January v. City of Huntsville ( 2023 )

Case: 22-20380 Document: 00516830549 Page: 1 Date Filed: 07/24/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 24, 2023
No. 22-20380 Lyle W. Cayce
____________ Clerk
Jason January,
Plaintiff—Appellant,
versus
City of Huntsville,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-303
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Edith Brown Clement, Circuit Judge:
In this employment retaliation case, we AFFIRM the judgment of the
district court.
I
Almost a decade ago, Huntsville, Texas firefighter Jason January had
gallbladder surgery. It did not go well, and ever since, January has needed
medication and treatment for complications. And for years, both the City and
its fire department accommodated him.
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But in 2016, not long after his surgery, the City caught January asking
a fellow employee for his leftover prescription painkillers. Because such a
request violated city policy, Huntsville placed January on probation, and
warned that future violations could lead to his termination.
Unrelatedly, in January 2018, January submitted—and then
rescinded—a letter of resignation. The fire department accepted him back,
but passed him over for open officer positions, and declined to reinstate him
to a trainer position he’d previously held. January, incensed, met with City
employees in November 2018. At that meeting, he accused the City of
discriminating and retaliating against him on account of his age and disability
in not selecting him as an officer and by removing him as a trainer. He also
made clear that he was considering suing the City for discrimination. The
City, with the help of outside counsel, began to investigate. After several
months without resolution, January, in February 2019, told the City that he
was going to complain to the EEOC.
Then, a month later, January went to Huntsville’s City Hall to make
copies for his EEOC complaint. The parties tell different tales of how that
visit went. Per the City, employees immediately suspected that January was
somehow intoxicated. Employees reported that January slurred his words,
was “partially incoherent,” and seemed unlike himself. Despite that, Brenda
Poe, the city secretary, helped January make his copies. But according to her,
that did not go well—January, she said, boxed her in and blocked the copy
room exit, stating all the while that “when all of this comes out, they’re going
to be sorry that they messed with me.” Poe, feeling threatened, escaped past
him when she could and ran to hide in the women’s bathroom nearby.
January tells it differently. On the day in question, he claims he was
suffering from sleep deprivation and hypoglycemia (which, he notes, he’d
told the City months before could read as intoxication). And when he went
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to the copy room with Poe, he did not box her in, but rather stood patiently
as he waited for his copies. Further still, his comment that Poe took as
threatening was directed at the City with regards to his lawsuit, not to Poe in
particular.
No matter the cause, January eventually went to the City Manager’s
office with several City officials. While there, officials repeatedly asked to
drug test January, which he declined to allow. Officials refused to let January
drive himself home and finally let him go only when his wife eventually
arrived.
The City placed January on administrative leave and investigated.
Two weeks later, it fired him. Director of Public Safety Kevin Lunsford, the
decisionmaker, explained that January was fired because: 1) despite a drug
test taken the next day showing no intoxication, there remained a “high
probability” that January was impaired at City Hall; 2) January was
insubordinate because he refused to leave City Hall when told to do so; 3)
January’s lack of cooperation and intoxication harmed the City’s reputation;
and 4) January was disrespectful in intimidating and scaring Poe. Given
January’s past warning that any further violation could end his employment,
the City terminated him. And, at roughly the same time, it informed January
that the investigation into his discrimination complaint determined that it
lacked merit.
January sued, claiming retaliation under the ADA, the Rehabilitation
Act, and the ADEA, and discrimination under the ADA. Eventually, and
over January’s request for a Rule 56(d) continuance, the district court
granted summary judgment to the City on all claims. January now appeals
both his denied continuance and the City’s summary judgment.
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II
We review the district court’s denial of a Rule 56(d) motion for abuse
of discretion. Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887,
894 (5th Cir. 2013) (per curiam). The district court “has broad discretion in
all discovery matters, and such discretion will not be disturbed ordinarily
unless there are unusual circumstances showing a clear abuse.” Kelly v. Syria
Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000) (quotations and
citation omitted). Additionally, we review a grant of summary judgment de
novo, applying the same standards as the district court. Davidson v. Fairchild
Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). A “court should grant
summary judgment when ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(a)).
