Congress directed the Equal Employment Opportunity Commission (EEOC) to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Here, the plaintiff sued for race discrimination and retaliation when she was discharged after complaining about a supervisor’s race-based comments. The district court erroneously discounted the comments as “stray remarks,” ignored other evidence of the decisionmaker’s racial animus, and accepted uncritically the employer’s stated reasons for firing her in holding that she offered insufficient evidence of pretext to overcome summary judgment on either claim.

How a district court evaluates evidence of discrimination or retaliation at the summary judgment stage is a critical and recurring issue under Title VII. The Commission therefore offers its views to the Court. See Fed. R. App. P. 29(a)(2).

1. Where the plaintiff offered evidence that her supervisor suggested she was suffering workplace conflicts because she was “too black” and “too ghetto,” and had “a homegirl personality,” along with evidence that the employer’s reasons for terminating her were not credible, did the district court err in disregarding the race-based comments and then holding the pretext evidence insufficient to withstand summary judgment on her race discrimination claim?

2. Where the employer terminated the plaintiff soon after she complained her supervisor had directed race-based comments at her, and there was abundant evidence the employer’s reasons for terminating her were unbelievable, did the district court err in holding the pretext evidence insufficient to withstand summary judgment on her retaliation claim?

Statement of the Case

A. Statement of Facts

Keneshia Wallace, who is black, worked as a Patient Access Representative (PAR) for Seton Family of Hospitals for just over six months beginning July 20, 2015. ROA.192-93. Seton’s employees begin their jobs with a six-month introductory period, during which time their performance is scrutinized to determine whether continued employment is appropriate. ROA.570-71.

Wallace sat in a cubicle in a room with an open floor plan with other PARs and performed “clerical and reception duties associated with patient registration” by telephone. ROA.570. She reported directly to Marisa Islas and was also supervised by Patient Access Manager Linda Brown, who is black. ROA.195-96, 199. Brown’s supervisor was Patient Access Director Susanne Cadena. ROA.507.

Wallace spent the first two weeks in training with coworker Cheryl McCaskill, who is white. ROA.196. McCaskill “walked [Wallace] through everything that she did,” and then observed Wallace performing the same tasks. ROA.196-97. In August, McCaskill became irritated with Wallace for pointing out that McCaskill had given her the same instruction twice. ROA.201, 206-07. When Wallace returned from lunch, Brown told Wallace that McCaskill had reported that Wallace “do[esn’t] like training with a white … girl.” ROA.201. Wallace denied she had said that and asked Brown to call McCaskill. Id. McCaskill confirmed, “No, I did not say that. I said that [Wallace] said that I had already explained [something]” and that she had told Wallace “it doesn’t matter if I explained it before.” ROA.202.

After this interaction, McCaskill and her coworker friends, Jennifer Trevino and Ileana Flores, became hostile to Wallace and regularly reported her mistakes to Brown. ROA.203-04. Wallace recalled, “It was like everything that I did, if I messed up on a patient’s account or spelled the name Jose with a G instead of a J, any little thing …. It just got out of control.” ROA.204. By October, McCaskill’s, Trevino’s, and Flores’s “nitpicking” became “bullying.” They were “picking on [Wallace] for absolutely no reason.” ROA.210-11. Wallace recounted, “There was eye rolling,” Trevino “would walk by and hit my desk or accidentally kick my desk” and “talk[ ] loudly,” and McCaskill would say, “Yeah, I don’t like her either.” ROA.211-12. On one occasion, Flores criticized Wallace for referring to Flores a customer who had requested a Spanish-speaker because the customer spoke “perfect English.” ROA.212. Brown summoned Wallace into her office often to point out her mistakes based on reports from McCaskill, Trevino, and Flores. ROA.217. When Wallace responded that other PARs made mistakes too, Brown disregarded her accounts. ROA.218.

Desiree Selfridge, another PAR, sat near Wallace. ROA.556. Selfridge stated that Wallace was “a very hard worker,” with good performance numbers, “nice and kind in her interactions” with coworkers and patients, “nice on the telephone,” and “a good fit” for the Patient Access Department. ROA.556-57. Selfridge maintained that it was not Wallace who created conflict in their department, but instead Trevino, McCaskill, and Flores who “were troublemakers.” ROA.557. Selfridge added that Brown “permitted those individuals to create conflict” because they were “among Ms. Brown’s favorites.” ROA.557.

