Opinion
Civil Action DR-20-CV-00049-AM-VRG
02-01-2023
HANS GOERZ, Plaintiff, v. FRANK KENDALL, Secretary, Department of The Air Force, Defendant.
REPORT AND RECOMMENDATION
VICTOR ROBERTO GARCIA, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ALIA MOSES, CHIEF UNITED STATES DISTRICT JUDGE:
The Court referred the above-captioned matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b). Defendant Frank Kendall, Secretary of the Department of the Air Force, filed a motion for summary judgment to which Plaintiff Hans Goerz responded. For the following reasons, it is recommended that Defendant's Motion for Summary Judgment [ECF No. 42] be GRANTED.
I. BACKGROUND
This litigation arises from the termination of the employment of Plaintiff, Hans Goerz, with the Department of the Air Force. According to Plaintiffs Original Complaint, the Department of the Air Force terminated Goerz's employment as an Airplane Pilot (Simulator Instructor) at Laughlin Air Force Base, Texas, due to his previous EEO complaints against various supervisors and coworkers. (Pl.'s Original Compl. ¶ 7, ECF No. 1.) As a result, Plaintiff filed suit against the Secretary of the Department of the Air Force, Defendant, in the Western District of Texas on August 20,2020, alleging violations of the Rehabilitation Act of 1973, as amended, and Title VII of the Civil Rights Act of 1964, as amended. (Pl.'s Original Compl. ¶ 8.) After Defendant filed a Motion to Dismiss, the Court dismissed Plaintiffs claim under the Rehabilitation Act for failure to state a claim. (Order, ECF No. 12.) Because Plaintiff did not file an amended complaint within 14 days of the Order, that claim was dismissed with prejudice, leaving only his Title VII claim pending. (Id.)
The Parties have proceeded with litigation leading to this pending Motion for Summary Judgment, filed by Defendant on November 14, 2022. (Def.'s Mot. for Summ. J., ECF No. 42.) Plaintiff responded to Defendant's Motion, (Pl.'s Resp., ECF No. 52), and Defendant replied. (Def.'s Reply, ECF No. 55.) The briefing is closed, and the Motion is ripe for disposition. See W.D. Tex. Local Rule CV-7(e).
II. DISCUSSION
Summary judgment is appropriate “if 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.” Fed.R.Civ.P. 56(a); accord Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010) (quotation omitted). A dispute is “genuine” if the evidence permits a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986); Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir. 2001). Material facts are “facts that might affect the outcome of the suit under the governing law . . . .” Anderson, 477 U.S. at 248; accord Willis v. Roche Biomed. Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). In considering a motion for summary judgment, courts must view the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party. Weeks Marine, Inc. v. Fireman's Fundins. Co., 340 F.3d 233, 235 (5th Cir. 2003). Further, in evaluating a motion for summary judgment, courts must refrain from making credibility determinations or weighing the evidence. Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011); see also Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam) (reversing grant of summary judgment in qualified immunity context because the Court of Appeals “failed to view the evidence at summary judgment in the light most favorable to [the nonmovant] with respect to the central facts of th[e] case,... improperly weighed the evidence[,] and resolved disputed issues in favor of the moving party[.]”) (quotations and alterations omitted)).
To obtain summary judgment, the moving party need not affirmatively negate the nonmovant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Instead, the moving party initially bears the burden only of “showing - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325 (quotation mark omitted); accord Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010). Once the moving party has satisfied this burden, the burden shifts to the nonmoving party to “go beyond the pleadings and by ... affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quotations omitted); accord Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011).
A. Objections to Summary Judgment Evidence
Plaintiff objects, although informally, to the Declaration of Plaintiffs supervisor, Mr. David Loftus (“Loftus”), as “simply a biased affidavit of an interested witness.” (Pl.'s Resp. f 36) However, Plaintiff also cites to Loftus' declaration through his response. See generally Id. Nonetheless, the declaration is competent summary judgment evidence because it meets the requirements of Federal Rule of Civil Procedure 56(c)(4), and Loftus is not considered an interested witness in this context. See Wiley v. Am. Elec. Power Serv. Corp., 287 Fed.Appx. 335, 339 (5th Cir. 2008) (per curiam) (holding a person is not an interested witness in the Title VII context just by being a decisionmaker or agent of the defendant employer). The objection to the declaration is OVERRULED.
