*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-20216 

Summary Calendar

____________________

GENERAL TAYLOR, JR, ET AL,

 Plaintiffs

JOHN TAYLOR

 Plaintiff - Appellant,

v.

EXXON CORPORATION,

 Defendant - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-143)

_________________________________________________________________

November 16, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

On January 17, 1996, John Taylor, an Exxon employee, filed

suit against Exxon, alleging race discrimination under Title VII

of the Civil Rights Act of 1964. On January 18, 1996, Taylor

filed a race discrimination charge with the EEOC. Exxon

Corporation terminated Taylor’s employment on February 1, 1996.
2

On May 13, 1997, Taylor filed his First Amended Complaint,

claiming Exxon discharged him in retaliation for filing the race

discrimination charge with the EEOC. The district court granted

Exxon’s motion for summary judgment on January 28, 1998. Taylor

appeals with respect to the Title VII retaliation claim. 

I.

John Taylor began working for Exxon on December 16, 1987, as

an administrative clerk in the mail room of the Controller’s

Department. He worked at various jobs in the Banking section of

the Controller’s Department for six years. In late 1994, the

Banking and Vendor Verification sections were merged, and Don

Wallenhorst became Taylor’s new supervisor. Taylor asked

Wallenhorst for more responsibility. In response, Taylor was

moved to the Vendor Verification section in December of 1994. 

Jayne Hollywood was coordinator of the Vendor Verification

section. The employees in the Vendor Verification section were

responsible for verifying the authenticity of new vendor invoices

for payments. Exxon adopted written procedures explaining the

steps to be followed in the verification process. 

In the Spring of 1995, Taylor received a performance

evaluation for the previous 12-month period. He was ranked in

the bottom 10% of his peer group, which consisted of all nonexempt employees in the “Downstream Accounting group.” According

to Exxon, customer comments, the need for close supervision, and

numerous errors accounted for Taylor’s low ranking. As a result
3

of his poor performance, Taylor received numerous verbal

instructions and was counseled several times between April and

August 1995. 

Taylor contends that in April of 1995, his supervisor,

Wallenhorst, began harassing him and being rude to him. Taylor

attributes this treatment to his ethnicity. However, he did not

report anything to the Human Resources Department until August

24, 1995, when he reported three separate incidents. 

First, Taylor reported that in April, while discussing Exxon

business with Taylor, Wallenhorst stated: “[I]f we all go down,

I mean, its just like the NAACP, John. We all go down just like

the NAACP went down.” Second, Taylor reported an incident that

occurred in August. This incident involved mistakes that Taylor

had made and Jayne Hollywood, his section coordinator, had

discovered. Hollywood approached Taylor on two occasions on the

same day about mistakes. On the second occasion, Hollywood used

profanity. According to Taylor, she stated: “[L]ook at me. 

Look at me. I am tired of this bullshit. I don’t know what the

problem is.” Third, Taylor reported that in the fall of 1995,

during a meeting in which Wallenhorst, Hollywood, and Taylor were

present, Wallenhorst announced that Taylor had received a pay

raise. Taylor objected to Jane Hollywood’s presence in the room.

According to Taylor, Wallenhorst asked if Taylor would mind if

Will Cunningham was in the room. Taylor believed Wallenhorst was

insinuating that Taylor had a problem with a white female and not

a black male. 
4

In November of 1995, Wallenhorst presented Taylor with a

Performance Improvement Plan that had been developed specifically

for Taylor. As part of the Plan, Wallenhorst advised Taylor of

several specific areas which required his immediate attention,

the most important of which were to “follow the established

vendor verification control procedures” and to “record accurate

documentation associated with these steps.” Wallenhorst also

informed Taylor that his Plan progress would be monitored and

that if his performance did not improve Exxon would take

disciplinary action against him, including termination. 

On January 17, 1996, Wallenhorst conducted an interim

improvement performance review. He informed Taylor that, while

Taylor had improved, the improvement was not sufficiently

significant to remove his work from the unsatisfactory category. 

Wallenhorst cited specific deficiencies, which Taylor has not

disputed. Wallenhorst again warned Taylor about his errors.

On January 18, 1996, the day after Taylor received a

negative review and was threatened with termination should his

performance fail to improve, Taylor filed a charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”). Several days later, Taylor informed Wallenhorst that

he had filed a charge with the EEOC. On January 31, 1996, Taylor

was suspended from employment for failing to verify two vendor

invoices. In the verification process, Taylor represented that

he had verified the vendor information, thus authorizing all

future invoices submitted by the two vendors. On February 1,
5

1996, Taylor was terminated for “falsifying company documents.”

II.

On January 17, 1996, General Taylor, Jr., Elizabeth L.

Harris, and John Taylor filed a class action complaint against

Exxon. The Plaintiffs were represented by Julius L. Larry, III. 

On November 5, 1996, the court granted Larry’s motion to withdraw

as counsel. On February 20, 1997, the court granted the

plaintiffs sixty days to secure new counsel and proceed with the

case. 

