No. 21-40406

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 

 

ARLICIA GOSBY,

          Plaintiff - Appellant,

 

v.

 

APACHE INDUSTRIAL SERVICES, INC.,

          Defendant - Appellee.

 

 

 

On Appeal from the United States District Court

for the Eastern District of Texas

Hon. Michael Truncale, United States District Judge

No. 1:20-cv-00069

 

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF - APPELLANT AND IN FAVOR OF REVERSAL

 

 

GWENDOLYN YOUNG REAMS

Acting General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

Assistant General Counsel

 

SUSAN R. OXFORD

Attorney

 

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov

 

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case.  These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

ANDREWS MYERS, Counsel for Defendant-Appellant

Apache Industrial Services, Inc., Defendant-Appellee

Jennifer S. Goldstein, Associate General Counsel, U.S. EEOC

Arlicia Gosby, Plaintiff-Appellant

Susan R. Oxford, Attorney, U.S. EEOC

Gwendolyn Young Reams, Acting General Counsel, U.S. EEOC

Anthony Gerard Stergio, Counsel for Defendant-Appellee

SUDDUTH & ASSOCIATES, LLC, Counsel for Plaintiff-Appellant

James E. Sudduth, III, Counsel for Plaintiff-Appellant

Elizabeth E. Theran, Assistant General Counsel, U.S. EEOC

Wesley Walker, Counsel for Defendant-Appellee

DATED:  August 25, 2021

/s/  Susan R. Oxford

Susan R. Oxford

Attorney of record for

Amicus Curiae U.S. Equal Employment Opportunity Commission

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS................................... C-1

 

TABLE OF AUTHORITIES.................................................................. iii

 

STATEMENT OF INTEREST................................................................ 1

 

STATEMENT OF THE ISSUES............................................................. 2

 

STATEMENT OF THE CASE................................................................ 2

 

A.  Statement of the Facts..................................................................... 2

 

B.  District Court’s Decision................................................................. 7

 

SUMMARY OF THE ARGUMENT..................................................... 10

 

ARGUMENT......................................................................................... 11

 

The District Court Erred in Ruling that Gosby’s Evidence of Close Temporal Proximity and Primeaux’s Statements Failed to Show a Sufficient Causal Connection for Her Prima Facie Case...................... 11

 

A.  The district court wrongly ruled that because Gosby’s job was expected to last only six months, her evidence of extremely close temporal proximity warranted little weight in demonstrating causation...................................................................................... 12

 

B.   A lead man’s statements to Gosby warning her that seeking medical care at the worksite could—and ultimately did—affect her job constitute probative evidence of discrimination........................... 21

 

1.   In evaluating Gosby’s summary judgment evidence, the district court erroneously ignored Primeaux’s warning to Gosby after she injured her finger at work.................................................. 22

 

2.   Gosby’s attestation that Primeaux told her she was included in the layoff because of her medical incident also supports her disability discrimination claim................................................ 25

 

CONCLUSION...................................................................................... 26

 

CERTIFICATE OF COMPLIANCE...................................................... 28

 

CERTIFICATE OF SERVICE............................................................... 29

 

Table of Authorities

Cases

Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999)........................ 14

 

Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571 (5th Cir. 2020). 16, 17

 

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015). 15

 

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998)............................................................................................................... 24 

 

Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001)............. 13, 14, 17

 

Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959 (5th Cir. 2016) 15

 

Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)........................... 12

 

Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236 (5th Cir. 2019)........ 14, 16

 

Keelan v. Majesco Software, Inc., 407 F.3d 332 (5th Cir. 2005)...... 10, 25

 

Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353 (5th Cir. 2017)...................................................................................................... 26

 

Lohn v. Morgan Stanley DW, Inc., 652 F. Supp. 2d 812 (S.D. Tex. 2009)............................................................................................................... 10

 

Long v. Eastfield Coll., 88 F.3d 300 (5th Cir. 1996)............................... 14 

 

Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298 (5th Cir. 2020).... 15, 17, 18

 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)....... 1, 8, 12, 13

 

Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019)..................... 8, 12, 13

 

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38 (5th Cir. 1996)......... 8, 13

 

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996)........... 19

 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).......... 14

 

Risch v. Royal Oak Police Dep’t, 581 F.3d 383 (6th Cir. 2009)............. 24

 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993)............................. 14

 

Scales v. Slater, 181 F.3d 703 (5th Cir. 1999)........................................ 25

 

