Case: 13-30902      Document: 00512733729         Page: 1    Date Filed: 08/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 13-30902                                FILED
                                                                            August 14, 2014
                                                                             Lyle W. Cayce
PENNY M. STEWART,                                                                 Clerk

                                                 Plaintiff-Appellant
v.

SODEXO REMOTE SITES PARTNERSHIP,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2596


Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellee Sodexo Remote Sites Partnership (“Sodexo”)
employed Plaintiff-Appellant Penny Stewart (“Stewart”) as an executive
steward aboard oil rigs it serviced in the Gulf of Mexico. In 2011, Stewart filed
the instant suit against Sodexo, alleging that the company had unlawfully
retaliated against her in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981 (“§ 1981”). On
summary judgment, the district court held that Stewart failed to make a prima


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 13-30902
facie showing of retaliation under either Title VII or § 1981; accordingly, it
dismissed all of Stewart’s claims and entered judgment for Sodexo. On appeal,
Stewart argues that the district court, in contravention of Federal Rule of Civil
Procedure 56, improperly weighed the evidence rather than construing all
inferences in her favor as the non-moving party. Stewart requests that we
reverse and remand so that her claims may be presented to a jury. Having
heard argument from the parties and reviewed the record on appeal, including
the parties’ briefs, the applicable law, and the district court’s summary
judgment order, we AFFIRM for the following reasons.
      “The legal framework governing [Title VII and § 1981 retaliation] claims
is coextensive.” 1 To present a prima facie case of retaliation under either Title
VII or § 1981, an employee must show that: (1) she engaged in an activity
protected by Title VII; (2) she was subjected to an adverse employment action;
and (3) a causal link exists between the protected activity and the adverse
employment action. 2 If the employee “succeeds in making a prima facie case,
the burden then shifts to the [employer] to proffer a legitimate rationale for
the underlying the employment action.” 3                 “If the [employer] makes this
showing, the burden shifts back to the [employee] to demonstrate that the
employer’s articulated reason for the employment action was a pretext for
retaliation.” 4




      1   Willis v. Cleco Corp., 

, 317 (5th Cir. 2014).

      2   

v. Dallas Area Rapid Transit, 

, 319 (5th Cir. 2004)).

      3   

.

      4   

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                                           No. 13-30902
         We may affirm the district court’s judgment based on any grounds
supported by the record. 5 Even if we assume arguendo that Stewart made a
prima facie showing of retaliation under Title VII and § 1981, Sodexo came
forward with a legitimate rationale for removing her from the rig. Specifically,
Sodexo adduced evidence that Stewart was insubordinate, had issues with co-
workers and managers, and failed to follow Sodexo protocol during her three-
year tenure with the company. Consequently, under our assumption, the
burden would shift back to Stewart to show pretext. 6
         “Showing pretext requires a plaintiff to ‘produce substantial evidence
indicating that the proffered legitimate [non-retaliatory] reason is a pretext for
[retaliation].’ ” 7       A plaintiff may do so by adducing evidence of disparate
treatment or “by showing that the employer’s explanation is false or unworthy
of credence.” 8           Stewart claims that Sodexo’s legitimate rationale is
unsubstantiated and was manufactured in anticipation of litigation. She does
not, however, identify any actual evidence indicating that Sodexo’s criticism of
her job performance is meritless. Conclusional allegations and innuendo are
insufficient to show pretext. 9


         5Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 

, 506 (5th Cir.
2009) (“ ‘[I]t is an elementary proposition, and the supporting cases too numerous to cite, that
this court may affirm the district court’s judgment on any grounds supported by the record.’”
(quoting United States v. Dunigan, 

, 508 n.12 (5th Cir. 2012)).

         6   

(citing 

).

         7   

v. Gap Inc., 

, 578 (5th Cir. 2003)) (emphasis added).

         8   Pollak v. Lew, 542 F. App’x 304, 307 (5th Cir. 2013) (quoting 

).

         Compare 

(“Willis has proffered summary judgment evidence
         9

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
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                                      No. 13-30902
       Thus, whether we conclude that the district court correctly granted
Sodexo’s motion for summary judgment because Stewart failed to present a
prima facie case of retaliation, or we conclude that Stewart failed to come
forward with substantial evidence that Sodexo’s rationale was pretext, the
result is the same: Sodexo must prevail. The district court’s judgment is, in all
respects, AFFIRMED.




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.’ ”) and Ion v. Chevron USA, Inc., 

, 396 (5th Cir. 2013) (“In
summation, Chevron has failed to meet its burden and establish as a matter of law that it
would have fired Ion despite its retaliatory motive. Chevron’s evidence of Ion’s history of
attendance and performance-related deficiencies is insufficient to establish that it would
have fired Ion because Chevron chose to address those deficiencies with a suspension and a
PIP/AIP, and Ogborn testified that Ion would have been reinstated had he come back to work.
Chevron’s evidence that Ion was faking FMLA leave is also insufficient because of the doubts
raised by Chevron’s failure to investigate and Melcher’s e-mail.”), with Pollak, 542 F. App’x
at 308 (“We cannot say that Pollak has pointed to more than ‘conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.’ ” (quoting Hathaway v. Bazany,

, 319 (5th Cir. 2007)).
                                             4