Case: 17-11250      Document: 00515078362         Page: 1    Date Filed: 08/15/2019




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


                                      No. 17-11250                             FILED
                                                                         August 15, 2019
                                                                          Lyle W. Cayce
JOE ALVIAR, JR.,                                                               Clerk

              Plaintiff - Appellant

v.

MACY’S, INCORPORATED, A Corporation of Delaware (Macy’s
Incorporated), doing business as Macy’s; MACY’S RETAIL HOLDINGS,
INCORPORATED, And/Or the Entity that Employed Plaintiff as of August
19, 2015,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1633


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM: ∗
       Macy’s terminated Joe Alviar’s employment after he had worked for
Macy’s for over two years. He sued Macy’s under state law for discrimination,
retaliation, and failure to accommodate a disability.                The district court
dismissed Alviar’s retaliation and failure to accommodate claims for failure to



       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11250
exhaust his administrative remedies. It later granted summary judgment to
Macy’s on the discrimination claim. We REVERSE the district court’s grant of
summary judgment. 1


                   FACTUAL AND PROCEDURAL BACKGROUND
      Alviar served in the United States Army from 2004 to 2013. He was
deployed overseas three times, serving as a tank gunner and truck commander
in Iraq, then an infantry squad leader in Afghanistan. During his service, he
experienced fire fights, people being killed by explosive devices, and other
traumatic events.      Alviar witnessed multiple friends experience gruesome
injuries caused by explosive devices. Alviar rose to the level of Sergeant before
being honorably discharged in 2013. He was diagnosed with Post-Traumatic
Stress Disorder (“PTSD”) after returning to civilian life. There is no question
in this case that Alviar suffers from PTSD, and that it was the result of his
honorable service to our country.
      Macy’s employed Alviar from February 2013 until he was terminated in
August 2015. Macy’s hired Alviar to be an Asset Protection Manager at a store
in Fort Worth, Texas.       His job responsibilities included “asset protection,
payroll expense management, management of [the] Asset Protection team, and
the directing of shortage initiatives, investigations and surveillance,” among
others. Starting in February 2014, Alviar began reporting to John Lillard, the
District Director of Asset Protection. In April 2014, Lillard promoted Alviar to
the Asset Protection Manager position at the Macy’s store in Irving. Alviar
had some success there, but Lillard met with Alviar on numerous occasions to
discuss performance deficiencies and violations of company policy.


      1 We affirm the district court’s decision to dismiss Macy’s Inc. because it did not
employ Alviar. The remaining defendant is Macy’s Retail Holdings, Incorporated, which we
continue to refer to as “Macy’s.”
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                                 No. 17-11250
      Lillard and Alviar met on at least three occasions to discuss deficiencies
before Alviar disclosed after an April 2015 meeting that he has PTSD. Alviar
told Lillard his PTSD caused recurrent nightmares, trouble concentrating, and
a lack of short-term memory. Separately, Alviar also disclosed that his lack of
emotion was caused by his PTSD medication. Lillard responded by asking
Alviar whether, considering his PTSD, he could handle the Irving store and
whether he would like to be transferred to a smaller store. Lillard also made
multiple comments concerning Alviar’s lack of emotion. The day after Alviar
disclosed his PTSD, he sent an email to Lillard stating that he would like to
remain at the Irving store. Alviar also in that email committed to working on
improving his job performance.
      By August 2015, Lillard and Alviar had numerous conversations
concerning Alviar’s deficient performance, which included company policy
violations. Lillard notified Alviar on August 14 that his employment was
immediately suspended. Three days later, Alviar sent an email to Cynthia
Grizzle, the Regional Vice President of Asset Protection, explaining that he
understood why he was being suspended. Alviar also wrote that after he had
informed Lillard about his PTSD, his relationship with Lillard immediately
“took a turn.” Alviar alleged in that email that Lillard had asked him five
times since being told about his PTSD whether he was able to handle the
demands of the Irving store and whether it was the right job for him.
      Lillard and the District Director of Human Resources notified Alviar on
August 19 that his employment had been terminated.             The decision to
terminate Alviar was made by Regional Director of Associate Relations Julia
Bachmann and District Director of Human Resources Debbie Atkins, with
input from legal counsel Paula Dehan, Regional Vice President of Asset
Protection Cynthia Grizzle, and Lillard. Lillard testified by deposition that
Alviar had been terminated because he failed to follow Lillard’s directions,
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                                        No. 17-11250
failed to supervise his team properly, did not properly approve case reports,
had organizational and administrative shortcomings, and had violated
company policy. Alviar was replaced by someone who does not suffer from
PTSD.
       Alviar sought unemployment benefits from the Texas Workforce
Commission and alleged that he was terminated because he has PTSD. The
Workforce Commission ultimately concluded that Alviar was eligible for
unemployment benefits because his “separation was caused by a medically
verified illness.”
       Alviar filed this lawsuit in Texas state court against Macy’s, Inc., Macy’s
Retail Holdings, Inc., and Lillard. 2 Alviar claimed that Macy’s violated Section
21.051 of the Texas Commission on Human Rights Act (“the Act”) when it
terminated him because he has PTSD. 3 TEX. LAB. CODE § 21.051. Macy’s
removed the case to the United States District Court for the Northern District
of Texas based on diversity jurisdiction.
       Macy’s moved for summary judgment, arguing Alviar failed to establish
a prima facie case of disability discrimination because he had not
demonstrated that his termination was due to his PTSD. Macy’s also argued
that even assuming Alviar established a prima facie case, Alviar did not show
that Macy’s reasons for terminating him were pretextual. According to Macy’s,
Alviar was not terminated because of his PTSD but because he deficiently
performed and violated company policy.