B. Facts Appearing in the Summary Judgment Record
The Parties do not significantly dispute the events leading up to Plaintiffs termination. Viewed in the light most favorable to Plaintiff with all reasonable inferences drawn in his favor, the summary judgment evidence demonstrates the following timeline.
Plaintiff worked as a Simulator Instructor at Laughlin Air Force Base since 1998, first as a contract employee and then as a civilian. (Loftus Deci, ¶ 2, Def's Ex. A, ECF No. 42-1.) In this role, Plaintiff presented course material and instructed pilot trainees on a flight simulator, among other tasks. (Id. at ¶ 3-4.) Loftus was Plaintiffs rating supervisor from May 2016 until Plaintiffs removal in April 2019. (Id. at ¶ 5.)
In October 2014, Defendant reprimanded Plaintiff for “failure to follow the AETC syllabus, use of offensive language, and striking a student during a stimulator mission. (Notice of Decision to Reprimand |f 1, Def.'s Ex. B-l, ECF No. 42-3.) In February 2015, Plaintiff filed his first of three EEO complaints. (Report of Investigation 1 at 1, Pl.'s Ex. 1, ECF No. 52-2.) This complaint was against Ms. Isbael Castillo, Mr. Danny Williams, Mr. Theodore Glenn, Mr. Greg Thurgood, Mr. Randy Sheppard, and Lt Col. Craig Allen for discrimination and hostile work environment based on Plaintiffs national origin (German). (Id. at 1-2.) An ROI was issued on September 10, 2015. (Id. at 1). On December 17, 2015, Defendant issued a Notice of Proposed Suspension to Goerz. (Notice of Proposed Suspension 1, Pl.'s Ex 2, ECF No. 52-3.) Without citing to any evidentiary support, Plaintiff alleges this proposal was withdrawn without reason. (Pl.'s Resp. ¶ 3.)
Then, in April 2016, Plaintiff filed another EEO complaint, alleging discrimination as well as retaliation due to his first complaint against Mr. Theodore Glenn, Dany Williams, Lt. Col. Soderstrom, Col. Timothy McGregor, and Ms. Cindy Cardenas. (Compl. of Discrimination 1 at 1, Def.'s Ex. C-2, ECF No. 42-6; Report of Investigation 2, Pl.'s Ex. 3, ECF No. 52-4.) Mr. Danny Williams, on May 2, 2016, issued a Notice of Proposed Suspension for striking a student during training and unauthorized absences. (Notice of Proposed Suspension 2 at 1, Pl.'s Ex. 4, ECF No. 52-5.) Defendant thereafter suspended Plaintiff for 14 days in July 2016. (Amendment to Notice of Decision 1, Pl.'s Ex. 5, ECF No. 52-6.)
In July 2017, Plaintiff filed his third and final EEO complaint alleging discrimination on multiple grounds, hostile work environment, and retaliation on behalf of Theodore Glenn, Lt Col. Soderstrom, and Danny Williams. (Compl. of Discrimination 2 at 4-5, Pl.'s Ex. 4, ECF No. 52-7.) An investigation of this claim by the Investigations and Resolution Division (IRD), a part of the Department of Defense, began in October 2017. (Mitchell Deci, ¶ 7-8, Def.'s Ex. D, ECF No. 428.) Loftus was a witness during the investigation. (Required Information and Documentation, Pl.'s Ex. 7, ECF No. 52-8; Def.'s Ex. A ¶ 12.) No further interviews or investigation occurred after November 2017. (Def.'s Ex. D ¶ 8-11; see Def.'s Ex. A ¶ 12; Pl.'s Resp. ¶ 33.)
