United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 21, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 06-30514
                          Summary Calendar

                      ))))))))))))))))))))))))))

JOSEPH JAMES THOMAS, JR.,

                Plaintiff-Appellant,

     v.

ATMOS ENERGY CORP.,

                Defendant-Appellee.


           Appeal from the United States District Court
               for the Western District of Louisiana
                          No. 3:04-CV-2088



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiff-Appellant Joseph James Thomas, Jr. (“Thomas”),

brought suit against Defendant-Appellee Atmos Energy Corp.

(“Atmos”), alleging that he was subjected to racial

discrimination and harassment, sexual harassment, and

retaliation, all in violation of Title VII of the Civil Rights



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                  1
Act of 1964, 42 U.S.C. §§ 2000e, et seq. (2000)(“Title VII”). The

district court granted summary judgment to Atmos on all claims.

Thomas now appeals the district court’s grant of summary judgment

on his retaliation claim. Thomas also appeals the district

court’s decision to strike portions of affidavits he submitted as

evidence. For the following reasons, we AFFIRM the decision of

the district court.

                I. FACTUAL AND PROCEDURAL HISTORY

     Thomas, a black male, was first hired in August 1996 to work

at a Monroe, Louisiana facility owned by Louisiana Gas. The

facility was subsequently bought by Citizens Communications

Company (“Citizens”), formerly known as Citizens Utility Company,

and then in July 2001 by Atmos. In 1999, while employed by

Citizens, Thomas complained to the human resources department

that his supervisor, Terry Boone (“Boone”), a white male, had

called him “Mighty Joe Young . . . the big black gorilla” on more

than one occasion. Citizens conducted an investigation, spoke

with Thomas and Boone, and met with the construction department

to review the company code of conduct, instructing the crew not

to engage in harassing or intimidating conduct.

     In February 2000, Thomas had an argument with his crew

leader Mike Tarkington (“Tarkington”) over Tarkington’s request

that Thomas get Tarkington’s safety suit. Boone met with both men

about the incident, at which time Thomas made a statement that


                                2
Boone claimed he understood as “I feel like I could blow up

something.” Boone reported to his operations manager that Thomas

had made a threat of violence, and Thomas was fired. In November

2000, Thomas filed a complaint of race discrimination against

Citizens with the Equal Employment Opportunity Commission

(“EEOC”), basing his claim on the “Mighty Joe Young” comments and

the Tarkington incident. Citizens conducted an investigation, and

Thomas told company management that he had never threatened

violence, but rather had said that he was “so upset he felt as

though he could blow up or something.” Concluding that a mistake

might have been made about the substance of Thomas’s comment,

Citizens rehired Thomas, awarding him back pay for the period of

his unemployment.1

     In July 2001, Atmos purchased Citizens and became Thomas’s

employer. In May 2004, Thomas complained to Boone that he had

been harassed by a coworker, Alvin Straughter (“Straughter”), a

black male, on two occasions. On one occasion, Straughter

allegedly came up behind Thomas in the break room and rubbed his

genital area on Thomas’s back. On the second occasion, Straughter

allegedly grabbed his genital area and stated that he was going



     1
       After investigating Thomas’s complaint, the EEOC found no
basis to determine that Citizens had violated the law. The EEOC
issued Thomas a Notice of Right to Sue. Thomas did not file suit
because, he admits, he was satisfied by his reinstatement and
Citizens’ handling of the matter.


                                3
to have intercourse with the folds of skin on the back of

Thomas’s neck. Thomas complained of Straughter’s actions to

Boone, who reported the complaint to higher management. Thomas

and Straughter were placed on paid leave while an investigation

was undertaken. Atmos’s human resources manager met with Thomas

and interviewed Straughter and several coworkers. Straughter

denied Thomas’s allegations, stating that while he had once

walked behind Thomas to get to the other side of the break room

table, he had not deliberately rubbed against Thomas nor spoken

of intercourse. The interviewed coworkers likewise did not

confirm Thomas’s version of events. The coworkers did note that

their group of employees often engaged in joking, teasing and

name-calling, and that Thomas had initiated sexual conversations

in the past.

