IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50214

CHARLES BURTON CRISP, 

 Plaintiff - Appellant

v.

SEARS ROEBUCK & COMPANY; SEARS HOLDINGS CORPORATION; 

ROBERT HOSIER, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:13-CV-962

Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Charles Crisp appeals the district court’s order granting summary 

judgment in favor of Sears Roebuck & Company, Sears Holdings Corporation, 

and Robert Hosier on his Title VII and Texas Labor Code claims of national 

origin discrimination and retaliation. We AFFIRM.

 * 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

October 6, 2015

Lyle W. Cayce

Clerk

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I.

Crisp was a regional sales manager at Sears from 2004 until 2011.1 His 

responsibilities included supervising the district and store managers in his 

region, which encompassed about 75 stores, and also ensuring the profit

margins and merchandising standards for each store. During Crisp’s 

employment, Sears had a strict markdown policy that required the district 

managers to report markdowns every Thursday to Sears’s Accounting Center 

in Dallas. Markdown reports were to reflect, among other things, merchandise 

that was lost, went missing, or was damaged. By Crisp’s own admission, 

however, in 2010 he ordered his district managers not to take markdowns 

without his approval, even if losses had been sustained, to increase the region’s 

profit margins.2 In November 2010, the Divisional Vice President of Finance 

for Home Services, Steve Ferrone, discovered that the stores in Crisp’s region 

were reporting unusually low markdowns. As a result, Ferrone instructed 

Paul Jankowski, the National Loss Prevention Manager, to look into whether 

Crisp had violated company policy. In the following months, Jankowski and 

other Loss Prevention associates investigated Crisp’s markdown practices. 

In February 2011, Crisp learned that during the investigation 

Jankowski had told another employee, Jacob Solis, that Crisp was managing 

the region “like Hitler,” the district managers were “like Nazis,” and that they 

were treating the store managers “like Jews.” Crisp is of German heritage, 

although there is no indication that his ancestry was apparent or ever 

discussed. Jankowski also purportedly remarked that he was Polish and that 

 1 Because of the summary judgment stance, this recitation takes facts in the light 

most favorable to Crisp. 

2 During Crisp’s deposition he was asked, “If others were to say that you— your efforts 

to manage markdowns, your own, were intended to increase the region’s gross margin 

dollars or profit, would you disagree?” He answered, “I would agree.” 

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he was “going to get that bastard Charlie Crisp.” A week later, Crisp 

confronted Jankowski directly about the Hitler and Nazi comments. In March 

2011, he also made a complaint to Sears’s Office of Compliance and Ethics. 

This complaint made no mention of the Hitler or Nazi comments or any other 

comments that could be construed as national origin discrimination; rather, 

Crisp expressed concerns that Jankowski threatened his personal safety and 

that the markdown investigation was not confidential. With the investigation 

still ongoing in April 2011, Crisp was paid a $16,001.60 bonus as a result of his 

region’s profit margins. The investigation finally concluded in May 2011. As 

a result of its findings that Crisp had violated Sears’s markdown policy, Pam 

Balistee, one of Sears’s Human Resource Directors, and Robert Hosier, then a 

National Director of Operations, terminated Crisp’s employment.

After exhausting EEOC procedures, Crisp brought this lawsuit against

Sears Roebuck and Co., Sears Holdings Corp., Hosier, and Jankowski.3 The 

district court granted summary judgment on the numerous claims Crisp 

alleged. On appeal, Crisp challenges the district court’s grant of summary 

judgment on just the following claims: national origin discrimination, national 

origin retaliation, and aiding and abetting discriminatory practices.

II.

We review a grant of summary judgment de novo. Reed v. Neopost USA, 

Inc., 701 F.3d 434, 438 (5th Cir. 2012). In doing so, we “draw all reasonable 

inferences in favor of the nonmoving party, and avoid credibility 

determinations and weighing of the evidence.” Sandstad v. CB Richard Ellis, 

Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Reeves v. Sanderson Plumbing 

Prods. Inc., 530 U.S. 133, 150 (2000)).

 3 The district court subsequently granted Crisp’s unopposed motion to dismiss all 

claims against Jankowski and Jankowski is not a party to this appeal. 

