JAMES L. DENNIS, Circuit Judge:
William Fisher brought this action against his former employer, Lufkin Industries, Inc., alleging, inter alia, that Lufkin violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., by discharging him in retaliation for his complaint that his direct supervisor racially harassed him.
Fisher filed objections and moved for an extension of time to file additional objections to the report, but the district court rejected his motion, adopted the Report and Recommendation in full without assigning additional reasons, and therefore dismissed Fisher's retaliation claim. Fisher appeals the district court's decision and its refusal to grant an extension of time to file additional objections to the Report and Recommendation. Lufkin filed a cross-appeal seeking to assess its expert witness's fee against Fisher. We reverse the district court's judgment against Fisher and remand for further proceedings.
Fisher, an African American man, was first employed by Lufkin in 1991. Fisher experienced three layoffs due to reductions in force but was rehired each time and eventually accumulated ten years of seniority before his termination on May 18, 2009, which is the subject of this lawsuit. He began his employment as a helper but was promoted to machinist in January of 2005. Fisher performed his job in a satisfactory
Steve Saxton, Fisher's direct supervisor, is a white man who was approximately thirty-one years old at the time Fisher was terminated. On Friday, March 6, 2009, Saxton instructed Fisher to take his breaks when everyone else did, rather than when Fisher wanted to. When Fisher replied that he could not take breaks when his machine was running during certain operations, Saxton responded, "Boy, I don't know why every time I come over here it's a hassle!" Saxton was angry and spoke with a raised voice. Fisher then stated, "If you're going to harass me, we need to get a steward." Due to union rules, Saxton told Fisher to come to his office while a union steward was summoned. When no steward appeared, Saxton told Fisher to return on Monday so that they could resume the process. After he left, Fisher called Lufkin's Vice President of Human Resources, Paul Perez, and left a voicemail stating that Saxton's use of "boy" in addressing him constituted racial harassment. Perez promptly directed another manager, Ty Thornton, to conduct an investigation. Thornton talked to both Fisher and Saxton and determined that, although Saxton had called Fisher "boy," he did not intend it as a racially derogatory term. Saxton's supervisor, David Jinkins, was also asked to look into the matter and talk to Saxton. The magistrate judge found that Saxton probably intended "boy" as an exclamation rather than as an epithet for Fisher.
In April 2009, about a month after that incident, David Rhoden, a white coworker of Fisher's, went to Jinkins and complained that he did not like the fact that Fisher had reported Saxton for using the word "boy" and that he was offended by Fisher's statements that he would get Saxton fired. Jinkins testified that during this conversation Rhoden mentioned that Fisher had long been selling DVDs out of his lunch box and that some of them were pornographic. Rhoden, however, testified that it was Jinkins who raised the question of whether Fisher sold DVDs out of his lunch box. Jinkins called Thornton to hear what Rhoden had to say. Jinkins thereupon came up with a plan for Rhoden to conduct a "sort of sting operation" by buying DVDs from Fisher. Rhoden testified that he had never bought a DVD from Fisher and did not want to buy one even after Jinkins asked him to do so, but he nevertheless agreed to comply after Jinkins told him, "You scratch my back and I'll scratch yours." Rhoden soon bought a DVD from Fisher and took it to Jinkins, but it turned out to be blank. Jinkins instructed Rhoden to try again. The second time, Jinkins was able to view the DVD and said that he thought it was pornographic.
On May 11, 2009, Jinkins and Thornton called in the chief union steward, Kerroy Thomas. Saxton brought Fisher to a conference room where Thornton, Jinkins, Saxton, and Thomas spoke with Fisher about conducting an unauthorized business on company property that involved pornographic material. Fisher said he did not have any such materials with him that day but did not admit or deny that he was engaged in such activity. He asked why this was coming up now and said that he did not know that "trading" things violated company policy.
The group then asked Fisher to go with them to open his locker. In the locker, they found a manila envelope that contained
When asked to allow a search of his car in the parking lot, Fisher initially cooperated but then claimed that he had to leave to tend to his wife, who was ill, and therefore did not allow a search of the passenger compartment. Fisher claimed that while at his locker, he had received a phone call from his wife. Thomas testified that he heard Fisher's phone ring but the other witnesses testified that they did not hear anything.
After Fisher left work during the attempt to search his car, he was suspended by Thornton pending further investigation. The day after the search, Thornton prepared notes regarding the search, which he and Jinkins eventually presented to Perez. On May 18, 2009, Fisher was terminated via a letter signed by Jinkins, written at Perez's direction, which stated only that he was fired "for a serious violation of company policy." No further details were given to Fisher about his termination at that time.
Based on the evidence taken during the two-day evidentiary hearing, the magistrate judge found that Fisher sold DVDs at Lufkin and that he lied to his supervisors about that fact during the course of their investigation. However, the magistrate judge also found that Rhoden's and Jinkins's actions were motivated by their desire to retaliate against Fisher for his racial discrimination or harassment complaint against Saxton. The magistrate judge explained, first, that there was persuasive evidence that many employees possessed pornographic magazines at work without any complaint, warning or discipline by Lufkin, and that employees had sold all manner of goods at work without complaint or discipline by Lufkin. Second, the magistrate judge reasoned that the lengths to which Jinkins went to pursue the investigation of Fisher, recruiting Rhoden to buy videos from Fisher not once but twice, showed, "an unusual interest in the matter." Third, the magistrate judge noted that Lufkin had no clear work rule against Fisher's conduct other than one that would require a mere warning for a first offense.