Although the dates on the documentation differ and are slightly illogical, the Parties agree Loftus informed Plaintiff the Air Force was proposing his removal in December 2018. (Notice of Proposed Removal, Def.'s Ex. E, ECF No. 42-9; Am. Notice of Proposed Removal, Def.'s Ex. E-1, ECF No. 42-10; Def. s Mot. for Summ. J. at 3; Pl.'s Resp. ¶ 9.) Loftus based the proposal on four charges: 1) “Failure to Follow Air Force Policy on smoking areas,” 2) “Failure to Follow Supervisor Instructions,” 3) “for being Absent Without Leave (AWOL),” and 4) “because [his] pattern of misconduct due to poor judgment makes [sic] Unsuitable for Continued Employment.” (Def.'s Ex. E at 1; Def.'s Ex. E-l at 2.) Loftus also identified Plaintiffs 2016 suspension and knowledge of tobacco regulations as “aggravating factors.” (Def.'s Ex. E at 3; Def.'s Ex. E-l at 4.) Plaintiff responded in a written statement, not denying the violations of Defendant's smoking policies but however disputing various parts of the other three charges. (Hans Goerz Resp. to Charges, Def.'s Ex. H, ECF No. 42-13.) On March 25, 2019, Defendant sent Plaintiff a Notice of Decision to Remove, citing the reasons listed in the Notice of Proposed Removal and noting consideration of Plaintiff s Reply. (Notice of Decision to Remove at 1, Def s Ex. I, ECF 42-14.) After Plaintiff appealed, the Merit Systems Protection Board (MSPB) affirmed the removal. (MSPB Initial Decision, Def.'s Ex. J at 1, ECF No. 42-15.)
C. Governing Law and Application to Summary Judgment Evidence
The analysis for retaliation claims differs depending on whether the Plaintiff produces direct or circumstantial evidence of discrimination. See Jenkins v. City of San Antonio Fire Dep 't, 784 F.3d 263,268-69 (5th Cir. 2015); Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 Fed.Appx. 484, 488 (5th Cir. 2013) (per curiam) (citing Portis v. First Nad Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994)). Plaintiff appears to indirectly argue that direct evidence of retaliation exists in this case, although within the context of a different part of the retaliation analysis. (Pl. s Resp. J 12-13.) Further, the summary judgment record suggests other employees made comments regarding Plaintiff. (Notice of Partial Acceptance and Dismissal of EEO Compl., Def.'s Ex. C-3 at 11,18,26,32,33.) Because Defendant addressed Plaintiffs argument in its reply, and it impacts the framework used, as well as simply for the sake of completeness, an analysis of this issue is appropriate. (Def.'s Reply at 2-5.)
“Direct evidence is evidence that, if believed, proves the fact . . . without inference or presumption. In the Title VII context, direct evidence includes any statement or document that shows on its face that an improper criterion served as a basis for the adverse employment action.” Harry v. Dall. Hous. Auth., 662 Fed.Appx. 263, 266 (5th Cir. 2016) (per curiam) (citing Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409,415 (5th Cir. 2003), overruled on other grounds by Smith v. Xerox Corp.,602 F.3d 320,330 (5th Cir. 2010)). Courts have looked to four factors to determine whether comments in the workplace are “direct evidence:” 1) relation to the protected characteristic, 2) proximity to the employment decision, 3) whether the speaker had authority over the employment decision, and 4) relation to the employment decision. Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 476 (5th Cir. 2015) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001)). For example, a supervisor stating that she fired the employee because she “had filed an unsubstantiated EEOC claim” was direct evidence that the employer fired the employee in retaliation for filing an EEOC claim. Fabela, 329 F.3d at 413. No inferences were needed to establish retaliation. Id. at 416.
Direct evidence of retaliation does not exist in this case. Plaintiff first asserts a statement by Loftus in a document sent to the investigator of Plaintiff s EEO complaint is direct evidence of retaliation. (Pl.'s Resp. ¶ 12-13.) The statement reads, in relevant part, “I... determined that Mr. Goerz' description of the event was exaggerated and had ZERO basis for EO discrimination....” (Pl.'s Ex. 7 at 1.) The four factors are divided when applied to this comment. The comment does relate to the EEO complaint and was made by an individual with authority, Loftus. On the other hand, the comment, made over a year before the proposed removal, was not close in time to the adverse employment decision and did not relate to that decision. However, this comment cannot be direct evidence because inferences are required to establish the decision was made in retaliation for that claim. For example, the 5 th Circuit Court of Appeals has held that a supervisor's comment about being unhappy about EEO complaints by the employee was not direct evidence because the factfinder would still have to infer that the supervisors acted on those feelings in making their decision. Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 Fed.Appx. 484, 488-49 (5th Cir. 2013) (per curiam). The statement by Loftus does not even directly articulate a negative feeling towards Plaintiffs protected activity. Accordingly, to find retaliation based on this statement, the factfinder would need to make even more inferences than required for the statement in Etienne. Therefore, this is not direct evidence of retaliation.
