclude that the adverse
1 We deem this “ostracism” claim to be unpersuasive as explained by the district court’s October 3, 2001 order and therefore will not address it. 2 The “causal link” requirement in prong three of the prima facie case is not as stringent as the “but for” standard. Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).
4 employment action would not have occurred “but for” her protected
conduct. Id. at 354. To make this showing, the plaintiff can
introduce evidence to prove that the legitimate, non-retaliatory
reason offered by the employer for the adverse employment action is
merely a pretext for the unlawful retaliatory action. Id. at 354-
55.
In the instant case, it is undisputed that Taylor filed an
EEOC charge on October 17, 1997 and was fired on October 27, 1997.
Because of the close temporal connection, we presume that Taylor
satisfied her prima facie case. However, Marshall Durbin has
presented substantial evidence to prove that it fired Taylor on
October 27, 1997 for a legitimate, non-discriminatory reason,
insubordination and threatening the company president on October
24, 1997.
As we see it, Taylor has not presented sufficient evidence
from which a reasonable juror could infer that Taylor would not
have been fired from her job at Marshall Durbin “but for” her
filing of the EEOC charge. Taylor does not dispute that she
disobeyed an order from her supervisor, yelled loudly at various
supervisors and the president of the company, and told the company
president that “[y]ou got supervisors walking around here with
chips on their shoulder that’s going to get knocked off.” When the
company president asked “who was going to knock the chip off,”
Taylor implied that she would “knock the chip off.” By all
5 accounts except hers, Taylor then asked the president if she knew
her name. She subsequently told him that he would hear more from
her. A supervisor then stepped between Taylor and the company
president to prevent the situation from further escalating out of
control.
Admittedly, Taylor presents a different version of the events
of October 24, 1997. She claims that she never refused to work but
only wanted to follow union policy by finding a person to fill in
on the buttonhole line and never shouted at or threatened any of
her supervisors. She further contends that her version of the
events is entitled to some credence because an independent
arbitrator found that she did not refuse to work, that she
presented a sound reason for her actions, and that she did not
threaten anyone.3
We would be inclined to find that a factual issue exists
concerning pretext if we looked solely at the evidence concerning
3 Taylor also argues that the Myrtle Temple affidavit supports a finding of retaliation. In the affidavit, Temple opines that the degree of discipline imposed on Taylor for her alleged insubordinate conduct was inconsistent with her perception of past company practices. However, the foundation for this opinion is suspect given the fact that Temple did not witness Taylor’s conduct nor did she have knowledge of the employment records of other employees concerning punishment for prior acts of insubordination. In our view, the Temple affidavit sheds little light on whether Taylor was unlawfully retaliated against because (1) this was an atypical situation in that Taylor’s alleged insubordination was directed at the company president; and (2) other Marshall Durbin employees who did not file EEOC charges were also fired for similar acts of insubordination.
6 whether Taylor’s actions amounted to unjustified insubordination.
However, as the district court noted, the undisputed summary
judgment evidence demonstrates that Marshall Durbin did not receive
notice that Taylor had filed the EEOC charge until October 31, 1997
(four days after she was fired). The evidence indicates that
Taylor’s EEOC charge was not mailed to the company by the EEOC
until October 22 at the earliest. Moreover, the evidence indicates
that the letter informing the company of the charge was addressed
incorrectly. The benefits clerk who distributes and sorts the mail
at the Hattiesburg processing plant testified that the letter in
which notice was given of the EEOC charge was not received until
October 31, 1997. Similarly, the company president testified that
he had no knowledge that Taylor had filed an EEOC charge at the
time he fired her.
Taylor contends that the company president knew that she had
filed an EEOC charge. However, she has presented no evidence to
support this contention, only speculation. Because there is no
evidence to dispute the fact that Marshall Durbin had no knowledge
that she had filed an EEOC charge, it would be quite a leap of
logic for us to rule that a reasonable juror could infer that
Taylor’s termination resulted from retaliatory animus. See Barrow
v. New Orleans Steamship Ass’n, 10 F.3d 292, 298 n. 25 (5th Cir.
1994) (whether the employer has knowledge of the protected activity
is relevant in determining causation); Mato v. Baldauf, 267 F.3d
7 444, 452-53 (5th Cir. 2001)(a reasonable jury could not conclude
that the proffered legitimate non-discriminatory reason was a
pretext for retaliation, in part, because the plaintiff presented
no evidence that the decision-maker knew about the protected
activity [sexual harassment complaints] engaged in by the
plaintiff). We will not make such a leap in this case.
IV. CONCLUSION
We conclude that Marshall Durbin was entitled to summary
judgment on Taylor’s retaliation claim because Taylor did not
present sufficient evidence to support an inference of retaliation.
AFFIRMED.