Thus, the magistrate judge concluded that Jinkins and Rhoden undertook their actions against Fisher not simply as a disciplinary matter but as retaliation against Fisher for his protected activity in complaining about his alleged racial harassment by Saxton. Nevertheless, the magistrate judge found that Fisher's termination was justified independent of any other reasons because he "resisted the investigation by leaving before his car could be properly searched and by lying to his supervisors about his activities."
Fisher's primary contention on appeal is that the district court erred in accepting the magistrate judge's conclusion that Lufkin did not violate Title VII's anti-retaliation provisions when it terminated him. Specifically, Fisher argues that because the investigation into his DVD sales was launched in response to his complaint about Saxton addressing him as "boy," he has satisfied the causation element of his retaliation claim and his resistance to the investigation cannot be used to justify his termination. Lufkin responds that "there was no evidence of a retaliatory animus on the part of Ty Thornton, who conducted the investigation into Fisher's sale of pornography, or Paul Perez, who ordered the investigation and made the decision to terminate Fisher." It argues that there was sufficient evidence to support the district court's conclusion that Fisher would have been terminated even in the absence of any retaliatory action against him. We conclude that Fisher has shown a sufficient causal connection between his protected activity and his termination to warrant reversal.
A Title VII retaliation plaintiff must establish that (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Zamora v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015) (citing Thomas v. Tex. Dep't of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)). The parties agree that the first two requirements are satisfied in this case, and thus only the third is in dispute. To establish the requisite causal connection between the protected activity and the adverse employment action, a plaintiff must show "that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013).
In Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), the Supreme Court held that, under
In recent years, our court has had a few opportunities to apply Staub. In Gorman v. Verizon Wireless Texas, L.L.C., 753 F.3d 165, 171 (5th Cir. 2014), we recognized that the "earlier agent" who harbors retaliatory animus may be a coworker, rather than a supervisor.
"The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo." Coe v. Chesapeake
It is clear from the Report and Recommendation that Fisher satisfied both prongs of Zamora's cat's paw analysis. The magistrate judge expressly found that "a desire to retaliate against Fisher" motivated Rhoden to complain about Fisher and motivated Jinkins to launch the investigation of Fisher. The magistrate judge also found that the "subsequent discipline was motivated by a desire to retaliate for Fisher's protected activity." The magistrate judge's findings therefore also lead to the necessary conclusion that the investigation would not have taken place but for Rhoden's and Jinkins's retaliatory actions. However, the magistrate judge concluded that Fisher's lack of cooperation with the investigation was "sufficient to justify his termination independent of any other proferred [sic] reasons." We read this statement by the magistrate judge as concluding that Fisher's resistance somehow broke the causal chain. To review this conclusion, we turn to the traditional tort-law principles of proximate cause and superseding cause and conclude that the district court clearly erred in accepting the magistrate judge's proposed finding. Staub, 562 U.S. at 417, 131 S.Ct. 1186.
"Proximate cause requires only `some direct relation between the injury asserted and the injurious conduct alleged,' and excludes only those `link[s] that are too remote, purely contingent, or indirect.'" Id. at 419, 131 S.Ct. 1186 (alteration in original) (quoting Hemi Grp., LLC v. City of N.Y., 559 U.S. 1, 9, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010)). Here, Fisher's lack of cooperation with an investigation that was launched for retaliatory purposes was inextricably tied to his coworker's and supervisor's retaliatory animus. It would be implausible, in light of this record, to conclude that Rhoden's retaliatorily motivated initial complaint and Jinkins's subsequent efforts to initiate and pursue a retaliatory investigation were so "remote" as to not be the cause of the ensuing discipline of Fisher. Rhoden's and Jinkins's retaliatory actions therefore served as a proximate cause of Fisher's termination. See Staub, 562 U.S. at 419, 131 S.Ct. 1186.
Nor can it be said that Fisher's refusal to acquiesce fully in the retaliatory investigation and search of his personal effects served as a superseding cause. "A cause can be thought `superseding' only if it is a `cause of independent origin that was not foreseeable.'" Id. at 420, 131 S.Ct. 1186 (quoting Exxon, 517 U.S. at 837, 116 S.Ct. 1813). While we do not endorse. Fisher's response, we view his mild resistance to a retaliatory investigation as entirely foreseeable.
Because Fisher has demonstrated that "(1) his ... supervisors, motivated by retaliatory animus, took acts intended to cause an adverse employment action; and (2) those acts were a but-for cause of his [termination]," he is entitled to relief. See Zamora, 798 F.3d at 333.
We REVERSE the district court's judgment and REMAND for further proceedings and rendition of judgment consistent with this opinion. In light of this disposition, the remainder of the issues raised in Fisher's appeal and Lufkin's cross-appeal are DISMISSED as moot.
At his deposition, Jinkins testified that although Rule 14 technically prohibited the distribution and sale of articles without company authorization, an employee was supposed to receive a written warning for his first infraction; a written warning and layoff for remainder of his shift for the second infraction; a 3-day disciplinary suspension for the third infraction; and a 5-day suspension for the fourth infraction. Only after the fifth infraction is the employee supposed to be terminated.