IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40428

WILLIAM FISHER, 

 Plaintiff-Appellant Cross-Appellee

v.

LUFKIN INDUSTRIES, INCORPORATED, 

 Defendant-Appellee Cross-Appellant

Appeals from the United States District Court

for the Eastern District of Texas

Before DENNIS, ELROD, and GRAVES, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

William Fisher brought this action against his former employer, Lufkin 

Industries, Inc., alleging, inter alia, that Lufkin violated Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., by discharging him in retaliation 

for his complaint that his direct supervisor racially harassed him.1 Following 

a two-day evidentiary hearing, the presiding magistrate judge, acting as a 

special master pursuant to 42 U.S.C. § 2000e-5(f)(5) and Federal Rule of Civil 

 1 Fisher also asserted claims for racial discrimination in violation of Title VII, as well 

as retaliation and discrimination claims under 42 U.S.C. § 1981. On appeal, however, Fisher 

does not challenge the district court’s judgment against him with respect to his § 1981 claim 

or his Title VII racial discrimination claim. 

United States Court of Appeals

Fifth Circuit

FILED

February 10, 2017

Lyle W. Cayce

Clerk

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Procedure 53, issued a Report and Recommendation recommending that the 

District Court find facts as follows: although the initial complaint by Fisher 

that his supervisor racially harassed him by addressing him as “boy” was 

meritless, Lufkin’s subsequent investigation and ultimate discharge of Fisher 

were motivated by the desire of a coworker and a supervisor to retaliate against 

him for his protected activity; however, Fisher lied to his supervisors during 

the investigation and did not fully cooperate in it, and these latter actions by 

Fisher were sufficient to justify his termination independent of any other 

proffered reasons.

Fisher filed objections and moved for an extension of time to file 

additional objections to the report, but the district court rejected his motion,

adopted the Report and Recommendation in full without assigning additional

reasons, and therefore dismissed Fisher’s retaliation claim. Fisher appeals the 

district court’s decision and its refusal to grant an extension of time to file 

additional objections to the Report and Recommendation. Lufkin filed a crossappeal seeking to assess its expert witness’s fee against Fisher. We reverse 

the district court’s judgment against Fisher and remand for further 

proceedings.

I

Fisher, an African American man, was first employed by Lufkin in 1991. 

Fisher experienced three layoffs due to reductions in force but was rehired each 

time and eventually accumulated ten years of seniority before his termination 

on May 18, 2009, which is the subject of this lawsuit. He began his employment 

as a helper but was promoted to machinist in January of 2005. Fisher 

performed his job in a satisfactory manner, received regular merit raises, and 

had never been disciplined prior to his termination. At the time that he was 

terminated, Fisher was fifty-five years old.

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Steve Saxton, Fisher’s direct supervisor, is a white man who was 

approximately thirty-one years old at the time Fisher was terminated. On 

Friday, March 6, 2009, Saxton instructed Fisher to take his breaks when 

everyone else did, rather than when Fisher wanted to. When Fisher replied

that he could not take breaks when his machine was running during certain 

operations, Saxton responded, “Boy, I don’t know why every time I come over 

here it’s a hassle!” Saxton was angry and spoke with a raised voice. Fisher 

then stated, “If you’re going to harass me, we need to get a steward.” Due to 

union rules, Saxton told Fisher to come to his office while a union steward was 

summoned. When no steward appeared, Saxton told Fisher to return on 

Monday so that they could resume the process. After he left, Fisher called 

Lufkin’s Vice President of Human Resources, Paul Perez, and left a voicemail 

stating that Saxton’s use of “boy” in addressing him constituted racial 

harassment. Perez promptly directed another manager, Ty Thornton, to 

conduct an investigation. Thornton talked to both Fisher and Saxton and 

determined that, although Saxton had called Fisher “boy,” he did not intend it 

as a racially derogatory term. Saxton’s supervisor, David Jinkins, was also 

asked to look into the matter and talk to Saxton. The magistrate judge found 

that Saxton probably intended “boy” as an exclamation rather than as an 

epithet for Fisher.