A
First, January’s Rule 56(d) motion. Per Rule 56(d), a district court
may defer or deny a summary judgment motion, or allow additional time for
discovery, if a “nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.”
Fed. R. Civ. P. 56(d). To win on his motion, January must “show (1) why
[he] needs additional discovery and (2) how that discovery will create a
genuine issue of material fact.” Beattie v. Madison Cnty. Sch. Dist., 254 F.3d
595, 606 (5th Cir. 2001). It’s not enough to “simply rely on vague assertions
that additional discovery will produce needed, but unspecified, facts.” Biles,
714 F.3d at 894 (quotations and citation omitted). Instead, he “must set forth
a plausible basis for believing that specified facts, susceptible of collection
within a reasonable time frame, probably exist and indicate how the emergent
facts, if adduced, will influence the outcome of the pending summary
judgment motion.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)
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(quotations and citation omitted). He “must also have diligently pursued
discovery.” Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th Cir.
2017) (quotations and citation omitted).
Discovery here closed on March 2, 2022, after two jointly requested
extensions totaling almost five months. On March 10—over a week past the
close of discovery—January submitted a letter to the court asking for a
discovery conference. 1 In his letter, he listed his outstanding issues: discovery
concerning city secretary Brenda Poe; the city’s hired outside investigator
and his investigation; January’s emails, texts, and Open Records Act request
correspondence; and whether the City believed January’s transcript of his
Texas Worker’s Commission hearing was correct. He followed up by email
twelve days later.
The issue lay dormant for almost two months. But once the City
moved for summary judgment, January again raised it in response. The court
should “defer consideration” of Huntsville’s motion, said January, because
“there is an ongoing discovery dispute.” He insisted that the “information
sought in discovery is germane to the issues raised in the [summary
judgment] motion.” So, “[i]f the Court believe[d] that the motion ha[d] any
merit,” January implored it to defer pursuant to Rule 56(d). Attached was a
declaration by his attorney, again listing the items sought and explaining that
“[a]ll of this information is likely to be relevant to the case and specifically to
the summary judgment motion.” The district court treated this request as an
“eleventh hour” Rule 56(d) motion and denied it. It faulted January for
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1
This letter was sent pursuant to Judge Rosenthal’s internal procedures, which
require parties to request conferences before filing motions to compel.
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“fail[ing] to specify which ‘facts’ he is unable to present due to the lack of
requested materials and why they are ‘essential’ to his opposition.’” 2
We agree. Before the district court, January did little more than suggest
that the court defer ruling on summary judgment until the discovery issues
were resolved. January’s initial letter only lists the items he still seeks. When
he later raised the issue again, he said only that the sought evidence “is likely
to be relevant to the case and specifically to the summary judgment motion,”
and is “germane to the issues raised” there.
That isn’t enough. January’s list of items sought isn’t the same as
identifying the facts those items will support. See Mendez v. Poitevent, 823
F.3d 326, 337 (5th Cir. 2016) (“Plaintiffs did not, moreover, identify specific
facts below that would alter the district court’s analysis.”). January needed
to show “how the emergent facts, if adduced, will influence the outcome of
the pending summary judgment motion.” Raby, 600 F.3d at 561 (emphasis
added) (quotations and citation omitted). His motion “did not meet even this
unexacting standard,” Renfroe v. Parker, 974 F.3d 594, 601 (5th Cir. 2020),
but rather relied only “on vague assertions that additional discovery will
produce needed, but unspecified facts,” Biles, 714 F.3d at 894 (quotations
and citation omitted).
Because January didn’t explain “how that discovery will create a
genuine issue of material fact,” Beattie, 254 F.3d at 606, he didn’t carry his
burden. 3 The district court thus acted well within its “broad discretion” to
deny his motion.
