IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30244

DEAN VICKNAIR,

Plaintiff – Appellant

v.

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; 

STATE OF LOUISIANA,

Defendants – Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:10-CV-551

Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Dean Vicknair filed this action against the Louisiana Department of 

Public Safety and Corrections (DPS) and the State of Louisiana, claiming

violations of Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq., and 

Louisiana Revised Statutes § 23:967. Defendants were awarded summary 

judgment under Federal Rule of Civil Procedure 56 on Vicknair’s retaliatoryreassignment and constructive-discharge claims, but denied it on whether he

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 4, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-30244 Document: 00512522205 Page: 1 Date Filed: 02/04/2014
No. 13-30244

had been suspended in retaliation for filing his first of two complaints with the 

Equal Employment Opportunity Commission (EEOC). During discovery, 

Vicknair failed repeatedly to produce certain documents for DPS; it was 

awarded sanctions. At trial on the one remaining claim (retaliation for filing 

first EEOC complaint), the court excluded, based on attorney-client privilege,

an e-mail between the assistant to the superintendent of DPS and its general 

counsel. After Vicknair completed his case-in-chief, Defendants moved 

successfully under Rule 50 for judgment as a matter of law. Vicknair

challenges the summary judgment, sanctions, exclusion of the e-mail, and 

judgment as a matter of law. AFFIRMED.

I.

Vicknair began working at DPS in 1989, as a temporary, part-time clerk 

in the records unit of the office of motor vehicles. Subsequently, he was 

employed full time, and promoted several times, first to work in insurance 

compliance, and then in more technical roles, as DPS began using the Internet. 

In 1999, Vicknair moved to the data processing unit, as a computer-support 

specialist, to develop a website for DPS. He was promoted to programmer and 

worked on Lotus Notes administration. 

In February 2004, Vicknair left DPS to work at the Department of 

Transportation and Development. That June, he testified as part of DPS’

internal investigation (sexual harassment) against his former DPS manager,

Selvaratnam. 

In November 2005, in the wake of Hurricane Katrina, DPS rehired 

Vicknair. Approximately three and one-half years later, in April 2009, 

Selvaratnam, now DPS’ IT director, reassigned Vicknair to fill a vacancy. 

According to Vicknair, the new position had “the same responsibilities”, but he 

felt “micromanaged” by his supervisor, Artall. 

2

 Case: 13-30244 Document: 00512522205 Page: 2 Date Filed: 02/04/2014
No. 13-30244

Almost immediately after the reassignment, there was tension between 

Artall and Vicknair, including one episode in which Artall refused to sign leave 

slips when Vicknair sought leave for a death in the family, and another, in 

which Artall erroneously accused Vicknair of failing to complete assignments. 

Vicknair approached Tillman, compliance program director for DPS’ 

equal-employment-opportunity section (DPS’ EEOC director), and Boudreaux, 

DPS’ undersecretary for the office of management and finance, claiming a 

hostile-work environment. Boudreaux transferred Vicknair temporarily from 

Artall’s supervision, pending an investigation. Several days later, Vicknair 

filed grievances with DPS against Artall, for a hostile-work environment; the

next week, against Selvaratnam, for retaliation.

In late June, Vicknair accepted DPS’ proposed solution for his grievance 

against Artall: for Artall, people-skills and management training; for Vicknair, 

transfer to a different supervisor. DPS later closed, for insufficient evidence,

Vicknair’s grievance against Selvaratnam. 

In late August, Vicknair began the process to file his first EEOC 

complaint, including delivering the results of his own investigation—a 

timeline—to Tillman, DPS’ EEOC director, claiming retaliatory reassignment 

by Selvaratnam because of Vicknair’s participation in the 2004 investigation

of Selvaratnam. He signed the complaint in early September. 

That November, DPS internal-affairs investigators interviewed 

Vicknair, concerning his inclusion of certain e-mails in the timeline he had 

delivered to Tillman. Vicknair admitted using an encrypted database—the 

“mail-journaling database”—to which only he had access, to locate and copy emails from third parties within DPS. One such e-mail was from Jones, 

confidential assistant to DPS’ deputy secretary Edmonson, to DPS’ general 

counsel, commenting on the internal investigation of Selvaratnam. As a result 

3

 Case: 13-30244 Document: 00512522205 Page: 3 Date Filed: 02/04/2014
No. 13-30244

of that interview with Vicknair, on 4 November 2009, undersecretary 

Boudreaux suspended Vicknair with pay, pending a full investigation. 