     The human resources managers decided that there was

insufficient evidence that Straughter intentionally harassed

Thomas. They decided to take the following steps: (1) instruct

Straughter not to behave in an inappropriate manner; (2) instruct

Thomas not to initiate discussions on sexual topics; (3) counsel

all employees about Atmos’s conduct and harassment policies; and

(4) conduct training for supervisors and managers on preventing

harassment. On May 25, 2004, members of Atmos’s management met

with Thomas and informed him of the results of their

investigation and their planned course of action. Thomas became

angry, declared that he was quitting his job, and did so.

                                4
     In June 2004, Thomas filed another complaint with the EEOC,

claiming racial and sexual harassment as well as retaliation for

his previous EEOC complaint. On July 9, 2004, the EEOC issued to

Thomas a right-to-sue letter stating that it was unable to

determine that Atmos had violated the law. Thomas filed suit in

federal district court on October 8, 2004, bringing claims of

racial discrimination and harassment, sexual harassment, and

retaliation in violation of Title VII.

     On January 13, 2006, Atmos filed a motion for summary

judgment on all of Thomas’s claims. Thomas opposed the motion

only as to his retaliation claim, and he submitted his own

affidavit and that of a coworker, Will Davis (“Davis”). Atmos

filed motions to strike the Thomas and Davis affidavits. On April

19, 2006, the district court issued a ruling granting in part

Atmos’s motions to strike and granting Atmos’s motion for summary

judgment on all claims. Thomas now appeals the district court’s

decision to strike portions of his and Davis’s affidavits and the

district court’s grant of summary judgment to Atmos with respect

to Thomas’s retaliation claim.

                        II. JURISDICTION

     The district court’s April 19, 2006 ruling was a final

judgment that disposed of all of Thomas’s claims. Accordingly,

this court has jurisdiction pursuant to 28 U.S.C. § 1291.

                         III. DISCUSSION



                                 5
A.   Evidentiary Issues

     1.   Standard of Review

     We review a district court’s grant of a motion to strike for

abuse of discretion. United States v. Pace, 

, 1115

(5th Cir. 1993). We accord considerable deference to the district

court’s evidentiary rulings, in light of our recognition that the

trial judge better understands the effect and likely probative

value of proffered evidence than the appellate court. Hardy v.

Chemetron Corp., 

, 1009 (5th Cir. 1989). Moreover, we

will reverse a judgment on the basis of an evidentiary ruling only

if it affected the “substantial rights of the parties.” Stitt

Spark Plug Co. v. Champion Spark Plug Co., 

, 1259

(5th Cir. 1988).

     2.   Analysis

     First, Thomas appeals the district court’s decision to strike

portions of his affidavit recounting that a former coworker,

Marvin Pridgett (“Pridgett”), had told Thomas that Boone had given

a negative job reference for Thomas to the City of Monroe. The

district court concluded that this section of Thomas’s affidavit

is inadmissable hearsay and double hearsay. Thomas argues that “a

nonmoving party facing a motion for summary judgment is not

required to produce evidence in a form that would be admissible at

trial,” citing Celotex Corp. v. Catrett, 

, 324 (1986).

     The claim that Celotex warrants the admission of affidavits



                                6
containing hearsay misunderstands the Supreme Court’s reasoning in

that case. Celotex states:

        We do not mean that the nonmoving party must produce
   evidence in a form that would be admissible at trial in order
   to avoid summary judgment. Obviously, Rule 56 does not
   require the nonmoving party to depose her own witnesses. Rule
   56(e) permits a proper summary judgment motion to be opposed
   by any of the kinds of evidentiary materials listed in Rule
   56(c), except the mere pleadings themselves . . . 

. We have held that “Celotex did not alter the

settled law that ‘Rule 56(e) requires the adversary to set forth

facts that would be admissible in evidence at trial. Material that

is inadmissible will not be considered on a motion for summary

judgment because it would not establish a genuine issue of material

fact if offered at trial. . . .’” Duplantis v. Shell Offshore, Inc.,

, 192 (5th Cir. 1991) (quoting Geiserman v. MacDonald,

, 793 (5th Cir. 1990)). We have explained that the

above-quoted passage from Celotex permits that evidence be submitted

in a form, such as an affidavit, that would ordinarily not be

admitted at trial, so long as the form is one permitted by Rule

56(c). 