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2
Though we do not address it, the district court also concluded January failed to
show he diligently pursued discovery.
3
Though January now explains what his sought items would show and how they’d
affect summary judgment, he didn’t before the district court. We therefore don’t consider
his explanations now. See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th
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B
And now to the merits. January asserts claims of retaliation under the
ADA, the Rehabilitation Act, and the ADEA. 4 All three prohibit an employer
from “discriminat[ing] against any individual because such individual has
opposed any act or practice made unlawful by [the Acts] or because such
individual made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under [the Acts].” 42 U.S.C.
§ 12203 (ADA); see also 29 U.S.C. § 794(d) (incorporating the ADA’s
standard for Rehabilitation Act claims); 29 U.S.C. § 623(d) (ADEA).
Since January admits only circumstantial evidence of retaliation, to
succeed on his claims he must satisfy the burden-shifting McDonnell Douglas
test. Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). First, he must
make out a prima facie case by showing (1) engagement in protected activity,
(2) an adverse employment action, and (3) a causal connection between the
two. Id. at 348–49. If he does so, the City must come forward with a
legitimate, non-discriminatory reason for the adverse action. Id. Once it does,
January must then show “sufficient evidence that the proffered reason is a
pretext for retaliation.” Id. at 349 (quotations and citation omitted). The
parties contest only whether January established a causal connection between
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Cir. 1999) (“On appeal, we will not consider justifications for granting a continuance that
were not presented with the original motion.”); Mendez, 823 F.3d at 337 n.8 (same).
4
January also asserted an ADA discrimination claim. The City argues that he
abandoned that claim as well as his ADEA retaliation claim through inadequate briefing.
We agree as to the former. January “fail[ed] to cite a single authority supporting such a
claim; thus, [his] argument is abandoned.” N.Y. Party Shuttle, L.L.C. v. NLRB, 18 F.4th
753, 765 n.4 (5th Cir. 2021). As to the latter, however, it’s clear that January briefed all his
retaliation claims—under the ADA, the Rehabilitation Act, and the ADEA—together for
convenience, citing authorities that refer to all three interchangeably. That’s sufficient, and
so we therefore address January’s ADEA retaliation claim on the merits.
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his acts and his termination, and whether he showed sufficient evidence that
the City’s proffered legitimate reason for his firing was pretextual.
The court below first concluded that January did not establish a causal
connection because he failed to show that Lunsford “knew that [he] intended
to file charges with the employment commissions when” he was fired. That
doomed January’s prima facie case.
But as January rightly argues, that was error: the short time between
his protected acts and his firing is itself enough to show causation. While
generally, a causal link “is established when the evidence demonstrates that
the employer’s decision to terminate was based in part on knowledge of the
employee’s protected activity.” Nall, 917 F.3d at 349 (quotations and
citation omitted), it can also “be established simply by showing close enough
timing between the two events.” Garcia v. Pro. Cont. Servs., Inc., 938 F.3d
236, 241 (5th Cir. 2019). We’ve repeatedly held periods of a few months
sufficient to satisfy causation in a prima facie case. See, e.g., Outley v. Luke &
Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016) (holding two months sufficient
to show causal connection); Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001) (suggesting “a time lapse of up to four months has been found
sufficient to satisfy the causal connection” (quotations and citation
omitted)).
Here, a mere six weeks passed between January’s second protected
activity (telling the City Manager he was going to file an EEOC complaint)
and his firing. That gap does the trick. See Porter v. Houma Terrebonne Hous.
Auth. Bd. of Comm’rs, 810 F.3d 940, 949 (5th Cir. 2015) (“[T]he six-and-a-
half-week timeframe between [the protected act] and the [adverse action] is
sufficient to satisfy the prima facie case of causation.”). January successfully
demonstrates a prima facie case of retaliation.