Shackelford v. Deloitte & Touche, L.L.P,

     190 F.3d 398 (5th Cir. 1999)....................................................... 20, 24

 

Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802 (5th Cir. 2007).. 15, 21

 

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)............ 13, 14

 

Turner v. Kan. City S. Ry. Co., 675 F.3d 887 (5th Cir. 2012)................. 14

 

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)................... 16

 

Statutes

 

Americans with Disabilities Act (ADA), Title I, 42 U.S.C. §§ 12101 et seq........................................................................................................... 1

 

      42 U.S.C. § 12102............................................................................ 12

 

     42 U.S.C. § 12112(a)................................................................... 11, 12

 

Rules

 

Fed. R. App. P. 29(a)(2)........................................................................... 2

 

Fed. R. Civ. P. 56(c)(2).......................................................................... 26

 

Miscellaneous

 

11 MOORE’S FEDERAL PRACTICE—CIVIL ¶ 56.91 (2017)............ 26

 

 

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing federal laws prohibiting employment discrimination, including Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”).  This appeal involves the proper legal standard for establishing a prima facie case of workplace discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  At this first stage of the McDonnell Douglas analysis, plaintiffs must generally demonstrate some causal connection between their statutorily protected status and an adverse action.  Although this Court has consistently held that close temporal proximity may establish the requisite causal connection for this purpose, the district court here rejected the plaintiff’s reliance on the six-day gap between her diabetic incident and her termination, solely because her job was expected to last only six months.  The court also ignored plaintiff’s evidence that her lead man warned her that seeking medical care at work could jeopardize her job, and it rejected as irrelevant her evidence that the same lead man told her, the day she was laid off, that the defendant selected her for discharge because of her medical incident.

Because the EEOC has a strong interest in the application of the correct legal standards to plaintiffs’ evidence of employment discrimination, which is critical to the enforcement of the ADA and other anti-discrimination laws, the EEOC offers its views to the Court.  Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES[1]

1.    Did the district court err by rejecting plaintiff’s evidence of close temporal proximity to establish the causation element of her prima facie case, solely because plaintiff’s job was short-term in nature?

2.    Did the district court err by ignoring plaintiff’s evidence of statements by her lead man that seeking medical care at the worksite could—and did—cause her to lose her job?   

STATEMENT OF THE CASE

A.         Statement of the Facts

Defendant Apache is a national scaffold-building company.  ROA.379.  In late March 2018, on the recommendation of Apache lead man Edward Mason, Apache hired Gosby to work as a scaffold helper at the ExxonMobil industrial plant in Beaumont, Texas, where at any given time Apache ran between twenty-five and thirty-five separate projects.  ROA.168, 244, 384; see also ROA.390 (as some projects end, others open up).  “Scaffold helper” is an unskilled position, assisting with the building and dismantling of scaffoldings.  ROA.168, 390.  When Gosby was hired, she expected the job “would last up to six months.”  ROA.253. 

Gosby is diabetic, a condition that she disclosed during the pre-employment medical examination process.  ROA.242.  Apache delayed her start date a couple weeks due to her high blood sugar and, when she began working sometime in early April, assigned her to work exclusively on the ground level as part of a scaffold team.  ROA.185-89, 242-44, 379.  The restriction did not prevent Gosby from performing the job of a helper.  ROA.245 (Gosby always had work to do).  As then-project manager/site superintendent Charles Hutchins explained, Apache needs “team members on the ground to pass …, move …, [and] organize material.”  ROA.379; see also ROA.387 (team able to accommodate Gosby’s restriction).  Hutchins further noted that with “over 450 employees” at four facilities including Beaumont, it was “easy” for Apache to accommodate work restrictions.  ROA.380.  According to Gosby, Jacob Primeaux was one of two lead men who “basically ran [her] crew,” and the foreman for her crew was James Chaney.  See ROA.245-46, 257.   

Sometime during her first month on the job, Gosby injured her finger while working and informed Primeaux and Chaney.[2]  ROA.245-46.  According to Gosby, Primeaux told her to “just keep working, don’t tell nobody,” warning her that “if I went to medical about it, I probably would have got laid off because then I would become a risk or something like that.”  ROA.245-46; ROA.253 (referring to the on-site medical tent run by ExxonMobil contractors).  Gosby further attested that Chaney said he was “going to walk away from this conversation” because “whenever you come up hurt … you’re suppose[d] to go see medical.”  ROA.246, 255, 257.  Gosby stated that after Chaney left, Primeaux reiterated, “I’m telling you don’t go.  If your finger is jammed, try to keep working, try to massage it, just don’t go.”  ROA.246. 