       2  We previously affirmed the district court’s dismissal of Alviar’s action against Lillard
for tortious interference of contract. See Alviar v. Lillard, 

, 292 (5th Cir. 2017).

       3Alviar also brought retaliation and failure to accommodate claims under the Act.
The district court dismissed those claims for failure to exhaust administrative remedies.
Alviar has not briefed those claims on appeal, and as a result, he has waived them. See, e.g.,
Rodriguez v. Eli Lilly & Co., 

, 763 n.3 (5th Cir. 2016).
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       The district court granted summary judgment in favor of Macy’s, holding
that Alviar had done nothing more than “create a weak fact issue as to
whether” the “proffered reasons for his termination . . . were the real reasons.”
The    court   entered    a   final    judgment      dismissing     Alviar’s   disability
discrimination claim against Macy’s with prejudice.
       Alviar timely appealed.


                                      DISCUSSION
        We review the grant of summary judgment de novo, “applying the same
legal standards as the district court applied to determine whether summary
judgment was appropriate.” Lifecare Hosps., Inc. v. Health Plus of La., Inc.,

, 439 (5th Cir. 2005). Summary judgment should not be granted
unless by “viewing the evidence in the light most favorable to the nonmoving
party, no genuine issue of material fact exists, and the moving party is entitled
to judgment as a matter of law.” Flock v. Scripto-Tokai Corp., 

,
236 (5th Cir. 2003). We consider all evidence in the record to ascertain whether
there is a dispute of material fact, but we do not determine credibility or weigh
evidence. 

“draw all reasonable inferences in favor of the
nonmoving party.” 

may affirm the district court’s ruling
on any grounds supported by the record” and which are consistent with these
standards. Lifecare Hosps., 

.
       Alviar claims he was discharged due to a qualifying disability in violation
of the Act. TEX. LAB. CODE § 21.051(1). “The Legislature intended to correlate
state law with federal law in employment discrimination cases when it
enacted” the Act. Wal-Mart Stores, Inc. v. Canchola, 

, 739 (Tex.
2003); see also TEX. LAB. CODE § 21.001. Indeed, an express purpose of the Act
is to “provide for the execution of the policies embodied in Title I of the
Americans with Disabilities Act.” TEX. LAB. CODE § 21.001(3). Consequently,
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                                  No. 17-11250
the Texas Supreme Court “look[s] to federal law to interpret the Act’s
provisions,” AutoZone, Inc. v. Reyes, 

, 592 (Tex. 2008), and
considers “federal civil rights law as well as [its] own caselaw” when
adjudicating disability discrimination claims under the Act, City of Houston v.
Proler, 

, 532 (Tex. 2014).
      In discriminatory treatment cases, a plaintiff can prove discriminatory
intent through either direct or circumstantial evidence. Mission Consol. Indep.
Sch. Dist. v. Garcia, 

, 634 (Tex. 2012). When a disability
discrimination claim is based on circumstantial evidence and has not been fully
tried on the merits, Texas law requires us to apply “the burden-shifting
analysis established by the United States Supreme Court.” 

.       “Under th[at] framework, the plaintiff is entitled to a
presumption of discrimination if she meets the ‘minimal’ initial burden of
establishing a prima facie case of discrimination.” 

.
“Although the precise elements of this showing will vary depending on the
circumstances, the plaintiff’s burden at this stage of the case ‘is not onerous.’”

