IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50247

QUIANNA S. CANADA, Individually, 

 Plaintiff - Appellant

v.

TEXAS MUTUAL INSURANCE COMPANY; STACY PARASTAR 

GONZALEZ, in her official capacity; MARSHA THIBODAUX, in her official 

capacity; KRISTEN KIRKPATRICK; EDWARD "ED" COATES; DEMETRIC 

"DE" LEVIAH; RYAN JOHNSON; LYNETTE CALDWELL, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:17-CV-148

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

For over two years, pro se plaintiff Quianna S. Canada has fought Texas 

Mutual Insurance Company’s (TMIC) refusal to hire her. During the litigation, 

she amended her complaint seven times, repeatedly engaged in duplicative—

and sometimes frivolous—motions practice, impugned the integrity and sought 

 

* 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

March 26, 2019

Lyle W. Cayce

Clerk

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the disqualification of the district court judge, tried to disqualify defense 

counsel, filed a frivolous interlocutory appeal, and at one point attempted to 

voluntarily dismiss her claim because she believes “the legal proceedings in

the United States is racist, supports racism, [and] staffs racist[s].” This 

decision will bring her odyssey to an end.

Although Canada claims that TMIC’s decision was motivated by racial 

animus and although she asserts an ever-evolving series of claims—against 

anyone with even a tangential connection to the circumstances at issue—the 

district court was correct that none of the claims should reach a jury. For the 

reasons explained below, we affirm the district court’s grant of summary 

judgment.

I.

A.

Canada is a black woman. For 28 days between June 28, 2016, and 

August 8, 2016, she was temporarily assigned to TMIC by Evins Personnel 

Consultants to fill a vacant policy-support-clerk position. During her 

temporary assignment, Canada was required to report to work every day from 

8:00 a.m. to 5:00 p.m., using a badge to enter the building. The system recorded 

that on 13 of the 28 days, Canada swiped the badge after 8:00 a.m.

While temporarily employed, Canada applied for three permanent 

positions at TMIC. The application centrally at issue here was for the position 

of permanent policy support clerk—essentially, the same job she was 

provisionally staffing. Canada applied for the support clerk position on June 

29, her second day of work, after speaking with Marsha Thibodaux, the policy 

support supervisor and Canada’s immediate supervisor.

On July 21, Thibodaux told Canada that TMIC had hired Ryan Johnson, 

a white man, for the support clerk position. It is unclear from the record 

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whether Thibodaux specifically mentioned Johnson’s race to Canada when she 

told her the position had been filled. Regardless, that same day, without 

informing anyone at TMIC, Canada filed a complaint with the City of Austin’s 

Equal Employment and Fair Housing Office.

On August 8, Canada met Johnson when he reported for his first day of 

work. During her lunch break, Canada requested to speak to a human 

resources employee concerning her applications. Edward Coates, a human 

resources staff member, met with Canada and listened to her concerns that 

she had been improperly passed over for the jobs. When Canada requested to 

speak with the individuals who reviewed her job applications, Coates refused.

Some time before 3:44 p.m. on that same day, Thibodaux contacted 

Kristen Kirkpatrick, a human resources senior administrative assistant, to 

request that Canada’s temporary assignment to TMIC be ended because the 

position had been filled. Kirkpatrick then spoke by phone with an Evins 

representative, and at 3:44 p.m., Kirkpatrick emailed Evins confirming her 

request to end Canada’s temporary assignment at the close of business.

Shortly before 4:00 p.m., Canada received an email from the Equal 

Employment and Fair Housing Office asking Canada to contact them to discuss 

her July 21 complaint. At 3:59 p.m., Canada left the building to call a staff 

member at the Equal Employment and Fair Housing Office. She spoke with 

the representative for approximately 25 minutes before reentering the building 

at 4:24 p.m. After reentering, Canada told Thibodaux for the first time that 

Canada believed she was being discriminated against in the hiring process and 

that she had filed a complaint with the Equal Employment and Fair Housing 

Office. Canada then finished her shift. On August 25, Canada received an 

email from TMIC rejecting her for the document clerk position.