Asked in her deposition whether other Apache employees had “concerns about going to the medical tent,” Gosby answered, “Nobody ever went.”  ROA.254.  When Hutchins was asked how often Apache workers visited the medical tent between June 2017 and May 2018, he confirmed “there were very few” medical incidents.  ROA.388 (Hutchins recalled one employee who twisted his ankle and was given two days of light duty, plus several bee stings and one employee stuck with wire through his glove, all of whom immediately returned to work).

On Thursday, April 26, Gosby experienced a diabetic episode at work.  While on the bus returning to the worksite from her lunch break, she began feeling faint and dizzy due to low blood sugar.  ROA.246.  A fellow employee notified a supervisor, who took Gosby to the medical tent.  ROA.246-47; see also ROA.380 (Hutchins admitted he “was notified by field supervision that … [Gosby] was being taken to the Exxon medical facility”).  There, she received medical attention and was directed to go home and return the following Monday.  ROA.247.  Gosby attested she met Hutchins for the first and only time that day, when he called her mother to pick her up and she waited in his office for the thirty minutes it took her mother to arrive.  ROA.246-48; see also ROA.245 (“I didn’t meet [Hutchins] until I got sick.”). 

Gosby’s team did not work on Fridays or weekends.  ROA.248.  She returned on Monday, April 30, but by mid-day Apache sent Gosby and several other workers home due to lack of work.  ROA.248.  Gosby was off on May 1 for a previously scheduled appointment.  ROA.248.  She returned to work Wednesday, May 2, and worked until mid-afternoon.  ROA.248.

At 2:30 p.m. on May 2, Gosby was instructed to gather her things, and a van driver transported her to the material trailer, telling her she was being transferred to another Apache location (“the ExxonMobil on 90”).  ROA.248, 250.  Instead, when she arrived at the material trailer, Mason handed her a layoff slip.  ROA.249.  Gosby asked Mason why, stating “I never had a write up.  I’ve never been late.”  ROA.249.  Although the layoff slip said “work reduction,” ROA.177, Gosby attested that Mason told her “that [work reduction]’s not why.”  ROA.249.  According to Gosby, Mason was “kind of mad” about the situation, stating “it’s something about you [got] sick the other day and that you had a meeting or whatever.”  ROA.249.  Gosby related that Primeaux was also there and reiterated that “work reduction” was not the real reason Apache included her in the May 2 layoff.  ROA.249.    

Gosby was one of twelve employees laid off on May 2.  ROA.169.  The Employee Separation Forms for all twelve stated, “Work force is being reduced due to project coming to a minimum headcount required.”  ROA.172-84.  Apache personnel records indicate that the layoff included only two other members of Gosby’s seven- or eight-person team:  Trevor Stratton and Elizabeth Persley. ROA.173, 178; see also ROA.389 (identifying Gosby’s project number as “1246,” the same as Stratton’s and Persley’s).  Persley, another scaffold helper, was discharged for “attendance issues.”  ROA.178, 250; see also ROA.251 (“[E]verybody knew [Liz was getting laid off] because … she had missed so many days”); ROA.253.  Gosby’s notice lacked any similar explanation for her layoff beyond the general statement about workforce reduction.  ROA.177.    

Hutchins, Apache’s “Site Supervisor” at the time, signed Gosby’s separation form.  ROA.177.  As noted above, the only time Gosby had seen or interacted with him was six days earlier, while waiting in his office after her low blood sugar incident.  ROA.245-48.  When he was asked why he included Gosby in the RIF, Hutchins offered no explanation other than “because [Apache was] having a reduction in force.”  ROA.378.

Gosby testified that when she received her layoff notice, she was told she could go to Apache’s Lake Charles location and the Beaumont staff would send a referral there.  ROA.249-50.  As instructed, she went to Lake Charles the next day and again a day or two later, but the staff there told her they had no referral from Beaumont and no position for her.  ROA.250, 252, 254.

Gosby filed this lawsuit alleging Apache terminated her because of her diabetes in violation of the ADA.  ROA.6-18.  Apache moved for summary judgment, ROA.73-83, contending that “Apache applied the reduction in force in a neutral manner” and “did not single Gosby out for any reason related to her diabetes,” ROA.78-79.  Gosby responded, inter alia, that she established the causal connection element of her prima facie case based on (1) the close temporal proximity between her diabetic episode and her discharge and (2) Primeaux’s warning to avoid seeking medical attention at all costs.  ROA.219-21.

