IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50530

TODD A. ENGLISH, 

 Plaintiff - Appellant

v.

SONNY PERDUE, Secretary, USDA, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:16-CV-306

Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District 

Judge.1

STEPHEN A. HIGGINSON, Circuit Judge:*

Todd English, an employee of the United States Department of 

Agriculture (USDA), brought claims for sex- and age-based discrimination, 

hostile work environment, and retaliation against the Secretary of Agriculture 

 

1 Debra M. Brown, United States District Judge, Northern District of Mississippi.

* 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

June 19, 2019

Lyle W. Cayce

Clerk

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in his official capacity. The district court granted the Secretary’s motion to 

dismiss for failure to state a claim, and we affirm. 

English, through counsel, filed his original complaint in July 2016 and 

an amended complaint in July 2017. The Secretary moved to dismiss, and a 

magistrate judge recommended that the motion be denied. Shortly afterwards, 

English filed a second amended complaint with the magistrate judge’s leave.2

English’s counsel then withdrew.3 Contrary to the magistrate judge’s 

recommendation, the district court granted the Secretary’s motion to dismiss, 

prompting English’s appeal.

For the purposes of this appeal, we focus on the second amended 

complaint, taking its well-pleaded allegations as true. See Allen v. Walmart 

Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018).4

 

2 The magistrate judge provided leave at a telephonic status conference. A minute 

entry for the conference reflects that English’s counsel had said he intended to file a second 

amended complaint. “He asked if he needed leave of Court to file it and [Magistrate] Judge 

Manske told him to go ahead and file it since [Assistant U.S. Attorney] Cooper did not have 

an objection.” 

3 English has proceeded pro se since then. In this appeal, he challenges the magistrate 

judge’s approval of his counsel’s motion to withdraw. The magistrate judge had denied two 

previous motions to withdraw. The magistrate judge granted counsel’s third motion, which 

was accompanied by an affidavit citing fundamental disagreement over the scope of 

representation, among other problems. The depth of that disagreement is evident from the 

lengthy portion of English’s brief addressing the issue. 

“An attorney may withdraw from representation only upon leave of the court and a 

showing of good cause and reasonable notice to the client.” Matter of Wynn, 889 F.2d 644, 646 

(5th Cir. 1989). The matter of attorney withdrawal is “entrusted to the sound discretion of 

the court and will be overturned on appeal only for an abuse of that discretion.” Id. (quotation 

omitted). We see no abuse of discretion here.

4 English’s brief adds extensive detail not present in his complaint. His arguments 

against the district court’s dismissal of his lawsuit are based largely on this new detail. We 

cannot and do not consider English’s many allegations advanced for the first time on appeal. 

See Edionwe v. Bailey, 860 F.3d 287, 293 n.1 (5th Cir. 2017). If we did consider English’s new 

allegations, their focus on civil-service rules and on an apparent union-related dispute in 

English’s workplace––to the near-total exclusion of the antidiscrimination laws on which his 

suit is based––would strengthen our conclusion, explained below, that English’s sex or age

did not plausibly cause his troubles at work. 

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English’s complaint explained that he is a man over age 40 who, at the 

relevant time, was employed by the USDA Office of Rural Development’s 

Single Family Housing Division in Temple, Texas. English alleged that his 

supervisor, Theresa Jordison, and the state director, Francisco Valentin, 

discriminated against him based on his age and sex, created a hostile work 

environment, and retaliated against him after he filed an Equal Employment 

Opportunity complaint. He invoked both Title VII of the Civil Rights Act, 42 

U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 

29 U.S.C. § 621 et seq.5

English’s disparate-treatment allegations centered on a female coworker 

under age 30 who was allegedly “groom[ed] for promotion” by Jordison and 

given “assignments and opportunities” that English believed he should have 

received. English asserted that Valentin likewise gave female coworkers 

preferential treatment. English also said that he received an unwarranted 

“Does Not Meet” performance review from Jordison that rendered him 

ineligible for promotion. 

English’s complaint also alleged that he experienced a work environment 

made hostile by the conduct of Jordison and his coworkers. He said that 

Jordison ridiculed and berated him publicly, subjected him to unwarranted 

scrutiny, and dealt unfairly and capriciously with his work leave, among other 

wrongs. Jordison also allegedly tolerated snide remarks toward English by his 

coworkers6 and, when English complained, told him to find another job.

English further claimed that he experienced retaliation “for pursuing a 

Charge of Discrimination.” The complaint did not say when he filed that 

 

5 English cited the ADEA for the first time in his second amended complaint. He 

mentioned age discrimination in his first amended complaint, but without citing or naming 

the statute.

6 A “younger female coworker” allegedly called English a “dumb sh*t.” 

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charge, but it did say that, “subsequent to [English] filing his Charge,” 

Valentin undertook various retaliatory acts. Those acts included an 

“unreasonable and warrantless investigation,” unjustified placement of 

English on administrative leave, restrictions on him in the workplace, and a 

transfer to another job. Though it seems from English’s complaint that the 

allegedly hostile work environment existed before he filed his Charge, English 

alleged that the environment grew yet more hostile afterwards.