. It remains the case, however,

that “[s]upporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent

to testify to the matter stated therein.” FED. R. CIV. P. 56(e).

     Thomas argues that Pridgett’s statement that he knew that Boone

had given a negative reference for Thomas to the City of Monroe is



                                 7
not hearsay because it is an admission of a party-opponent. Thomas

has not shown, however, that Pridgett was authorized to make a

statement concerning the alleged negative reference, or that this

subject was a matter within the scope of Pridgett’s employment at

Atmos. See FED. R. EVID. 801. This portion of Thomas’s affidavit is

therefore inadmissable hearsay, and the district court properly

excluded it.

     Second,   Thomas   appeals   the   exclusion   of   portions   of   his

affidavit that the district court struck for being “argumentative

statements, not proper fact or opinion testimony.” This section of

Thomas’s affidavit refers repeatedly to the actions of Boone as

“retaliation” and states that these actions “effected a change in

the terms and conditions of affiant’s employment.”           This section

also contains the claim that “[Boone] employed the clique to do the

exact same thing, resulting in retaliatory constructive discharge

of affiant.” Federal Rule of Evidence 701 provides that a “witness’

testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the

perception of the witness, and (b) helpful to a clear understanding

of the witness’ testimony or the determination of a fact in issue,

and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” We agree with the district

court’s determination that this portion of Thomas’s affidavit should

be excluded because it contains legal arguments and conclusions



                                    8
inconsistent with the requirements of Rule 701. See Galindo v.

Precision Am. Corp., 

, 1216 (5th Cir. 1985).

     Third, Thomas appeals the district court’s refusal to consider

a statement in the Davis affidavit that Davis was “well aware that

there   were   other    positions   open   at   the    time   of   involuntary

termination of [Davis’s] employment with Atmos.” The district court

stated that it “cannot determine whether [the statement] is based

on personal knowledge” and that the statement “appears irrelevant

to Thomas’s retaliation claim.” Thomas argues that it is not

necessary for an affidavit to contain an explicit statement that its

averments are based on personal knowledge. While this is so, the

affidavit must contain information that would allow the court to

conclude   that   the   averments   are    made   on   personal    knowledge.

“Affidavits asserting personal knowledge must include enough factual

support to show that the affiant possesses that knowledge.” El Deeb

v. Univ. of Minn., 

, 428 (8th Cir. 1995). The Davis

affidavit lacks such factual support for this statement. Thomas

urges that Davis had been employed for sixteen years at the Monroe,

Louisiana work site and was very knowledgeable about its operations.

Nevertheless, there is no indication in Davis’s affidavit of how he

knew that there were positions open at the time of his termination.

The district court did not abuse its discretion in disregarding this

statement.

     Fourth, Thomas appeals the district court’s decision to strike



                                      9
the statement in the Davis affidavit that Boone was “lazy, sorry,

trifling, and good for nothing.” The district court found that this

testimony was “an improper opinion which is not helpful to the trier

of fact.” While, as Thomas contends, these characterizations may be

based on Davis’s personal observations of Boone, they are still

unsubstantiated and conclusory. We defer to the district court’s

determination that this testimony would not be helpful to the trier

of fact.

     Fifth,    Thomas   appeals     the    district    court’s    decision      to

disregard   the   statement   in    the    Davis   affidavit     that    “it   was

affiant’s understanding that [Edmond Mathis] was placed in a co-

supervisor position with [Boone], with [Boone] being demoted for his

role in having [Thomas] fired.” The district court concluded that

this statement “does not appear to be based on personal knowledge.”

The Davis affidavit does not indicate how Davis might have acquired

personal knowledge of the reasons for Boone’s alleged demotion.

While it is more probable that Davis could have discovered through

personal    observation   that     Boone    and    Edmond   Mathis      were   co-

supervisors, the affidavit does not indicate that he observed this.