B.         District Court’s Decision

The district court granted Apache’s motion for summary judgment.  ROA.577-87.  The court held that Gosby failed to establish a prima facie case of disability-based discrimination, ROA.581-84, and failed to offer sufficient evidence of pretext to overcome Apache’s contention that it included her in the RIF for nondiscriminatory reasons unrelated to her diabetes, ROA.584-87.

In the context of a RIF, the court noted, this Court applies a modified version of the test derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for a prima facie case of discrimination.  ROA.580.  According to the court, the modified version requires the plaintiff to show that she was (1) “within a protected group”; (2) “adversely affected by the employer’s decision”; and (3) “qualified to assume another position”; as well as to (4) “present evidence from which the factfinder might reasonably conclude that the employer intended to discriminate on the basis of her protected state in making that decision.”  ROA.580 (citing, inter alia, Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)).  Apache did not dispute that Gosby satisfied the first three elements.  ROA.581.[3]  As to the final element—whether Apache’s decision to discharge Gosby was causally connected to her disability—the court ruled that Gosby’s evidence failed to create a disputed issue of fact.  ROA.582-84. 

The court stated that it rejected Gosby’s reliance on the very close temporal proximity between her diabetic episode and her termination because of the short-term nature of her job.  ROA.582-83.  Noting that this Court has found “a time lapse of up to four months … sufficient to satisfy the causal connection for summary judgment purposes” and that Gosby had expected her job to last only about six months, the court concluded that the company “would only be able to terminate Gosby during a small portion of her employment without being at risk of a temporal proximity argument.”  ROA.582-83 (citations omitted).  Accordingly, the court agreed with Apache that “the temporal proximity between Gosby’s diabetic attack and her termination should be given little weight.”  ROA.583.

The court likewise dismissed Gosby’s evidence of statements that other Apache employees made to her.  ROA.583.  In summarizing the facts, the court noted Gosby’s contention that when she informed Primeaux of her finger injury, he “urged her to keep working because if she went to the medical tent, she would likely be viewed as a risk to the company and be laid off.”  ROA.578.  And in summarizing Gosby’s arguments, the court noted her reliance on this evidence to show that “her termination was connected to her disability.”  ROA.582 (citing Gosby’s summary judgment opposition, ROA.221).  In its legal analysis, however, the court omitted any mention of Primeaux’s warning.  See ROA.583-84. 

Instead, the court referenced Gosby’s testimony that Primeaux and another lead man both said that her termination was not because of “work reduction” but was because of “the medical incident she experienced on April 30.”  ROA.578, 583-84.[4]  According to the court, those statements did not support Gosby’s prima facie case because there was no evidence “that the Apache personnel who made these remarks were involved in or influenced the decision to fire her or that those remarks were made in connection with her discharge.”  ROA.583 (citing Keelan v. Majesco Software, Inc., 407 F.3d 332, 346 (5th Cir. 2005)).  Based on these two rulings, the court found Gosby’s evidence insufficient for a factfinder to infer “that Apache intended to discriminate on the basis of Gosby’s diabetes in including her in the reduction in force.”  ROA.583-84 (citing Lohn v. Morgan Stanley DW, Inc., 652 F. Supp. 2d 812, 832 (S.D. Tex. 2009)). 

SUMMARY OF THE ARGUMENT

In analyzing Gosby’s summary judgment evidence under the McDonnell Douglas burden-shifting framework, 411 U.S. at 802, the district court committed two main legal errors.  First, the court failed to recognize that under this Court’s long-established precedent, Gosby’s evidence of close temporal proximity suffices to meet her minimal initial burden to show some causal connection between her disability and her discharge six days later.  According to the district court, because Gosby’s job was only expected to last for about six months, and in other cases this Court has recognized temporal proximity of up to four months as sufficient to demonstrate prima facie causation, the short-term nature of the job made the extremely close temporal proximity irrelevant.  The court erred.  The operative consideration is not how long Gosby’s job was expected to last, but the length of time between her diabetic incident and her discharge (only six days) vis-à-vis how much longer she had expected to work (approximately five more months). 

The court also wrongly ignored Gosby’s evidence that her lead man warned her about seeking medical attention at work, and wrongly discounted the relevance of his statement, when she received her layoff notice, that her layoff was not because of work slowdown.  Gosby’s evidence of these two statements is relevant to, and probative of, whether her diabetic incident was the reason why Apache selected her for inclusion in the RIF.  The court erred in disregarding it.