On October 23, Wallace complained to Brown that she felt “bullied and targeted” and asked for a meeting with Brown, McCaskill, Trevino, and Flores. ROA.225. Wallace sat alone on one side of the conference room while McCaskill, Trevino, and Flores sat next to Brown on the other side. ROA.227-28. Brown “was in between Cheryl [McCaskill] and Ileana [Flores]. And she had her hand on Ileana’s shoulder. And she said, ‘So, Keneshia, what seems to be your problem?’” ROA.228. Wallace said that McCaskill, Trevino, and Flores were reporting every mistake she made and “they kick my desk.” ROA.228. Brown asked the three women, “do you girls do that?” Id. They denied it. Id.

Brown then dismissed everyone but Wallace from the room. ROA.229. Brown told Wallace she was “overly sensitive.” Id. Brown suggested that Wallace “take … a demeanor class—kind of like an etiquette [class]” such as a class Seton offered its managers. ROA.230. Brown recommended that Wallace purchase the book that was handed out at the class, which discussed “how to conduct yourself.” ROA.230-31. Brown told Wallace that she “grew up basically poor in the projects” and was heavily influenced by a neighbor she admired who “carried herself very well” and dressed nicely. ROA.232-33. The woman told Brown, “[I]n the white world, you have to dress yourself up because … you already are just another statistic.” ROA.233. Brown said the neighbor “changed her way of thinking,” and “that’s why I have a problem with the black community, you know the stereotypes. They’re too ghetto.” ROA.233. Brown added, “’You know like with you talking with your hands …. you didn’t do that in your interview.’” Id. Wallace replied that her hands were under the table during the interview because she was nervous. Id. Brown said, “It’s just you talk—talking with your hands and—doing that, it’s too black. You know, you have … that home girl personality.” Id.

Brown also told Wallace that others perceived her as “too aggressive,” and mentioned a complaint by Flores. ROA.236. Brown said she could imagine Wallace, in her interaction with Flores, “moving your neck and you said, ‘Do you have a problem with me,’ and using your hands, because that’s what you do.” ROA.237. Brown again advised Wallace to “take that information and get that book and it could help you because it’s done wonders for me.” ROA.241. Brown told Wallace that if she ever repeated what Brown had just said, she would deny it, and added, “Who do you think that they’ll believe?” ROA.249.

Wallace testified that Brown “was trying to … tell me how to be a white woman.” ROA.235. Brown wanted Wallace “to change who I am, because … she didn’t like what she [saw] in me, I suppose …. And I guess it was flashbacks to her as that’s what ghetto people do.” ROA.235-36.

Wallace emailed Brown that night. ROA.245. She wrote, “Per our meeting today, I still feel uneasy about the situation. I feel targeted and bullied …. You stated that I had a ‘home girl personality’ because of me using my hands and head movement when I sometimes speak[.]” ROA.316. Wallace did not mention Brown’s comments about her mannerisms being “too black” or black culture being “too ghetto” because her father advised her to “sum it up” rather than “to run down everything that happened in that conversation.” ROA.243-44. Wallace explained the point of her email “was to tell [Brown] that [she] had made these … racist comments and to let [her] know that [she] didn’t ever solve what was at hand” because Brown was “so busy attacking me about my demeanor and gestures.” ROA.246.

Brown replied on Monday, October 26, copying Susanne Cadena, Brown’s supervisor, and Senior Human Resources Partner Elena Rojo: “The statement was not that you had a ‘home girl personality,’ but others perceived this from you and my suggestion to you is to be aware of that perception.” ROA.406. Wallace did not accuse Brown of lying about telling her she had a “home girl” personality because Brown was her superior and “she’s always going to have that upper hand.” ROA.248.

