# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 50446 Summary Calendar

**Wendy Foster,**

Plaintiff

— Appellant **,**

versus

**Ferrellgas, Incorporated,**

Defendant

— Appellee

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:18

- CV

- 204

Before **Haynes, Willett,** and **Ho** , Circuit Judges

**. Per Curiam**  **:** *
Wendy Foster br ought racial discrimination and retaliation claims against her former employer, Ferrellgas, Incorporated (“Ferrellgas”). The
district court concluded that Foster ha d not established a prima facie case of
discrimination or retaliation, and that in any event Fos ter had not rebutted

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 18, 2020 Lyle W. Cayce Clerk Case: 20-50446 Document: 00515643941 Page: 1 Date Filed: 11/18/2020No. 20

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2 Ferrellgas’s proffered legitimate reason s for its actions. Because we agree
that Foster failed to make out a prima facie case on any of her claims , we **AFFIRM**

. I. Background
Foster, who alleges that she suffered racial discrimination as a black

woman , was hired in December 2014 as a C rude L ogistics S cheduler in the Midland, Texas office of Bridger Administrative Services, LLC (“Bridger”) , an oilfield hauler. As a C rude L ogistics S cheduler, Foster used a computer system to schedule and dispatch trucks. Several months into Foster’s tenure, Bridger was acquired by Ferrellgas, a propane distributor and retailer

. At that time, Foster was hired by Ferrellgas with no meaningful change i n her job
functions.
Prior to receiving her job offer from Bridger, Foster interviewed with Thomas Glenn, the Re gional Operations Manager for the Midland office.
Foster alleges that a t the interview, Glenn told her that her starting salary would be $50, 000 per year, but that within thirty days her salary would increase to $65,000 per year. Yet after thirty days had gone by, Foster still had not received her promised raise. When she complained to Glenn, he told her he would get back to her.

Glenn was eventually fired and replaced by Lyle Lowrance. Foster complained repeatedly to Lowrance about her missing raise, but to no avail. In her deposition, Foster testified that Lowrance advised her that she was not getting the raise because she was black

. H owe ver, she also indicated that
Lowrance was not responsible for denying her the raise , as she stated that he had been trying to help her get the raise

. By Foster’s account, Lowrance did not identify who determined Foster’s salary, nor did he explain why he believed Foster was being discriminated against due to her race

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3 Lowrance was eventually fired too , and Foster continue d to complain about her raise to her new supervisors, Bart Larson and Larry Garren, as well as other Ferrellgas managers. She last complained about her raise during a “personal meeting” with Larson and Garren on February 8, 2016.
Ferrellgas terminated Foster on February 15, 2016. According to Ferrellgas, Foster was terminated as part of a larger reduction in force due to

a company

- wide financial crisis

. During Foster’s employment, Ferrellgas employed at least eight white C rude L ogistics S chedulers, all of whom made at least $60,000 per year . Foster recall ed training several white women who were hired as dispatchers after she started , and she overhea r d these women say that they were making $65,000 per year. Ferrellgas’s records show ed
that there were two white female C rude L ogistics S chedulers making $65,000 per year during the period of Foster’s employment.
In September 2016, Foster filed a discrimination charge with the Texas Workforce Commission and the Equal Employment Opportunity
Commission. 1

Foster filed suit in November 2018. As relevant here, she alleged that Ferrellgas had paid her less than her wh ite colleagues and terminated her due to her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e

– 2000e

- 17 , and had terminated her in retaliation for complaining about her disparate treatment, also in violation of Title VII. Ferrellgas moved for summary judgment, which the district court granted. Foster timely appealed.

1 Foster amended her charge in January 2017, alleging the same discriminatory actions as in her September 2016 charge. Case: 20-50446 Document: 00515643941 Page: 3 Date Filed: 11/18/2020No. 20

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4 II. Discussion
We review a district court’s grant of summary judgment de novo , viewing all admissible evidence “in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. ” Kariuki v. Tarango , 709 F.3d 495, 501 (5th Cir. 2013) (quotation omitted). A district court must grant summary judgment “if the movant shows that 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).
Plaintiffs may prove employment discrimination “by direct or circumstantial evidence, or both.” Nall v. BNSF Ry. Co

. , 917 F.3d 335, 340 (5th Cir. 2 019) (quotation omitted). Where plaintiffs rely on circumstantial evidence, courts employ the burden

- shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 802 (1973). Nall , 917 F.3d

at 340. Under McDonnell Douglas , the plaintif f must first present a prima facie case of discrimination by showing that she: (1) is a member of a protected group; (2) was qualified for the position at issue ; (3) was discharged or suffered some adverse employment action by the employer; and (4) was re placed by someone outside her protected group or was treated less favorably than other similarly situated employees outside the protected group.
Roberson

- King v. La. Workforce Comm’n, Off

. of Workforce Dev

. , 904 F.3d 377, 381 (5th Cir. 2018) (cleaned up). If the plaintiff makes out her prima facie case, “the burden shifts to the employer to provide a legitimate, non

discriminatory reason for the employment decision.” Id. (quotation omitted). If the employ er provides such a reason, “the burden shifts back to the plaintiff to show the reason is merely pretextual.” Id. (quotation omitted). Case: 20-50446 Document: 00515643941 Page: 4 Date Filed: 11/18/2020No. 20

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5 The district court ruled that Foster did not make out her prima faci e case on her disparate pay claim because she did no t identify evidence showing a similarly situated employee of a different race who was better paid