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B.

On August 26, Canada filed a charge with the Equal Employment 

Opportunity Commission (EEOC), receiving her right to sue letter in 

December.1 In January 2017, Canada filed a pro se petition and amended 

petition against TMIC and various TMIC employees in state court alleging 

racial discrimination in hiring practices and asserting claims under both 

federal civil rights statutes and state labor laws. TMIC removed the case to 

federal court, and it was assigned to District Judge Sam Sparks. Canada then 

filed a motion to remand to state court, followed by an amended motion to 

remand, both of which the district court denied. Canada also filed what she 

styled as third, fourth, fifth, sixth, and seventh amended complaints, each 

reasserting discrimination claims under federal and state law. She also moved 

to disqualify defense counsel.

In June 2017, Canada filed another motion to remand to state court and 

sought leave to file an eighth amended complaint to delete her federal claims.

According to Canada, deleting her federal claims would leave only state-law 

claims over which the district court should decline to exercise supplemental 

jurisdiction. The district court denied the motion to remand and to file the 

eighth amended complaint on grounds that Canada was attempting to 

circumvent the court’s jurisdiction and had already amended her complaint 

numerous times. In the same ruling, the court denied the motion to disqualify 

defense counsel and placed limits on Canada’s discovery efforts considering the 

“volume” of interrogatories and requests for admission the defendants had 

already answered. The court did allow Canada to select 24 interrogatories to 

 

1 The record does not indicate—and the parties do not mention—what happened with 

Canada’s complaint to Austin’s Equal Employment and Fair Housing Office.

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be answered from previously served discovery and to seek court action if the 

answers were wanting.

Four days later, Canada moved to disqualify Judge Sparks. She argued 

that he had a relationship with defense counsel’s law firm, and had 

demonstrated bias against her by making condescending comments about her 

pro se status during a status conference and by ruling against her on numerous 

matters. The motion was referred to Senior District Judge David A. Ezra.

While the disqualification motion was pending, Canada filed a motion 

seeking reconsideration of the prior order denying remand and leave to amend 

her complaint. On July 31, 2017, Judge Ezra denied Canada’s motion to 

disqualify Judge Sparks. On that same date, Judge Sparks denied Canada’s 

motion to reconsider. Undeterred, Canada filed another motion to remand and 

for leave to amend and a motion for reconsideration of the prior denial, which 

the district court denied.

Canada immediately filed a petition for a writ of mandamus in this court 

challenging the district court’s denial of her motion to file an eighth amended 

complaint, denial of her motion to remand, denial of her motions to disqualify 

Judge Sparks and opposing counsel, and, finally, the limits placed on her

discovery. We denied the motion.

Because we refused to stay the district court proceedings while 

considering Canada’s writ petition, those proceedings continued apace during 

the pendency of the appeal. Judge Sparks soon dismissed the remaining 

individual defendants for failure to state a claim. Three weeks later, Judge 

Sparks referred the case to a magistrate judge, who subsequently 

recommended that summary judgment be granted to TMIC, the sole remaining 

defendant. Canada objected to the magistrate’s report and recommendation, 

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but the district court adopted it in full and issued judgment in favor of TMIC.

This appeal shortly followed.

II.

Canada first challenges the district court’s grant of summary judgment 

to TMIC on her Title VII claims—specifically, her disparate-impact claim, her 

disparate-treatment claim, and her retaliation claim. We review a district 

court’s decision to grant summary judgment de novo. Manuel v. Turner Indus. 

Grp., L.L.C., 905 F.3d 859, 863 (5th Cir. 2018).

A.

“Title VII prohibits both intentional discrimination (known as ‘disparate 

treatment’) as well as, in some cases, practices that are not intended to 

discriminate but in fact have a disproportionately adverse effect on minorities 

(known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). 