The situation with McCaskill, Flores, and Trevino improved. ROA.272, 273. Wallace emailed Cadena on November 5 that things seemed to be turning around and suggested delaying a follow-up meeting about the three coworkers “to see where things go.” ROA.525. Because Wallace’s report of Brown’s racial comments had not been resolved, Wallace complained to Cadena about Brown in multiple meetings. ROA.273-74. Wallace told Cadena “everything from when I started from the meeting [about] the ‘white girl’ [comment] to the ‘too black’ [statement] to the kicking of the desk to the reason I sent the e-mail[,] [about] the meeting … it was everything and [what] Linda [was] saying about my hands.” ROA.258. After Cadena asked Brown to join them, Brown denied saying Wallace had a “home girl personality,” was “too black,” or “too ghetto.” ROA.267-68. Brown admitted she gave Wallace advice about her hand gestures being “way too aggressive.” ROA.268. Cadena pointed out to Brown that Cadena uses her hands “all the time” when she talks and said that Wallace using her hands “shouldn’t be a problem.” ROA.268-69. Cadena did not push further into Wallace’s report of Brown’s race-based comments after Brown denied making them. ROA.270-71.

In November and December, Brown repeatedly visited Wallace’s cubicle and loudly asked where she was if she was away from her desk. ROA.277, 279-80. Selfridge would report to Wallace, “[W]hen you left, Linda started shouting, … Why isn’t she here? Where is she at? Has anyone seen Keneshia or did she just get up? How long has she been gone?” ROA.277. Selfridge said she “often heard Brown loudly making comments” about Wallace’s work ethic when Wallace was away from her desk. ROA.557. Wallace said she was embarrassed when she would return from the bathroom and everyone was staring at her. ROA.279-80.

Wallace met again with Cadena on December 10 to report Brown’s retaliatory behavior. ROA.283-84. When Cadena invited Brown to their meeting and informed Brown of Wallace’s concerns, Brown said she was “unable to handle” Wallace. ROA.285. Brown subsequently told Wallace that she would “get” her for getting her in trouble. ROA.286.

One day in December, Brown noticed that Wallace was spending a lot of time in the bathroom. ROA.645-46. After Wallace admitted she was not feeling well, Brown required her to visit Seton’s clinic. ROA.646. Wallace knew she did not have enough accrued paid time off (PTO) hours to take a sick day. Id. Seton required her to stay home for three days to ensure she was not contagious beginning December 22. ROA.646. When Wallace returned to work, Wallace’s immediate supervisor, Islas, told her she had spoken with Brown, and Wallace was likely to receive a write-up for attendance issues. ROA.288-89. Wallace cried and pointed out she had legitimate excuses and documentation for each absence. ROA.289. Islas told Wallace she would talk to Brown to “see what we can do.” Id.

Although Wallace received a mid-December performance review stating “Great … Attendance! Keep up the strong work!” (ROA.490), on January 8 she was given a formal write-up titled “Associate Counseling Report.” ROA.322. The report lists her as tardy eight days and having accrued five days of “unscheduled PTO,” including the two days that Seton required her to stay home because she was sick (12/22 and 12/23, which are also listed as the “event date”). Id. The report states, “This is a violation of Seton’s policy. 300.14.” Id. Although policy 300.14 is not in the record, the write-up classifies as “excessive absences/tardiness” two or more “unscheduled” absences during any three-month period during a new employee’s probationary six-month period and tardiness more than three times during any three-month period. Id. Neither the report nor the record explains whether a company-mandated medical absence is considered an “unscheduled” absence. Brown told Wallace on one occasion, however, that if she was absent for health reasons and had documentation, it would be excused. ROA.295. The report states that Wallace was expected to improve her time/attendance or “further disciplinary action up to and including termination may result.” ROA.323-24.

The report categorized Wallace’s infraction as a “Group I” violation, instead of “Group II.” ROA.323. Seton’s Conduct and Discipline Policy states that Group I infractions include serious misconduct (theft, falsifying records) as well as “[f]ailure to follow call in procedures/Two unexcused absences within a twelve month period.” ROA.561. Group I violations result in “discharge” or, in “unusual circumstances,” written warnings or unpaid suspensions. ROA.564. Group II violations include “Excessive Absences” and “Excessive Tardies”; the discipline for a “first” occurrence of a Group II violation is “written warning.” ROA.561, 564. Islas, who drafted the write-up at Brown’s direction, asked Brown whether Wallace’s absences/tardies should be categorized as Group I or Group II. ROA.492. Although knowledgeable about the distinction, Brown did not respond and signed off on the write-up as a Group I infraction. ROA.491. Rojo, the final approver, testified she did not know why the write-up was categorized as Group I, given “It should be a Group II.” ROA.458.