Instead, he merely states that it was his “understanding” that the

two were co-supervisors. “Those facts alleged on ‘understanding,’

like those based on ‘belief’ or on ‘information and belief,’ are not

sufficient to create a genuine issue of fact.” Cermetek, Inc. v.

Butler Avpak, Inc., 

, 1377 (9th Cir. 1978). The



                                      10
district court did not abuse its discretion by excluding this

statement.

     Finally, Thomas appeals the district court’s decision             to

exclude   the   statement   in   Davis’s   affidavit   that   during   his

employment at the Monroe facility, Davis had twice been passed over

for a promotion that he deserved. The district court concluded that

this statement was irrelevant to Thomas’s retaliation claim, the

only claim for which Thomas opposed Atmos’s motion for summary

judgment. While Thomas declares initially that he is appealing the

district court’s exclusion of this statement, he does not refer

again to this statement in the body of his brief. We hold that

Thomas has waived his appeal on this issue for failure to brief it

adequately. See Yohey v. Collins, 

, 224-25 (5th Cir.

1993).

B.   Summary Judgment

     1.     Standard of Review

     We review a district court’s grant of summary judgment de

novo.    Dallas County Hosp. Dist. v. Assocs. Health & Welfare

Plan, 

, 285 (5th Cir. 2002). Summary judgment is

proper when the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”    FED. R. CIV. P. 56(c).   A dispute about a



                                    11
material fact is genuine if the evidence is such that a

reasonable fact-finder could return a verdict for the non-moving

party.      Anderson v. Liberty Lobby, Inc., 

, 248

(1986).      When deciding whether there is a genuine issue of

material fact, this court must view all evidence in the light

most favorable to the non-moving party.         Daniels v. City of

Arlington, 

, 502 (5th Cir. 2001).

       2.     Title VII Retaliation Framework

        Under Title VII, it is “an unlawful employment practice for

an employer to discriminate against any of his employees . . .

because [the employee] has opposed any practice made an unlawful

employment practice” by the statute or “because [the employee]

has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” under Title

VII.    42 U.S.C. § 2000e-3(a). To establish a claim of retaliation

under Title VII, a plaintiff must demonstrate that: (1) he

engaged in a protected activity; (2) an adverse employment action

occurred; and (3) a causal link exists between the protected

activity and the adverse employment action. Fabela v. Socorro

Indep. Sch. Dist., 

, 414 (5th Cir. 2003). The parties

agree that Thomas, by filing an EEOC complaint in 2000, had

engaged in an activity protected by Title VII, thus satisfying

the first element.

       Thomas argues that his alleged constructive discharge



                                    12
constitutes an adverse employment action for purposes of his

retaliation claim. A constructive discharge does qualify as an

adverse employment action. See Harvill v. Westward Communs.,

L.L.C., 

, 439 (5th Cir. 2005); Landgraf v. USI Film

Prods., 

, 431 (5th Cir. 1992).2 While Thomas’s

argument is convoluted, it is possible to isolate two sets of

actions as the basis for his allegation of constructive

discharge. First, Thomas claims he was ordered by Boone to

perform menial or degrading tasks such as “cleaning filthy

equipment operated by other employees,” “wiping down the walls

inside the building,” “us[ing] malfunctioning equipment,” and

“involuntary reassignment to the galvanized pipe change out

crew,” which was very physically intensive.   Second, Thomas cites

the alleged harassing conduct by Straughter and Atmos’s handling

of the matter as a basis for his claim.

     3.   Allegations Not Included in 2004 EEOC Complaint

     The filing of an administrative complaint is a prerequisite


     2
      Because Thomas specifies constructive discharge as
satisfying the adverse employment action element of his
retaliation claim, our analysis of his claim is unaffected by the
Supreme Court’s recent decision in Burlington Northern & Santa Fe
Railway Co. v. White, 

(2006). Constructive
discharge qualified as an adverse employment action under this
circuit’s old “ultimate employment action” test, which the
Supreme Court disapproved of in Burlington Northern, and it
qualifies as such under the “material adversity” standard
established in that case. 

