IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40340

GUY RICHARDS, 

 Plaintiff - Appellant

v.

LUFKIN INDUSTRIES, L.L.C., 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:14-CV-136

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Guy Richards brought this employment discrimination action against his 

former employer, Lufkin Industries, L.L.C., alleging that Lufkin violated 42 

U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e2–2000e-3, by terminating him in retaliation for his complaint that he was 

harassed on account of his race. On appeal, Richards contends that the district 

court erred in granting partial summary judgment, dismissing his retaliation 

claim; by correcting only one of Lufkin’s three peremptory strikes of African 

* 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 10, 2020

Lyle W. Cayce

Clerk

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American potential jurors allegedly based on pretextual explanations; and by 

making critical comments about his counsel’s conduct during the jury trial. We 

AFFIRM. 

I.

Richards, an African American man, was employed by Lufkin from July 

2010, first as a welder and then as a production supervisor, until he was fired

on December 7, 2012.1 Richards alleges that while working as an hourly 

welder, a white supervisor named Justin McMahon and some other white coworkers “routinely used racial slurs when addressing Richards.” By March 

2011, Richards had been promoted to a first-level supervisor position but was 

still incurring racially motivated and derogatory comments from his white coworkers, specifically McMahon. On March 8, 2011, Richards approached 

McMahon and asked McMahon not to call him “n*gger.” Following this 

interaction, McMahon and Richards each spoke with the manager to whom 

they reported.

Richards, dissatisfied with his direct manager’s response, reported 

McMahon’s harassment to more senior Lufkin managers, as well as to the 

Human Resources (HR) Department. Lufkin told Richards that his complaint

would be investigated. Over the next few days, Lufkin personnel, including its

Vice President over HR and its Compliance Officer, spoke with Richards about 

McMahon’s alleged harassment. During these conversations, Richards

requested that he not have to work with McMahon. Following its 

investigation, Lufkin gave McMahon a five-day suspension and transferred 

Richards to a lateral position in a different location. In late 2011, Richards 

filed a charge of discrimination with the EEOC, complaining of racial 

1 Richards had been previously employed by Lufkin for some time during 2008–2009; 

however, that employment is not the subject of an issue on appeal.

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harassment. About a year later, in late 2012, Lufkin terminated Richards’ 

employment after an investigation into Richards’ time reporting indicated that

he had falsified his time records.

II.

Richards timely filed suit in the Eastern District of Texas on September 

12, 2014, pursuant to § 1981. In May 2016, Richards added claims for race 

discrimination and retaliation pursuant to Title VII. After answering and

some discovery, Lufkin filed a motion for summary judgment on all of Richards’ 

claims of race discrimination and retaliation.2 The magistrate submitted a 

report on Lufkin’s motion for summary judgment, recommending, in relevant 

part, that the motion be granted as to Richards’ retaliation claims but denied 

as to Richards’ discrimination claims. The district court, considering and 

overruling the parties’ objections, adopted the magistrate’s report and 

recommendation.

Richards’ remaining claims for racial discrimination went to a trial by 

jury. During jury selection, Lufkin used all three of its peremptory strikes on 

African American potential jurors. Richards lodged a late Batson challenge. 

The district court upheld the first two of Lufkin’s peremptory strikes, but 

sustained Richards’ Baston challenge as to the third strike. The court, after 

modifying the jury to reflect the one sustained Batson challenge, commenced 

with the trial. Richards alleges that during trial, the district court made 

various prejudicial comments in front of the jury. After the conclusion of the 

trial, the jury returned a verdict for Lufkin on Richards’ discrimination claims. 

The district court entered judgment in accordance with the jury verdict. 

2 Richards filed his own motion for summary judgment on Lufkin’s affirmative 

defenses; however, that motion is not at issue on appeal.

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Thereafter, Richards filed a motion for a new trial, which the court denied. 

This appeal followed.

III.

A. Summary Judgment on Richards’ Retaliation Claims

We review de novo a district court’s grant of summary judgment. Evans 

v. City of Houston, 246 F.3d 344, 347 (5th Cir. 2001). Summary judgment is 

appropriate when the record demonstrates “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). The movant has the initial burden of showing there is no 

genuine issue of material fact; however, once carried, the burden shifts to the 

nonmovant to “produce evidence or designate specific facts showing the 

existence of a genuine issue for trial.” Allen v. Rapides Par. Sch. Bd., 204 F.3d 

619, 621 (5th Cir. 2000). The evidence set forth by the nonmovant is to be 

believed with all justifiable inferences to be drawn in the nonmovant’s favor. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). That being said, the 

nonmovant may not rest on mere allegations or denials of its pleadings, but 

rather, must set forth specific facts indicating a genuine issue for trial. Webb 

v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 536 (5th Cir. 

1998).