ARGUMENT

The District Court Erred in Ruling that Gosby’s Evidence of Close Temporal Proximity and Primeaux’s Statements Failed to Show a Sufficient Causal Connection for Her Prima Facie Case.

The ADA prohibits employers, inter alia, from “discriminat[ing] against a qualified individual on the basis of disability in regard to … discharge of employees.”  42 U.S.C. § 12112(a).  Apache did not dispute that Gosby’s diabetes fell within the ADA’s definition of a disability, 42 U.S.C. § 12102, and that she was qualified to perform the scaffold helper job for which Apache hired her.  Gosby contends that her diabetic incident on April 26 was what prompted Apache to include her in the May 2 layoff only six days later, in violation of § 12112(a) of the ADA.  In granting Apache summary judgment, the district court ruled that this extremely close temporal connection did not establish a prima facie case of disability discrimination, even when considered in conjunction with the statements by Gosby’s lead man that seeking medical care at the worksite could—and did—jeopardize her job.  The district court erred.   

A.        The district court wrongly ruled that because Gosby’s job was expected to last only six months, her evidence of extremely close temporal proximity warranted little weight in demonstrating causation.

The district court ignored a number of well-established legal principles when it analyzed Gosby’s evidence of discriminatory discharge based on her diabetes.  When discrimination plaintiffs rely on circumstantial evidence, this Court applies the familiar three-step burden-shifting framework derived from McDonnell Douglas, 411 U.S. at 802.  See supra at 8 n.3; Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019).  The first step requires the plaintiff to establish a prima facie case of discrimination, id. at 341, the elements of which will vary depending on the particular claim and the specific facts.  See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“The method suggested in McDonnell Douglas … was never intended to be rigid, mechanized, or ritualistic.”); McDonnell Douglas, 411 U.S. at 802 n.13 (prima facie proof will vary depending on facts); see also Nichols, 81 F.3d at 41 (identifying prima facie elements in a RIF case).  For an ADA claim of discharge on the basis of disability, showing that the plaintiff “was subject to an adverse employment decision because of her disability” is one element of the prima facie case, as the district court observed below.  See ROA.580 (emphasis added) (citing Nall, 917 F.3d at 341).

Establishing a prima facie case creates an inference of unlawful discrimination that shifts the burden to the defendant “to articulate a legitimate, nondiscriminatory reason for the adverse employment action.”  Nall, 917 F.3d at 341; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).  Doing so then shifts the burden back to the plaintiff “to produce evidence from which a jury could conclude that [the employer’s] articulated reason is pretextual.”  Nall, 917 F.3d at 342 (citation omitted); see also Burdine, 450 U.S. at 256.  At this last stage, courts consider a plaintiff’s prima facie evidence along with any evidence demonstrating that the employer’s explanation is false or unworthy of credence.  Nall, 917 F.3d at 348; Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (“[O]n this ultimate question, … the factfinder may still consider the evidence establishing the plaintiff’s prima facie case and inferences properly drawn therefrom[.]” (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotations omitted))). 

Notably, “[t]he burden of establishing a prima facie case of disparate treatment is not onerous.”  Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012) (quoting Burdine, 450 U.S. at 253); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (burden is minimal); Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (only a minimal showing is necessary).  And this Court has applied this principle specifically to the causation element of a McDonnell Douglas prima facie case, stating: “The standard for establishing the ‘causal link’ element of the plaintiff’s prima facie case is much less stringent [than the ‘but for’ test]” that applies to the ultimate determination.  Evans, 246 F.3d at 354 (quoting Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)); see also Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 241-42 (5th Cir. 2019) (applying McDonnell Douglas framework to anti-retaliation provision of the False Claims Act and contrasting the but-for causation plaintiffs must show at the final pretext stage to the lesser “causal connection” required at the prima facie stage).