General Taylor, Jr. and Elizabeth L. Harris failed to appear

at the next scheduling conference on April 21, 1997. 

Accordingly, the court dismissed their claims for want of

prosecution. John Taylor, however, appeared at the April 21,

1997, scheduling conference represented by Steve Petrou and at

that time made an oral motion for leave to amend his complaint. 

On April 23, 1997, the court granted Taylor’s motion and allowed

him to amend his complaint to proceed as an individual action.

Taylor subsequently submitted his amended pleading alleging

race discrimination and retaliation under Title VII of the Civil

Rights Act of 1964. On January 28, 1998, the district court

granted summary judgment in favor of Exxon. Taylor appeals the

district court’s dismissal of his retaliation claim.

III.

This court reviews a grant of summary judgment de novo. 
6

Scot Properties, Ltd. v. Wal-Mart Stores, Inc., 138 F.3d 571, 573

(5th Cir. 1998). A party is entitled to summary judgment upon a

showing that there is no genuine issue of material fact and that

the movant is entitled to judgment as a matter of law. Anderson

v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). Any fact

“that might affect the outcome of the suit under the governing

law” is a material fact. Id. The court must consider the facts

in the light most favorable to the non-moving party. Id. at

2513. In opposing a motion for summary judgment, the non-moving

party may not rest upon mere allegations or denials but must set

forth specific facts showing that there is a genuine issue of

material fact. Morris v. Covan Worldwide Moving, Inc., 144 F.3d

377, 380 (5th Cir. 1998); FED. R. CIV. P. 56(e). If the nonmovant bears the burden of proof at trial, the moving party need

not submit evidence to support its motion, but need only point

out the absence of evidence supporting the non-movant’s case. 

Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.

1991).

IV.

In the Title VII retaliation context, the courts have

created a burden-shifting analysis for use in summary judgment

proceedings. First, the plaintiff must present sufficient

evidence to establish a prima facie case of retaliation. See Ray

v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995). 

Upon such a showing, the burden shifts to the employer to offer a
7

legitimate, nondiscriminatory reason for its adverse actions. 

Id. If the employer makes such a showing, the plaintiff may

avoid summary judgment by showing that the employer’s reason is

pretextual and that “but for” the plaintiff’s protected

activities, the plaintiff would not have been subject to the

adverse actions. Id. 

To establish a prima facie case of retaliation, a plaintiff

must demonstrate that: (1) he engaged in a statutorily protected

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

there was a causal connection between the protected activity and

the adverse employment action. See Nowlin v. Resolution Trust

Corp., 33 F.3d 498, 507 (5th Cir. 1994).

Exxon does not contest that the first two elements of the

prima facie case are met. It is undisputed that Taylor engaged

in a statutorily protected activity when he filed a race

discrimination claim with the EEOC. Taylor’s termination from

Exxon was an adverse employment action. See Mattern v. Eastman

Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 118

S.Ct. 336 (1997)(The “adverse employment action” prong requires

evidence of an “ultimate employment decision” such as hiring,

granting leave, discharging, promoting, and compensating.).

However, Exxon contends that the third element of the prima facie

case is not satisfied. According to Exxon, Taylor has failed to

present sufficient evidence to show a causal connection between

the protected activity and the adverse employment action.

Causation can be inferred upon a showing of the employer’s
8

knowledge of the protected activity, along with a temporal

relationship between that knowledge and the adverse consequences. 

See Ray, 63 F.3d at 435 n.23; Payne v. McLemore’s Wholesale &

Retail Stores, 654 F.2d 1130, 1141 n.13 (5th Cir. 1981). This

court has also found that in deciding on causation it is helpful

to look at the employee’s past disciplinary record and whether

the employer followed its typical policy and procedures in

terminating the employee. See Nowlin, 33 F.3d at 508.

The temporal relationship between Taylor’s complaints and

his discharge does not support a finding of retaliation. Taylor

first complained of race discrimination in August 1995, to Sharyl

Hackett in the Human Resources Department. Taylor, however, was

well aware prior to his meeting with Hackett that his supervisors

were dissatisfied with his work performance. He had already been

told by his supervisors that his work performance was low, that

he would be required to work overtime like the other members of

the team, and that his failure to follow vendor verification

procedures was a concern. Taylor had already been ranked in the

bottom 10% of his rank group. The day before Taylor filed an

EEOC charge, Wallenhorst told Taylor that his performance

remained unsatisfactory and that if his performance did not

improve his employment might be terminated. Taylor’s performance

did not improve, and, on January 24 and 26, Taylor again failed

to follow proper vendor verification procedures.

