United States Court of Appeals

for the Fifth Circuit

No. 20-30253

Summary Calendar

Crystal A. Anderson, 

Plaintiff—Appellant,

versus

Louisiana Department of Transportation and 

Development, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Western District of Louisiana 

USDC No. 5:17-CV-1597

Before Jolly, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Crystal Anderson was fired after she complained of her supervisor’s 

alleged racist and sexist behavior to his superior at the Louisiana Department 

of Transportation and Development. The district court granted the 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2020

Lyle W. Cayce

Clerk

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Department’s motion for summary judgment because Anderson failed to 

point to a material fact supporting her allegation that she engaged in a 

protected activity under Title VII of the Civil Rights Act. We REVERSE

and REMAND to the district court.

I.

We set forth the facts as alleged by the plaintiff. Anderson worked for 

the Louisiana Department of Transportation and Development from 2012–

2016. She was the only female on her crew, and one of only two AfricanAmerican individuals. As part of a bridge crew, Anderson worked four days 

a week for ten hours per day. Bridge workers would have Fridays off, unless 

they wanted to work overtime for extra money. Anderson tended to use her 

Fridays for doctor’s visits.

On Friday, March 18, 2016, Anderson had a doctor’s appointment 

scheduled. Her supervisor, Dennis Rushing, told her she would need to 

come in to work overtime. Anderson informed Rushing of her appointment, 

and Rushing told her she need not come in. Later that night, however, 

Rushing called Anderson and informed her that she would have to provide a 

doctor’s note when she returned on Monday. 

Anderson asked another co-worker who was also taking that Friday off 

whether he had been told to bring in such a note. The co-worker, who was a 

white male, said he had not been required to provide any documentation. 

Anderson asked Rushing about the disparity but did not receive a satisfactory 

response. She called Rushing’s supervisor, Joshua Bedgood, to ask why she, 

an African-American, was required to provide a doctor’s note when her

white, male co-worker was not. Bedgood said he would get back to her. On 

Monday, Bedgood told Anderson that the difference was that Anderson had 

actually seen a doctor, whereas her co-worker was merely taking his girlfriend 

in for her appointment. 

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After that, Anderson claims that it became apparent that Rushing 

wanted her dismissed from the Department. She alleges that Rushing told a 

co-worker that he wanted Anderson “out of here,” that he refused to work 

an extra shift if Anderson and the other African-American employee would 

be the only others on the shift, and that he indicated on another occasion that 

he hoped to be able to fire her. Anderson alleges that Rushing always 

assigned her to drive the only vehicle without working air conditioning and 

assigned her to drive with James Bison, who was not permitted to drive. 

In May of 2016, Anderson claims that Rushing instructed her and 

Bison to work on a project a short way away from the main project her crew 

was working on. When they had finished, Rushing allegedly instructed them 

to ride around and wait for him to call them back to the main project. When 

Anderson and Bison finished their project, they went to Lake Ivan to eat 

lunch. After arriving, Rushing called to ask where they were and berated

them for taking so long to return. He told them that they would be written 

up, but he never formally did so.

A few days later, Anderson and Bison were called into the office to 

meet with Rushing, Bedgood, and another supervisor, John Rawling. 

Rawling accused Anderson and Bison of stealing time from the State by riding 

around and not working. Anderson objected that she was only obeying 

Rushing’s instructions, but she was told that her excuses were insufficient. 

She could either resign on her own or face termination and potential criminal 

charges. She chose to resign. 

After receiving a right-to-sue letter from the EEOC, Anderson 

brought the present suit alleging that the Department violated Title VII of 

the Civil Rights Act by creating a hostile work environment and by firing her 

for reporting Rushing’s discrimination to Bedgood. She argues that the 

reason the Department gave for her termination was pretextual. According 

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to her, Rushing discriminated against her because she is African-American 

and female, and she was fired for reporting his discrimination to Bedgood. 

She seeks back pay, front pay, punitive damages, and other litigation 

expenses.

The Department moved for summary judgment in this case, arguing 

that Anderson had failed to provide evidence of a Title VII violation. The 

district court granted the motion, determining that (1) Anderson had not 

demonstrated that she had experienced harassment based on race or sex and 

(2) Anderson had not pointed to any evidence suggesting that she engaged in 

a protected activity under Title VII. 

II.

We review a district court’s grant of summary judgment de novo. 

Petro Harvester Operating Co., LLC v. Keith, 954 F.3d 686, 691 (5th Cir. 

2020). “Summary judgment is appropriate when ‘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.’” Id. (quoting United States v. Nature’s Way 

Marine, LLC, 904 F.3d 416, 419 (5th Cir. 2018)). “A fact is ‘material’ if, 

under the applicable substantive law, ‘its resolution could affect the outcome 

of the action.’” Patel v. Tex. Tech Univ., 941 F.3d 743, 747 (5th Cir. 2019) 

(quoting Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 

138 (5th Cir. 2010)).

Although Anderson initially brought both a hostile-work-environment 

claim and a retaliation claim in the district court, her brief before this court 

focuses solely on her retaliation claim. Her hostile-work-environment claim 

is therefore forfeited. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th 

Cir. 2018). We consider only Anderson’s retaliation claim in this appeal.