The district court ignored these principles when it held that, because Gosby’s job was short-term, she could not rely on temporal proximity to establish causal connection at the prima facie stage.  This Court has repeatedly recognized the relevance of temporal proximity evidence to show causation in discrimination claims.  See Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 968 (5th Cir. 2016) (analyzing temporal proximity as evidence of pretext in connection with plaintiff’s Title VII pregnancy discrimination claim); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240-41 (5th Cir. 2015) (in analyzing ADA discrimination claim, finding temporal proximity evidence probative of pretext in connection with plaintiff’s other significant evidence of pretext); see also, e.g., Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 304-06 (5th Cir. 2020) (finding that one-week temporal proximity between protected activity and adverse action was sufficient to establish prima facie causation for purposes of ADA retaliation claim).[5]

This Court assesses the value of temporal proximity evidence to establish causation differently depending on which step of the McDonnell Douglas rubric is at issue.  At the pretext stage—where a plaintiff’s proof must suffice for the factfinder to find but-for causation—this Court has long held that “[t]iming standing alone is not sufficient absent other evidence of pretext.”  Burton, 798 F.3d at 240 (citation omitted); see also Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (same).  At the prima facie stage, in contrast, this Court has been equally unequivocal that “a plaintiff can meet his burden of causation simply by showing close enough timing between his protected activity and his adverse employment action.”  Garcia, 938 F.3d at 243; see also id. at 241-43 (listing earlier Fifth Circuit cases applying “this same close-timing-is-enough standard to the prima facie case”); Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577 (5th Cir. 2020) (stating same in Title VII retaliation case).

This Court’s long-standing distinction between the minimal proof burden for the prima facie case and the more rigorous “but-for” causation required to demonstrate pretext “is not only binding circuit law, but it also makes good sense.”  Garcia, 938 F.3d at 242.  As this Court explained in Garcia:  “[A]pplying the ‘but-for’ standard at the prima facie step ‘would effectively eliminate the need to use the McDonnell Douglas burden shifting framework’ at all” because a plaintiff “who could prove but-for causation at the prima facie stage would essentially ‘be able to satisfy their ultimate burden of persuasion without proceeding through the pretext analysis.’”  Id. (citation omitted).  This Court found no indication that when the Supreme Court, in University of Texas Southwest Medical Center v. Nassar, 570 U.S. 338 (2013), required proof of but-for causation in retaliation cases, it intended to alter the evidentiary standard for establishing a prima facie case for such claims.  Garcia, 938 F.3d at 242-43.  Nor would there be any basis for imposing such a shift in proof frameworks for Gosby’s claim of disability discrimination, given this Court’s comparable treatment of temporal proximity evidence in both discrimination and retaliation claims.  See supra at 15 n.5. 

In light of this well-established precedent, the district court erred when it rejected Gosby’s temporal proximity evidence because Gosby’s job was short-term in nature.  Instead, the court should have recognized that, in accordance with this Court’s precedent, Gosby’s discharge six days after a diabetic incident of which the decisionmaker was personally aware constitutes the type of extremely close temporal proximity that, by itself, establishes the causal connection element of a prima facie case.  See, e.g., Brown, 969 F.3d at 578 (gap of six to seven weeks between protected activity and adverse action sufficed to establish causal connection for retaliation claim “based on timing alone”); Lyons, 964 F.3d at 304-06 (rejecting district court’s determination that the plaintiff failed to establish the “causation” element of her prima facie case of retaliation where adverse action occurred seven days after she engaged in protected activity); Evans, 246 F.3d at 354 (finding five-day gap sufficiently close to establish causal connection in prima facie case; noting that courts have found time lapses of up to four months sufficient to satisfy causal connection for summary judgment purposes). 

The district court acknowledged that Apache laid Gosby off “only a few days” after her diabetic incident and that such “[c]lose temporal proximity may provide the causal connection required to make out a prima facie case of discrimination.”  ROA.582 (citing Lyons, 964 F.3d at 305).  The court nevertheless rejected the significance of the close timing here because Gosby’s scaffolding job was “short-term [in] nature.”  ROA.582-83.  The court cited no legal precedent for concluding that a job’s short-term nature undermines or eliminates the significance of close temporal proximity at the prima facie stage.  Its rejection of Gosby’s evidence for that reason is not only unsupported by precedent but illogical as well.[6]

The court accorded Gosby’s evidence of extremely close temporal proximity “little weight” because the five-month timeframe between her diabetic incident and the expected termination of the job was very close to the time frame of up to four months that this Court has found “sufficient to satisfy the causal connection for summary judgment purposes.”  ROA.582-83.  Crediting an argument Apache made, the court stated that “Apache would only be able to terminate Gosby during a small portion of her employment without being at risk of a temporal proximity argument.”  ROA.583. 