Further, comments by Plaintiffs coworkers regarding the Plaintiff are disputed in the summary judgment evidence presented. (Def.'s Ex. C-3 at 11, 18, 26, 32, 33.) Although Plaintiff does not assert this comment is direct evidence in his Response to Defendant's Motion and the comment, as presented, is hearsay, an analysis of it is appropriate for the sake of completeness as well as to meet the summary judgment standard of making all inferences in favor of the nonmovant. The summary judgment evidence mentions a comment by Mr. Jorgenson, Plaintiffs coworker, suggesting Plaintiff is “evil” and “should be avoided.” (Id., Pl.'s Ex. 7 at 4.) The factors do not indicate this is direct evidence of retaliation. The statement was not related to the EEO complaints, was made over two years prior to the decision to remove Plaintiff, was by Jorgenson while he was not a supervisor, and was not related to the removal decision. Accordingly, the comment is also not direct evidence of retaliation.
Because Plaintiff has not offered direct evidence of retaliation, the McDonnell Douglas framework applies. See Jenkins, 784 F.3d at 268-69; Etienne, 547 Fed.Appx. 484, 488 (5th Cir. 2013). Under this framework, the plaintiff must first establish a prima facie case of retaliation, which creates a presumption of retaliation. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 227 (5th Cir. 2015). Then, the burden switches to the defendant to articulate a legitimate, non-discrimmatory reason for the adverse employment action. Id. at 231. Once the defendant satisfies this burden, “the plaintiff must show a conflict in substantial evidence on the question of whether the employer would have taken the action but for the protected activity.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm 'rs, 810 F.3d 940, 949 (5th Cir. 2015) (quoting Coleman v. Jason Pharms., 540 Fed.Appx. 302,304 (5th Cir. 2013) (per curiam) and citing Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012) (internal quotations omitted)).
1. Prima Facie Case
To establish a prima facie case of retaliation under Title VII, a plaintiff must establish: “(1) that the plaintiff engaged in a protected activity, 2) that an adverse employment action occurred, and 3) that a causal link existed between the protected activity and the adverse action.” Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). The first and second elements are not disputed by the Parties. (Pl.'s Resp. J 39.) Defendant, however, contends Plaintiff cannot show a causal connection between the protected activity and the adverse action. (Def.'s Mot. for Summ. J. at 10-11.) Although there has been some dispute about the causation standard at the prima facie stage of the framework, the 5th Circuit has held that standard is less stringent than the “but-for” standard required at the pretext stage of the analysis. Garcia v. Pro. Cont. Servs., 938 F.3d 236, 243 (5th Cir. 2019).
One way a plaintiff can establish prima facie causation is by demonstrating “temporal proximity between the protected activity and the alleged act.” Porter, 810 F.3d at 948 (quoting Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007). The two must be “very close in time” to establish causation by timing alone. Id. (internal quotations omitted). A period of 2 months or less is generally considered close enough to show the causal link. Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020) (citing Garcia, 938 F.3d at 243; Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 995 (5th Cir. 2005) and Porter, 810 F.3d at 949). Here, Plaintiff filed his most recent EEO complaint in July 2017. (Def.'s Ex. C-2 at 4-5). The challenged employment action, his removal, was not proposed until December 2018 at the earliest and was not decided until April 2019. (Def.'s Ex. E at 1; Def.'s Ex. E-l at 1.) Therefore, a period of at least 17 months passed between the protected activity and the adverse employment action. This lengthy period is insufficient to show causation based on temporal proximity. Citing Fabela, Plaintiff contends that, because direct evidence of animus exists, a longer period of time can still show causation. (Pl.'s Resp. ¶ 13.) However, as discussed above, Plaintiff has failed to provide direct evidence of animus. Supra at p. 6-8. Accordingly, this argument fails, and Plaintiff cannot establish a causal connection by temporal proximity.