That 23 November, Vicknair filed a second EEOC complaint. He claimed

the suspension constituted retaliation for filing his first EEOC complaint and

stated he would most likely be terminated after his suspension. 

By a 21 December letter of intent to terminate, Boudreaux informed

Vicknair he had violated DPS’ IT policies (Email & Internet Usage, User 

Responsibilities) and other DPS policies (Lawful Orders, Conduct Unbecoming 

an Employee). In his 22 December response to Boudreaux’s letter, Vicknair 

elected to retire on 26 December; in a 28 December e-mail to the EEOC,

Vicknair attached that response to Boudreaux’s letter, requesting it be 

included as an amendment to his second EEOC complaint. 

Vicknair filed this action in August 2010. He claimed harassment, 

retaliation, and a hostile-work environment, in violation of Title VII and 

Louisiana Revised Statutes § 23:967. Prior to then, in early November 2009, 

DPS internal-affairs investigators sought initially to secure documents 

Vicknair had copied. DPS continually requested return of the e-mails, first as 

part of that internal investigation, and later in requests for production of 

documents in this action. Document discovery closed in September 2011. 

In October 2011, coinciding with the ongoing discovery disputes, DPS 

moved for summary judgment on all claims. In May 2012, DPS expressed 

concern to Vicknair’s counsel over Jones’ e-mail to DPS’ general counsel being 

included as an exhibit in support of Vicknair’s opposition to DPS’ second 

summary-judgment motion. DPS informed Vicknair of its intent to move to 

compel if it did not receive confirmation that all requested documents had been 

produced. By late June 2012, DPS still had not received copies of the requested

files or access to Vicknair’s electronic database. 

4

 Case: 13-30244 Document: 00512522205 Page: 4 Date Filed: 02/04/2014
No. 13-30244

Therefore, that July, DPS moved to compel production and requested a 

protective order and sanctions. The court granted DPS’ motion in October 

2012, requiring Vicknair to produce a paper copy of every e-mail and a copy of 

the drive on which they were stored, as well as awarding DPS $250 in court 

costs and attorney’s fees, respectively. 

Earlier that year, in February, summary judgment had been awarded 

against Vicknair’s retaliatory-reassignment and constructive-discharge

claims. It had been denied, however, for his claim, based on his second EEOC 

complaint, that DPS retaliated against him by suspending him for filing his 

first EEOC complaint (claimed retaliation by Selvaratnam). 

Trial was held in February 2013 on that remaining claim. In his casein-chief, Vicknair presented evidence that DPS employees expected him, as 

Lotus Notes administrator, to be able to access their accounts, although he was 

not authorized to peruse employee e-mails without prior authorization. 

Vicknair testified Selvaratnam despised him, should never have been 

promoted, and should have been fired. Vicknair maintained he had done 

nothing unethical, and, as the systems administrator, “had the keys to the 

kingdom”. 

During his case-in-chief, when Vicknair attempted to introduce Jones’ email to DPS’ general counsel, DPS objected, noting its repeated attempts to 

have the document excluded on privilege grounds. The court questioned 

Vicknair’s counsel; and, in support of the e-mail’s admission, Vicknair provided 

the following offer of proof: he had obtained the file while searching the mailjournaling database, filtering for his name, to find out “[w]hat else have they 

hidden from me?”. The court ruled the attorney-client privilege applied and, 

therefore, did not allow the e-mail in evidence. 

5

 Case: 13-30244 Document: 00512522205 Page: 5 Date Filed: 02/04/2014
No. 13-30244

Also during Vicknair’s case-in-chief, DPS’ deputy secretary, Edmonson,

was called, out of order, as a witness by DPS. He testified he had no qualms 

about reprimanding or even firing friends if they disobeyed rules, and he did 

not hold grudges against employees for filing grievances. 

As discussed supra, Boudreaux suspended Vicknair on 4 November 2009 

and signed the 21 December 2009 letter of intent to terminate him. The 

decisions to suspend and terminate Vicknair, conveyed by Boudreaux, were at 

the core of his retaliation claim being tried. Nevertheless, he did not call 

Boudreaux as a witness.