. Following the same reasoning, the district court dismissed Foster’s discriminatory termination claim because Foster did not show that she was similarly situ ated to any of the employees Ferrellgas retained after her
termination. To show that a fellow employee was similarly situated, a Title VII plaintiff must demonstrate that they were in “nearly identical”
circumstances. Okoye v. Univ. of Tex. Hous. Health Sci

. Ctr. , 245 F.3d 507, 514 (5th Cir. 2001) (quotation omitted). This “inquiry is case

- specific and requires us to consider the full variety of factors that an objectively reasonable decisionmaker would have found relevant in making the challenged
decisi on.” Lindquist v. City of Pasadena , 669 F.3d 225, 23 4 (5th Cir. 2012) (cleaned up) ; see also Spencer v. Va. State Univ

. , 919 F.3d 199, 207 (4th Cir. 2019) (explaining that when evaluating employee similarity under Title VII,
“courts consider whether the e mployees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications” (quotation omitted)) , cert. denied , 140 S. Ct. 381 ( m em

. ) (2019)

. Although Foster shared a job title and a supervisor with the white employees she identified as being in similarly situated positions , she provided virtually no evidence concerning their relevant qualifications, nor did she
establish that they performed comparable work. Indeed, at her deposition, Foster repeatedly disclaimed any knowledge of what her co

- workers did. Further, even though Foster trained higher

- paid colleagues, this evidence does not exclude the possibility that these indiv iduals had more industry experience, superior education , or different job responsibilities. Thus, the Case: 20-50446 Document: 00515643941 Page: 5 Date Filed: 11/18/2020No. 20

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6 district court properly granted summary judgment on Foster’s disparate pay and discriminatory termination claims

. 2

Title VII r etaliation claim s are also evaluated under the McDonnell Douglas framework. Septimus v. Univ. of Hous

. , 399 F.3d 601, 608 (5th Cir. 2005). To make out a prima facie case of retaliation, a plaintiff must establish
that: “ (1) she engaged in protected activity; (2) the employer took a materially adverse action against her; and (3) a causal link exists between her protected activity and the adverse action.” Wheat v. Fla. Par

. Juv

. Just

. Comm’n , 811 F.3d 702, 705 (5th Cir. 2016).
Foster contends that she engaged in protected activity by complaining to her supervisors about being paid less than her white co

- workers

. Because Title VII protects informal complaints so long as the plaintiff “reasonably
believed ” the challenged employment practice violated Title VII , Fost er likely engaged in protected activity to the extent she made such complaints

. EEOC v. Rite Way Ser v ., Inc

. , 819 F.3d 235, 240 (5th Cir. 2016); see 42 U.S.C. § 2000e

- 3(a) (making it unlawful to retaliate against any employee for “oppos[ing] any practice made an unlawful employment practice by this

2 On appeal, Foster argues that Lowrance’s statement that she would not receive a raise because of her race obviat es the need to make ou t a McDonnell Douglas prima facie case based on circumstantial evidence. Foster did not present a direct evidence claim to the district court, and we will not consider it for the first time on appeal. See Celanese Corp. v. Martin K. Eby Constr. Co

. , 620 F.3d 529, 531 (5th Cir. 2010) (“The general rule of this court is that arguments not raised before the district court are waived and will not be considered on appeal.”). E ven if we did consider it, in order to qualify as direct evidence of discrimination, the comment must, among other things, have be en “ made by an individual with authority over the employment decision at issue.” Clark v. Champion Nat’l Sec. , 952 F.3d 570 , 581 (5th Cir. 2020), cert. denied , 2020 WL 6385801 (mem.) (Nov. 2, 2020) ; see also A uguster v. Vermilion Parish Sch. Bd. , 249 F.3d 400, 405 (5th Cir. 2001)

. Foster’s admission that Lowrance did not decide her salary and that she did not know the basis for his statement precludes consideration of this statement as direct evidence of discrimination

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7 subchapter”). Further, there is no dispute that Ferrellgas took a materially adverse action against Foster by firing her.
Nevertheless, Foster did not provide evidence raising a fact issue on
causation

. Foste r asserts that because she complained to Larson and Garren about her pay one week before her termination, there is sufficient temporal proximity between her protected activity and the adverse action to infer retaliatory animus. We have recognized that “ti ming alone” is enough to establish causation at the prima facie s tage if “the protected act and the adverse employment action [are] very close in time.” Porter v. Houma
Terrebonne Hous

. Auth. Bd. of Comm’rs , 810 F.3d 940, 948

– 49 (5th Cir. 2015) (cleaned u p) ( holding that protected activity and adverse action six

- and

- a

half week s apart were sufficient ly close to demonstrate causation). But Foster has presented no evidence that she engaged in protected activity during the relevant meeting with Larson and Garren. Rather, she avers only that she “asked again about [her] raise , ” without any reference to claims of racially disparate treatmen t. As the meeting with Larson and Garren does not qualify as protected activity , its proximity to Foster’s discharge does not support an inference of retaliatory intent. Because Foster does not specify the date of any other meeting where she purportedly engaged in protected activity, there is insufficient evidentiary support of temporal proximity to raise a genuine issue of material fact on causation

. 3
The district court properly determined that Foster did not raise a fact
issue that would demonstrate a prima facie case of discrimination or

3 Foster argues that there is additional evidence in the record that establishes causation, including Lowrance’s statement described above. Yet once again, Foster did not present th is argument to the district court, and thus we will n ot consider it on appeal. Case: 20-50446 Document: 00515643941 Page: 7 Date Filed: 11/18/2020No. 20

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8 retaliation. Thus, there is no need to consider the validity of Ferrellgas’s explanations for Foster’s salary and termination. W e **AFFIRM**

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