On appeal, Richards contends that the district court erred in granting 

summary judgment on his claims for retaliation. Title VII prohibits 

discrimination by employers “against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Section 1981 provides that “[a]ll persons within the jurisdiction of the 

United States shall have the same right . . . to the full and equal benefit of all 

laws and proceedings . . . as is enjoyed by white citizens.” Id. § 1981(a). 

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To establish a Title VII retaliation claim, Richards must demonstrate 

that (1) he engaged in a protected activity under Title VII; (2) Lufkin took an 

adverse employment action against him; and (3) a causal connection existed

between the protected activity and the adverse employment action. See

Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (citing Thomas v. 

Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)). We apply 

the McDonnell Douglas burden-shifting framework in determining whether 

Richards has established a prima facie case of retaliation. See Chaney v. New 

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999) (citing 

McDonell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). If Richards 

makes a prima facie showing, the burden then shifts to Lufkin to articulate a 

legitimate, nonretaliatory reason for Richards’ termination. Id. Once Lufkin 

has done so, the burden then shifts back to Richards to identify evidence from 

which a jury could conclude that Lufkin’s purported reason for termination is 

a pretext for retaliation. Id. 

As to Richards’ prima facie case, the parties do not dispute that Richards 

engaged in a protected activity and was later terminated. The primary issue 

before us therefore centers on the causation element: whether Richards 

presented evidence showing a causal link between his protected activity and 

his termination from Lufkin. In his brief, Richards contends that the district 

court erred in its causation analysis because it applied an improper, overly 

stringent, ultimate liability standard at the prima facie summary judgment 

stage and further that the court erred in not treating the retaliation claims as 

a hostile environment case. We do not find that the court so erred.

Unlike a discrimination cause of action based on harassment within a

hostile work environment, a retaliation cause of action requires a showing of a 

causal connection between the plaintiff’s protected activity and the employer’s 

adverse employment action. Compare Hernandez v. Yellow Transp., Inc., 670 

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F.3d 644, 657 (5th Cir. 2012) (giving the elements for a prima facie retaliation 

case), with id. at 654 (giving the elements for a claim of hostile work 

environment), and Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) 

(giving the elements for a prima facie discrimination case). Here, the district 

court found no genuine issue of material fact existed as to the causation 

element of Richards’ retaliation claim, citing a lack of knowledge on the part 

of David Duford, Bob Day, or John Streety, as well as a lack of temporal 

proximity between Richards’ protected activity and his termination.

Richards, on appeal, attempts to use our circuit’s decision in Starnes v. 

Wallace, 849 F.3d 627, 635 (5th Cir. 2017) to support his contention that the 

district court’s causation analysis at the summary judgment stage was too 

stringent. This comparison, however, is inapposite. In Starnes, this court held 

that evidence allowing a reasonable jury to find that the purported reason for 

termination was a pretext for retaliation at the third stage of the inquiry could 

also establish the “much less stringent” causation requirement at the prima 

facie stage. See id. at 634–35. The circumstances of Starnes are factually 

distinct from the instant case. Here, Richards cannot make any showing that 

his termination was motivated by a desire to retaliate against him for his 

protected activities. Richards contends that because the district court, on his 

discrimination claim, found sufficient evidence to establish a factual issue as 

to pretext, that pretext evidence is “related” and could satisfy the causation 

element of his retaliation claim, as well. Yet, the district court’s finding here 

is not analogous to the pretext finding relied upon by the Starnes panel. There, 

the court relied on a finding of possible pretext in a related retaliation claim, 

the same claim that Starnes sought to prove. Id. at 635. Here, Richards has 

two distinct claims – harassment and retaliation – which implicate different 

elements to make a prima facie showing at the summary judgment stage. The 

district court, finding evidence of pretext on Richards’ discrimination claim, 

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concluded that a nexus existed between Richards’ termination and his status 

as a member of a protected class. By contrast, on Richards’ retaliation claim, 

any evidence of pretext which could have been used to supplant the causation 

element would have needed to demonstrate a causal link between Richards’ 

termination and his protected activity. The district court, however, did not find 

such a causal connection, and neither do we. 

As to Duford’s, Day’s, and Streety’s knowledge that Richards engaged in 

protected activities, the record evidence supports a finding of some knowledge. 

A few weeks before his termination, Richards reported to Duford an incident 

in which a coworker showed Richards a black dildo, according to his own 

testimony and the testimony of a third party. Also, Duford investigated “the 

Schumaker incident” that Richards reported in July 2011, wherein Richards 

complained to HR that McMahon told Richards that James Schumaker,

another Lufkin employee, had used racial epithets to refer to Richards. 

