Esteban Gonzalez v. DuPont Powder Coatings USA, et al

Filing

UNPUBLISHED OPINION FILED. [12-20615 Affirmed ] Judge: PEH , Judge: PRO , Judge: LHS Mandate pull date is 05/13/2013 [12-20615]

Case: 12-20615

Document: 00512216140

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Date Filed: 04/22/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
April 22, 2013

12-20615
Summary Calendar

Lyle W. Cayce
Clerk

ESTEBAN GONZALEZ,
Plaintiff-Appellant
v.
DUPONT POWDER COATINGS USA, INCORPORATED;
E.I. DUPONT DE NEMOURS & COMPANY,
Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-630

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Esteban Gonzalez sued his former employer for age discrimination,
retaliation, and interference with pension benefits. The district court granted
summary judgment for the employer. On appeal, Gonzalez limits his arguments
to the dismissal of his claim for retaliation. We AFFIRM.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-20615
In 1985, Gonzalez began his employment with a predecessor company to
the defendant DuPont Powder Coatings USA, Inc. In June 2008, while working
at a DuPont facility in Houston, Texas, he was placed in a six-month
probationary status because of a safety violation. In November 2008, Gonzalez
committed two more safety violations.

The supervisor who witnessed the

violations prepared written reports on them. A committee studied the reports
and recommended Gonzalez’s termination. The company then sent Gonzalez a
termination letter.
Gonzalez filed this suit for discrimination and retaliation based on his age,
and for terminating him for the purpose of interfering with his pension under
the Employee Retirement Income Security Act, or “ERISA.” The district court
granted summary judgment dismissing all claims.
We review a grant of summary judgment de novo, “applying the same
standard as the district court.” Sherrod v. Am. Airlines, Inc., 132 F.3d 1112,
1121 (5th Cir. 1998). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
The only part of the summary judgment contested on appeal concerns
Gonzalez’s claim that DuPont retaliated against him under the Age
Discrimination in Employment Act (“ADEA”). That Act makes it “unlawful for
an employer to discriminate against any individual . . . because such individual
. . . has opposed any practice made unlawful by this section.” 29 U.S.C. § 623(d).
Gonzalez presented evidence that in May 2008, he complained to management
that overtime opportunities were made available disproportionately to younger
workers. The district court concluded there was no evidence that made the
required causal link between this statutorily protected activity and an adverse

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employment action. Sherrod, 132 F.3d at 1122 n.8. To make the causal link,
Gonzalez “must show that the employer’s decision to terminate was based in
part on knowledge of the employee’s protected activity.” Id. at 1122. That
discharge occurred six months after the complaints about overtime. The district
court relied on caselaw from this circuit in determining that a six-month gap
between the protected activity and an employer’s adverse action is too long by
itself to establish a prima facie case of a causal connection. See Barkley v.
Singing River Elec. Power Ass’n, 433 F. App’x 254, 260 (5th Cir. 2011). That
decision is not precedential, but it relied on a Supreme Court decision that the
two events must be “very close” in time to support causation. Id. (quoting Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). We agree that the
passage of six months here is too great a delay to support a causal connection.
In addition to finding no causal link solely from temporal proximity and
no prima facie case of retaliation, the district court also said that DuPont had
offered legitimate, nondiscriminatory reasons for the discharge, namely, the
safety violations. The district court also held that Gonzalez had not shown any
basis to find those reasons were a pretext. There was no error in those rulings.
Gonzalez also argued in the district court, and presses the issue here, that
the supervisor who wrote the reports on Gonzalez’s safety violations had the
intention to retaliate against him and used the disciplinary committee as his
unwitting agent to carry out his purposes. The problem with the argument is
that its requirements are not supported by evidence. Gonzalez must present
evidence: “(1) that a co-worker exhibited discriminatory animus, and (2) that the
same co-worker ‘possessed leverage, or exerted influence, over the titular
decisionmaker.’” Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir.

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2004). Gonzalez points to no evidence that this supervisor had leverage over or
influence on the members of the committee or any ultimate decisionmaker.
There also is no evidence to support that the supervisor had a discriminatory
animus based on Gonzalez’s complaint that overtime was disproportionately
given to younger workers.
The evidence in the record does not support this surrogate-retaliation
theory.
AFFIRMED.

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