Reviewing English’s first amended complaint, the magistrate judge

recommended denying the Secretary’s motion to dismiss as to two Title VII 

claims: English’s hostile work environment claim, and the retaliatory hostile 

work environment claim that English seemingly intended to bring.7 The 

magistrate judge also recommended granting leave to amend, due to English’s 

complaint conflating the various types of claims under Title VII. The 

magistrate judge later granted that leave himself.

The district court, contrary to the magistrate judge’s recommendation, 

granted the Secretary’s motion to dismiss. Focusing on English’s first amended 

complaint, the district court concluded that English’s complaint failed to plead 

the requisite causal links adequately. In the district court’s view, English did 

not plausibly allege that he experienced discrimination or hostility due to his 

sex or his age, nor did he plausibly allege that the alleged retaliatory acts he 

endured were due to the protected activity of filing a Charge of 

Discrimination.8

 

7 This court has not yet recognized the latter claim, though the other circuit courts 

have. See Heath v. Bd. of Supervisors for So. Univ. and Agric. and Mech. College, 850 F.3d 

731, 741 n.5 (5th Cir. 2017).

8 Though the district court focused on English’s first amended complaint, it 

acknowledged the second amended complaint and ruled that it did not remedy the 

deficiencies of the earlier filing. 

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“We review a district court’s grant of a motion to dismiss based on failure 

to state a claim de novo, accepting all well-pleaded facts in the complaint as 

true.” Raj v. La. State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013). “We affirm 

the district court’s grant of a motion to dismiss when the plaintiff has not 

alleged enough facts to state a claim to relief that is plausible on its face or has 

failed to raise its right to relief above the speculative level, on the assumption 

that all the allegations in the complaint are true (even if doubtful in fact).” Id. 

at 330 (quotation omitted). “To state a claim that is facially plausible, a 

plaintiff must plead factual content that ‘allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.’”

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009)). 

We begin with English’s hostile work environment claims. To establish 

a hostile work environment claim under Title VII, the plaintiff must prove that 

he (1) belongs to a protected group; (2) was subjected to unwelcome 

harassment; (3) the harassment complained of was based on his membership 

in the protected group; (4) the harassment complained of affected a term, 

condition, or privilege of employment; and (5) the employer knew or should 

have known of the harassment in question and failed to take prompt remedial 

action. Williams-Boldware v. Denton County, Tex., 741 F.3d 635, 640 (5th Cir. 

2014). To establish the equivalent claim under the ADEA, the plaintiff must 

show that (1) he was over the age of 40; (2) he was subjected to harassment, 

either through words or actions, based on age; (3) the nature of the harassment 

was such that it created an objectively intimidating, hostile, or offensive work 

environment; and (4) there exists some basis for liability on the part of the 

employer. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011).

The district court correctly concluded that English did not adequately 

plead that his allegedly hostile work environment was based on his sex or his 

age. Nothing in his allegations makes it more than merely speculative that his 

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sex or age caused the various forms of hostile treatment he allegedly endured. 

His complaint lacks, for instance, allegations of hostile age-based remarks that 

we have previously found adequate to state a claim. E.g., Dediol, 655 F.3d at 

438 (concerning an elderly man berated as “old man,” “pops,” and “old 

m*****f*****”). The one allegedly hostile remark directed at English, supra 

note 16, was not sex- or age-related. Even if it were, “isolated incidents (unless 

extremely serious)” are insufficient for a hostile work environment claim. 

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). 

Moreover, though English alleged a variety of inconsiderate and even mean 

conduct in his workplace, he described that conduct only in a conclusory 

fashion. None of his allegations plausibly shows that his sex or age was the 

basis of the allegedly hostile conduct he experienced. As such, dismissal was 

the appropriate course. See Raj, 714 F.3d at 331. 

We turn next to English’s retaliation claims. To state a retaliation claim 

under Title VII, a plaintiff must show that (1) he engaged in conduct protected 

by Title VII; (2) he suffered a materially adverse action; and (3) a causal 

connection exists between the protected activity and the adverse action.

Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d 263, 269 (5th Cir. 2015). A 

retaliation claim under the ADEA entails the same showing. See Wooten v. 

McDonald Transit Assocs., Inc., 788 F.3d 490, 496–97 (5th Cir. 2015). 

The district court correctly concluded that English failed to state a 

retaliation claim because he did not show a causal link between protected 

activity and adverse action. In retaliation cases, “causation is difficult to prove” 

and calls for “a highly fact specific” analysis. Nowlin v. Resolution Trust Corp., 

33 F.3d 498, 508 (5th Cir. 1994). Among other factors, we have suggested that 

an employee’s “past disciplinary record,” an employer’s departure from “typical 

policy and procedures,” and “the temporal relationship between the employee’s 

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conduct and discharge” might shed light on the causal component of a 

retaliation claim. Id. 