Wallace and Brown met to discuss the write-up. ROA.289. Wallace protested that some of the tardy dates were inaccurate and she had documentation and legitimate reasons for the absences. ROA.293, 294. Brown told Wallace it was “not that severe,” it was “just a Level I” and would “fall off” her record, and not to worry about it. ROA.289-90. Brown had “this smirk on her face” such that Wallace told her, “’You’re laughing and I don’t think that anything is funny … this is my reputation with Seton.’” ROA.290. Brown urged Wallace to sign the write-up, stating, “it doesn’t matter whether you have excuses or not.” ROA.290. Brown also said that it did not matter that some of the tardies were inaccurate because “it’s the absence[s] [that matter].” ROA.293. Wallace signed the write-up but wrote, “I had sufficient documentation for each absence … [therefore] the disciplinary action should not pertain … [under] these circumstances. I would like to press the issue because I love my job and do not want anything on my record.” ROA.324. Wallace did not accumulate any additional tardies or absences. ROA.445.

During the week of January 18, Brown asked Rojo to investigate Wallace’s conflicts with coworkers. ROA.440, 461. Rojo interviewed five employees identified by Brown. ROA.461, 463, 493. Rojo said she relied only upon Brown’s direction of whom to interview. ROA.441, 461. Brown, in contrast, testified she was not involved in that decision. ROA.390-91. When asked, Rojo testified that she “would disagree with [Brown]’s memory of the situation.” ROA.463. Rojo did not interview Wallace or Selfridge, nor was she aware that Wallace had repeatedly complained about some of the employees Rojo interviewed. ROA.464-65; ROA.557-58. Brown forwarded to Rojo several complaints written by Trevino and Flores about Wallace. ROA.383-84; ROA.413. Although Brown testified that human resources asked for these complaints (ROA.384, 389), Rojo testified she did not request them. ROA.444.

Brown, “in conjunction with” Rojo, made the decision to terminate Wallace. ROA.449-50; ROA.572. On January 26, Brown emailed Cadena: “I will be meeting with Elena Rojo and Keneshia Wallace tomorrow at 4 pm. HR decision after they spoke to everyone is to release her with an at will status.” ROA.423. The next day, Brown called Wallace and asked her to meet. ROA.302. Although Brown knew Wallace would be fired, she told Wallace not to clock out, which gave Wallace the mistaken impression she was not going to be fired. ROA.302-03. While Wallace and Brown waited to see Rojo, Wallace asked Brown if she was in trouble. Brown “smirk[ed] … and said, ‘Love[,] you have nothing to worry about.’” ROA.305. Rojo arrived and told Wallace she was “not a good fit for Seton.” ROA.306. When Wallace asked Brown what was going on, Brown replied, “It’s just not a cultural fit.” ROA.306-07. Wallace pressed her for an explanation. Id. Rojo said, “Texas is an at-will state.” Id. Brown reminded Rojo to get Wallace’s badge and told Wallace, “[T]here’s no need to go back to the office …. We’ll send you your things. Conversation over.” ROA.308.

Human resources managers typically input a form into the company’s database stating the reason for an employee’s termination, but Rojo did not do so because “legal” advised her against it. ROA.443. Rojo testified that she was unaware that Wallace had complained of race discrimination by Brown. ROA.454. She stated she would want to know that before terminating someone “even though associates had also complained” “to just make sure that Ms. Brown or any manager is not making a decision because a complaint is made against him or her,” which “may be” retaliatory. Id.

Seton later asserted that it fired Wallace because she had “on-going conflicts with her co-workers and attendance problems” and terminated Wallace’s employment “[a]s the end of [her] introductory period approached.” ROA.572; ROA.465. Rojo said that but for Wallace’s conflicts with coworkers, she would not have been fired, as attendance alone was not a reason to fire her. ROA.479. Brown testified that she did not recall any ongoing conflicts Wallace had with Trevino, Flores, and McCaskill. ROA.339.

Wallace filed a charge of discrimination and retaliation with the EEOC and later filed suit. ROA.6, 9. Seton moved for summary judgment on both claims, and Wallace moved for partial summary judgment on her retaliation claim. ROA.163-83; ROA.579-98.