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III.

Title VII and the Texas Labor Code both prohibit an employer from 

discharging an employee on account of the employee’s national origin. 42 

U.S.C. § 2000e–2(a)(1) (2013); Tex. Lab. Code § 21.051 (2013). Claims under 

these laws may be brought using either direct or circumstantial evidence. 

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). Crisp attempts to prove 

his case by using both types of evidence. 

A.

To establish national origin discrimination using workplace remarks as 

direct evidence, a plaintiff must show that the remarks: (1) relate to the 

plaintiff’s national origin; (2) were proximate in time to the adverse 

employment decision; (3) were made by an individual with authority over that 

decision; and (4) relate to that decision. See Brown v. CSC Logic, Inc., 82 F.3d 

651, 655 (5th Cir. 1996); cf. Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 

474 (5th Cir. 2015) (noting that a less stringent test applies when remarks are 

being used as one piece of a circumstantial case). The district court found that 

evidence was lacking for the last two requirements.

The Defendants argue as a preliminary matter that the Hitler and Nazi 

comments do not relate to Crisp’s German origin, but rather were comments 

about his autocratic (that is, fascist) management style that could have been 

directed at a supervisor of any national origin with a similar attitude. Think 

of the “Soup Nazi” from Seinfeld who earned that nickname not for his national 

origin, but instead for his tyrannical management of his soup line. This may 

well be the most likely interpretation of the comments, especially given the 

lack of evidence indicating that Jankowski knew Crisp is a German–American. 

Complicating the question, however, is Crisp’s assertion, which we must accept 

at this stage, that Jankowski noted his own Polish origin close in time to his 

making these remarks. It may therefore be a plausible, if unlikely, inference

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that the comments did not relate to management style, but instead to ethnic 

tension between these bordering countries. We need not decide whether the 

remarks related to national origin, however, if the district court correctly 

granted summary judgment on the third requirement that the remarks be 

made by an individual with authority over the employment decision.

Jankowski was not directly involved in the termination decision and 

made no recommendation for termination. Balistee and Hosier terminated 

Crisp. Yet to show that the discriminatory remarks were made by an 

individual with authority over the adverse employment decision, we look not 

only to the formal decisionmaker, but also to lower-level employees who had 

“influence or leverage over the [formal] decisionmaker, such that it is proper 

to impute their discriminatory attitudes to the formal decisionmaker.” Russell 

v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). The relevant 

inquiry thus is whether Jankowski had influence over Balistee and Hosier’s 

decision to fire Crisp. See id. 

Under the governing case law, Janikowski did not have influence over 

the termination decision that would allow his alleged anti-German remarks 

alone to establish the entire case of discrimination. The only basis for such a 

ruling would be a finding that Janikowski’s role as a factfinder of the 

investigation was tainted by his alleged discriminatory animus. Although in

some instances such influence is sufficient to be imputed to the formal 

decisionmaker, we have held that when the plaintiff admits to the facts that 

would otherwise be tainted by the factfinder’s animus, the factfinder no longer 

exhibits influence over the formal decisionmaker because any improper bias is 

removed by the plaintiff’s own admission. Laxton v. Gap Inc., 333 F.3d 572, 

584 (5th Cir. 2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 217–

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18 (5th Cir. 2001)).4 Crisp admitted to ordering his district managers in 2010 

to not take markdowns without his approval, even if losses had been sustained, 

to increase the region’s profit margins. This was clearly and quite 

understandably against Sears’s policy, which required that markdowns be sent 

to the Dallas Accounting Center “[e]very Thursday.” Crisp now contends that 

Sears’s policy required him to train managers in the markdown procedures, 

and that he was requiring his approval on all markdowns simply to ensure that 

the managers were adequately trained. But this is only an excuse for violating 

the every Thursday rule. It does not change Crisp’s admission of the violation. 

The excuse also makes little sense as Crisp did not begin this markdown 

manipulation until 2010, two years after the formal policy was circulated in 

2008. Accordingly, Jankowski’s discriminatory remarks are not imputed to the 

formal decisionmakers, Balistee and Hosier, because any discriminatory taint 

in the investigation’s factfinding was removed by Crisp’s own admission. The 

district court correctly granted summary judgment on Crisp’s attempt to prove 

national origin discrimination through direct evidence.