As the district court noted, English’s complaint contained no temporal 

detail other than that various alleged acts by the state director, Valentin, were 

“subsequent to” English’s protected activity and that the frequency and degree 

of mistreatment increased. “[T]he mere fact that some adverse action is 

taken after an employee engages in some protected activity will not always be 

enough for a prima facie case.” Swanson v. General Servs. Admin., 110 F.3d 

1180, 1188 n.3 (5th Cir. 1997). Indeed, we look for close temporal proximity 

when reviewing pleadings for sufficient allegations. Compare Wooten, 788 F.3d 

at 499 (deeming complaint plausible where all retaliatory acts occurred within 

seven months of protected activity, after a decade of unblemished 

employment), with Heggemeier v. Caldwell County, Tex., 826 F.3d 861, 870 (5th 

Cir. 2016) (deeming twenty-one-month lag too long for plausibility), and Leal 

v. McHugh, 731 F.3d 405, 417 (5th Cir. 2013) (three- to nine-year lag too long). 

By failing to provide temporal detail, English left unused an important means 

of showing causation. His complaint also lacked other allegations that might 

have made up for the deficiency.9

This absence of detailed allegations is likewise fatal to English’s 

retaliatory hostile work environment claims. Because he has not plausibly 

alleged a causal connection between his protected activity and the various 

misfortunes that befell him thereafter, we need not decide whether to join the 

 

9 English’s allegation that Jordison did not place him on a “performance improvement 

plan” as required by departmental rules before she gave him a poor performance review 

might seem like a departure from “typical policy and procedures,” which can have causal 

significance according to Nowlin. See 33 F.3d at 508. But without temporal detail, there is no 

way to tell whether this alleged departure occurred before or after English’s protected activity 

and thus no way to decide whether it lends plausibility to English’s claims. 

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rest of the circuit courts in recognizing a retaliatory hostile work environment 

claim. See Heath, 850 F.3d at 741 n.5.

Next, we read English’s complaint as attempting to state a disparatetreatment claim based on sex and age, given the allegations about the 

preferential treatment enjoyed by a younger female coworker.10 At the 

pleading stage, a plaintiff is not required to “make out a prima facie case of 

discrimination in order to survive a Rule 12(b)(6) motion to dismiss.” Raj, 714 

F.3d at 331. Nevertheless, the plaintiff’s allegations still must plausibly 

address “the ultimate question in a Title VII disparate treatment claim,” that 

is, “whether a defendant took the adverse employment action against a 

plaintiff because of [his or] her protected status.” Raj, 714 F.3d at 331 

(quotation omitted). Likewise for the ADEA. See Leal, 731 F.3d at 410–12.11

Much of what English identifies as preferential treatment is not 

cognizable as an adverse employment action. “Adverse employment actions are 

ultimate employment decisions such as hiring, firing, demoting, promoting, 

granting leave, and compensating.” Stroy v. Gibson on behalf of Dep’t of Vet. 

Affairs, 896 F.3d 693, 699 (5th Cir. 2018) (quotation omitted). “[A]n 

employment action that does not affect job duties, compensation, or benefits is 

not an adverse action.” Id. (quotation omitted). Complaints that coworkers got 

to socialize with higher-ups, for instance, do not count. 

To the extent any of English’s claimed misfortunes did “affect job duties, 

compensation, or benefits,” his disparate-treatment theory has the same 

 

10 The district court did not deal expressly with disparate treatment.

11 Though English is a federal employee, the parties and the district court did not 

address the difference between the causal element of ADEA claims for federal employees 

versus private or local-government employees. See Leal, 731 F.3d at 410–12 (contrasting the 

lesser showing required under 29 U.S.C. § 633a, concerning federal employees, with “the 

more restrictive burden of proof” under § 623(a), concerning non-federal employees). We 

apply Leal’s treatment of federal employees’ required showing here.

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weakness as his hostile work environment claims: a dearth of allegations 

showing he was mistreated due to his sex or age. That another employee was

treated better and given more opportunities does not become actionable under 

federal law just because she was female or because she was younger. More is 

needed to raise English’s claims above a speculative level. Consequently, 

English’s disparate-treatment claims do not warrant reversing the district 

court and permitting this suit to proceed.

Finally, we do not consider the issues raised in English’s brief regarding 

the U.S. Attorney’s representation of the Secretary. “We consider issues raised 

for the first time on appeal only in extraordinary instances to avoid a 

miscarriage of justice.” United States ex rel. Simoneaux v. E.I. duPont de 

Nemours & Co., 843 F.3d 1033, 1042 n.32 (5th Cir. 2016) (quotation omitted). 

Nothing out of the ordinary is evident here.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

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