After Vicknair completed his case-in-chief, DPS moved under Rule 50 for 

judgment as a matter of law. In granting the motion, the court ruled: “[T]he 

plaintiff has not established that there is any evidence that should go to the 

jury, upon which a reasonable jury could make a decision that the appointing 

authority, Ms. Boudreaux, made the decision to suspend Mr. Vicknair with 

pay, pending an investigation[, as retaliation for Vicknair’s having] testified 

previously . . . or [having] filed a grievance against Mr. Selvaratnam or against 

Mr. Artall”. 

II.

Vicknair challenges: the summary judgment against his retaliatoryreassignment and constructive-discharge claims; the discovery sanctions; the 

Jones-e-mail’s exclusion at trial; and the judgment as a matter of law on his 

retaliation claim for filing his first EEOC complaint. 

For the three merits claims, and although Vicknair’s briefing is unclear, 

we construe his briefs to advance three inter-related and overlapping theories 

of retaliation: retaliatory reassignment, constructive discharge, and 

retaliatory suspension. As discussed, summary judgment was awarded DPS 

6

 Case: 13-30244 Document: 00512522205 Page: 6 Date Filed: 02/04/2014
No. 13-30244

for the first two issues; for the third, it was awarded judgment as a matter of 

law. 

Vicknair maintains he asserted a claim on another ground: imposition 

of a hostile-work environment. Vicknair presented evidence of a hostile-work 

environment, however, as part of his retaliatory-reassignment and 

constructive-discharge theories, rather than as a separate claim. See, e.g.,

Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (treating 

constructive discharge as aggravated hostile-work-environment claim), aff’d, 

511 U.S. 244 (1994).

And, although Vicknair cites Louisiana Revised Statutes § 23:967 as a 

basis for relief in his complaint, there is no mention of that statute in his briefs. 

Therefore, the state-law issues are not considered. E.g., Adams v. Unione 

Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised 

or inadequately briefed on appeal are waived.”) (citations omitted).

A.

A summary judgment is reviewed de novo, applying the same standard 

as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y 

Gen., 730 F.3d 450, 452 (5th Cir. 2013) (citation omitted). Summary judgment 

is proper when “there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). In 

determining whether to grant summary judgment, the court views the facts 

and evidence in the light most favorable to the non-movant, Vicknair. E.g.,

Dameware Dev., LLC v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07 (5th Cir. 

2012) (citation omitted). 

1.

“The antiretaliation provision [42 U.S.C. § 2000e-3(a)] seeks to prevent 

employer interference with unfettered access to Title VII’s remedial 

7

 Case: 13-30244 Document: 00512522205 Page: 7 Date Filed: 02/04/2014
No. 13-30244

mechanisms.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 

(2006) (citation and internal quotation marks omitted). Title VII does not 

prohibit all retaliation, but rather those employment actions that are 

“materially adverse, one[s] that would dissuade a reasonable worker from 

making or supporting a charge of discrimination”. Stewart v. Miss. Transp. 

Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (alterations, citation, and internal 

quotation marks omitted). “A plaintiff establishes a prima facie case of

retaliation by showing (i) he engaged in a protected activity, (ii) an adverse 

employment action occurred, and (iii) there was a causal link between the 

protected activity and the adverse employment action.” Hernandez v. Yellow 

Transp., Inc., 670 F.3d 644, 657 (5th Cir.) (citation omitted), cert. denied, 133 

S. Ct. 136 (2012). Once plaintiff makes a prima facie showing, the burden 

shifts to the employer to present “a legitimate, non-discriminatory or nonretaliatory reason” for the challenged action. McCoy v. City of Shreveport, 492 

F.3d 551, 557 (5th Cir. 2007) (citations omitted). The burden on the employer 

entails production rather than persuasion. Id. (citation omitted). If the 

employer presents a legitimate reason, plaintiff “bears the ultimate burden of 

proving that the employer’s proffered reason is not true but instead is a pretext 

for the real discriminatory or retaliatory purpose”. Id. (citation omitted).

In the context of summary judgment, “plaintiff’s subjective belief, 

without more, that an adverse employment action was retaliatory is 

insufficient to survive summary judgment”. Gollas v. Univ. of Tex. Health Sci. 