Dep’t of Cmty. Affairs v. Burdine, 

, 253 (1981)).
      If the presumption arises, that alone may support a finding of liability.
Alamo Heights Indep. Sch. Dist. v. Clark, 

, 782 (Tex. 2018).
That presumption disappears, though, if the employer provides “evidence of a
legitimate, nondiscriminatory reason for the disputed employment action.” 

presumption is thus rebutted, a plaintiff can survive summary judgment
by showing “either (1) the reason stated by the employer was a pretext for
discrimination, or (2) the defendant’s reason, while true, was only one reason
for its conduct and discrimination is another motivating factor.”        Reed v.
Neopost USA, Inc., 

, 439 (5th Cir. 2012) (citation omitted). Under
the Act, a plaintiff “need only prove that discrimination was a ‘motivating
factor’ in the employer’s decision . . . rather than a ‘but for’ cause . . . .”
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                                  No. 17-11250
Arismendez v. Nightingale Home Health Care, Inc., 

, 607 (5th Cir.
2007) (citation omitted). If an employer then shows “that it ‘would have taken
the same action in the absence of the impermissible motivating factor,’ then a
court may grant declaratory or injunctive relief but may not award damages.”

LAB. CODE § 21.125(b)).
      We will discuss the following: (I) whether the district court should have
ignored Lillard’s affidavit; (II) whether Alviar has presented a direct-evidence
claim of discrimination; (III) whether Alviar has made a prima facie case under
the burden shifting framework; and (IV) if the burden shifts back to Alviar,
whether there is some evidence of pretext or that his disability was a
motivating factor in his termination.


I.    Alviar’s Evidentiary Objections
      First, we discuss whether we can rely on the evidence in Lillard’s
affidavit in analyzing Alviar’s claims. Alviar objected to Lillard’s declaration
as a sham affidavit and other portions of the record as hearsay. Alviar did not
brief the hearsay issue or explain why the district court’s decision was
erroneous. Alviar also failed to explain to the district court why he objected to
the evidence. He therefore has failed to preserve his hearsay objection. FED.
R. EVID. 103(a)(1)(b). We also hold that the district court did not abuse its
discretion in rejecting Alviar’s objection to Lillard’s affidavit. See United States
v. Avants, 

, 443 (5th Cir. 2004). Lillard’s declaration did not
contradict his testimony and was not a sham affidavit introduced solely to
create a fact issue on the summary judgment movant’s evidence, and we
therefore may consider it in deciding this case.




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                                 No. 17-11250
II.     Direct Evidence Claim
        To make a direct evidence claim, Alviar must show statements that were
(1) related to his disability, (2) “proximate in time” to his termination, (3)
“made by an individual with authority over” his termination, and (4) related to
the decision to terminate him. 

. Alviar claims that
Lillard made comments that qualify as direct evidence. Lillard asked Alviar
whether he could handle the Irving store after learning of Alviar’s PTSD.
Lillard also negatively commented on Alviar’s lack of emotion, which Alviar
asserts is a side effect of his PTSD medication.
        These comments could be the basis for inferences about Lillard’s
attitudes. They are related to the disability and apparently are proximate in
time to the termination and the disclosure of the condition. Undisputed record
evidence, however, shows that the final decision to terminate Alviar was made
by Bachmann and Atkins. We need not decide whether Lillard’s statements
are sufficient for a direct evidence claim, however, because as we discuss below,
Alviar prevails under the burden-shifting framework.


III.    Prima Facie Requirement Under Burden-Shifting Test
        Macy’s and Alviar disagree on the elements of the prima facie test for
disability discrimination under the Act. Alviar argues we should apply a four-
part test employed in Michael v. City of Dallas, 

, 690-91 (Tex.
App.—Dallas 2010, no pet.). Macy’s, on the other hand, urges us to apply the
three-part standard we used in 

. Alviar meets either
test. Rodriguez requires that Alviar show “(1) he had a disability, (2) he was
qualified for the job, and (3) there was a causal connection between an adverse
employment action and his disability.” 

do not dispute that
Alviar had a disability or that he was qualified for the job. Macy’s claims that
Alviar failed to show a “causal connection.” As we explain below in Section IV,
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                                  No. 17-11250
Alviar has produced enough evidence to survive summary judgment on the
question whether Lillard’s comments about Alviar’s PTSD suggest that he
harbored discriminatory animus, creating a causal connection between
Lillard’s alleged animus and the decision by Bachmann and Atkins to
terminate Alviar. Alviar therefore has made a prima facia case under the
Rodriguez standard.
      In Michael, the Texas appeals court held that in a disability
discrimination case, “the plaintiff must show (1) he was a member of a
protected class, (2) he was qualified for his employment position, (3) he was
subject to an adverse employment decision, and (4) he was replaced by someone
outside of the protected class, or he was treated less favorably than similarly
situated members of the opposite class . . . .” 