One of TMIC’s chief defenses to Canada’s Title VII claims is that Canada 

cannot show she was qualified for the positions she sought because Canada 

could not have passed a criminal background check. Although her briefing is 

confusing in places, the court understands Canada to be arguing that TMIC’s 

use of background checks to exclude job candidates with certain criminal 

histories violates Title VII by disproportionately impacting black applicants.

Of Canada’s disparate-impact claim, the district court said only that she 

had failed to provide any authority indicating that an employer may not use a 

background check to screen candidates. But Canada’s argument is not that 

employers may never use background checks to screen candidates; it is instead

that an employer’s use of a background check policy that disproportionately 

affects black applicants violates Title VII. The fundamental problem with 

Canada’s argument, however, is that she has offered no evidence that the 

TMIC policy disproportionately affects black applicants.

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“To establish a prima facie case of discrimination under a disparateimpact theory, a plaintiff must show: (1) an identifiable, facially neutral 

personnel policy or practice; (2) a disparate effect on members of a protected 

class; and (3) a causal connection between the two.” McClain v. Lufkin Indus., 

Inc., 519 F.3d 264, 275 (5th Cir. 2008). Satisfying the second element typically 

requires establishing that the practice or policy had a statistically significant 

adverse impact on the protected class. Stout v. Baxter Healthcare Corp., 282 

F.3d 856, 860 (5th Cir. 2002). “[T]he comparison must be made between the 

employer’s work force and the pool of applicants.” Crawford v. U.S. Dep’t of 

Homeland Sec., 245 F. App’x 369, 379 (5th Cir. 2007). The only evidence 

Canada relies on to establish a disparate impact is her belief that any kind of 

background check disproportionately affects black individuals. She infers that 

TMIC’s policy must be having an adverse impact on black applicants due to 

her claim (without support) that less than 9% of TMIC employees are black.

Even if the court were to accept at face value Canada’s premise that 

background checks, generally, have a disproportionate impact on the black 

population, generally, her claim would still fail. Reliance on a policy’s disparate 

impact on the general population, rather than on the applicant pool, is 

misplaced. Crawford, 245 F. App’x at 379. Among other things, to establish a 

disparate impact, Canada needed to show that the specific type of backgroundcheck policy TMIC uses to screen candidates disproportionately impacts black 

applicants who are otherwise qualified. She needed to establish a racial 

disparity between the employer’s work force and the pool of applicants, and 

then tie that disparity to the use of background checks. See id. at 379–80. 

Canada has done neither. Her disparate-impact claim fails.

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B.

To establish a prima facie case of discrimination, the plaintiff must 

either present direct evidence of discrimination or, in the absence of direct 

evidence, rely on circumstantial evidence using the McDonnell Douglas

burden-shifting analysis. Under McDonnell Douglas, the plaintiff carries the 

burden to prove that (1) she belongs to a protected class; (2) she applied for and 

was qualified for the position; (3) she was rejected despite being qualified; and 

(4) others similarly qualified but outside the protected class were treated more 

favorably. McDonnell Douglas, 411 U.S. at 802; see also Wittmer v. Phillips 66 

Co., 915 F.3d 328, 332 (5th Cir. 2019). Next, the burden shifts to the employer 

to “articulate a legitimate nondiscriminatory reason for the adverse 

employment action.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 

590 (5th Cir. 2016). Finally, the burden shifts back “to the plaintiff to produce 

evidence from which a jury could conclude that the employer’s articulated 

reason is pretextual.” Id.

The district court held that Canada could not prevail on her disparate 

treatment claim because she cannot show that she was qualified for a position 

at TMIC. The court ruled that both her chronic tardiness and her criminal 

history precluded Canada from obtaining the positions. Because we agree that 

Canada’s lack of punctuality negated her eligibility for the positions, we do not 

address whether TMIC’s after-acquired evidence that Canada could not pass a 

background check insulates its decision not to hire her.

1.