Ctr. at Hous., 425 F. App’x 318, 321 (5th Cir. 2011) (citing Byers v. Dall.

Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000)). 

Where, as here for the retaliatory-reassignment claim, lateral 

reassignment constitutes the claimed adverse employment action, the 

surrounding circumstances are considered. E.g., Aryain v. Wal-Mart Stores 

8

 Case: 13-30244 Document: 00512522205 Page: 8 Date Filed: 02/04/2014
No. 13-30244

Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008) (finding such transfer did not 

constitute adverse employment action where there was no change in pay and 

father of college-age plaintiff requested transfer). There was no evidence

Vicknair suffered a reduction in salary; instead, he received a change in his 

salary range. Likewise, he did not present evidence of a loss of standing with 

his fellow employees, a decrease in benefits, a loss of prestige, or a lessening of 

responsibilities. See, e.g., Magiera v. City of Dallas, 389 F. App’x 433, 438 (5th 

Cir. 2010) (citing, inter alia, Stewart, 586 F.3d at 332). 

Even assuming arguendo the reassignment constitutes an adverse 

employment action, Vicknair must establish a causal link between the 

protected activity (his involvement in the 2004 investigation), and the adverse 

employment action (in 2009). Although Vicknair believed his reassignment in 

April 2009 to being under Artall was in retaliation for his participation in the 

2004 sexual-harassment investigation of Selvaratnam, his subjective belief is 

not enough to establish the requisite causal link between the adverse 

employment action and the protected conduct. Accordingly, summary 

judgment against this claim was proper.

2.

Vicknair was required to exhaust administrative remedies, by filing an 

EEOC complaint, before seeking judicial relief because “a primary purpose of 

Title VII is to trigger the investigatory and conciliatory procedures of the 

EEOC, in attempt to achieve non-judicial resolution of employment 

discrimination claims”. Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 

2006) (citation omitted). In district court, DPS maintained the second EEOC 

complaint, for retaliation, did not put DPS on the requisite notice of the 

constructive-discharge claim. The court pretermitted the question of whether 

9

 Case: 13-30244 Document: 00512522205 Page: 9 Date Filed: 02/04/2014
No. 13-30244

Vicknair exhausted administrative remedies and dismissed the constructivedischarge claim on the merits. 

In any event, we “may affirm the district court’s decision on any basis 

presented to the district court”. Haverda v. Hays Cnty., Tex., 723 F.3d 586, 591 

(5th Cir. 2013) (citation and internal quotation marks omitted). Accordingly, 

we turn first to exhaustion vel non. 

Although EEOC claims are construed somewhat broadly to “protect[] 

unlettered lay persons making complaints”, that broad construction extends 

“as far as, but no further than, the scope of the EEOC investigation which could 

reasonably grow out of the administrative charge”. Fine v. GAF Chem. Corp., 

995 F.2d 576, 578 (5th Cir. 1993) (citation and internal quotation marks 

omitted). “However, ‘a charging party’s rights should [not] be cut off merely 

because he fails to articulate correctly the legal conclusion emanating from his 

factual allegations.’” Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 

269, 272 (5th Cir.) (alteration in original) (quoting Sanchez v. Standard 

Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)), cert. denied, 134 S. Ct. 117 

(2013). Instead, the court asks whether the charge “stated sufficient facts to 

trigger an EEOC investigation and to put an employer on notice of the 

existence and nature of the charges”. Id. at 272–73. (citations omitted). 

Even assuming Vicknair adequately amended his second EEOC 

complaint by forwarding to the EEOC a copy of his response to Boudreaux’s 

letter of intended termination, the amended complaint cannot be construed so 

broadly as to encompass the constructive-discharge claim. Vicknair’s second 

EEOC complaint expressly claimed retaliation, and nothing else, for filing his 

first EEOC complaint. The reasonable scope of an EEOC investigation of that 

second EEOC complaint would encompass DPS’ response to Vicknair’s filing 

the first EEOC complaint, including DPS’ investigation of his use of the mail10

 Case: 13-30244 Document: 00512522205 Page: 10 Date Filed: 02/04/2014
No. 13-30244

journaling system and DPS’ subsequent decision to suspend or terminate 

Vicknair. Nothing in the facts alleged in the second EEOC complaint put DPS 

on notice of a possible constructive-discharge claim. Therefore, Vicknair failed 

to exhaust administrative remedies and cannot seek judicial relief on that 

claim. Summary judgment was proper.