B. District Court’s Decision

The district court granted Seton’s motion for summary judgment. Regarding Wallace’s race discrimination claim, the court held that Wallace established a prima facie case but that Seton offered legitimate non-discriminatory reasons for firing Wallace—conflicts with coworkers, accumulation of tardies and absences, and her status as a probationary employee. ROA.832-33, 835-36. The court then deemed Wallace’s pretext evidence insufficient to reach a jury.

In the court’s view, Brown’s remarks concerning Wallace’s race “were unprofessional and wholly unacceptable.” But, the court said, they were not “sufficient evidence of pretext to survive summary judgment,” as “they appear to be stray remarks unrelated to the disciplinary action and ultimate employment decision in this case.” ROA.837. The court maintained that “[t]he evidence indicates that Wallace was disciplined for her attendance issues, and terminated for a combination of attendance issues and ongoing conflicts with coworkers during her introductory period.” ROA.837-38. The court concluded that there was no evidence Brown concocted a scheme “to get” Wallace. Id. Thus, the court held, Wallace failed to create a jury question as to whether Seton’s proffered reasons for her termination were a pretext for race discrimination. ROA.840.

The district court also held that Wallace had established a prima facie case of retaliation and that Seton had offered legitimate, non-retaliatory reasons for her termination. ROA.841-44. But the court again ruled that Wallace’s pretext evidence was insufficient. Although Wallace was fired within three months of complaining of Brown’s comments, the court said, “temporal proximity alone is not sufficient to establish the ‘but-for’ causation in the pretext prong of the analysis.” ROA.845. The court noted that much of Wallace’s other pretext evidence was the same as the insufficient evidence she offered as to her race discrimination claim. Id. The court acknowledged Wallace’s argument that Brown testified Wallace did not have “ongoing” conflicts with coworkers, but noted contrary record evidence. ROA.846. The court also discounted Wallace’s evidence that she was not actually fired for attendance problems, stating that Seton never argued Wallace was fired solely because of attendance. ROA.847. Accordingly, the district court concluded, Wallace failed to demonstrate that Seton’s reasons for her termination were a pretext for retaliation. Id.

Argument

I. The district court erred in granting summary judgment on Wallace’s race discrimination claim.

Wallace offered sufficient evidence of pretext to overcome summary judgment on her race discrimination claim. The district court’s most significant error was its failure to consider race-based comments because they did not constitute direct evidence of discrimination. As this Court has recognized, a decisionmaker’s race-based remark that is not direct evidence can be circumstantial evidence of a racial motive. See, e.g., Reilly v. TXU Corp., 271 F. App’x 375, 381 (5th Cir. 2008) (hiring panel member’s observation to the plaintiff that the plaintiff, who is white, had a “diversity problem” supported plaintiff’s claim that he was denied a promotion because of his race).

A plaintiff may establish pretext by showing that a discriminatory motive more likely drove her employer’s decision or the employer’s proffered explanation is “unworthy of credence.” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). Ultimately, “[w]hether summary judgment is appropriate depends on numerous factors, including ‘the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered.’” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148-49 (2000)). The ultimate purpose of the pretext inquiry is to determine whether the plaintiff has established that she “was the victim of intentional discrimination.” Reeves, 530 U.S. at 143.

A. A jury could find based on Brown’s race-based comments and other evidence that Seton fired Wallace out of racial animus.

A jury could easily find that Brown’s comments directed at Wallace that she acts “too black,” “too ghetto” and aggressive, and has a “homegirl personality” manifest discriminatory animus. See, e.g., Harrington v. Disney Reg'l Entm't, Inc., 276 F. App'x 863, 867 n.2 (11th Cir. 2007) (“ghetto” used as a “slur” to refer to African Americans). Brown made these comments on the heels of a meeting intended to address Wallace’s concerns over friction with three coworkers. A reasonable jury could construe Brown’s remarks to mean that Brown blamed Wallace for the conflicts with her coworkers because she was “too black” and had a “homegirl personality,” and that Wallace would continue experiencing conflict until she learned “how to be a white woman” and fit in better.