The court’s explanation ignores the fact that when Apache fired Gosby, she had expected her job to last another five months—the bulk of her expected job tenure for this type of position.  On the facts of this case, the relevant consideration for causation purposes is not how close in time her termination was to the anticipated end of her job, but how close it was to her diabetic incident in light of the overall expected duration of the job.  Gosby’s discharge only six days after her diabetic incident not only falls well within this Court’s parameters for establishing causation in general, but also constitutes an extremely short timeframe in light of how much longer Gosby expected to work.  The evidence suffices to meet Gosby’s “minimal” burden for establishing causation at the prima facie stage.  Cf. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (observing that “the proper solution to the problem” of “creating a prima facie case on the basis of very thin evidence” “lies not in making an utterly irrelevant factor an element of the prima facie case”); id. at 313 (for purposes of prima facie case of age discrimination under ADEA, rejecting rule that a plaintiff arguing replacement by someone younger must show replacement was under 40; stating that where a plaintiff relies on age comparisons to establish a prima facie ADEA claim, “a replacement [who] is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class”).

This is not to say that, if a short-term job is expected to last less than this Court’s four-to-five-month “temporal proximity” timeframe, an employer may never fire an employee without automatically establishing causation for purposes of a prima facie case.  Rather, our point is simply this: where the timeframe between the incident and the adverse action is short even relative to the expected duration of the job, a plaintiff like Gosby should not be precluded from relying on proximity evidence merely because her job was short-term.  A case like this one highlights the lack of logical justification or legal support for a bright-line rule of this sort.

Importantly, the “risk” from which the district court sought to protect Apache by creating such a rule (ROA.583) is only the requirement, at the second step of the McDonnell Douglas inquiry, to proffer a legitimate, nondiscriminatory reason for including Gosby in the RIF.  As this Court noted in Shackelford v. Deloitte & Touche, L.L.P., “where there is a close timing between an employee’s protected activity and an adverse employment action, the employer must offer ‘a legitimate, nondiscriminatory reason that explains both the adverse action and the timing.’”  190 F.3d 398, 408 (5th Cir. 1999) (citation omitted; emphasis added). 

On the other hand, because temporal proximity alone cannot establish pretext or send a case to a jury, Strong, 482 F.3d at 808, it cannot, by itself, serve as the basis for liability.  Thus, allowing plaintiffs to rely on such evidence even where a job is short-term in nature would not, as the district court may have mistakenly thought, tie an employer’s hands from undertaking appropriate employment actions.  Id.  In any event, the “solution” the court crafted here sweeps far too broadly.  Gosby’s situation demonstrates why this is so:  Apache discharged her less than a month after she began working for the company, at a point when she expected the job to continue for another five months. 

Nothing in this Court’s precedent supports categorically depriving all workers with short-term jobs of this important evidentiary tool in cases based on circumstantial evidence.  This Court should vacate the district court’s ruling granting summary judgment to Apache on this ground. 

B.         A lead man’s statements to Gosby warning her that seeking medical care at the worksite could—and ultimately did—affect her job constitute probative evidence of discrimination.

As explained above, under this Court’s longstanding precedent, Gosby’s temporal proximity evidence sufficed, by itself, to establish the causal connection element of Gosby’s prima facie case.  Nevertheless, she also offered her testimony that Primeaux, her lead man, warned her when she injured her finger that seeking medical attention at the worksite could jeopardize her job.  And she likewise testified that, when she was terminated on May 2, Primeaux told her it was because of her “medical incident,” which had occurred only six days earlier.  These two statements are relevant and probative to support an inference of discrimination, and the district court erred by ignoring the first and discounting the second.

1.    In evaluating Gosby’s summary judgment evidence, the district court erroneously ignored Primeaux’s warning to Gosby after she injured her finger at work.

When the district court discussed the facts, it noted Gosby’s allegation that Primeaux warned her not to visit the medical tent when she injured her finger sometime during her first month working for Apache.  ROA.578.  The court further noted that Gosby relied in part on his warning to establish the causation element of her prima facie case.  ROA.582.  When the court addressed Gosby’s prima facie case, however, it ignored her testimony about this remark entirely.  ROA.583.  It is unclear whether the court concluded that the statement lacked probative value or simply overlooked it.  Regardless, Gosby’s evidence of Primeaux’s statement constitutes proper additional evidentiary support for her discrimination claim, and the court erred in failing to recognize it as such.    