B.

We review for abuse of discretion sanctions imposed by the district court 

under Rule 37(b) (failure to comply with a court’s discovery order). E.g., Smith 

& Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012). 

Conclusions of law are reviewed de novo; findings of fact, for clear error. Id.

(citation omitted). Rule 37(b) permits, inter alia, striking pleadings, 

dismissing the action, and rendering a default judgment against the 

noncompliant party. Fed. R. Civ. P. 37(b)(2)(A). Sanctions must be both just 

and specifically related to the claim at issue in the discovery order. KeyBank 

Nat’l Ass’n v. Perkins Rowe Assocs., LLC, No. 12-30998, 2013 WL 4446820, at

*5 (5th Cir. 21 Aug. 2013) (per curiam) (citing Ins. Corp. of Ireland, Ltd. v. 

Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). The movant for 

sanctions need not demonstrate willfulness for “sanctions which are less harsh 

than a dismissal or default judgment”. Chilcutt v. United States, 4 F.3d 1313, 

1322 (5th Cir. 1993). 

After well over a year of attempting to secure production of the e-mail

correspondence copied from the mail-journaling database, DPS moved to 

compel production and simultaneously moved for a protective order and 

sanctions. In granting the motion and awarding to DPS $250 in attorney’s fees 

and costs, respectively, the district court noted DPS’ multiple attempts to 

obtain the information and the inconsistency between Vicknair’s claim he did 

not have access to the e-mails and his inclusion of a confidential, undisclosed 

11

 Case: 13-30244 Document: 00512522205 Page: 11 Date Filed: 02/04/2014
No. 13-30244

e-mail (Jones’ e-mail to DPS’ general counsel) in his opposition to DPS’ second 

summary-judgment motion. The court also rejected Vicknair’s proposed 

solutions, including having DPS search its own systems for a log file to track 

Vicknair’s previous access or for DPS’ attorneys to drive to Baton Rouge with 

a laptop to have Vicknair transfer the database digitally. The court granted 

minimal sanctions in response to Vicknair’s refusal to satisfy his discovery 

obligations. Those sanctions were both just and related to the discovery order. 

There was no abuse of discretion.

C.

Evidentiary rulings by the district court are reviewed for abuse of 

discretion. E.g., United States v. Pruett, 681 F.3d 232, 243 (5th Cir. 2012); see 

Fed. R. Evid. 103 (Rulings on Evidence). “The application of the attorney-client 

privilege is a question of fact, to be determined in the light of the purpose of 

the privilege and guided by judicial precedents.” United States v. Nelson, 732 

F.3d 504, 517–18 (5th Cir. 2013) (citation and internal quotation marks 

omitted); see Fed. R. Evid. 501 (Privilege in General). The application of 

controlling law is reviewed de novo; factual findings, for clear error. Nelson, 

732 F.3d. at 518 (citation omitted).

The party asserting privilege bears the burden to show: “(1) a 

confidential communication; (2) to a lawyer or subordinate; (3) for the primary 

purpose of securing a legal opinion, legal services, or assistance in the legal 

proceeding”. Id. (citing United States v. Robinson, 121 F.3d 971, 974 (5th Cir.

1997)). Courts also require the party asserting privilege to have a reasonable 

expectation the communication is confidential, either by the intrinsic nature of 

the communication or the subjective intent of the assertor. Robinson, 121 F.3d 

at 976 (citations omitted). The fact a communication takes place between a 

lawyer and a client is not enough, alone, to invoke the privilege. Id. (citation 

12

 Case: 13-30244 Document: 00512522205 Page: 12 Date Filed: 02/04/2014
No. 13-30244

omitted). Likewise, the privilege must be asserted specifically as to a 

particular document. See In re Santa Fe Int’l Corp., 272 F.3d 705, 713 (5th Cir. 

2001).