Plaintiff further contends that the employer's knowledge of the employee's protected activity is sufficient to survive the prima face stage of the analysis. (Pl.'s Resp. ¶ 40 (citing Lang V. Tex. Dep't of Crim. Just., 2021 WL 1199624 at *8 (W.D. Tex.) and Medlock v. Ace Cash Express, Inc., 589 Fed.Appx. 707, 709 (5th Cir. 2014) (per curium))). Yet, this contention is incorrect. The court in Lang, in deciding a 12(b)(6) motion to dismiss, noted that an employer's knowledge of the protected activity was sufficient to show a retaliation claim was plausible. Lang, 2021 WL 1199624 at *33 (citing Medlock, 589 Fed.Appx. at 709). The plaintiffs causation burden at summary judgment is higher than in a motion to dismiss. See Chimm v. Univ, of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016). Further, Medlock merely stands for the proposition that causation cannot be shown if an employer was not aware of the plaintiffs protected activity, not that awareness necessarily shows causation. See 589 Fed.Appx. at 709. Nevertheless, while analyzing a retaliation claim under the ADA, the 5 th Circuit has held that the employment decision being based in part on the employer's knowledge of the protected activity can establish prima facie causation. Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570, 588-89 (5th Cir. 2020) (quoting Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998), superseded by statute on other grounds, ADA Amendments Act of 2008, § 2(b)(4)-(5), as recognized in Cruz v. R2 Sonic, LLC, 405 F.Supp.3d 676, 687 (W.D. Tex. 2019)). The court in Clark conflated the prima facie and pretext analysis and affirmed the district court's grant of summary judgment based on the plaintiffs failure to meet the “but-for” causation standard required to show pretext. Clark, 952 F.3d at 589. The court held that the plaintiff had failed to show any connection between his termination and the protected activity and, therefore, did not present a prima facie case of retaliation. Id. Further, the temporal proximity analysis to establish a prima facie case often considers the time period between the employer's knowledge of the protected activity and the adverse employment action. Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020); Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam). If employer knowledge alone were sufficient to establish causation, the time period between knowledge and the adverse employment action would be irrelevant. Additionally, San Antonio division of this Court has held mere knowledge is insufficient to make a prima facie case of retaliation. Standley v. Rogers, 202 F.Supp.3d 655,670 (W.D. Tex. 2016). Here, Plaintiff's supervisors were aware of his participation in protected activities. (Def.'s Ex. A ¶ 12.) However, Plaintiff has failed to show any connection, including temporal proximity, between that knowledge and the adverse employment decision. Therefore, Plaintiffs argument again fails.
Finally, Plaintiff also contends that he can show causation under the cat's paw theory. (Pl.'s Resp. ¶ 42.) A plaintiff can establish the prima facie causal link by showing “cat's paw causation.” Saketoo v. Adm 'rs of the Tulane Educ. Fund, 31 F.4th 990,1001 (5th Cir. 2022). Under this theory, a plaintiff must establish that the person with retaliatory motive somehow influenced the decisionmaker to take the retaliatory action.” Zamora v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015). The decisionmaker's review of a recommendation or report from someone with a retaliatory animus in making his or her adverse employment decision can show causation under this theory. Id. at 334. Here, Col. Carey J. Jones, in reaching the decision to remove Plaintiff, reviewed Loftus' Proposal to Remove. (Def.'s Ex. I at 1.) Although no direct evidence of Loftus having a retaliatory animus against Plaintiff exists, Loftus was a witness in the investigation of Plaintiff s most recent EEO complaint and believed Plaintiffs claim had “ZERO basis.” (Def.'s Ex. A f 12; Pl.'s Ex. 7 at 1.) Making all inference in favor of the nonmovant, a reasonable factfinder could find a retaliatory motive on behalf of Loftus and that Loftus influenced Col. Jones through his proposal. Accordingly, Plaintiff has demonstrated a causal link and shown a prima facie case of discrimination.