In April 2009, about a month after that incident, David Rhoden, a white 

coworker of Fisher’s, went to Jinkins and complained that he did not like the 

fact that Fisher had reported Saxton for using the word “boy” and that he was 

offended by Fisher’s statements that he would get Saxton fired. Jinkins 

testified that during this conversation Rhoden mentioned that Fisher had long 

been selling DVDs out of his lunch box and that some of them were 

pornographic. Rhoden, however, testified that it was Jinkins who raised the 

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question of whether Fisher sold DVDs out of his lunch box. Jinkins called 

Thornton to hear what Rhoden had to say. Jinkins thereupon came up with a 

plan for Rhoden to conduct a “sort of sting operation” by buying DVDs from 

Fisher. Rhoden testified that he had never bought a DVD from Fisher and did 

not want to buy one even after Jinkins asked him to do so, but he nevertheless 

agreed to comply after Jinkins told him, “You scratch my back and I’ll scratch 

yours.” Rhoden soon bought a DVD from Fisher and took it to Jinkins, but it 

turned out to be blank. Jinkins instructed Rhoden to try again. The second 

time, Jinkins was able to view the DVD and said that he thought it was 

pornographic.

On May 11, 2009, Jinkins and Thornton called in the chief union 

steward, Kerroy Thomas. Saxton brought Fisher to a conference room where 

Thornton, Jinkins, Saxton, and Thomas spoke with Fisher about conducting 

an unauthorized business on company property that involved pornographic 

material. Fisher said he did not have any such materials with him that day 

but did not admit or deny that he was engaged in such activity. He asked why 

this was coming up now and said that he did not know that “trading” things 

violated company policy. 

The group then asked Fisher to go with them to open his locker. In the 

locker, they found a manila envelope that contained five DVDs.2 Fisher said 

they were not his and that they must have been planted because the hinges of 

his locker were broken and anyone could have forced their way in, and he 

denied selling any videos.3 

 2 Among the DVDs found in the manila envelope, one was titled “Interracial Cherry 

Poppers XXX.” Even though he denied owning the DVDs, Fisher took them with him when 

he left work that day and said that he destroyed the titled DVD described above because it 

was blank. 

3 At the evidentiary hearing, Fisher admitted to selling and trading videos but denied 

selling any pornographic videos. After Lufkin’s handwriting analyst testified that the titles 

of two DVDs produced by Lufkin from undisclosed sources, “XX White Hot Nurses XX” and 

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When asked to allow a search of his car in the parking lot, Fisher initially 

cooperated but then claimed that he had to leave to tend to his wife, who was 

ill, and therefore did not allow a search of the passenger compartment. Fisher 

claimed that while at his locker, he had received a phone call from his wife. 

Thomas testified that he heard Fisher’s phone ring but the other witnesses 

testified that they did not hear anything. 

After Fisher left work during the attempt to search his car, he was 

suspended by Thornton pending further investigation. The day after the 

search, Thornton prepared notes regarding the search, which he and Jinkins

eventually presented to Perez. On May 18, 2009, Fisher was terminated via a 

letter signed by Jinkins, written at Perez’s direction, which stated only that he 

was fired “for a serious violation of company policy.” No further details were 

given to Fisher about his termination at that time.

II

Based on the evidence taken during the two-day evidentiary hearing, the 

magistrate judge found that Fisher sold DVDs at Lufkin and that he lied to his 

supervisors about that fact during the course of their investigation. However, 

the magistrate judge also found that Rhoden’s and Jinkins’s actions were 

motivated by their desire to retaliate against Fisher for his racial 

discrimination or harassment complaint against Saxton. The magistrate judge 

explained, first, that there was persuasive evidence that many employees 

possessed pornographic magazines at work without any complaint, warning or 

discipline by Lufkin, and that employees had sold all manner of goods at work 

without complaint or discipline by Lufkin. Second, the magistrate judge 

reasoned that the lengths to which Jinkins went to pursue the investigation of 

 

“Nina Hartley–Stroking to the Oldies,” were written by the same hand who wrote Fisher’s 

employment applications in his personnel file, Fisher’s counsel stated that he did not contest 

the analyst’s conclusions.

