* District Judge of the Western District of Louisiana, sitting by designation.

** 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. 07-30866

EMMIT DUMAS,

Plaintiff - Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant - Appellee.

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:05-CV-264

Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.

PER CURIAM:**

Emmit Dumas (“Dumas”) appeals the district court’s grant of summary

judgment to defendant Union Pacific Railroad Company (“Union Pacific”) on

Dumas’ claims of retaliatory termination under Title VII and 42 U.S.C. § 1981.

For the following reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-30866

1 Pertinent to this case, Whalen left the Livonia Service Unit, where Dumas worked, in

February 2004 and was replaced at that time by Monty Whatley, the Superintendent who eventually

signed Dumas’ letter of termination in August 2004.

2

I

Dumas, an African-American, was employed by Union Pacific from 1995

until his termination in August 2004. He claims that he was terminated in

retaliation for testifying on behalf of another employee, Eddie Bibbins

(“Bibbins”), who had previously brought race discrimination charges against

Union Pacific. In January 2003, Bibbins complained to Union Pacific

management that one of his supervisors was using racial slurs. Union Pacific

undertook an investigation of the charge (the “Bibbins investigation”). During

this investigation, Joe Whalen, a Superintendent at Union Pacific, interviewed

Dumas regarding Bibbins’ allegations.1 Dumas corroborated Bibbins’ claims.

Bibbins then filed an EEOC Charge, and eventually filed suit against Union

Pacific in early 2004. Again, Dumas gave a statement supporting Bibbins’

claims. The parties eventually settled the Bibbins action and it was dismissed

with prejudice in September 2006.

In June 2003, shortly after Dumas’ involvement in the Bibbins

investigation, Dumas was elevated from the position of track foreman to track

inspector. As a track inspector, Dumas was required to inspect Union Pacific

track for compliance with theTrack Safety Standard promulgated by the Federal

Railroad Administration (“FRA”) and to file an inspection report on the date any

inspection was made. See 49 C.F.R. §§ 212.203 and 213.241. The FRA is

charged with ensuring railroad compliance with the many applicable

regulations.

In July 2004, FRA inspector Nick Roppolo performed a routine audit for

an area covered by Union Pacific’s Livonia Service Unit and which included the

track for which Dumas was responsible. FRA regulations require track
No. 07-30866

3

inspectors to check with a dispatcher to ensure thatthe areas to be inspected are

free of traffic during the time when inspections will be done. During the audit,

Roppolo discovered that the track inspection records entered by Dumas did not

match the authority dispatching records, which indicated that Dumas had

performed track inspections on multiple occasions without receiving authority

from the dispatch center for such inspections. The records entered by Dumas

indicated that he had received proper authority from dispatch. Roppolo’s audit

report recommended the FRA impose fines against Union Pacific for the failure,

and require Union Pacific to provide the FRA with written notice of remedial

action taken in response to the violations.

Based on Roppolo’s audit findings, Union Pacific charged plaintiff with a

violation of General Code of Operating Rule 1.6, which proscribes employee

dishonesty. A formal investigation, with Dumas aided by union representatives,

was held in August 2004. The formal investigation resulted in a finding that

Dumas engaged in dishonest conduct. If Union Pacific finds a violation of Rule

1.6 based upon an employee’s dishonest conduct, the violation is a Level 5 out of

5 on Union Pacific’s discipline scale. The recommended discipline for a Level 5

violation is permanent dismissal. After this investigation, Union Pacific decided

to terminate Dumas. Monty Whatley, the Superintendent who replaced Joe

Whalen, signed a letter of termination which was sent to Dumas. The letter

indicated that Dumas was being terminated based on his dishonest conduct in

violation of Rule 1.6. Dumas appealed the decision to the Public Law Board,

which affirmed the termination decision.

Dumas then filed this action in federal court, claiming that he was

unlawfully terminated in retaliation for his participation in the Bibbins

investigation. Dumas alleged that his retaliatory termination violated the

Louisiana Employment Discrimination Law, Title VII of the Civil Rights Act of

1964, and 42 U.S.C. § 1981. Union Pacific moved for summary judgment on the
No. 07-30866

4

retaliation claims. The district court granted summary judgment in favor of

Union Pacific, adopting the recommendations of the magistrate judge, holding

that Dumas failed to demonstrate a causal connection between Dumas’ protected

activity and his termination and thus did not establish a prima facie case of

retaliation.

II

We review a district court’s summary judgment ruling de novo, applying

the same standard as the district court. Hockman v. Westward Commc’ns, LLC,

407 F.3d 317, 325 (5th Cir. 2004). A party is entitled to summary judgment “if

the pleadings, depositions, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact.” Fed.