2. Employer's Legitimate, Non-discriminatory Reason
Once a plaintiff makes a prima facie showing of retaliation, the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. Burton, 798 F.3d at 227. The burden is a burden of production. Id. at 231. Violation of the employer's policy and poor work performance are legitimate, non-discriminatory reasons for an adverse employment decision. See Wallace, 271 F.3d at 220; Burton, 798 F.3d at 231. Defendant points to the four charges listed in the Decision to Remove as his legitimate, non-discriminatory reasons for removing Plaintiff. (Def.'s Mot. for Summ. J. at 11-12.) Accordingly, Defendant provides four reasons: 1) “Failure to Follow Air Force Policy on smoking areas,” 2) “Failure to Follow Supervisor Instructions,” 3) “for being Absent Without Leave (AWOL),” and 4) “because [Plaintiff's] pattern of misconduct due to poor judgment [made him] Unsuitable for Continued Employment.” (Def.'s Ex. I at 1.) Therefore, Defendant has met his burden of production.
3. Pretext
“To survive summary judgment, the plaintiff must show a conflict in substantial evidence on the question of whether the employer would have not taken the action but for the protected activity.” Porter, 810 F.3d at 949 (emphasis added). Substantial evidence is evidence that is of “such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Musser v. Paul Quinn Coll., 944 F.3d 557, 561-62 (5th Cir. 2019). Further, a plaintiff must rebut each reason given by the employer to survive summary judgment. Burton, 798 F.3d at 233.
Pretext can be shown two ways: 1) retaliatory animus “more likely motivated [the] employer's decision” (usually shown through disparate treatment) or 2) the employer's given reason is not worthy of credence. Brown, 969 F.3d at 577 (quoting Haire v. Bd. of Supervisors of La. State Univ. Agric. & Meeh. Coll., 719 F.3d 356, 363 (5th Cir. 2013)). In his Response to Defendant's Motion, Plaintiff does not argue he was treated differently than any other employee. However, he does make multiple other assertions in an attempt to demonstrate pretext. (Pl.'s Resp. If 9-44.)
First, Plaintiff asserts that the Douglas factors should aid the analysis of this matter. (Pl.'s Resp. ¶ 22-27.) However, the Douglas factors, named for the factors used by the Merit System Protection Board (MSPB) to review the reasonableness of an agency's penalty against an employee in Douglas v. Veterans Admin., is used for a direct appeal of a decision of the MSPB, not for a retaliation analysis. 5 M.S.P.R 280 (1981); see Williams v. Wynne, 533 F.3d 360, 374 (5th Cir. 2008) (addressing that the MSPB must ensure the agency considers the factors); see also Dickerson v. United States VA, 2022 U.S. Dist. LEXIS 102606 at *16 (S.D. Tex.) (analyzing retaliation under the ADA and the propriety of an MSPB decision without applying the Douglas factors to the retaliation analysis); see generally Frazier v. Napolitano, 626 F.Supp.2d 618 (E.D. La. 2009) (using the same analysis); see generally also Haskins v. Nicholson, 900 F.Supp.2d 712 (S.D.Miss. 2012) (using the same analysis). Further, most of Plaintiffs arguments regarding the Douglas factors, and the falsity of his status as AWOL, are disagreement with the facts underlying the charges provided by the Air Force. (Pl.'s Resp. ¶ 22-27, 36.) Disputing the facts underlying the employment decision does not demonstrate pretext. LeMaire v. Louisiana, 480 F.3d 383, 391 (5th Cir. 2007); Denis v. Academy, Ltd, 787 Fed.Appx. 250, 252 (5th Cir. 2019) (per curium). Accordingly, these arguments fail.
Within the context of the Douglas factors, Plaintiff also argues that because he had recently received a positive performance review from Loftus prior to his removal, the Air Force's reasons for his removal must be false. (Pl.'s Resp. ¶ 25.) A sudden negative change in performance evaluations can demonstrate pretext if the employer can offer no other explanation. See Medina v. Ramsey Steel Co., 238 F.3d 674, 685 (5th Cir. 2001). However, Plaintiff has not produced any evaluations in the summary judgment record nor indicated the timing of these evaluations. Further, intervening positive employment actions between the protected activity and the adverse employment action cuts against retaliation. Raggs v. Miss. Power & Light Co., 278 F.3d 463,471 (5th Cir. 2002); Brady v. Hous. Indep. Sch. Dist., 113 F.3d 1419, 1424 (5th Cir. 1997). Accordingly, this is not substantial evidence the removal decision would not have been made but for a retaliatory motive.