B.

Crisp also tried to prove national origin discrimination the more common 

way: using circumstantial evidence. Under the McDonnell–Douglas 

framework, a plaintiff must first make a prima facie case of national origin 

discrimination. Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001). Then the 

burden shifts to the employer to articulate a legitimate nondiscriminatory 

reason for the termination. See id. at 378–79. If the employer provides a 

legitimate nondiscriminatory reason, then the plaintiff must establish that 

this reason was pretextual by producing evidence of disparate treatment or by 

 4 Although in Laxton the plaintiff relied on circumstantial evidence, rather than

direct evidence, the plaintiff still had to prove that the oral statement she used as 

additional evidence of discrimination was made by a person with influence or leverage 

over the formal decisionmaker. Laxton, 333 F.3d at 583.

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showing that the employer’s explanation is false or not believable. See id. at 

379; Laxton, 333 F.3d at 578. 

We will assume that Crisp made his prima facie case. Sears responded 

with ample evidence that it had a legitimate nondiscriminatory reason for 

terminating Crisp’s employment: Crisp’s admitted violation of the markdown 

policy. We must determine whether Crisp established pretext demonstrating

that he had either experienced disparate treatment or that Sears’s explanation 

is false or not believable. The district court correctly noted that Crisp produced 

no evidence to even try and show pretext in his summary judgment response, 

and as such, his argument on this point is foreclosed. In any event, the 

evidence he identifies on appeal fails to establish pretext. 

Crisp argues that a reasonable juror could conclude that Sears’s 

explanation is false or not believable because Sears’s markdown policy also 

requires that Crisp train his managers in the markdown procedures. But, as 

discussed above, this provides Crisp with only an excuse for breaking Sears’s 

every Thursday rule and does not show that Sears’s explanation was false or 

not believable. He also argues that the payment of the April 2011 bonus 

establishes that the investigation exonerated him. The bonus, however, was 

received before the investigation’s conclusion and indicates only that Sears did 

not punish him prematurely. Without further evidence, no reasonable juror 

could find that the bonus payment demonstrates that Sears’s explanation is 

false.

IV.

Crisp also appeals the district court’s grant of summary judgment on his 

retaliation claim. To establish a retaliation claim, a plaintiff must show that: 

“(1) he engaged in an activity [in opposing discrimination]; (2) he was subjected 

to an adverse employment action; and (3) a causal connection exists between 

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the protected activity and the adverse employment action.” McDonnell 

Douglas & Lemaire, 480 F.3d 383, 388 (5th Cir. 2007). 

Although there is some doubt about whether Crisp engaged in protected 

activity,5 we again assume that Crisp made a prima facie case for retaliation 

on the basis of his February 2011 confrontation with Jankowski and his March 

2011 formal complaint with Sears’s Office of Compliance and Ethics. Once 

again, however, Crisp is unable to rebut Sears’s lawful explanation for 

terminating him. Crisp relies on the same pretext argument that Sears’s 

markdown policy required him to train his managers, and therefore, he is 

excused from following the other parts of the policy, which required 

markdowns be submitted every Thursday. This pretext argument fails for the 

same reasons it did on the discrimination claim. We thus also affirm summary 

judgment on Crisp’s retaliation claim. 

V.

Finally, we address the district court’s granting of summary judgment 

on Crisp’s claim that the corporate defendants violated Section 21.056 of the 

Texas Labor Code, which prohibits an employer from “aid[ing], abet[ing], 

incit[ing], or coerc[ing] a person to engage in a discriminatory practice.” Tex. 

Lab. Code § 21.056 (2013). 

It is difficult to discern the basis for this claim. In any event, because 

Crisp has failed to show any underlying discriminatory practice that anyone 

could have aided or abetted, this claim also fails.

VI.

For these reasons, the judgment of the district court is AFFIRMED.

 5 As discussed above, the March 2011 complaint did not refer to the Nazi or Hitler 

comments or otherwise mention animus on the basis of national origin.

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