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Fisher, recruiting Rhoden to buy videos from Fisher not once but twice, showed 

“an unusual interest in the matter.” Third, the magistrate judge noted that 

Lufkin had no clear work rule against Fisher’s conduct other than one that 

would require a mere warning for a first offense.4 In this context, the 

magistrate judge also noted that Lufkin’s witnesses were unsure about the 

nature of Fisher’s violation and changed their position a number of times.5

Thus, the magistrate judge concluded that Jinkins and Rhoden 

undertook their actions against Fisher not simply as a disciplinary matter but 

as retaliation against Fisher for his protected activity in complaining about his 

alleged racial harassment by Saxton. Nevertheless, the magistrate judge 

found that Fisher’s termination was justified independent of any other reasons 

because he “resisted the investigation by leaving before his car could be 

properly searched and by lying to his supervisors about his activities.” 

III

 4 Although the magistrate judge did not cite, quote, or describe the rule he referenced, 

the record indicates that he was referring to Plant Rule 14, which states:

Employees will not engage in any activity other than assigned work on 

company premises. And in this connection, the unauthorized solicitation of 

funds, selling or soliciting the sale of articles, circulating petitions, balloting, 

distributing, or reading handbills or other literature will not be permitted 

unless same has been authorized in advance by personnel department.

At his deposition, Jinkins testified that although Rule 14 technically prohibited the

distribution and sale of articles without company authorization, an employee was supposed 

to receive a written warning for his first infraction; a written warning and layoff for 

remainder of his shift for the second infraction; a 3-day disciplinary suspension for the third 

infraction; and a 5-day suspension for the fourth infraction. Only after the fifth infraction is 

the employee supposed to be terminated.

5 The magistrate judge found that John Havard, Lufkin’s Compliance Manager, was 

unable to persuasively point to a company policy covering or prohibiting Fisher’s conduct in 

selling DVDs at work. Havard pointed to Lufkin’s sexual harassment policy and asserted 

that the sale of DVDs created an offensive and intimidating work environment. However, 

the magistrate judge found that “no one had complained and there was no evidence that 

anyone likely to be offended had ever seen the conduct” and noted that Havard was unable 

to define when possession of pornography would violate the rule. 

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Fisher’s primary contention on appeal is that the district court erred in 

accepting the magistrate judge’s conclusion that Lufkin did not violate Title 

VII’s anti-retaliation provisions when it terminated him. Specifically, Fisher

argues that because the investigation into his DVD sales was launched in 

response to his complaint about Saxton addressing him as “boy,” he has

satisfied the causation element of his retaliation claim and his resistance to 

the investigation cannot be used to justify his termination. Lufkin responds 

that “there was no evidence of a retaliatory animus on the part of Ty Thornton,

who conducted the investigation into Fisher’s sale of pornography, or Paul 

Perez, who ordered the investigation and made the decision to terminate 

Fisher.” It argues that there was sufficient evidence to support the district 

court’s conclusion that Fisher would have been terminated even in the absence 

of any retaliatory action against him. We conclude that Fisher has shown a 

sufficient causal connection between his protected activity and his termination 

to warrant reversal.

A

A Title VII retaliation plaintiff must establish that (1) the employee 

engaged in activity protected by Title VII; (2) the employer took adverse 

employment action against the employee; and (3) a causal connection exists 

between that protected activity and the adverse employment action. Zamora 

v. City of Hous., 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)). The parties agree that 

the first two requirements are satisfied in this case, and thus only the third is 

in dispute. To establish the requisite causal connection between the protected 

activity and the adverse employment action, a plaintiff must show “that his or 

her protected activity was a but-for cause of the alleged adverse action by the 

employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).