Taylor now claims that Exxon took retaliatory action against

him after he filed a race discrimination lawsuit on January 17,
9

1996. There is no evidence in the record, however, that any of

Taylor’s supervisors knew, prior to the time of Taylor’s

discharge, that he had filed a lawsuit against Exxon on January

17, 1996. Rather, Taylor’s supervisors found out only about

Taylor’s EEOC charge, and this was after Taylor had already been

repeatedly counseled for his poor performance and his failure to

follow proper vendor verification procedures. Accordingly,

causation cannot be inferred in this case, because there is no

showing of a temporal relationship between Exxon’s knowledge of

the protected activity and Exxon’s termination of Taylor. 

Taylor’s past disciplinary record also weighs against a

finding of retaliatory discharge. Even before Taylor first

complained about race discrimination in August 1995, Wallenhorst

and Hollywood repeatedly counseled him for various performance

deficiencies. Some of these deficiencies included: failure to

follow proper vendor verification procedures, mistakes and errors

in processing invoices, low productivity, failure to participate

in overtime work, and elimination of an important control report

without consulting his supervisors. On August 23, 1995, when

Hollywood “cursed” Taylor for his mistakes, Hollywood was

frustrated at Taylor’s continuing failure to follow proper

procedures and to improve his performance. This incident, which

evidenced Hollywood’s heightened frustration with Taylor’s

ongoing performance, is the very incident that prompted Taylor to

complain to the Human Resources Department in the first place. 

In addition, the events Taylor claims are possible
10

“evidence” of retaliation, such as a change in his hours and the

prohibition on him having visitors in his area, were either

suggested to him before he complained of discrimination or were

policies enforced against all Vendor Maintenance employees. 

There is no evidence to suggest that this policy, which

Wallenhorst reiterated to Taylor in August 1995, was created as a

result of Taylor having complained to the Human Resources

Department.

Furthermore, Hollywood documented in her August 24, 1995,

8:38 a.m. memorandum (in which she documented the “cursing”

incident) that she suggested to Taylor that he modify his work

hours to make it possible for him to perform all the vendor

verification requirements. Thus, Hollywood told Taylor he needed

to modify his work hours before Taylor first complained of race

discrimination to the Human Resources Department at 3:00 p.m. on

August 24, 1995. This is direct evidence that Taylor was treated

no differently after he complained to the Human Resources

Department. 

The record also indicates that Exxon followed its typical

policy and procedures when it discharged Taylor. In 1995, the

Controller’s Department discharged at least three other employees

for violating company procedures. Taylor claims that other

employees made more egregious mistakes than he did, yet their

employment was not terminated. For example, Taylor notes that

Barbara Kingston’s “mistake” in 1992 enabled another employee to

embezzle $600,000 from the company. Taylor ignores the fact that
11

in 1992 the vendor verification procedures were less stringent,

and Barbara Kingston complied with the vendor verification

procedures in place at the time. Also, Taylor notes that Arthur

DeLaGarza was “merely counseled” for approving an overpayment of

$500,000. However, the record indicates that DeLaGarza was

responsible for reviewing daily invoices. His mistake was only

an “oversight.” He failed to notice that a figure that was

supposed to be $50,000 was instead printed as $500,000. Taylor

has not demonstrated that Exxon deviated from its typical policy

and procedures when it discharged Taylor for failure to follow

proper vendor verification procedures and falsifying company

documents. 

Taylor has failed to establish a prima facie case of

retaliation under Title VII. The record establishes that

Taylor’s discharge was not related to his complaints of

discrimination. Rather, it was a direct result of his

falsification of company documents and his failure to follow

procedures despite repeated warnings and opportunities to correct

his performance. 

In a Title VII retaliation case, the ultimate determination

required for the plaintiff to succeed is that “retaliation for

filing a charge under Title VII was a ‘but for’ cause of the

adverse employment decision.” McDaniel v. Temple Indep. Sch.

Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). Taylor cannot

demonstrate that “but for” his exercise of a protected activity,

Exxon would not have terminated his employment. Given Taylor’s
12

history of performance deficiencies and the gravity of the

offense that led to his discharge, Exxon would have discharged

Taylor even if he had never filed an EEOC charge or complained to

the Human Resources department. “[N]o liability for unlawful

retaliation arises if the employee would have been terminated

even in the absence of the protected conduct.” Long v. Eastfield

College, 88 F.3d 300, 305 n.4 (5th Cir. 1996). Because Taylor

cannot carry this burden of proof, summary judgment in favor of

Exxon was appropriate. See McDaniel, 770 F.2d at 1346. 

Taylor is unable to prove the essential elements of his

prima facie case for retaliation. There are no genuine issues of

material fact: Taylor’s work performance was unsatisfactory; his

supervisors placed him on a performance improvement plan; his

supervisors counseled him on numerous occasions about following

proper procedures; and Taylor, despite the repeated counseling

sessions, failed to follow the proper procedures in setting up

two vendor accounts in January 1996. Exxon discharged Taylor for

legitimate, non-discriminatory reasons. 

V.

For the foregoing reasons, we find that the district court

did not err in granting summary judgment in favor of Exxon. The

judgment is AFFIRMED.