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Moving on, January does not contest that the City produced
legitimate, non-retaliatory justifications for his firing. So, he must then show
the City’s reasons—several city policy violations in March 2019—were mere
pretext. The district court found that he failed to do so because the record
supported Director Lunsford’s explanation. First, it explained that Lunsford
concluded that there was “a high probability that [January] was impaired”
after reference to another officer’s lengthy investigation report. That officer,
noted the court, interviewed nine people, including January, and had over
two decades’ familiarity with January. Next, it explained that even if January
believed he wasn’t being insubordinate, he nevertheless failed to point to any
evidence that Lunsford said he was subordinate only as pretext. Then, it
found that the record showed Poe (the city secretary) believed January was
acting in a threatening manner towards her and so it was reasonable for
Lunsford to act on that belief. And finally, it said there was nothing wrong
with the city issuing January an initial complaint, and then including
additional policy violations after an investigation. At base, the City had
merely “warned January . . . that additional policy violations would result in
termination,” and then “acted consistently with that warning.” January’s
claim therefore failed.
To survive summary judgment now, January must show that his
protected act “was a ‘but for’ cause of” his termination. Owens v. Circassia
Pharms., Inc., 33 F.4th 814, 835 (5th Cir. 2022) (quotations and citation
omitted). He can do so by “produc[ing] substantial evidence indicating that
the proffered legitimate nondiscriminatory reason is a pretext for
discrimination.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233
(5th Cir. 2015) (quotations and citation omitted). His evidence is substantial
if it “is of such quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions.” Id.(quotations and citation omitted). He must rebut “each discrete reason
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proffered by” the City. Id. The panel is to consider “numerous factors,
including the strength of the plaintiff’s prima facie case, the probative value
of the proof that the employer’s explanation is false, and any other evidence
that supports the employer’s case and that properly may be considered.”
Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 1002 (5th Cir. 2022)
(quotations and citation omitted).
January first chides the district court for not crediting how close in
time his protected activity and his termination were. While “temporal
proximity standing alone is insufficient to establish an issue of fact as to
pretext after an employer has provided a non-retaliatory reason,” Aryain v.
Wal–Mart Stores Tex. LP, 534 F.3d 473, 487 (5th Cir. 2008), January is right
that the “combination of suspicious timing with other significant evidence of
pretext[] can be sufficient to survive summary judgment,” Burton, 798 F.3d
at 240 (quotation and citation omitted). January came to the city hall to copy
documents for his EEOC charge—a fact everyone knew—and was fired only
fifteen days later. This sequence, says January, “is a strong indicator of
pretext.” And he’s right—we’ve indeed credited similar timelines as
indicative of pretext. See, e.g., Burton, 798 F.3d at 240 (finding an inference
of pretext in a “roughly two week[]” gap). So, the district court erred by
failing to credit the temporal proximity between January’s protected act and
his termination as evidence of pretext.
Beyond this temporal proximity, January produces scant evidence of
pretext and retaliation. 5 But it is not per se required that he do so. Indeed,
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5
He does argue that because his termination memorandum had more grounds for
dismissal than the City’s initial complaint against him did, it violated Texas law. This, he
says, is further evidence of pretext. But nothing in his chosen code section requires the
complaint to state every eventual grounds for dismissal, and nothing there forbids the City
from uncovering more reasons for termination throughout an investigation. See Tex.
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“in an appropriate case, a factfinder may infer the ultimate fact of retaliation
from the falsity of the employer’s explanation.” Brown v. Wal-Mart Stores E.,
L.P., 969 F.3d 571, 577–78 (5th Cir. 2020) (cleaned up). In those situations,
“a plaintiff may withstand a motion for summary judgment without adducing
additional, independent evidence of retaliation.” Gee v. Principi, 289 F.3d
342, 348 (5th Cir. 2002). Even so, though, January’s “evidence of falsity
must be of sufficient nature, extent, and quality to make the inferential leap
to [retaliation] a rational one.” Owens, 33 F.4th at 826 n.7 (quotations and
citation omitted).