The question is whether Anderson has shown that there exists a 

genuine dispute of a material fact regarding her retaliation claim. To succeed 

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on a Title VII retaliation claim, the plaintiff must first establish that: (1) she 

engaged in a protected activity; (2) she suffered an adverse employment 

action; and (3) there was a causal connection between her protected activity 

and the adverse employment action. Harville v. City of Houston, 945 F.3d 

870, 879 (5th Cir. 2017). Once a prima facie case has been made out, the 

burden shifts to the defendant to provide a legitimate reason for its actions. 

See id. at 874–75. If such a reason is provided, then the plaintiff bears the 

final burden of establishing that the defendant’s reason was pretextual. See 

id. 

The district court concluded that Anderson had failed to establish a 

prima facie case of retaliation because she had not shown that she engaged in 

an activity protected by Title VII. We disagree.

An employee engages in a protected activity under Title VII when she 

has “(1) ‘opposed any practice made an unlawful employment practice’ by 

Title VII or (2) ‘made a charge, testified, assisted, or participated in any 

manner in an investigation, proceeding, or hearing’ under Title VII.” 

Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th 

Cir. 1998) (quoting 42 U.S.C. § 2000e–3(a)). 

Anderson argues that she did oppose an unlawful practice when she 

called Bedgood about Rushing’s requirement that she, but not her white, 

male co-worker, provide a doctor’s note for her Friday absence. The 

Department contends that this was nothing more than a call to clarify the 

Department’s policy regarding leave time. The contents of that discussion 

are material to Anderson’s claim. If Anderson did complain to Bedgood in 

that phone call, then that would qualify as opposition to Rushing’s unlawful 

discriminatory practices. See Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 

626 (5th Cir. 2008).

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Although the Department argues otherwise, the record before the 

district court establishes that the contents of that call are disputed. 

Anderson’s complaint, which is certified and therefore qualifies as 

competent summary judgment evidence, contains her testimony that she 

called to inquire why she was being treated differently than her white, male 

co-worker. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003). This 

directly contradicts what the Department’s proffered evidence suggests. 

Because this fact was in dispute, summary judgment on this point was 

inappropriate.

The Department contends further that Anderson presented no 

evidence that she had suffered an adverse employment action because she 

resigned of her own volition. Anderson contradicts this, however, with her 

own affidavit that she was forced to resign at the meeting where she was 

disciplined for “riding the roads” when her supervisor allegedly instructed 

her to do just that. If the facts alleged there are true, Anderson’s forced 

resignation could amount to a constructive discharge. See Pa. State Police v. 

Suders, 542 U.S. 129, 142–43 (2004). She has therefore presented evidence 

giving rise to a genuine dispute of material fact.

Anderson has also presented evidence that, if believed by a jury, could 

establish the necessary “causal connection” through the proximity in time of 

her complaint to Bedgood and her allegedly forced resignation. We have 

previously held that a “two-and-one-half month period” was sufficient to 

establish causation, and Anderson’s allegation of a less-than-two-month 

period “fits comfortably within” that boundary. Garcia v. Pro. Cont. Servs., 

Inc., 938 F.3d 236, 243 (5th Cir. 2019). Thus, a dispute of material facts exists 

regarding this third element of Anderson’s prima facie case.

Finally, Anderson has presented evidence that a factual dispute exists 

regarding the validity of the reason the Department provided for her 

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termination. After a plaintiff has made out her prima facie case, the 

defendant must provide a legitimate reason for their actions. If it does so, the 

burden falls on the plaintiff to provide evidence that the reason was really a 

pretext for retaliation. Id. at 241. At the pretext stage, the plaintiff must show 

“but-for causation, which requires more than mere temporal proximity.” Id.

at 244. It requires the plaintiff to show that “the adverse action would not 

have occurred ‘but for’the employer’s retaliatory motive.” Feist v. La. Dep’t 

of J., 730 F.3d 450, 454 (5th Cir. 2013).

Although the Department provides a legitimate, non-discriminatory 

reason for pressuring Anderson into resigning, Anderson argues that the 

reason is pretextual. There is a real dispute of material fact on this point. 

Although the temporal proximity would be insufficient to withstand 

summary judgment on the pretext analysis, Anderson points to “evidence 

beyond temporal proximity to create a genuine issue of material fact about 

pretext.” Garcia, 938 F.3d at 244. Anderson presents evidence suggesting 

thatshe would not have been forced to resign had she not reported Rushing’s 

behavior to Bedgood because: (1) there was temporal proximity between her 

report to Bedgood and her resignation; (2) other employees engaged in 

similar behavior without reprimand; (3) the Department failed to follow its 

own disciplinary protocol in reprimanding her; and (4) Rushing harassed 

Anderson after she reported his behavior to Bedgood. This evidence gives

rise to a dispute of material fact. The Department was not entitled to 

summary judgment in this case.

III.

We therefore REVERSE the district court’s grant of summary 

judgment and REMAND for further proceedings consistent with this 

opinion.

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