R. Civ. P. 56(c). In reviewing a grant of summary judgment, we view the facts

in the light most favorable to the nonmoving party, in this case Dumas. See

Hockman, 407 F.3d at 325. A genuine issue of material fact exists when the

evidence is such that a reasonable jury could return a verdict for the nonmovant. See LeMaire v. La. Dep’t of Trans. and Dev., 480 F.3d 383, 387 (5th Cir.

2007).

III

Title VII forbids an employer from “discriminat[ing] against” an employee

or job applicant because that individual “opposed any practice” made unlawful

by Title VII or because the individual “made a charge, testified, assisted, or

participated in” aTitle VII proceeding or investigation. See Burlington Northern

& Santa Fe Rwy. Co. v. White, 548 U.S. 53, 59 (2006) (citing 42 U.S.C. § 2000e3(a)). We apply the evidentiary framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973) to Title VII retaliation claims that

rely on circumstantial evidence. See Turner v. Baylor Richardson Med. Ctr., 476
No. 07-30866

2 While the plaintiff based his unlawful retaliation claims on both Title VII and 42 U.S.C. §

1981, we refer only to Title VII in this opinion. When a plaintiff pursues both as parallel causes of

action, Title VII and § 1981 require the same proof to establish liability. Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999). The plaintiff raises no issue with respect to his

claim for retaliation under Louisiana law. As a consequence, the plaintiff has abandoned any claim for

retaliation arising under Louisiana law. See Priester v. Lowndes County, 354 F.3d 414, 420 n.6 (5th

Cir. 2004) (noting that an appellant “abandons all issues not raised and argued in its initial appellate

brief”). 

5

F.3d 337, 348 (5th Cir. 2007).2 Under the McDonnell Douglas burden-shifting

framework, a plaintiff must first present a prima facie case of unlawful

retaliation. See Rios v. Rosetti, 252 F.3d 375, 380 (5th Cir. 2001). To establish

a prima facie case, the plaintiff must show that: (1) he 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. See Turner,

476 F.3d at 348. A plaintiff need not show that the protected activity was the

“but for” cause of the adverse action to make his prima facie showing. See Gee

v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).

If the plaintiff successfully establishes a prima facie case, the burden

shifts to the employer to articulate a legitimate, non-retaliatory reason for the

adverse employment action. See Lemaire, 480 F.3d at 388. If the employer

meets its burden and produces such a reason, the burden shifts back to the

plaintiff. See id. At this point, the plaintiff can pursue two options. The

plaintiff must show either: “(1) that the defendant’s reason is not true, but is

instead a pretext for discrimination (pretext alternative); or (2) that the

defendant’s reason, while true, is only one of the reasons for its conduct, and

another ‘motivating factor’ is the plaintiff’s protected characteristic (mixedmotive[s] alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004) (alteration in original); see Desert Palace, Inc. v. Costa, 539 U.S. 90,

92-94 (2003) (holding that plaintiffs pursuing a mixed-motive theory should not

face a heightened evidentiary burden). Under the pretext alternative, the
No. 07-30866

3 We question whether Dumas attempts to pursue a mixed-motive argument on appeal. His

brief is unclear on the matter. We also question whether he raised a mixed motive argument below in

opposing summary judgment. If he failed to do raise the theory below, it cannot be raised for the first

time on appeal. See Turner, 476 F.3d at 347 (finding mixed motive theory waived on appeal because

it was not presented until the plaintiff’s motion for new trial). However, we need not answer these

questions because, in any event as explained below, Dumas failed to make out a prima facie case of

retaliation.

4 The district court also ruled that Dumas failed to create an issue of fact as to whether his

protected activity was a “but for” cause of his termination. Therefore, even assuming that Dumas

satisfied the prima facie case requirements, the district court determined that Dumas could not meet

the ultimate burden placed on him after Union Pacific proffered its legitimate, non-discriminatory

reason for Dumas’ termination. Because we agree with the district court’s first conclusion as to Dumas’

failure at the prima facie case stage, we need not reach its alternative conclusion.