January makes the same thrust: that the City’s reasons are “unworthy
of credence” and therefore pretextual. He challenges the City’s reasons beat-
by-beat rather than leading the panel to separate evidence of pretext.
We’ve made clear though that merely showing a reason is false is not
enough. For example, in Owens, we held that even though the plaintiff “ha[d]
provided enough evidence to permit a finding that [the employer’s] proffered
justification for her termination [wa]s false” she failed to present more than
a “mere scintilla of evidence that the true reason for her termination was
discriminatory animus.” 33 F.4th at 834. So even though the plaintiff
provided “[s]everal declarations [that] attest[ed] to specific facts which, if
credited by a factfinder, could lead to a reasonable rejection of [the
employer’s] proffered reason for firing” her, “that alone [wa]s not enough.”
Id. at 831–33. She needed her evidence of falsity to be colored with shades of
pretext; failing that, her claims couldn’t proceed. Id. at 834–35.
By contrast, in Gee, we held that the plaintiff successfully
demonstrated pretext when she showed that the reasons given for her
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Gov’t Code § 614.023. January doesn’t cite anything that shows the City did
something wrong in that regard.
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adverse employment action were shifting and inconsistent. 289 F.3d at 347–
48. She also showed that the reasons given flatly contradicted the glowing
reviews she received just prior. Id. at 348. These contradictions and fluid
justifications tended to show that the reasons given were false and thus
sustained an inference of pretext sufficient to defeat summary judgment. Id.Too, in Staten v. New Palace Casino, LLC, we explained that the employer’s
“inconsistent explanations for [plaintiff’s] termination and the timing of its
changing rationale” indicated the justification was false, and therefore
pretextual. 187 F. App’x 350, 359 (5th Cir. 2006) (per curiam). Before the
EEOC and then in the later litigation, the employer took different positions
for why the plaintiff was terminated. Id. at 358–60. That it could not nail
down a reason during the contentious time was sufficient evidence of pretext.
Id. at 360.
With that principle in mind, we turn back to January. As for his alleged
intoxication, January starts by pointing to an officer bodycam video of his visit
to city hall. In this video, he claims he “looks just fine,” with “normal”
speech, “rational” discussions, steady walking, and repeated denials that
he’d taken medication.
Beyond the last assertion, those are subjective conclusions. Without
any other video of January, it’s impossible to conclude what’s “normal” for
him. In the City’s video, he appears to be conversing rationally, but often
hesitates to respond and seems to drag out sentences and stumble over his
words. What the video does show is that several officials told January that he
seemed to be having an issue beyond a mere “lack of sleep,” and repeatedly
requested that they be allowed to check him for signs of chemical influence.
While January declined time and again and insisted he was fine, the video
does little to dispel any impression that officials on the scene believed to the
contrary. Officials told January and his wife that, given their familiarity with
him, he did not seem himself. One listed to January’s wife the behaviors that
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concerned him: slurred and misspoken words, failure to comprehend things,
and glassy eyes. And January also overstates whether the video shows him
“look[ing] just fine”—thanks to the camera’s angle, we see only fleeting
glimpses of him. Indeed, when he gets up to leave, he is shown for little more
than six seconds. The video does not show him walking out or how he gets to
his wife’s car. All told, the video does not cast doubt on Lunsford’s
conclusions and provides no evidence that his conclusion was pretextual.
January points out that he reasonably declined a “subjective” “gaze
test” and a non-standard urine screen that would have been administered by
Lunsford, and that Lunsford administered no other drug test. While that’s
true, and maybe even prudent, it is not evidence that Lunsford’s reasons for
terminating January were pretextual. Lunsford didn’t fire January for failing
a drug test. He fired January because, after an investigation that interviewed
nine people, Lunsford concluded there was “high probability that [January
was] impaired.”