.
Macy’s replaced Alviar with an individual who does not suffer from PTSD and
he was terminated. He therefore makes a prima facie case under the Michael
standard as well.
      After a plaintiff presents a prima facie case, the employer must
articulate a legitimate, non-discriminatory reason for the adverse action.

. Macy’s provided evidence that it terminated Alviar’s
employment because of performance deficiencies and violations of company
policy. Alviar does not argue that Macy’s failed to satisfy its obligation to rebut
his prima facie case.
      What is left under the burden shifting analysis is for Alviar to present
some evidence that Macy’s stated reason for terminating him “was a pretext
for discrimination” or that discrimination was a motivating factor. See, e.g.,

. We address that issue next.




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                                  No. 17-11250
IV.     Pretext or Motivating Factor Under the Burden-Shifting Test
        In order to defeat summary judgment, Alviar did not need to prove
Macy’s offered reasons for terminating him were pretextual or that
discrimination was motivating factor.       He did, though, need to create “a
genuine issue of material fact.” 

. That can be done in
two ways under the Act:
        If the defendant proffers a legitimate reason for the adverse
        employment decision, the burden shifts back to the plaintiff to
        show either (1) the reason stated by the employer was a pretext for
        discrimination, or (2) the defendant’s reason, while true, was only
        one reason for its conduct and discrimination is another
        motivating factor.

. Alviar’s claim survives a summary judgment
motion, then, if discrimination was one of the motivating factors “regardless of
how many factors influenced the employment decision.” Quantum Chem. Corp.
v. Toennies, 

, 479-80 (Tex. 2001). Some good reasons joined with
one discriminatory reason creates at least a fact issue on whether Macy’s
decision to terminate Alviar was a pretext for disability discrimination or
motivated in part by discrimination.
        Whether Macy’s would avoid liability if it could show that it would have
terminated Alviar even without the alleged discrimination was not briefed. See
Machinchick v. PB Power, Inc., 

, 355 (5th Cir. 2005). Therefore,
we do not consider the point. 

require us to focus on causation for the termination.
Any evidence that someone involved in the decision had a discriminatory
motive must be joined with evidence that such motives affected the actual
decision.    The evidence shows that the ultimate decision was made by
Bachmann and Atkins, with input from Grizzle, Lillard, and Dehan. However,
Lillard had continuing dialogue with both Grizzle and Atkins about Alviar’s
performance problems and on the final telephone call, Lillard “was the one who
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                                   No. 17-11250
was providing information.” As we will explain, the only person whose motives
could be found to be discriminatory, based on inferences from statements he
made, was Lillard. Therefore, Alviar must have presented some evidence that
a proximate cause — a motivating factor — of this adverse employment action
was Lillard’s discriminatory beliefs. See, e.g., Staub v. Proctor Hosp., 

, 422 (2011). Because we are reviewing a summary judgment, Alviar need
at this stage only have presented genuine disputes of material fact that, if
resolved in his favor, would have shown that causation. 

.
         The principal evidence is what we earlier discussed for Alviar’s direct
evidence claim, from which reasonable inferences could be taken. The evidence
of Lillard’s discriminatory attitudes about those like Alviar suffering from
PTSD is this. Lillard asked Alviar on at least two occasions whether he could
handle the Irving store after learning of his PTSD. Upon first learning of
Alviar’s PTSD, Lillard asked Alviar in a “hostile” manner whether putting him
at the Irving store was a “mistake.” About a month later, Lillard asked Alviar,
“With your medical disability are you sure you can even handle Irving?” Alviar
also wrote in an email to Grizzle that Lillard asked him “over [five] times ‘[c]an
you even handle Irving’ or ‘with your health issues[,] is this the right job for
you?’”     Lillard also commented on Alviar’s lack of emotion, which Alviar
disclosed was caused by his PTSD medication. About a month after that
comment, Lillard again mentioned Alviar’s lack of emotion, stating it made
him angry.
         Two questions arise. Is this evidence that Lillard had discriminatory
motives, and if so, is there evidence that his attitudes were a motivating factor
in the decision to terminate Alviar? As to the first question, we have in another
case identified comments by an employee’s supervisor in the age-
discrimination context that were strongly suggestive he was looking for
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                                  No. 17-11250
younger employees.      

.        That supervisor
apparently is the one who made the termination decision. 

The
supervisor made “age stereotyping remarks,” such as that the plaintiff had
“[l]ow motivation to adapt” and that the plaintiff was “inflexible.” 