While Burlington Northern
set a lower threshold for finding an adverse employment action,
Thomas is still required to satisfy the stringent test for
constructive discharge.

                                13
to a Title VII suit. Dollis v. Rubin, 

, 781 (5th Cir.

1995). Accordingly, we may consider as the basis for Thomas’s

suit only the specific allegations made in his 2004 EEOC

complaint, as well as “any kind of discrimination like or related

to the charge’s allegations, limited only by the scope of the

EEOC investigation that could reasonably be expected to grow out

of the initial charges of discrimination.” Fine v. GAF Chem.

Corp., 

, 578 (5th Cir. 1993). Thomas’s 2004 EEOC

charge listed only Straughter’s “sexual [sic] explicit conduct”

and Atmos’s subsequent investigation as the basis for his

complaint. Thomas’s allegations that Boone assigned him menial

and degrading tasks are not “like or related to” his accusations

regarding Straughter’s conduct, and an EEOC investigation into

Straughter’s conduct could not reasonably be expected to

encompass Boone’s work assignment practices. We therefore may not

consider these practices as a basis for Thomas’s retaliation

claim.

     4.   Allegations Included in 2004 EEOC Complaint

     We now consider the allegations within the scope of Thomas’s

2004 EEOC complaint––those concerning Straughter’s 2004 conduct

and the subsequent investigation by Atmos. We agree with the

district court that Thomas cannot make out a prima facie case

either that he suffered a constructive discharge based on the

Straughter incidents and subsequent investigation or that there



                                14
was a causal link between these events and Thomas’s 2000 EEOC

complaint. For either reason, Thomas’s retaliation claim must

fail.

           a.    Constructive Discharge

     A constructive discharge has occurred when an employee

resigns after “the employer made the employee’s working

conditions so intolerable that a reasonable employee would feel

compelled to resign.” Barrow v. New Orleans S.S. Ass’n, 

, 297 (5th Cir. 1994). “[T]o succeed on a constructive

discharge claim, the plaintiff must show a greater degree of

harassment than is required for a hostile work environment

claim.” Hockman v. Westward Communs., LLC, 

, 332 (5th

Cir. 2004).

     As explained above, we are limited to considering the two

instances of alleged harassment by Straughter, but this does not

necessarily doom Thomas’s claim. In the context of hostile work

environment claims, the Supreme Court has indicated that “extremely

serious” isolated incidents can “amount to discriminatory changes

in the ‘terms and conditions of employment.’” Faragher v. City of

Boca Raton, 

, 787 (1998) (citation omitted). Similarly,

we have held that “isolated incidents, if egregious, can alter the

terms and conditions of employment.” 

. We

need not decide, however, whether Straughter’s alleged harassment

reached   the   necessary   level   of   seriousness,   because   Thomas’s

precipitous resignation upon being informed of the results of
                                    15
Atmos’s investigation was not the action of a reasonable employee.

     The   record   indicates   that    Atmos’s    response    to   Thomas’s

allegation was appropriate. Thomas and Straughter were both placed

on paid leave while Atmos investigated Thomas’s claims. Atmos

interviewed several of Thomas’s coworkers, including those that

Thomas requested be interviewed. When none of these coworkers

supported Thomas’s accusations, Atmos still attempted to respond to

Thomas’s concerns. Human resources personnel pledged to counsel

Straughter to refrain from inappropriate behavior and to conduct

training for supervisors and managers on harassment. Thomas did not

remain at Atmos to see if these efforts ended the objectionable

behavior; rather, he resigned immediately. This was not the act of

a reasonable employee in his position.       See Thompson v. Naphcare,

Inc., 117 F. App’x 317, 325 (5th Cir. 2004) (unpublished) (stating

that “an employee who resigns without affording the employer a

reasonable   opportunity   to   address   her     concerns    has   not   been

constructively discharged”); see also Boze v. Branstetter, 

, 805 (5th Cir. 1990). Even if Thomas had demonstrated that he

was constructively discharged, however, he has made no prima facie

case of a causal link.

           b.   Causal Link

     A plaintiff alleging Title VII retaliation may establish a

causal link in two ways: either by presenting direct evidence of

retaliatory motive or by providing circumstantial evidence that

creates a rebuttable presumption of retaliatory motive. Fabela, 

. By producing direct evidence, the plaintiff avoids

the McDonnell Douglas framework and shifts the burden of persuasion

to the employer. Brown v. E. Miss. Elec. Power Ass’n, 

,

861 (5th Cir. 1993).