Canada first argues that the district court erred by analyzing her claim 

only under the McDonnell Douglas framework because she also introduced 

“direct evidence” of discrimination. “Direct evidence is evidence that, if 

believed, proves the fact of discriminatory animus without inference or 

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presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 

2002). In her deposition and in a sworn declaration filed in response to TMIC’s 

summary judgment motion, Canada identified several statements by TMIC 

employees that she believes qualify as direct evidence. But neither the 

statements she relies on nor the direct-evidence theory itself are mentioned in 

any of Canada’s complaints, including her lengthy seventh amended 

complaint. In fact, the complaint specifically frames her disparate-treatment 

claim under the McDonnell Douglas framework. Similarly, in her response to 

the EEOC’s request for information regarding the substance of her claim, 

Canada did not mention either the alleged statements or the direct-evidence 

theory; instead she explained her belief that she can satisfy the McDonnell 

Douglas standard.

We agree with TMIC that Canada has waived her right to argue under 

the direct-evidence framework. She did not identify any direct evidence or 

mention a direct-evidence theory in either her EEOC charge or her complaint.

She did not mention direct evidence in her opposition to the defendant’s 

summary-judgment motion. Her objections to the magistrate’s report and 

recommendations mention direct evidence only in passing. Although we 

liberally construe briefs of pro se litigants, arguments not raised before the 

district court are waived. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 

877 (5th Cir. 2009) (“[A]rguments not raised before the district court are 

waived and cannot be raised.”). The direct-evidence argument is waived.

2.

Turning now to the McDonnell Douglas framework, we also agree with 

the district court that Canada was unqualified for the positions she sought.

TMIC introduced evidence that Canada was repeatedly tardy during her 

temporary assignment, in contravention of a written employment policy. 

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Although Canada now attempts to backtrack from her complaint’s 

acknowledgement that she was late for work on multiple occasions, she has not 

created a genuine fact dispute regarding her general tardiness for work during 

her short employment at TMIC. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986) (explaining that a genuine dispute of material fact means that 

“evidence is such that a reasonable jury could return a verdict for the 

nonmoving party”). Canada’s speculation about the accuracy of the badge 

system does not create a genuine factual issue. See Likens v. Hartford Life & 

Acc. Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012) (“[A] non-movant . . . cannot 

defeat summary judgment with speculation, improbable inferences, or 

unsubstantiated assertions.” (citations omitted)). Because she cannot show 

that she was otherwise qualified for the positions she applied for, Canada could 

not make the required prima facie showing under McDonnell Douglas. 

Summary judgment on her disparate-treatment claim was therefore

appropriate.

C.

Canada’s retaliation claim likewise fails. “Making a prima facie case for 

a retaliation claim requires the plaintiff to demonstrate that: (1) she engaged 

in protected activity; (2) an adverse employment action occurred; and (3) a 

causal link exists between the protected activity and the adverse employment 

action.” Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir. 

2014) (quotations omitted). If the plaintiff establishes her prima facie case, the 

McDonnell Douglas burden-shifting framework applies. Id.

Canada claims that adverse employment action was taken in response 

to her complaint to the Equal Employment and Fair Housing Office on July 21

and her complaint to Coates on August 8. To satisfy the causation element of 

her claim, she needed to prove that her complaints were the but-for cause of 

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her termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 

(2013). The crucial problem with her argument is that Kristen Kirkpatrick, the

human resources senior administrative assistant who ended Canada’s 

assignment to TMIC, was not aware of Canada’s discrimination complaints 

until after the decision not to retain her had been made. Accordingly, the 

complaints could not have played a role in the decision. See Chaney v. New 

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If 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.”).2

Canada also relies on a “cat’s paw” theory of causation to prove her 

retaliation claim. “Plaintiffs use a cat’s paw theory of liability when they 

cannot show that the decisionmaker—the person who took the adverse 

employment action—harbored any retaliatory animus.” Zamora v. City Of 

Houston, 798 F.3d 326, 331 (5th Cir. 2015). Canada’s theory is that even if 

Kirkpatrick did not intentionally discriminate against her, Kirkpatrick was 

simply a “cat’s paw” of Thibodaux and Coates. She suggests that Kirkpatrick 

would not have terminated her but for the malicious, untrue information that 

Thibodaux and Coates provided to Kirkpatrick.

