IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60343

MILO RICHARDSON,

Plaintiff - Appellant

v.

PRAIRIE OPPORTUNITY, INCORPORATED; LAURA A. MARSHALL,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:10-CV-2

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Milo Richardson contests the summary judgment against his genderdiscrimination and retaliation claims. VACATED and REMANDED.

I.

In 2003, Richardson was hired as a program administrator by Prairie

Opportunity, Inc. (Prairie), a non-profit corporation that provides financial

assistance to the poor. On 21 January 2009, Richardson filed an Equal

United States Court of Appeals

Fifth Circuit

F I L E D

April 25, 2012

Lyle W. Cayce

Clerk

 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.

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Employment Opportunity Commission (EEOC) charge of discrimination, stating

he believed: he had been treated less favorably because of his gender; and, his

gender was a motivating factor in his not receiving a raise he was due in 2008. 

At that time, Richardson was the only male among eight employees at Prairie’s

central office.

On 10 March 2009, executive director Laura Marshall, Richardson’s

supervisor, presented Richardson a document to sign, but he refused to do so

until he had read it. An argument ensued between them, which resulted in

Marshall’s filing an internal employee-disciplinary report, alleging Richardson

had “pointed his finger at [me] and stated what he was not going to do”, and

suspending him for five days without pay. On 16 March, the board of directors,

on Marshall’s recommendation, terminated Richardson’s employment. He

subsequently amended his EEOC charge to add he believed his initial EEOC

charge was a motivating factor in his termination.

After receiving a right-to-sue letter from the EEOC, Richardson filed this

action against Prairie and Marshall, claiming, inter alia: gender discrimination,

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;

retaliation, under Title VII; and a state-law malicious-interference-withemployment claim against Marshall. Defendants were awarded summary

judgment on the two Title VII claims, but Marshall was denied summary

judgment on the tortious-interference claim. Richardson v. Prairie Opportunity,

Inc., No. 1:10-CV-2-MPM, 2011 WL 1769104 (N.D. Miss. 9 May 2011) (Opinion). 

Subsequently, Richardson dismissed Marshall voluntarily (tort claim against her

pending in state court).

II.

A summary judgment is reviewed de novo. E.g., Davis-Lynch, Inc. v.

Moreno, 667 F.3d 539, 549 (5th Cir. 2012). Such a judgment is proper if “there

is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law”. Fed. R. Civ. P. 56(a). A dispute is genuine if the

evidence is such that a reasonable juror could find for the non-moving party. 

E.g., Davis-Lynch, 667 F.3d at 549. All evidence is viewed in the light most

favorable to the non-moving party. Id. at 549-50.

A.

Before reaching the substance of the two claims, the role of Prairie’s board

in Richardson’s termination must be addressed. The district court awarded

Prairie summary judgment on the retaliation claim on the ground that

“Richardson has not offered a scintilla of proof to suggest that Prairie’s board

considered his previously filed EEOC complaint in reaching its decision [to

terminate him]”. Opinion at 10. Because his termination is the adverse

employment action on which both claims rest, that reasoning (board not involved

in alleged improper conduct) could apply equally to Richardson’s genderdiscrimination claim.

“Employers are liable under Title VII, in accordance with common law

agency principles, for the acts of employees committed in the furtherance of the

employer’s business.” Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996). 

But, as noted by the district court, Marshall did not terminate Richardson; the

board did. And, “in determining whether an adverse employment action was

taken as a result of retaliation [or discrimination], our focus is on the final

decisionmaker”. Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002).

The question thus becomes whether the board’s decision to terminate

Richardson was tainted by Marshall’s alleged animus–i.e., whether the board

acted as her “cat’s paw”. Long, 88 F.3d at 307 (citing Shager v. Upjohn Co., 913

F.2d 398, 405 (7th Cir. 1990)). If not, the causal link between Marshall’s alleged

animus and Richardson’s termination is broken, and Richardson cannot recover

against Prairie. E.g., Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191, 1194 (2011)

(holding employer is liable under “very similar” Uniformed Services Employment

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and Reemployment Rights Act when employee, motivated by unlawful animus,

intends to cause adverse employment action and proximately causes that action).

Given Marshall’s position as Prairie’s executive director, her testimony

and that of a board member that Marshall had final authority over personnel

decisions, minutes showing that Marshall’s recommendation and its being

adopted by the board occurred at the same 16 March 2009 board meeting, and

the absence of evidence of independent fact-finding by the board, there was a

genuine dispute on whether Marshall caused Richardson’s termination. The

district court said as much, and more, in ruling on Richardson’s tortiousinterference claim against Marshall: “It is undisputed that Marshall’s

evaluations and recommendation to Prairie’s board are what led to Richardson’s

loss of employment.” Opinion at 12. Thus, on this record, that the board, rather

than Marshall, made the ultimate termination decision does not permit

summary judgment on that basis against either Title VII claim.

B.

Accordingly the two claims are addressed. That for gender-discrimination

is considered first.

1.

Title VII forbids an employer from discriminating against an employee

“because of such individual’s race, color, religion, sex, or national origin”. 42

U.S.C. § 2000e-2(a). In maintaining a Title VII discrimination claim based on

circumstantial evidence, plaintiff “must carry the initial burden under the

statute of establishing a prima facie case”. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). The burden then shifts to the employer “to articulate

some legitimate, nondiscriminatory reason” for its action. Id. Finally, plaintiff

must be afforded a fair opportunity to show: the employer’s stated reason was

pretext, id. at 804; or, an impermissible consideration was a “motivating factor”,

Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). See also Smith v. Xerox

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Corp., 602 F.3d 320, 333 (5th Cir. 2010) (citing Price Waterhouse v. Hopkins, 490

U.S. 228 (1989)) (mixed-motive “defense” allows employer, once employee

presents evidence that illegitimate consideration was a “motivating factor”, to

show it would have made same decision even without that consideration).