Finally, Day was aware that Richards was involved in the class action alleging 

that Lufkin’s promotion practices had a disparate impact on black employees’ 

promotions, and Streety learned of Richards’ involvement before he was 

officially terminated. All of these activities likely fall within the realm of 

protected activity. See 42 U.S.C.A. § 2000e-3 (prohibiting discrimination 

toward an employee who “opposed any practice made an unlawful employment 

practice by [Title VII], or because he has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or hearing under 

[Title VII]”); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 

1999) (treating participation in a class action as protected activity); Long v. 

Eastfield Coll., 88 F.3d 300, 305, 308 (5th Cir. 1996) (treating internal 

complaints as protected activity).

Yet, despite finding some knowledge of protected activities, we conclude

that Richards has not established a causal connection between his protected 

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activities and his termination. First, Streety testified that other employees, 

including white employees, were also fired for filing false timesheets. Second, 

Richards gave no explanation for the discrepancies in several of his time sheets 

when confronted about them. The only evidence that Richards points to as 

showing that his termination for timesheet falsification was illegitimate is the 

testimony of two other employees, Thompson and Santana. But Thompson 

merely testified that she did not remember most of the events from that time, 

and that she never knew Richards to do “anything wrong.” Santana testified 

that he didn’t remember speaking to Duford about Richards’ timesheets. This 

testimony has little bearing on whether the timesheet investigation and 

Richards’ termination were pretextual. Finally, while the dildo incident was 

close in time to Richards’ termination, Duford had knowledge of Richards 

making similar internal complaints, e.g. the Schumaker complaint, a year and 

a half before his termination. Richards gives no reason why Duford would 

retaliate against him for his most recent complaint but not for previous, similar 

complaints. Taken together, this evidence does not support a causal connection 

between Richards’ protected activity and his termination. See Chaney v. New 

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 169 (5th Cir. 1999) (holding 

that plaintiff had not proven causation when the employer’s “perfectly rational 

justification” for discharge was “a workplace infraction which is not seriously 

disputed” and plaintiff provided only “[t]he speculations of a few co-workers” 

in support of his retaliation theory). 

Furthermore, the time that had elapsed between Richards’ complaint 

about McMahon and his termination was nearly twenty-two months, and 

between Richards’ EEOC filing and his termination was twelve months. While 

not always determinative, the lack of temporal proximity between Richards’ 

termination and these two protected activities “undermine(s) any causal 

connection” between the events. See Raggs v. Miss. Power & Light Co., 278 

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F.3d 463, 471–72 (5th Cir. 2002). We, therefore, find no error in the district 

court’s grant of summary judgment on Richards’ retaliation claims. 

B. Lufkin’s Peremptory Strikes

Next, Richards contends that the district court erred in correcting only 

one of Lufkin’s three peremptory strikes to exclude jurors allegedly based on 

their race. In Batson, the Supreme Court outlined a three-step process for 

determining whether peremptory strikes have been applied in a racially 

discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 93–98 (1986). First, 

the party making the claim of purposeful discrimination must make a prima 

facie showing that the peremptory challenges were based on race. Id. Then, 

the burden shifts to the party accused of discrimination to provide race-neutral 

reasons for the peremptory challenges. Id. Finally, the district court 

determines whether purposeful discrimination has been established. Id. 

Because the district court’s determination is a finding of fact, we cannot 

overturn its decision absent clear error. United States v. Bentley-Smith, 2 F.3d 

1368, 1372 (5th Cir. 1993). Furthermore, the district court’s determination is 

“entitled to great deference” because the district court is better positioned to 

evaluate the credibility and demeanor of the attorneys involved. Id. at 1373.

Based on our review of the record, the district court did not commit 

reversible error in rejecting Richards’ challenges to two of Lufkin’s three 

peremptory strikes. As an initial matter, the district court noted in its 

memorandum opinion that Richards made the Batson objection belatedly. See 

United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996). Nevertheless, 

the court considered Richards’ Batson challenges “in light of the importance of 

a party’s right to equal protection” and because Lufkin did not ask the court to 

reject the claim as untimely. The court noted that Richards had made a prima 

facie showing of racial bias because all three struck jurors were African

American; however, after conducting a thorough analysis of the issues, the 

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court concluded that Lufkin had articulated credible race-neutral reasons for 

two of its three peremptory strikes. The court further analyzed whether 

Lufkin’s peremptory strikes showed a pattern that indicated purposeful 

discrimination. In its analysis, the court acknowledged that Lufkin had used 

all three of its peremptory strikes on African American jurors but ultimately 

concluded that it was not enough, on its own, for the court to discount Lufkin’s 

good and sufficient race-neutral reasons for two of the three strikes. The court 

further noted that it was not required to discount Lufkin’s reasons for two of 

its peremptory strikes simply because the court found against Lufkin on the 

third strike. See, e.g., Bentley-Smith, 2 F.3d at 1376. Upon review of the record 

and the district court’s well-reasoned analysis, we conclude that the district 

court applied the proper test in considering Richards’ Batson challenges, and 

its decision to deny Richards’ challenge on two of Lufkin’s strikes was not 

clearly erroneous.