To invoke the cat’s paw analysis, Canada must establish “(1) that a coworker exhibited discriminatory animus, and (2) that the same co-worker 

possessed leverage, or exerted influence, over the titular decisionmaker.”

Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (quotations 

omitted). But Thibodaux did not learn of Canada’s discrimination complaints 

until after Kirkpatrick made her decision. And although Canada’s meeting 

 

2 Canada fails to brief her rejection for the document clerk position, so any retaliation

arguments with respect to that position are waived.

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with Coates occurred several hours before Kirkpatrick’s decision, Canada 

offers no evidence that Kirkpatrick and Coates communicated at all during the 

intervening period or that Coates had influence over Kirkpatrick. See Stewart 

v. Int’l Ass’n of Machinists & Aerospace Workers, 643 F. App’x 454, 457 (5th 

Cir. 2016) (per curiam) (affirming summary judgment on a retaliation claim 

where the employee failed to show the discriminating employer “had influence 

over” the decisionmakers). As such, the district court correctly granted

summary judgment on her retaliation claim.

III.

Canada also challenges the district court’s dismissal of Thibodaux, 

arguing that she has stated a viable claim against Thibodaux for tortious 

interference with a prospective business relationship. But the threshold for 

establishing a tortious interference action is exceedingly difficult. See WalMart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). And where, as 

here, the claim is that an individual tortiously interfered with the prospective 

business relations of its own employer, the threshold is even more difficult.

Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456–57 (Tex. 1998) (per curiam). 

In fact, unless the employer admits that the employee was acting against its 

interest, the burden is insurmountable. Id. at 457. Because TMIC has not 

conceded that Thibodaux was acting against its interest, Canada’s claim fails.3

IV.

Finally, Canada contends that the district court reversibly erred by 

denying her Rule 56(d) motion for leave to conduct additional discovery, as well 

as by refusing to allow Canada to amend her complaint for an eighth time.

 

3 To the extent Canada intends to appeal her claim against Thibodaux under 42 U.S.C. 

§ 1981, that claim fails for the same reasons Canada’s Title VII claims fail. See Wright v. 

Chevron Phillips Chem. Co., L.P., 734 F. App’x 931, 933 n.2 (5th Cir. 2018) (per curiam) (“The 

analysis under both Title VII and § 1981 is identical.”).

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We review a district court’s denial of a Rule 56(d) motion for abuse of 

discretion. Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 

(5th Cir. 2013). Although such motions are “broadly favored” and should be 

“liberally granted,” Canada was not entitled to additional discovery as a matter 

of right. She was instead required to “set forth a plausible basis for believing 

that specified facts, susceptible of collection within a reasonable time frame, 

probably exist and indicate how the emergent facts, if adduced, will influence 

the outcome of the pending summary judgment motion.” Id. (quotations 

omitted). Canada was able to identify no plausible basis for believing that 

additional facts might change the outcome of the motion. She also failed to 

identify how any additional discovery could be resolved in a timely manner.

Accordingly, given the volume of discovery that had already occurred, the 

district court did not abuse its discretion in denying her motion.

Regarding the district court’s refusal to permit an eighth amended 

complaint, the district court concluded that Canada only sought leave to amend 

to eliminate her federal claims and circumvent federal jurisdiction. We have 

recognized once already in this litigation that the district court’s decision was 

correct, see In re: Quianna Canada, No. 17 -50677, at 2–3 (5th Cir. Dec. 29, 

2017), and we now do so for a second time.

* * *

Discrimination in employment is an invidious practice. We encourage 

those who believe themselves harmed by such discrimination to vindicate their 

rights. Given the nature of her claim, Canada may be entitled to legitimate 

skepticism toward the defendants. But that skepticism does not justify her 

extraordinary claims of bias against defense counsel, the district judge 

specifically, and the federal judicial system in general. The court’s 

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disagreement with Canada does not automatically impute prejudice. In our 

legal system, Canada is entitled only to a fair shake. She has received one.

AFFIRMED.

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