Additionally, Plaintiff cites to Lang to contend that knowledge alone will demonstrate pretext. (Pl.'s Resp. ¶ 39-40). However, as stated earlier, Lang was decided in the context of a 12(b)(6) motion to dismiss and held that knowledge was sufficient to meet the prima facie causation burden in that context, not show pretext at the summary judgment stage. Lang, 2021 WL 1199624 at *33 (emphasis added). Accordingly, that unpublished opinion is not controlling here. Further, as discussed above, mere knowledge, without a showing of some type of causal connection between the activity and the decision, will not be sufficient to survive summary judgment. Clark, 952 F.3d at 589.
Plaintiff also contends that the temporal proximity between the filing of his most recent EEO complaint and his removal demonstrates pretext. (Pl.'s Resp. ¶ 15.) Yet, temporal proximity alone is insufficient to show pretext. Musser, 944 F.3d at 564 (citing United States ex rel. King v. Solvay, 871 F.3d 318, 334 (5th Cir. 2017) (per curiam)). Additionally, as discussed above, temporal proximity does not exist in this case. Prima Facie Case, supra at 1.
Furthermore, Plaintiff summarily states that the Air Force did not issue a final agency decision regarding his last EEO complaint without explanation. (Pl.'s Resp. ¶ 33.) Defendant does not seem to contest the Air Force did not reach a final agency decision in the matter. (See Def.'s Ex. D ¶ 11.) No case law appears to exist addressing this lack of agency decision on an EEO complaint as evidence of pretext. The 5th Circuit has held that allegations of an incomplete investigation by the employer into the plaintiff's violation of workplace policy does not provide evidence of pretext. See Pineda v. UPS, 360 F.3d 483, 489-91 (5th Cir. 2004); Lawson v. Parker Hannifan Corp., 614 Fed.Appx. 725, 731 (5th Cir. 2015). However, in Guadalajara v. Honeywell Int'l, Inc., an almost non-existent investigation into the plaintiffs sexual harassment claim and a 6-day gap between his complaint and his suspension was enough to present a fact issue for pretext. 224 F.Supp.3d 488, 510-11 (W.D. Tex. 2016). That fact situation, though, is not sufficiently similar to the one presented here. Further, a plaintiffs burden when facing a summary judgment on its retaliation claim is to show a “conflict in substantial evidence on the question of whether the employer would have not taken the action but for the protected activity.” Porter, 810 F.3d at 949. First, temporal proximity does not exist. Next, the Air Force did refer the matter to the IRD who completed a lengthy investigation into Plaintiffs complaints. (Def.'s Ex. D ¶ 6-9; Def.'s Ex. C-3 at 25-28.) Finally, Plaintiff has not connected the lack of final agency decision on his EEO complaints to his eventual removal. Accordingly, Plaintiff does not offer substantial evidence that his removal would not have occurred but for his EEO complaint.
Finally, Plaintiff asserts that the documents produced by Defendant were part of a “witch hunt” and that Air Force's reasons for his removal were false. (Pl.'s Resp. ¶ 41,43). However, he does not offer any evidence or facts to support his bare assertion and speculation. Therefore, these assertions do not help him survive summary judgment. See Likens, 688 F.3d at 202; see also Harry, 662 Fed.Appx. at 268. Accordingly, Plaintiff has failed to meet his burden under the third prong of the McDonnell Douglas framework.
III. CONCLUSION
For the reasons set forth in this report and recommendation, it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED.
The Parties may wish to file objections to the above recommendations. Failure to file written objections to the findings and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its receipt shall bar an aggrieved party from receiving de novo review by the District Court of the findings and recommendations contained herein, see 28 U.S.C. 636(b)(1)(C), and shall bar an aggrieved party, except on grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415,1429 (5th Cir. 1996) (en banc). This Report and Recommendation disposes of all issues and controversies referred to the undersigned in the above-captioned cause. The Clerk shall terminate the referral.