6

plaintiff has the burden of proving that but for the discriminatory purpose, the

adverse employment action would not have been taken. See Septimus v. Univ.

of Houston, 399 F.3d 601, 608 (5th Cir. 2005). If the plaintiff pursues a mixedmotive theory, and shows that the plaintiff’s protected characteristic or conduct

was a motivating factor, then the burden shifts to the employer to show that the

adverse employment decision would have been made regardless of the

discriminatory animus. See Rachid, 376 F.3d at 312.3

There is no dispute that Dumas has satisfied the first two elements of his

prima facie case. However, the district court ruled that Dumas failed to create

a genuine issue of material fact as to whether there was a causal link between

his protected activity and his termination, and thus concluded that Dumas’

prima facie case failed as a matter of law.4“In order to establish the causation

prong of a retaliation claim,the employee should demonstrate thatthe employer

knew about the employee’s protected activity.” Manning v. Chevron Chem. Co.,

332 F.3d 874, 883 (5th Cir. 2003). “[I]n determining whether an adverse

employment action was taken as a result of retaliation, our focus is on the final

decisionmaker.” Gee, 289 F.3d at 346. While we focus on the ultimate

decisionmaker, a plaintiff can make out a prima facie case by showing that other

employees, with discriminatory motives, “had influence or leverage over the
No. 07-30866

7

official decisionmaker.” Id.; see also Long v. Eastfield Coll., 88F.3d 300, 307 (5th

Cir. 1996) (noting that if the final decisionmaker serves as the “cat’s paw” of

those acting with retaliatory motives, the causal link remains intact).

Monty Whatley, the Superintendent who signed Dumas’ notice of

termination, started with the Livonia Service Unit about eight months after

Dumas’ involvement in the Bibbins investigation. Although Whatley was not a

part of the unit when the investigation occurred, Dumas argues that others

played a role in the decision to terminate him in retaliation for participation in

the Bibbins investigation. Dumas contends that Joe Whalen, the

Superintendent prior to Whatley, and two other employees senior to Dumas,

Jerry Rugg and Dale Kriefels, influenced the termination decision. 

However, Dumas fails to provide any evidence that these individuals

influenced Whatley’s termination decision, or that Whatley had knowledge of

Dumas’ participation in the Bibbins investigation. The record includes no

deposition testimony from Whatley that would provide insight into what he

knew at the time of Dumas’ termination. The termination letter indicates only

that Dumas was fired for dishonesty in violation of rule 1.6. Undisputed

evidence shows that Whalen transferred out ofthe Livonia Service Unit and was

replaced by Whatley in February 2004, six months prior to the FRA audit and

Dumas’ termination. As to Rugg, even assuming he played an influential role

in the decision, his uncontroverted deposition testimony indicates that he did not

know of Dumas’ participation in the investigation at the time Dumas was

terminated. Kreifels is the only Union Pacific employee that the evidence

suggests had knowledge of Dumas’ participation in the Bibbins investigation,

the FRA audit, and Dumas’ termination. However, Dumas offers no evidence

that Kreifels made any suggestion to Whatley regarding termination, or that he

relayed any information to Whatley regarding Dumas’ involvement in the

Bibbins investigation. Based on the summary judgment record, Whatley, the
No. 07-30866

8

final decisionmaker, had no knowledge of Dumas’ involvement; and Kreifels,the

only employee with the information to influence Whatley, did not attempt to do

so.

While not determinative, the timing of an employer’s adverse action can

be considered in analyzing the causal link in a retaliation claim. See Gee, 289

F.3d at 346 n.3. Union Pacific terminated Dumas on August 27, 2004, nineteen

months after his participation in the Bibbins investigation, which took place in

January 2003. In his deposition, Dumas testified that prior to the FRA audit,

he was never harassed, intimidated, demoted, or disciplined based on his

participation in the Bibbins investigation. Further, the employment action that

most closely followed Dumas’ participation in the Bibbins investigation was a

positive action: his June 1, 2003 promotion from Track Foreman to Track

Inspector. While not conclusive, the lapse of time and the intervening positive

employment action further weaken the already tenuous causal link between

Dumas’ protected activity and his termination. See Grizzle v. Travelers Health

Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (noting that 18-month lapse and

intervening raise showed that retaliatory motive was unlikely).

Dumas argues that a causal link may be implied because other Union

Pacific employees committed similar violations but were not terminated. This

argument overlooks the fact that Dumas is required to establish that he was

terminated in retaliation for engaging in protected activity. The discipline

exercised against other employees is inapposite because Dumas has not provided

any evidence that the decisionmaker in his case had any knowledge of his

protected activity, or that the decisionmaker was improperly influenced by

someone who did have such knowledge.

Dumas’ evidence fails to create a genuine issue of material fact as to

whether a causal link exists between his protected activity and the adverse

employment action taken against him, and thus he cannot make out his prima
No. 07-30866

9

facie case for retaliation. Accordingly, we AFFIRM the district court’s grant of

summary judgment in favor of Union Pacific.