     Thomas alleges that he has direct evidence of retaliatory

motive. He states that in conversations with Thomas, Boone continued

to bring up the Mighty Joe Young incident, complained that Thomas’s

EEOC complaint had brought him under tremendous pressure, and

declared “if something like this ever comes up again, I will drag

you through the mud.” We have defined “direct evidence” as evidence

which,   “if   believed,   proves     the   fact   without   inference   or

presumption.” 

. In a Title VII context, direct

evidence includes any statement or document which shows on its face

that an improper criterion was a basis for the adverse employment

action. 

. The evidence provided by Thomas

does not satisfy this standard. While Boone’s statements to Thomas

tend to show that Boone resented Thomas for his 2000 EEOC complaint,

they do not, on their face, demonstrate that Boone’s subsequent

actions were motivated by this resentment. Moreover, as stated

below,   Thomas   has   not   shown    that   Boone   influenced    either

Straughter’s alleged actions or Atmos’s investigation of them.

     We therefore examine whether Thomas’s circumstantial evidence

demonstrates a retaliatory motive. Where the plaintiff provides only

circumstantial evidence of causation, the McDonnell Douglas burden-

shifting framework applies. Sandstad v. CB Richard Ellis, Inc., 309

                                      

, 896 (5th Cir. 2002). Thus, if the employee makes a prima

facie case of retaliation, the burden of production shifts to the

employer to state a legitimate, non-retaliatory reason for the

employment action.   Baker v. Am. Airlines, Inc., 

, 754-

55 (5th Cir. 2005).       If the defendant meets its burden, the

presumption of discrimination created by the prima facie case

disappears, and the plaintiff is left with the ultimate burden of

proving that the protected activity was the but-for cause of the

adverse employment action.   See Montemayor v. City of San Antonio,

, 692 (5th Cir. 2001).

     Certainly, there can be no inference of causation from

temporal proximity in this case. The incidents of alleged

harassment by Straughter and Atmos’s investigation occurred in

the spring of 2004, a full 3.5 years after Thomas’s initial EEOC

complaint.   We have noted that district courts in this circuit

have allowed an inference of causation for summary judgment

purposes where up to four months has elapsed. Evans v. Houston,

, 354 (5th Cir. 2001). The Supreme Court, however,

has cited approvingly other circuit court cases that found three

and four month periods too long to allow an inference of

causation. Clark County Sch. Dist. v. Breeden, 

, 273-

74 (2001). Clearly, a lapse of 3.5 years does not permit an

inference of causation.

     Thomas, however, argues that a causal connection is evident

because the “exact same decision-makers” were involved in the

                                 18
2000 and 2004 incidents. The record indicates that Thomas was

fired in 2000 after Boone reported his “blowing up” comment to

Operations Manager Robert Griffin (“Griffin”), who discussed the

situation with unnamed members of the human resources department.

The 2004 investigation was initiated after Boone reported

Thomas’s new accusations to Griffin, and the investigation was

carried out by Griffin, Atmos Human Resources Manager Debbie

Redell (“Redell”) and Vice President of Human Resources David

Hebert (“Hebert”). Boone, the individual for whom there is some

evidence of residual anger at Thomas, played only a minor role in

the proceedings. Thomas has put forward no evidence indicating

that Griffin, Redell or Hebert harbored resentment against him

for his 2000 complaint, and there is substantial evidence that

the 2004 investigation was carried out with fairness and

diligence. Thomas has failed to present sufficient evidence to

create a rebuttable presumption of retaliatory motive.

                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the order of the

district court granting summary judgment to Atmos.

     AFFIRMED.




                                19