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In Staub v. Proctor Hospital, 562 U.S. 411 (2011), the Supreme Court

held that, under the “cat’s paw” theory, an employer can be held liable for a 

retaliation claim under the Uniformed Services Employment and 

Reemployment Rights Act even if the ultimate decisionmaker herself holds no 

retaliatory animus as long as the plaintiff can demonstrate that her decision 

was influenced by another who does hold such animus. Applying general 

principles of tort law, the Court explained, “Animus and responsibility for the 

adverse action can both be attributed to the earlier agent . . . if the adverse 

action is the intended consequence of that agent’s discriminatory conduct.” Id. 

at 419. The Court clarified that “the exercise of judgment by the decisionmaker 

does not prevent the earlier agent’s action . . . from being the proximate cause 

of the harm,” as it does not “automatically render[ ] the link to the supervisor’s 

bias ‘remote’ or ‘purely contingent.’” Id. at 419. The Court further explained

that the ultimate decisionmaker’s judgment cannot automatically be deemed

a “superseding cause” that breaks the causal chain of the harm. Id. at 420. 

Rather, the decisonmaker’s judgment should only be considered a superseding 

cause if it is “a cause of independent origin that was not foreseeable.” Id. at 

420 (quoting Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996)). 

In recent years, our court has had a few opportunities to apply Staub. 

In Gorman v. Verizon Wireless Texas, L.L.C., 753 F.3d 165, 171 (5th Cir. 2014), 

we recognized that the “earlier agent” who harbors retaliatory animus may be 

a coworker, rather than a supervisor.6 And in Zamora, we joined a majority of 

our sister circuits in holding that a Title VII retaliation plaintiff is entitled to 

use the cat’s paw theory of liability if he can demonstrate that a person with a 

 6 Although Gorman involved the interpretation of the Texas Commission on Human 

Rights Act, we noted, “The substantive law governing Title VII and TCHRA retaliation claims 

is identical.” 753 F.3d at 170 (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 

403 n.2 (5th Cir. 1999)).

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retaliatory motive “used the decisionmaker to bring about the intended 

retaliatory action.” 798 F.3d at 331. We explained that such a plaintiff must 

produce sufficient evidence that “(1) his . . . supervisors, motivated by 

retaliatory animus, took acts intended to cause an adverse employment action; 

and (2) those acts were a but-for cause of his [termination].”7 Id. at 333. 

Discussing the second prong, we noted that “an investigation that ‘result[ed] 

in an adverse action for reasons unrelated to the . . . [supervisors’]’ retaliatory 

statements” could be a superseding cause, breaking the causal chain. Id. at 

334 (alterations in original) (quoting Staub, 562 U.S. at 421). However, we 

emphasized that “if an independent investigation ‘takes [a supervisor’s biased 

report] into account without determining that the adverse action was, apart 

from the supervisor’s recommendation, entirely justified,’ the supervisor’s 

action ‘may remain a causal factor.’” Id. at 334-35 (alterations in original) 

(quoting Staub, 562 U.S. at 421).

B

“The standard of review for a bench trial is well established: findings of 

fact are reviewed for clear error and legal issues are reviewed de novo.” Coe v. 

Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). “A finding 

is clearly erroneous when the appellate court, viewing the evidence in its 

entirety, is left with the definite and firm conviction that a mistake has been 

made.” Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 356 (5th Cir. 2016) 

(quoting Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258-

59 (5th Cir. 2006)). “The issues of proximate causation and superseding cause 

 7 We read the Zamora court’s use of the word “supervisor” to conform to the facts of 

that case, which involved retaliatory action taken by several of the plaintiff’s supervisors,

rather than to conflict with the Gorman court’s recognition that a non-supervisory coworker 

may be the earlier agent who sets off the causal chain.