At trial, when Vicknair attempted to introduce the e-mail from Jones to 

DPS’ general counsel, DPS objected, claiming the document was both “subject 

to attorney-client privilege” and “not presented to [DPS] in the regular course 

of discovery”. After the court found Jones’ e-mail was “an attorney-client 

document”, Vicknair made an offer of proof: he had come upon the document 

while searching the mail-journaling database and had printed the e-mail

because it referenced his case. The court ruled: “[I]t’s still attorney-client 

privilege. This was directed by a client to the attorney and another client”. 

There is no reversible error. The confidential document was between the 

“confidential assistant” to DPS’ deputy secretary and its general counsel, 

concerning a pending internal investigation. 

D.

Judgment as a matter of law under Rule 50 is proper when “a party has 

been fully heard on an issue during a jury trial and the court finds that a 

reasonable jury would not have a legally sufficient evidentiary basis to find for 

the party on that issue”. Fed. R. Civ. P. 50(a)(1). The district court’s decision 

to grant or deny a motion for judgment as a matter of law is reviewed de novo. 

E.g., Cardenas v. United of Omaha Life Ins. Co., 731 F.3d 496, 499 (5th Cir. 

2013) (citation omitted). We apply the same standards as did the district court, 

reviewing all evidence in the record, drawing reasonable inferences in favor of 

the non-movant, and refraining from encroaching upon the province of the jury 

in making credibility determinations or weighing evidence. E.g., Brennan’s 

Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004) (citations

omitted).

13

 Case: 13-30244 Document: 00512522205 Page: 13 Date Filed: 02/04/2014
No. 13-30244

Where the person who makes the decision to terminate an employee is 

not the person accused of harboring retaliatory animus, plaintiff is required to 

“demonstrate that those with discriminatory intent had influence or leverage 

over the official decisionmaker”, in order to “impute . . . discriminatory 

attitudes to the formal decisionmaker”. Russell v. Univ. of Tex. of Permian 

Basin, 234 F. App’x 195, 203 (5th Cir. 2007) (alterations and internal quotation 

marks omitted) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 

(5th Cir. 2000)); see also Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 n.1, 1193-

94 (2011) (applying similar standard in Uniformed Services Employment and 

Reemployment Rights Act context, including providing description of fable 

underlying cat’s-paw theory, referenced infra); LeMaire v. La. Dep’t of Transp. 

and Dev., 480 F.3d 383, 390 (5th Cir. 2007) (“Evidence of [Selvaratnam’s]

specific involvement in the decision would be significant, since [Selvaratnam]

had the greatest motivation to retaliate against [Vicknair]”.). 

To develop a prima facie case of retaliation based on Vicknair’s filing his 

first EEOC complaint, he had to show an adverse employment action that was 

linked to that complaint. Accepting DPS’ decisions to suspend and terminate

Vicknair as requisite adverse employment actions, he was required to show a 

causal link between his first EEOC complaint and those decisions. As noted, 

Boudreaux, who conveyed those decisions, was not called as a witness by 

Vicknair in his case-in-chief, after which judgment as a matter of law was 

granted. Arguably, as the person who could have served as the most likely 

link, or “cat’s paw”, between Vicknair and Selvaratnam, perhaps Boudreaux 

could have provided testimony to allow a reasonable jury to find for Vicknair. 

The second possible link, Edmonson, called out of turn by DPS, testified he had 

no qualms about reprimanding or firing friends if they disobeyed the rules, and 

14

 Case: 13-30244 Document: 00512522205 Page: 14 Date Filed: 02/04/2014
No. 13-30244

that he did not hold grudges against employees for filing grievances or 

complaints. 

Drawing all inferences in favor of Vicknair, a reasonable jury lacked a 

legally sufficient basis to link Boudreaux, as the decisionmaker, to a retaliatory 

motive. Instead of supporting retaliation, trial testimony served to reinforce 

the extensiveness and seriousness of Vicknair’s unauthorized access to DPS emails, and thus the legitimacy of DPS’ decisions to suspend and terminate

Vicknair for his violations of internal policies. Accordingly, judgment as a 

matter of law was proper on the claim of retaliation for Vicknair’s filing his 

first EEOC complaint.

III.

For the foregoing reasons, the sanctions order and judgment are 

AFFIRMED. 

15

 Case: 13-30244 Document: 00512522205 Page: 15 Date Filed: 02/04/2014