(alteration in original). The supervisor also asked the plaintiff whether he
planned on retiring, which we held could be considered innocuous but also
could be considered by a jury to be evidence of age discrimination. 

-
54. We held that these comments, “considered as a whole,” when made by
someone with a major role in the decision, would “allow a reasonable jury to
find that his age was a motivating factor in [the employer’s] decision to
terminate him.” 

      We consider Lillard’s comments to be some evidence on which a
reasonable juror could rely that Lillard had a motive to discriminate against
those who did not display a level of emotion that those taking medication to
treat PTSD often could not display. Lillard’s repeated questions of whether
Alviar, “with [his] medical disability,” could “even handle” the Irving store also
suggests that Lillard held discriminatory animus towards those with PTSD.
This is especially true given that the second time Lillard asked Alviar about
his ability to meet expectations at the Irving store, Lillard did not offer an
accommodation to transfer Alviar.
      Alviar must also have shown that Lillard was able to impact the decision
in a sufficient way to have his attitudes become a motivating factor, no matter
how many non-discriminatory reasons also affected the decision. If Lillard had
“influence or leverage over the official decisionmaker[s], . . . it is proper to
impute [his] discriminatory attitude[] to the formal decisionmaker[s].” Russell
v. McKinney Hosp. Venture, 

, 226 (5th Cir. 2000). The influence
or leverage that was motivated by discriminatory animus must be a “proximate
cause” of the ultimate employment decision. See 

; see
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                                 No. 17-11250
also Gorman v. Verizon Wireless Tex., L.L.C., 

, 172 (5th Cir. 2014).
In the age discrimination context, we have held that “it is appropriate to tag
the employer with an employee’s age-based animus if the evidence indicates
that the worker possessed leverage, or exerted influence, over the titular
decisionmaker.”     

.     Even if there has been an
independent investigation into the conduct of the terminated employee, if that
investigation takes into account a “supervisor’s biased report,” the report “may
remain a causal factor if” the investigation did not determine “that the adverse
action was, apart from the supervisor’s recommendation, entirely justified.”

; see also Zamora v. City of Houston, 

,
334-35 (5th Cir. 2015).
      In Zamora, we found that there was sufficient evidence to show that the
suspension of an officer of the Houston Police Department violated Title VII.
See 

Evidence suggested that the plaintiff’s supervisors, who made
negative statements about the plaintiff’s credibility and reputation after the
plaintiff joined a lawsuit, were retaliatory in nature. 

The city
argued that even if the supervisors were motivated by retaliatory animus, they
were not the cause of the plaintiff’s suspension. 

however, that
those making the decision to suspend the plaintiff relied on the statements
from the supervisors and that there was no independent investigation, which
meant that the supervisors’ retaliatory statements were a proximate cause of
the plaintiff’s adverse employment action. 

      Here, taking all reasonable inferences in Alviar’s favor, a jury could
conclude that Lillard was motivated in part to terminate Alviar’s employment
based on animus towards Alviar’s PTSD. The record shows that Lillard was
the individual who told Grizzle, Atkins, Dehan, and Bachmann about Alviar’s
performance deficiencies. Lillard testified that he “had been, throughout the
process of being concerned with [Alviar’s] performance . . . having a lot of
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                                  No. 17-11250
contact with . . . Cynthia Grizzle, where we would be talking about the issues.”
Lillard also stated that he had described Alviar’s perceived shortcomings to
Atkins, who was one of the two individuals with final authority to terminate
Alviar. Finally, Lillard testified that he “was the one who was providing
information” about Alviar in the phone calls when the decision to terminate
Alviar was made.
      Like the retaliatory supervisors in Zamora, Lillard initiated and
provided the information upon which Alviar was terminated. A reasonable
jury could determine that Lillard harbored animus towards Alviar because of
his disability. The only evidence concerning the decision to terminate Alviar
admittedly came from Lillard. Making the inference in favor of Alviar on
summary judgment, a reasonable jury could conclude that Alviar’s PTSD was
a motivating factor in Lillard’s discussions with those responsible for
terminating Alviar and that because Lillard was the one providing information
on Alviar’s performance, the process was not for reasons “unrelated to
[Lillard’s] original biased action.” 

.
      We therefore find that a reasonable jury could conclude that
discrimination was at least a “motivating factor” in terminating Alvair, and
therefore Alviar presented at least a material dispute of fact whether
discrimination was a motivating factor in his termination. As such, Alviar has
carried his summary judgment burden on his disability discrimination claim
against Macy’s under the Act and we REVERSE and REMAND the decision of
the district court as to that claim.




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