Brown’s remarks concerning Wallace’s speech mannerisms further underscore this point. Brown’s characterization of Wallace’s use of hand gestures while talking—that “it’s too black”—and observation that Wallace “didn’t do that in [her] interview” indicate that Brown would not have hired Wallace had she used her normal hand gestures because they were “too black,” “too ghetto,” and too aggressive. Brown’s suggestion that Wallace take an etiquette class and read a book about how to act, and her anecdote about Brown fitting into the white world with advice from a neighbor would allow a jury to find that these remarks were race-based and derogatory. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (holding that the term “boy” could be “probative of bias” and stating, “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.”). That Brown promised Wallace she would deny making the comments if Wallace told anyone also suggests that Brown knew they were disparaging. Additionally, Brown told her she was not a “cultural fit” with Seton when she fired her, suggesting Wallace did not fit into the white culture at Seton.[1]

The district court overlooked and discounted this critical pretext evidence. The court applied an incorrect legal standard when it excised from the case Brown’s comments to Wallace as “stray remarks.” As this Court has recognized, a plaintiff may use evidence of discriminatory comments to show that the defendant’s reasons for taking the adverse action were a pretext for discrimination. See, e.g., Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015). This Court has two distinct tests for analyzing the probative value of discriminatory comments. See Goudeau, 793 F.3d at 475. The more rigorous test applies only to comments offered as direct evidence of discrimination, whereas the more flexible test applies to comments offered as circumstantial evidence. Id. at 475-76.

This Court applies a more demanding test to discriminatory comments offered as direct evidence because “the comments are being relied on to prove the entire case of discrimination.” Id. at 475. To determine whether such comments constitute direct evidence sufficient—by themselves—to overcome summary judgment, this Court applies a three-part test first articulated in Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). A plaintiff must show that the comments were (1) proximate in time to the termination, (2) made by an individual with authority over the employment decision, and (3) related to the challenged decision. Goudeau, 793 F.3d at 475; see also Laxton, 333 F.3d at 583 n.4 (noting this Court applied the CSC Logic test to all discriminatory remarks prior to Reeves but afterwards confined the test to comments used as direct evidence). Comments offered as direct evidence of discrimination that fail to meet this test are deemed “stray” and thus insufficient, standing alone, to overcome summary judgment. Goudeau, 793 F.3d at 475.

A more flexible test is applied to discriminatory comments offered along with other evidence as circumstantial evidence of discrimination. Id. Discriminatory comments support a circumstantial case of discrimination if they show “(1) discriminatory animus (2) on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker.” Id. at 475-76.

Here, Brown’s race-based derogatory remarks clearly meet this Court’s more flexible test and should have been accepted as strong circumstantial evidence of Brown’s racial animus, along with Wallace’s other pretext evidence. See Goudeau, 793 F.3d at 475 (“In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a ‘more flexible’ standard.”). Brown was the person “primarily responsible for the challenged employment action,” Goudeau, 793 F.3d at 475-76, and a jury could readily find that her remarks reflected racial animus.

The district court held Brown’s comments were insufficient evidence of pretext to overcome summary judgment, however, because they were “stray remarks unrelated to the disciplinary action and ultimate employment decision.” ROA.837. Although the district court did not invoke the CSC Logic test by name, it appeared to apply the more rigorous test for direct evidence and then disregarded the comments altogether because they did not meet the test. See id. The court erred. The direct evidence test is inappropriate where, as here, the comments are offered as circumstantial evidence of discrimination along with other evidence. See Goudeau, 793 F.3d at 475-46; Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (“Where a plaintiff offers remarks as circumstantial evidence alongside other alleged discriminatory conduct, … we apply a more flexible two-part test.”). And such circumstantial evidence may be highly probative of discrimination, as it is in this case. Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003).

B. Wallace offered sufficient evidence to support a finding that Seton’s reasons for terminating her were false.

Wallace offered evidence casting doubt on each reason Seton gave for her termination. The day Wallace was fired, Brown and Rojo told her only she was not a “cultural fit” with the company. Seton later articulated three different reasons for her termination: (1) Wallace’s attendance issues documented in the January 8 write-up, (2) Wallace’s conflicts with coworkers, and (3) Wallace was in her introductory period. Both Rojo and Brown testified that Wallace was fired based on the aggregate of these issues. “An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action.” Laxton, 333 F.3d at 578. A plaintiff must put forward evidence rebutting each of the employer’s nondiscriminatory reasons to carry her burden at the pretext stage. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013). Rather than assessing the evidence in the light most favorable to Wallace, the court took Seton at its word that it fired Wallace for attendance problems and coworker conflicts that occurred during her introductory period and overlooked the evidence that raises serious doubts about the sincerity of those reasons.