According to Gosby, when she told lead man Primeaux and foreman Chaney that she had injured her finger, Primeaux warned her not to go to the medical tent; Chaney then added that he “was going to walk away from” the conversation, saying “I’m not supposed to be hearing this.”  ROA.245-46, 255.  Gosby testified that Chaney stated that “legally he’s supposed to make sure I go to [the medical] tent” but, instead, he “walked off” so that Gosby and Primeaux could talk outside his presence.  ROA.245-46, 255.  After Chaney left, Primeaux candidly reiterated his advice not to go to the medical tent, explaining it could jeopardize her job.  ROA.245-46.  Primeaux’s warning has probative value concerning a relevant factual question:  whether Gosby’s trip to the medical tent for her diabetic incident had any relationship to her selection as one of the small group of workers—one of only three members of her seven- or eight-person team—laid off six days later. 

As Gosby noted in her summary judgment opposition, the decisionmaker (Hutchins) admitted in his deposition that Apache employees rarely visited the medical tent.  And Hutchins knew that Gosby had made one of those rare visits: Gosby attested that the only time she ever met him was while she was waiting in his office after Hutchins had called her mother to pick her up, after she was brought to the medical tent on April 26 for a diabetic episode.  See supra at 4-5.  Primeaux’s earlier warning to Gosby offers the factfinder an explanation of why so few Apache employees might have sought medical aid.  It could also explain why Gosby, out of the hundreds of Apache employees at this site and despite having no job performance issues, was selected to be one of twelve employees laid off only days after she sought emergency medical care for her diabetes.          

In Shackelford, this Court recognized the probative nature of this type of evidence with respect to retaliation.  In finding Shackelford’s evidence sufficient to defeat summary judgment, the court noted her allegation that various coworkers—none of whom were involved in the decision to discharge her—had “warned her not ‘to get involved [in the class action suit against D&T] if you [Shackelford] want to keep your job.’”  190 F.3d at 409.  Notably, this Court found this evidence relevant at the pretext stage, where the evidentiary standard is more rigorous than at the prima facie stage.  See supra at 13-14; see also Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th Cir. 2009) (“We have held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.… ‘Although [such] statements …, standing alone, generally do not support an inference of discrimination, the comments of a nondecisionmaker are not categorically excludable.  Circumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant’s workplace in turn may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.’”) (citing and quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998)). 

Here, Gosby adduced evidence that Primeaux, one of the two lead men who “basically ran [Gosby’s] crew” (ROA.246), warned her that going to the medical tent could put her job in jeopardy.  Especially given the lower evidentiary burden for establishing a prima facie case as compared to the pretext stage, this testimony was, a fortiori, relevant to establish the causation element of Gosby’s prima facie case.

2.    Gosby’s attestation that Primeaux told her she was included in the layoff because of her medical incident also supports her disability discrimination claim.

Unlike Primeaux’s warning, which the district court acknowledged in its summary of the facts but then ignored in its legal analysis, the court addressed and explicitly rejected the relevance of Gosby’s testimony that Primeaux and Mason both told her that her inclusion in the RIF was not because of “work reduction” but because of her earlier “medical incident.”  ROA.578, 583.  According to the court, this evidence did not support Gosby’s prima facie case because (1) Primeaux and Mason were not involved in the termination decision, and (2) their statements were not “made in connection with her discharge.”  ROA.583.  The district court’s assessment is patently incorrect.  These remarks were, in fact, about her discharge—both lead men explained that she was being fired because of her “medical incident.” 

The district court relied on this Court’s decision in Keelan, a case in which none of the allegedly biased remarks at issue was tied to the plaintiff’s termination.  See Keelan, 407 F.3d at 346.  Keelan, in turn, cited Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999), where this court held that a statement suggesting the plaintiff find a black mentor created no inference of race discrimination in promotions because the statement was unconnected to the promotion process.  Here, by contrast, the lead men’s statements are directly connected to Gosby’s discharge:  the speakers offered explanations for why she was chosen for the RIF.[7]  The district court erred in failing to recognize the relevance of such statements to Gosby’s ADA claim.          

CONCLUSION

For the foregoing reasons, the district court’s judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted,

 

GWENDOLYN YOUNG REAMS

Acting General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

Assistant General Counsel

 

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the type-volume requirements of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 6,307 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).  This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 5th Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Times New Roman 14 point.

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov

 

 

Dated:  August 25, 2021

 

CERTIFICATE OF SERVICE

I, Susan R. Oxford, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on this 26th day of August, 2021, and I will submit hard copies of the brief upon the Court’s request.  I also certify that all counsel of record have consented to electronic service and will be served the foregoing brief via the Court’s appellate CM/ECF system.

 

 

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov