United States Court of Appeals

for the Fifth Circuit

No. 20-20334

Aisha Wright, 

Plaintiff—Appellant,

versus

Union Pacific Railroad Company, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-203

Before Stewart, Higginson, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge: 

Aisha Wright sued her former employer, Union Pacific Railroad 

Company, alleging that Union Pacific violated Title VII of the Civil Rights 

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, by suspending her, and later 

terminating her, in retaliation for her 2016 lawsuit against the company and 

her 2018 internal complaint. Wright also alleged that Union Pacific violated 

the Railway Labor Act (“RLA”), 45 U.S.C. § 152, and the Texas Labor Code 

(“TLC”), Tex. Lab. Code §§ 101.001 and 101.301, by retaliating against 

her because of her requests for union representation. The district court 

granted Union Pacific’s motion to dismiss, and Wright appeals. We 

United States Court of Appeals

Fifth Circuit

FILED

March 5, 2021

Lyle W. Cayce

Clerk

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AFFIRM in part, REVERSE in part, and REMAND for further 

proceedings. 

BACKGROUND

Wright worked for Union Pacific Railroad Company from 1996 to 

2018. Relevant to this case, in 2013, Wright began working as a claims

representative at Union Pacific’s Palestine, Texas location. In 2015, Wright 

lodged complaints of discrimination and retaliation both internally at Union 

Pacific and with the Equal Employment Opportunity Commission. 

Union Pacific terminated Wright from the claims-representative 

position in March 2016. But as a union member, Wright had “bumping”

rights that allowed her to seek another position with Union Pacific. 

Exercising those rights, in April 2016, Wright began working as a materials

handler at Union Pacific’s Houston warehouse. The same month, Wright’s 

new supervisor, Duane Merchant, asked Wright about her employment 

discrimination claims. During that discussion, Merchant told Wright that 

her husband had also filed a complaint against Union Pacific and actually 

referred Wright to two attorneys.

In August 2016, Wright sued Union Pacific for the discrimination and 

retaliation she allegedly experienced at the Palestine location. The parties 

settled that case in January 2018. Five months later, in June 2018, Wright 

disagreed with Merchant about her pay during some time off and appealed to 

Merchant’s supervisor. Wright alleges that Merchant’s behavior changed 

after this pay dispute, with Merchant trying to find ways to damage Wright’s 

employment record. 

On July 10, 2018, Merchant called Wright to review video of Wright 

receiving merchandise. Apparently, some fuel injectors were missing from a 

delivery of supplies. Wright maintained that she did nothing wrong. 

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On July 19, 2018, Merchant informed Wright that she was writing 

Wright up and instructed Wright to undergo coaching after work. When 

Wright requested union representation for the coaching session, Merchant 

called local union chairman Dennis Williams but was unable to reach him. 

Merchant advised Wright that she should nonetheless proceed with 

coaching. Wright agreed to coaching but again requested representation. 

Wright then called a national union representative, Jeff Egnoske. During the 

call, Wright experienced labored breathing, so much that Egnoske urged her 

to seek medical attention. Wright went to the emergency room, where she 

learned that she was having a panic attack. 

Wright returned to work the next day, Friday, July 20, 2018. Again, 

Merchant instructed Wright to undergo coaching. And again, Wright 

requested union representation during the coaching session. In response, 

Merchant placed Wright on a different assignment. After speaking with a 

union representative, Wright asked Merchant to postpone the coaching 

session until a union representative was available. Merchant responded that 

Wright would work on another assignment until she completed coaching. 

The same day, Wright called Union Pacific’s internal Equal 

Employment Opportunity (“EEO”) line. Wright complained that Merchant 

had created a hostile work environment and discriminated against her. 

Wright also complained that Merchant seemed to mock her for requesting 

union representation before she would participate in the coaching session. 

On Monday, July 23, the first business day after Wright’s internal 

complaint, Merchant again instructed Wright to complete the coaching 

session. Merchant informed Wright that failure to undergo coaching could 

trigger discipline. When Wright requested union representation again, 

Merchant suspended her for insubordination. 

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On July 24, union representatives called Wright and instructed her to 

come to work the next day for coaching with Merchant. Dennis Williams was 

set to participate as Wright’s union representative. But when Wright arrived 

at work on July 25, Merchant was not there. A supervisor tried calling 

Merchant but could not reach her. Williams then instructed Wright to go 

home.

The same day, Union Pacific notified Wright of a disciplinary hearing 

against her. At the hearing on August 15, 2018, Wright testified that she 

never refused coaching but simply requested to have a union representative

present. Wright also testified that she had received union representation for 

earlier coaching sessions at Union Pacific. On August 23, 2018, a month after 

Wright’s internal EEO complaint, Union Pacific terminated Wright for 

insubordination. 

Wright subsequently filed this action against Union Pacific. In her 

complaint, Wright alleged that Union Pacific violated Title VII by 

suspending her and then terminating her in retaliation for her 2016 lawsuit 

against the company and her 2018 internal EEO complaint. Wright also 

alleged that Union Pacific violated the RLA, 45 U.S.C. § 152, and the TLC, 

Tex. Lab. Code §§ 101.001 and 101.301, by retaliating against her for 

requesting union representation during the coaching session Merchant 

required. 

After Wright filed her Second Amended Complaint, Union Pacific 

moved to dismiss Wright’s suit for lack of subject-matter jurisdiction under 

Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon 

which relief can be granted under Rule 12(b)(6). The district court granted 

Union Pacific’s motion. The court dismissed Wright’s Title VII claim for 

failure to state a claim, holding that Wright did not show a causal connection 

between her termination and her earlier lawsuit and internal complaint. The 

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court also dismissed Wright’s RLA claim for lack of jurisdiction and, 

alternatively, for failure to state a claim, reasoning that arbitration was the 

exclusive remedy instead. The court similarly dismissed Wright’s TLC 

claim for failure to state a claim. 

Wright now appeals. She contends that she plausibly alleged 

causation to support her Title VII retaliation claim, properly brought her 

RLA retaliation claim in federal court, and plausibly alleged retaliation under 

TLC §§ 101.001 and 101.301. We review each of these contentions in turn. 

STANDARD OF REVIEW

We review both dismissals for failure to state a claim and dismissals 

for lack of jurisdiction de novo. Equal Access for El Paso, Inc. v. Hawkins, 509

F.3d 697, 701–02 (5th Cir. 2007); Ramming v. United States, 281 F.3d 158,

161 (5th Cir. 2001). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 

facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id.

DISCUSSION

A.

First, Wright asserts that Union Pacific violated Title VII by 

terminating her in retaliation for her 2016 lawsuit and her 2018 internal EEO 

complaint. To establish Title VII retaliation, Wright must show that 1) she 

engaged in protected activity, 2) she suffered an adverse employment action, 

and 3) a causal link exists between the protected activity and the adverse 

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employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 

1996). 

Finding “no evidence . . . that Merchant retaliated against Wright 

after she complained,” the district court dismissed Wright’s Title VII claim

because she failed to show causation. But a plaintiff does “not have to submit 

evidence to establish a prima facie case . . . at [the pleading] stage.” Chhim

v. Univ.of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016); see also Raj v. La.

State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (“[A] plaintiff need not make 

out a prima facie case . . . to survive a Rule 12(b)(6) motion to dismiss for 

failure to state a claim.”). Rather, Wright only needed “plausibly [to] allege 

facts going to the ultimate elements of the claim to survive a motion to 

dismiss.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 768 (5th Cir. 

2019) (vacating Rule 12(b)(6) dismissal of a Title VII claim, despite lack of 

evidence, because plaintiffs plausibly alleged disparate treatment). Thus, the 

district court erred to the extent it required Wright to substantiate her Title 

VII retaliation claim with evidence at the pleading stage.

Beyond that, the parties dispute whether Wright plausibly alleged the 

ultimate element of causation. To do so, Wright had to plead facts permitting 

a reasonable inference that Union Pacific terminated her because of her 2016 

lawsuit or her 2018 internal EEO complaint. See Iqbal, 556 U.S. at 678. First, 

Union Pacific contends that Wright’s 2016 lawsuit was too remote to have 

caused retaliation. We agree. 

By Wright’s own account, Merchant knew about the claims 

underlying Wright’s 2016 lawsuit in April 2016. Yet Wright was not 

suspended until July 2018, or terminated until August 2018, more than two 

years later. Even given Merchant’s awareness of Wright’s 2016 lawsuit, this

two-year lapse is indeed too remote to permit a reasonable inference of 

causation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) 

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(holding that an adverse action taken twenty months after employer became 

aware of protected activity “suggests, by itself, no causality at all”); Leal v.

McHugh, 731 F.3d 405, 417 (5th Cir. 2013) (affirming dismissal of retaliation 

claim because “a three-year lapse, at best, between the protected activity and 

the adverse employment action is too attenuated temporally to state a claim 

for relief, even if [plaintiff’s supervisor] was aware of the activity”).

But Wright’s 2018 internal complaint is a different matter. That call 

to Union Pacific’s EEO line is fairly contemporaneous with Union Pacific’s 

adverse actions. Merchant suspended Wright just one business day after 

Wright complained internally. And about a month later, Union Pacific 

terminated Wright. This close timing permits an inference of causation. See, 

e.g., Outley v. Luke & Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016) (finding 

that “the close timing between [plaintiff’s] protected activity and the denial 

of a raise—about two months—is sufficient to show causal connection”).

Union Pacific counters that Wright did not allege that Merchant or

any other decision-maker knew about the 2018 internal EEO complaint when 

the adverse employment actions were taken. “We have determined that, in 

order to establish the causation prong of a retaliation claim, the employee 

should demonstrate that the employer knew about the employee’s protected 

activity.” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 

2003) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001); 

Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir.

1999)). Quite logically, “[i]f an employer is unaware of an employee’s 

protected conduct at the time of the adverse employment action, the 

employer plainly could not have retaliated against the employee based on that 

conduct.” Chaney, 179 F.3d at 168. At the pleading stage, this means that 

Wright was required to allege facts permitting at least an inference of her 

employer’s knowledge of her protected conduct in order to establish the 

required causal link between her conduct and the alleged retaliation. See

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Manning, 332 F.3d at 883 & n.6; Chaney, 179 F.3d at 168. We conclude that

Wright sufficiently alleged such facts. 

According to Wright’s complaint, Merchant initially agreed to coach 

her with union representation present. But after Wright complained 

internally, Merchant suspended her for refusing to undergo coaching without 

union representation. Then, when union representatives scheduled a 

coaching session with Wright and Merchant, Merchant did not show. This 

alleged change in Merchant’s behavior, coupled with the close timing of the 

adverse actions taken by Union Pacific, permits an inference that Merchant

knew about Wright’s 2018 internal EEO complaint. Cf. Robinson v. Jackson

State Univ., 714 F. App’x 354, 361 (5th Cir. 2017) (“All the categories of 

evidence outlined above [including] temporal proximity [and] . . . changed 

decisionmaker behavior following complaints, . . . are among the prototypical 

circumstantial indicators of decisionmaker knowledge (and of causation in a 

broader sense).”). At least at the pleading stage, Wright plausibly alleged a 

causal link between her 2018 internal EEO complaint and her subsequent 

suspension and termination. We therefore reverse the district court’s Rule 

12(b)(6) dismissal of Wright’s Title VII claim and remand for further 

proceedings. 

B.

Next, Wright contends that Union Pacific violated the RLA by 

terminating her in retaliation for her requests for union representation. See

45 U.S.C. § 152, Third and Fourth. The provisions enumerated in RLA 

§ 152 protect “employees’ freedom to organize and to make choice of their 

representatives” without company interference or pressure. Trans World

Airlines, Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426, 440 (1989)

(citation and internal quotation marks omitted). Generally, RLA claims are

classed as either “major” disputes, which fall within district courts’ narrow

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jurisdiction, or “minor” disputes, which are subject to binding arbitration. 

Consol. Rail Corp. v. Ry. Labor Execs. Ass’n, 491 U.S. 299, 302–04 (1989) 

(“Conrail”). Concluding that arbitration was the proper remedy here, the 

district court dismissed Wright’s RLA claim for lack of subject-matter 

jurisdiction and, alternatively, for failure to state a claim. We agree that 

dismissal was warranted.

Federal jurisdiction over an RLA claim turns on whether the dispute

is categorized as “major” or “minor.” Id. “Major” disputes concern “the 

formation of collective agreements or efforts to secure them . . . . They look 

to the acquisition of rights for the future, not to assertion of rights claimed to 

have vested in the past.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 

(1945). “Minor” disputes “contemplate[] the existence of a collective 

agreement already concluded.” Id. They relate “to the meaning or proper 

application of a particular provision with reference to a specific situation.” 

Id. In other words, “the claim is to rights accrued, not merely to have new 

ones created for the future.” Id. 

In major disputes, “district courts have subject-matter jurisdiction to 

enjoin a violation of the status quo pending completion of the required 

procedures, without the customary showing of irreparable injury.” Conrail, 

491 U.S. at 303. By contrast, district courts do not have jurisdiction over 

minor disputes, which are “subject to compulsory and binding arbitration

before the National Railroad Adjustment Board, [45 U.S.C. § 153], or before

an adjustment board established by the employer and the unionsrepresenting

the employees.” Id. “[I]f there is any doubt as to whether a dispute is major

or minor a court will construe the dispute to be minor.” BNSF Ry. Co. v.

Int’lAss’n of Sheet Metal,Air, Rail & Transp. Workers – Transp. Div., 973 F.3d 

326, 335 (5th Cir. 2020) (citation omitted).

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Union Pacific bears a “relatively light burden . . . in establishing

exclusive arbitral jurisdiction under the RLA.” Conrail, 491 U.S. at 307. 

Wright’s RLA claim is a minor dispute if her termination was “arguably 

justified by the terms of the parties’ collective-bargaining agreement.” Id. 

Wright contends that her RLA retaliation claim is not a minor dispute

because it is independent of the governing collective-bargaining agreement

(the “CBA”). But this assertion fails because Wright’s claim rests upon the 

CBA’s implied terms. Wright alleges that Union Pacific previously provided

union representation during coaching sessions but then terminated her for

requesting such representation for her latest coaching session. Union

Pacific’s past practices regarding union representation involve the CBA’s

implied terms. See Conrail, 491 U.S. at 311. As a result, Wright’s RLA claim

is a minor dispute subject to arbitration. See Brotherhood of Ry. Carmen (Div.

of TCU) v. Atchison, Topeka & Santa Fe Ry. Co., 894 F.2d 1463, 1469 (5th Cir. 

1990) (finding that “claims based on implied terms—specifically, the past 

practices of the parties . . .—do have some arguable basis sufficient 

to render this a minor dispute”). 

Fairly clearly, Union Pacific meets its “relatively light burden” here. 

Wright is not negotiating a new collective agreement for the future. Instead,

Wright asserts that Union Pacific previously provided her, and other

employees, union representation during coaching and discipline. That is, 

Wright alleges that Union Pacific violated a right that had “vested in the 

past.” Burley, 325 U.S. at 723. It follows that Wright’s RLA claim is a minor

dispute and subject to the RLA’s exclusive and compulsory arbitration

provisions.

Moreover, Wright sued only Union Pacific. Her RLA claim is thus

not bound up with a claim against her union. See Trial v. Atchison, Topeka &

Santa Fe Ry. Co., 896 F.2d 120, 123 (5th Cir. 1990) (noting that “[a]n

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exception to the exclusive [arbitral] jurisdiction of the [National Railroad

Adjustment] Board exists, however, when the employee has not only a

dispute with the employer . . . but also a claim against the union”). This

further demonstrates that Wright’s RLA claim is a minor dispute subject to

arbitration. The district court properly dismissed Wright’s RLA claim for

lack of jurisdiction.

Finally, Wright contends that Union Pacific violated TLC §§ 101.001 

and 101.301 by terminating her in retaliation for her requests for union 

representation. But “[t]he RLA’s arbitral remedy is mandatory and 

exclusive for minor disputes. State law claims that involve these disputes 

are pre-empted.” Anderson v. Am. Airlines, Inc., 2 F.3d 590, 594 (5th Cir. 

1993) (citations omitted). Wright’s TLC claim is identical to her RLA claim. 

Thus, the RLA preempts Wright’s TLC claim. And the district court 

therefore properly dismissed it.

CONCLUSION

Based on the foregoing, we REVERSE the district court’s dismissal 

of Wright’s Title VII retaliation claim and REMAND for further 

proceedings. We AFFIRM the district court’s dismissal of Wright’s 

remaining claims. 

AFFIRMED in part, REVERSED in part, and REMANDED.

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