First, the district court erred by uncritically accepting that Wallace had attendance issues and by ignoring the many facts that suggest the write-up was manufactured as a pretext for her racially discriminatory discharge. There was evidence that Brown engineered a disciplinary write-up of Wallace’s tardies and absences soon after Wallace complained to Brown’s boss about Brown’s racial comments. Specifically, Brown required Wallace to go to the clinic and then instructed Islas to write up Wallace for her absences, although Seton had required Wallace to stay home because she was sick. Brown also misled Wallace about Seton’s attendance policies, telling her medical absences are excused with documentation. But the write-up characterizes Wallace’s absences as “unscheduled,” and Brown contradicted herself when she told Wallace, “[I]t doesn’t matter whether you have excuses or not. It’s going to be a write-up.” That Brown smirked at Wallace when discussing the write-up could support a jury finding that Brown had intentionally set Wallace up.

Wallace offered evidence that the write-up was improperly characterized as a Group I infraction, which is usually followed by termination. Rojo testified the write-up “should be a Group II” infraction, which requires only a written warning for a first offense. Islas expressed concern about whether the write-up should be categorized as Group I or Group II. Brown knew the distinction between the two categories but nevertheless signed off on the Group I write-up. Moreover, it is undisputed that Wallace had no attendance issues after the write-up. Thus, she followed its remedial instruction to “improve [her] time and attendance immediately,” yet was soon fired anyway. See Laxton, 333 F.3d at 581 (stating “if [the employer] were genuinely concerned about [the plaintiff]’s asserted performance-related problems, it would have permitted [her] the opportunity to explain or to improve her conduct, but it did not do so,” and noting that only six weeks elapsed between the plaintiff’s first written warning and her termination, which cast doubt on the veracity of the employer’s justification for her termination).

Second, the court ignored the evidence of Brown’s role in fomenting coworker conflicts and using them against Wallace. Brown injected race into Wallace’s relationship with McCaskill when she falsely reported that McCaskill said Wallace did not want to train “with a white girl.” This triggered the animosity with McCaskill and her friends, Flores and Trevino, setting in motion the conflicts with the three coworkers, and particularly with Brown, that led to Wallace’s termination.

The court also erred in failing to consider evidence that Seton failed to discipline or fire McCaskill, Trevino, and Flores for their role in the discord with Wallace. A jury could find Seton’s failure even to reprimand Wallace’s three coworkers—none of whom were black—is probative of pretext, as Selfridge testified that they were the troublemakers, yet “Brown permitted” them “to create conflict in our workplace.” A jury could thus conclude that although coworker conflict existed, Wallace was not its source, discrediting this as the real reason for Wallace’s termination. Vaughn v. Woodforest Bank, 665 F.3d 632, 638 (5th Cir. 2011) (pretext inquiry focuses on whether the proffered explanation was the “real reason” for adverse action).

Wallace’s evidence that Brown requested a one-sided investigation leading to Wallace’s termination constitutes additional evidence of pretext. Wallace produced evidence that Brown (1) initiated the investigation by contacting Rojo, even though no complaints about Wallace had been made to human resources previously; (2) directed Rojo only to employees with whom Wallace had conflicts; and (3) forwarded Rojo unsolicited email complaints about Wallace. Based on this evidence, a jury could conclude that Brown not only created the conflicts Seton cited as grounds for firing Wallace but then pinned the blame on Wallace and manipulated the investigation to get Wallace fired.

A jury could also find pretext based on Seton’s shifting reasons for Wallace’s termination and its deviation from its standard practice when terminating an employee. Brown and Rojo gave Wallace no reason for her termination at the time of her firing except to tell her that she was not a “cultural fit” with Seton. Rojo did not input a termination reason into Seton’s computer system based on advice she received from the legal department, which was a departure from Seton’s typical practice. A jury could thus infer from Rojo’s failure to enter a reason for Wallace’s termination that the actual reason Wallace was fired was a discriminatory one, and that Seton’s later asserted reasons were post-hoc justifications. See generally Feist v. La., Dep’t of Justice, 730 F.3d 450, 454-55 (5th Cir. 2013) (employer’s departure from typical policies and procedures offered to support pretext).