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involve application of law to fact, which is left to the factfinder, subject to [clear 

error] review.” Exxon, 517 U.S. at 840-41.

It is clear from the Report and Recommendation that Fisher satisfied 

both prongs of Zamora’s cat’s paw analysis. The magistrate judge expressly 

found that “a desire to retaliate against Fisher” motivated Rhoden to complain 

about Fisher and motivated Jinkins to launch the investigation of Fisher. The 

magistrate judge also found that the “subsequent discipline was motivated by 

a desire to retaliate for Fisher’s protected activity.” The magistrate judge’s 

findings therefore also lead to the necessary conclusion that the investigation 

would not have taken place but for Rhoden’s and Jinkins’s retaliatory actions. 

However, the magistrate judge concluded that Fisher’s lack of cooperation with 

the investigation was “sufficient to justify his termination independent of any 

other proferred [sic] reasons.” We read this statement by the magistrate judge

as concluding that Fisher’s resistance somehow broke the causal chain. To 

review this conclusion, we turn to the traditional tort-law principles of 

proximate cause and superseding cause and conclude that the district court 

clearly erred in accepting the magistrate judge’s proposed finding. Staub, 562 

U.S. at 417.

“Proximate cause requires only ‘some direct relation between the injury 

asserted and the injurious conduct alleged,’ and excludes only those ‘link[s] 

that are too remote, purely contingent, or indirect.’” Id. at 419 (alteration in 

original) (quoting Hemi Grp., LLC v. City of N.Y., 559 U.S. 1, 9 (2010)). Here, 

Fisher’s lack of cooperation with an investigation that was launched for 

retaliatory purposes was inextricably tied to his coworker’s and supervisor’s 

retaliatory animus. It would be implausible, in light of this record, to conclude 

that Rhoden’s retaliatorily motivated initial complaint and Jinkins’s 

subsequent efforts to initiate and pursue a retaliatory investigation were so 

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“remote” as to not be the cause of the ensuing discipline of Fisher. Rhoden’s 

and Jinkins’s retaliatory actions therefore served as a proximate cause of 

Fisher’s termination. See Staub, 562 U.S. at 419. 

Nor can it be said that Fisher’s refusal to acquiesce fully in the 

retaliatory investigation and search of his personal effects served as a 

superseding cause. “A cause can be thought ‘superseding’ only if it is a ‘cause 

of independent origin that was not foreseeable.’” Id. at 420 (quoting Exxon, 

517 U.S. at 837). While we do not endorse Fisher’s response, we view his mild 

resistance to a retaliatory investigation as entirely foreseeable.8 The 

magistrate judge’s conclusion that Fisher’s lack of cooperation with Lufkin’s 

retaliatorily motivated investigation, based on a dubious work rule violation,

severed the causal chain between Fisher’s protected activity, for which Rhoden 

and Jinkins retaliated against him, and his ultimate termination by Lufkin is 

thus implausible in light of the record read as a whole, and the district court 

clearly erred in accepting it. See Deperrodil, 842 F.3d at 356.

Because Fisher has demonstrated that “(1) his . . . supervisors, 

motivated by retaliatory animus, took acts intended to cause an adverse 

employment action; and (2) those acts were a but-for cause of his 

[termination],” he is entitled to relief. See Zamora, 798 F.3d at 333. 

IV

We REVERSE the district court’s judgment and REMAND for further 

proceedings and rendition of judgment consistent with this opinion. In light of 

this disposition, the remainder of the issues raised in Fisher’s appeal and 

Lufkin’s cross-appeal are DISMISSED as moot.

 8 Indeed, to shield employers from liability for adverse actions taken in response to 

such resistance would be to incentivize supervisors motivated by retaliatory animus to 

initiate groundless investigations with the purpose of causing the targeted employees to 

resist them, thereby leading to the employer’s adverse actions. We decline to provide such 

an incentive.

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