To establish a prima facie case of discrimination, Richardson must show: 

(1) he is a member of a protected class; (2) he was qualified for his job; (3) he

suffered an adverse employment action; and, (4) he was treated less favorably

than employees outside the protected class. E.g., Septimus v. Univ. of Houston,

399 F.3d 601, 609 (5th Cir. 2005). “The burden of establishing a prima facie case

of disparate treatment is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981). As Richardson is male, has a masters degree in social

work, was terminated, and presented evidence that he was treated more harshly

than the female employees in the central office–e.g., was the only employee

required to sign upon receipt of memoranda, was singularly undermined by

Marshall in front of the staff, was “written up” for projects he had completed–he

established a prima facie case of discrimination.

The burden then shifts to Prairie to articulate a legitimate,

nondiscriminatory reason for terminating Richardson. Id. at 254-56; McDonnell

Douglas, 411 U.S. at 802. Richardson concedes that Prairie met its burden of

production by presenting evidence that he was terminated because of his alleged

10 March 2009 misconduct toward Marshall.

Plaintiff retains “the ultimate burden of persuading the court that [he] has

been the victim of intentional discrimination”. Burdine, 450 U.S. at 256. 

Plaintiff may succeed “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of credence”. Id.

That is to say, plaintiff may avoid summary judgment if he creates a genuine

dispute on the truth of the employer’s proffered reasons for termination. E.g.,

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Septimus, 399 F.3d at 609. That is because “rejection of the defendant’s

proffered reasons will permit the trier of fact to infer the ultimate fact of

intentional discrimination”. Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000) (emphasis in original) (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511 (1993)).

Richardson presented his and a co-worker’s deposition and the co-worker’s

administrative-hearing testimony that Richardson’s words and gestures toward

Marshall during their 10 March argument were non-threatening, as well as an

administrative law judge’s (ALJ) finding (in an unemployment-benefits

proceeding) that Richardson was not guilty of misconduct and that Marshall had

acted “unreasonably”. (Prairie has not objected to consideration of the ALJ’s

decision.) That evidence was sufficient to create a genuine dispute on the truth

of Prairie’s proffered explanation. It, along with the evidence Richardson

presented in making his prima facie case, would permit a trier of fact to infer

intentional discrimination. Reeves, 530 U.S. at 147. Therefore, summary

judgment against Richardson’s discrimination claim was improper.

2.

As noted, the summary judgment against Richardson’s retaliation claim

was based on the board’s, rather than Marshall’s, terminating him; as also

noted, that basis was improper. A summary judgment may be affirmed on any

ground supported by the record and presented to the district court. E.g., Cuadra

v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010). Whether

summary judgment was proper on the substance of the claim is addressed below.

Title VII forbids retaliating against an employee because that individual

“made a charge” under Title VII. 42 U.S.C. § 2000e-3(a). As with a

discrimination claim, a retaliation claim based on circumstantial evidence

proceeds via the McDonnell Douglas burden-shifting framework. E.g., McCoy

v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

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To present a prima facie case of retaliation, Richardson must show: (1) he

participated in protected activity; (2) he suffered an adverse employment action;

and, (3) there was a causal connection between the protected activity and the

adverse action. E.g., Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th

Cir. 2009). It is undisputed that Richardson participated in protected activity

(21 January 2009 EEOC charge) and suffered an adverse employment action (16

March 2009 termination). “Close timing between an employee’s protected

activity and an adverse action against him may provide the ‘causal connection’

required to make out a prima facie case of retaliation.” McCoy, 492 F.3d at 562

(internal quotation marks omitted). As the district court ruled, this less than

two-month span between the protected activity and the adverse action is

sufficient “temporal proximity” for a prima facie showing of causation. Opinion

at 9; see also Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (“[A]

time lapse of up to four months has been found sufficient to satisfy the causal

connection for summary judgment purposes”. (internal quotation marks

omitted)).

The burden then shifts to Prairie to articulate a legitimate, non-retaliatory

reason for terminating Richardson. E.g., McCoy, 492 F.3d at 557. Again, it did

so by presenting evidence that Richardson was terminated because of his alleged

10 March 2009 misconduct toward Marshall.

Finally, the burden returns to Richardson to show: Prairie’s proffered

reason was pretext, e.g., id.; or, retaliation was a “motivating factor” in his

termination, Xerox Corp., 602 F.3d at 328-30. Richardson may survive summary

judgment by creating a genuine dispute on the truth of Prairie’s proffered

reason, e.g., Septimus, 399 F.3d at 609, thereby permitting a trier of fact to infer

retaliation, e.g., Reeves, 530 U.S. at 147.

Prairie’s proffered reason for terminating Richardson was his alleged 10

March 2009 misconduct. As detailed above, Richardson presented evidence

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creating a genuine dispute on the truth of that explanation. Therefore, the

summary judgment against Richardson’s retaliation claim was also improper.

III.

For the foregoing reasons, the judgment is VACATED and this matter is

REMANDED for further proceedings consistent with this opinion.

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