Additionally, Brown’s significant credibility issues further amplify the importance of a jury deciding this case. See Laxton, 333 F.3d at 582 (employer witnesses’ lack of credibility strengthened the plaintiff’s case before a jury). A jury could find that Brown lied to Wallace about hearing that Wallace said she did not want to traine with a white girl, misrepresented to Wallace that her write-up was “only a Group I” violation when she knew it was the more serious classification that would trigger her termination, and falsely told Wallace that the write-up would “drop off her record” and that the reason for her absences was irrelevant. Brown told Wallace that everything was fine and that she had nothing to worry about just prior to firing her.

Moreover, during her deposition, Brown denied ever using the phrase “homegirl personality,” notwithstanding that the term appears in an email she authored. Brown denied telling Rojo whom to interview about Wallace’s clashes with coworkers, despite Rojo’s testimony that she interviewed only the people Brown identified. Brown even testified that she did not recall Wallace having ongoing conflicts with McCaskill, Trevino, and Flores.

This evidence, coupled with Brown’s race-based comments and evidence disputing that Wallace had serious attendance or coworker issues, could lead a jury to conclude that Seton’s “proffered explanation is false or ‘unworthy of credence[,]’” and that race discrimination was the real reason for Wallace’s termination. Id. at 578.

II. The district court erred in granting summary judgment on Wallace’s retaliation claim.

Wallace offered sufficient evidence to support a finding that Seton’s proffered reasons for firing her are a pretext for retaliation. A plaintiff must provide specific evidence that could support a finding that she would not have experienced an adverse action in the absence of her protected conduct. Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (but-for causation applies to Title VII retaliation claims).

The court again erred in holding that Wallace’s pretext evidence fell short. Wallace was fired less than three months after complaining about Brown’s race-based comments, and just six weeks after Brown promised to “get” Wallace for getting Brown in trouble with Cadena. A jury could conclude that Brown was true to her word. Shortly after Cadena learned of Brown’s statements and Brown threatened Wallace, Wallace received a questionable “Group I” write-up for attendance problems and was the subject of a biased, Brown-controlled “investigation” about Wallace’s coworker conflicts. These two events led directly to her termination, which occurred just three weeks after the January 8 write-up and only a few days after Rojo’s investigation. See Robinson v. Jackson State Univ., 714 F. App’x 354, 363 (5th Cir. 2017) (evidence official made specific threat of termination against the employee for engaging in protected activity supported pretext finding). A jury could conclude on this record that, but for Wallace’s complaints about Brown’s racially-charged statements, Seton would not have fired her.

The court stated that Seton “produced summary judgment evidence that Plaintiff was in her introductory period and her attendance and tardiness were problematic. Additionally, it is documented that Plaintiff had conflicts with … co-workers.” ROA.843. This again misses the point. The evidence, accepted in the light most favorable to Wallace, would allow the jury to reach an entirely different set of conclusions: that Wallace was fired after her introductory period ended; her write-up for attendance and tardiness issues was inaccurate; her write-up was misclassified as a termination-eligible infraction, inconsistent with Seton’s policies; Brown engineered the write–up to get rid of Wallace; and Wallace’s conflicts with coworkers were caused by Brown and McCaskill, Trevino, and Flores, not Wallace. Because a jury could disbelieve Seton’s proffered reasons for firing Wallace, it could infer the real reason was retaliation. See Gee v. Principi, 289 F.3d 342, 348 (5th Cir. 2002) (citing Reeves, 530 U.S. at 146-48, for the proposition that a “factfinder may infer the ultimate fact of retaliation from the falsity of the [employer’s] explanation” and reversing summary judgment where the plaintiff cast doubt on the employer’s stated nonretaliatory reason for the plaintiff’s nonselection).

Conclusion

For the foregoing reasons, summary judgment should be reversed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Certificate of Service

I, Julie L. Gantz, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 29th day of August 2018. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 29th day of August 2018, to all counsel of record.