C. Court’s Comments to Richards’ Counsel

Finally, Richards contends on appeal that the district court’s conduct 

throughout trial gave the jury a negative impression of Richards’ counsel and 

consequently deprived Richards of a fair and evenhanded trial. After extensive 

review of the trial transcript and proceedings, we are not persuaded that the 

court’s conduct during trial tainted the verdict. 

When reviewing the effect of the court’s comments, we do not consider 

isolated remarks and instead consider the record as a whole. Newman v. A.E. 

Staley Mfg. Co., 648 F.2d 330, 334–35 (5th Cir. Unit B June 1981). From there, 

the standard of review applied is dependent upon whether a timely objection 

to each of the court’s remarks was made at trial. Id. at 335. If Richards lodged 

a timely objection, we will inquire whether the court’s remarks impaired a 

substantial right of Richards. See id. However, if Richards did not object to 

the court’s remarks, our review, though not precluded, will be limited to review 

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for plain error. See id. Under a plain error standard of review, reversal is not 

required unless there has been a miscarriage of justice. Morreale v. Downing, 

630 F.2d 286, 290 (5th Cir. 1980). Here, however, it is not necessary for us to 

determine whether Richards lodged a sufficient objection because even under 

the more rigid standard of review, we conclude that Richards’ substantial 

rights were not affected by the court’s conduct. 

In determining whether the district court’s conduct was appropriate, we 

scrutinize the record carefully because the district court has an “enormous 

influence” on the jury. United States v. Williams, 809 F.2d 1072, 1086 (5th Cir. 

1987). However, we do not require the court to conduct a perfect trial, only 

that it afford the parties a fair trial. See id. We recognize too that the court is 

not a “mere moderator of the proceedings.” Id. at 1087 (quoting Moore v. 

United States, 598 F.2d 439, 442 (5th Cir. 1979)). The court, in its discretion, 

may comment on the evidence and may even interrupt or warn counsel during 

examination of a witness. Id. Indeed, even if we find some of the court’s 

comments to be abrupt, unnecessarily harsh, or even regrettable, we cannot 

say that the complaining party is deprived of a fair trial unless the court’s 

conduct “strays from neutrality.” Id. at 1087–89 (quoting Moore, 598 F.2d at

442). Yet, judicial remarks made during the course of a trial that are critical 

or even hostile to counsel do not ordinarily establish bias or partiality. Liteky 

v. United States, 510 U.S. 540, 555–56 (1994).

Here, the district court did, at times, express impatience, dissatisfaction, 

or frustration with Richards’ counsel. Nevertheless, the court’s conduct in 

these instances does not support a finding of bias or impartiality against 

Richards. See id.; see also Williams, 809 F.2d at 1087–89. The majority of the 

court’s comments about which Richards complains clearly fall within the 

court’s broad discretion to manage its docket, including trial procedure. See 

United States v. Gray, 105 F.3d 956, 964 (5th Cir. 1997) (citing Sims v. ANR 

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Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996)). The court’s warnings to 

Richards’ counsel regarding his arguments or attempted admissions of 

evidence, while obviously unfavorable to Richards, showed no bias or 

impartiality such that they would taint the jury’s perception of Richards, his 

claims, or his counsel. In fact, the record reflects that throughout the trial, the 

court’s conduct was motivated by its desire to avoid jury confusion or influence 

by either the court or counsel. Further, the court specifically instructed the 

jury at the beginning and the end of trial that they should not take the judge’s 

comments as indicating any opinion about the merits.

We found only one comment from the court that was arguably improper. 

In response to a flippant comment from Richards’ counsel, the court remarked, 

“Counsel, I have warned you before about sidebar remarks. Are you just asking 

to be held in contempt or just trying to push me so you can say that there is 

some kind of prejudice against you in the court? Which one is it?” This court 

has, in no uncertain terms, stated that a district court should not sanction an 

attorney in the presence of the jury. Bufford v. Rowan Cos., Inc., 994 F.2d 155, 

159 (5th Cir. 1993). However, there is no per se rule requiring reversal for a 

threat of contempt. Cf. Williams, 809 F.2d at 1090 (holding that reversal was 

not warranted when the trial judge actually fined a lawyer for contempt in 

front of the jury). Viewing the proceedings as a whole, we do not find that the 

court’s comment so permeated the proceedings such that it cast doubt on the 

jury’s verdict. See Bufford, 994 F.2d at 157 n.1 (citing Dixon v. Int’l Harvester 

Co., 754 F.2d 573 (5th Cir. 1985)). Accordingly, Richards’ substantial right to 

a fair trial was not affected.

IV.

Finding no reversible error, we AFFIRM the district court’s final 

judgment.

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