January next notes that he’d told the City months before that his
disability sometimes causes his blood sugar to drop, which causes him to
“appear intoxicated.” And when he appealed Lunsford’s decision, he
explained that he was hypoglycemic at the time, which was (he suggested)
“misperceived as intoxication.” But January fails to connect that knowledge
to Lunsford—only to separate city officials. He also fails to demonstrate any
actual evidence that he was suffering from hypoglycemia that day—he merely
claims it so. That he told a different employee months before that he
sometimes gets low blood sugar and can appear intoxicated is not evidence
that Lunsford’s decision was pretextual or false.
January next points to a drug test he took the next day that cleared
him. But as the district court explained, nothing about a drug test the
following day “proved that January was not intoxicated or under the
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influence of a substance the day before.” And finally, January claims the
reference to his 2016 incident was mere “grasping at straws,” since he was
not intoxicated back then. But that incident still involved asking for
prescription painkillers, and it was opioids that Lunsford suspected January
to be on. Calling the reference a mere straw grasp dramatically downplays the
2016 incident’s clear relevance. And besides, in 2016 January was warned
that another policy violation could result in termination, which it here did.
All told then, beyond temporal proximity, January produces no
evidence that Lunsford’s reasoning concerning his intoxication was false
(such that he was not actually intoxicated at the time) or pretextual (such that
January’s protected activities were the real reason for his firing). We have
said temporal proximity isn’t enough. Nothing January provides “make[s]
the inferential leap to [retaliation] a rational one.” Owens, 33 F.4th at 826 n.7
(quotations and citation omitted). Because he failed to rebut this proffered
justification for his termination, summary judgment was proper. 6
III
The district court is AFFIRMED.
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6
And because we conclude January did not successfully rebut the City’s claims of
his intoxication, we do not address the other proffered reasons.
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Haynes, Circuit Judge, concurring in part, dissenting in part:
I concur with some of the majority opinion’s analysis, as well as its
ruling on January’s disability discrimination claim. However, I respectfully
dissent as to its conclusions regarding January’s retaliation claims, as to
which I would reverse the summary judgment. While I wouldn’t need to
reach his Rule 56(d) motion, given the majority opinion’s conclusion on the
retaliation claim, I disagree with its affirmance of the Rule 56(d) motion.
I. Retaliation
I first address the majority opinion’s assessment of January’s
retaliation claims and its conclusion that summary judgment on those claims
was proper. I agree that January satisfied the requirements for a prima facie
retaliation case. See Majority Op. at 7–9. I will assume arguendo that
Huntsville produced at least one legitimate, non-retaliatory reason for his
firing, which then takes me to January having the burden of raising a genuine
dispute of material fact as to whether those reasons were pretextual. See
Majority Op. at 9. However, I diverge from the majority opinion’s
conclusions on pretext.
“Pretext can be proven by any evidence that casts doubt on the
credence of the employer’s proffered justification[s] for the adverse
employment action.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578
(5th Cir. 2020) (emphasis added). Bearing this in mind, “in order to survive
a motion for summary judgment, a plaintiff must show a conflict in
substantial evidence on the question of whether the employer would not have
taken the adverse employment action but for the protected activity.” Id. at
577 (internal quotation marks and citation omitted). Specifically, a “plaintiff
must put forward evidence rebutting each of the nondiscriminatory reasons
the employer articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001). Importantly, though, we must review the evidence in the
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light most favorable to the nonmovant at the summary judgment stage. See
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999). In
reviewing all the proffered reasons, it is important to underscore that
temporal proximity remains a relevant factor at the pretext stage. See Brown,
969 F.3d at 579. This factor is doubly relevant in this case. That is, temporal
proximity existed between January’s protected activity and his firing. In
addition, the fact that the outside investigation into January’s complaint
concluded mere days after his visit to City Hall, after having begun months
beforehand, also suggests “suspicious timing” that counsels against
summary judgment. Shackelford, 190 F.3d at 409; see also Watkins v. Tregre,
997 F.3d 275, 285 (5th Cir. 2021) (concluding genuine dispute of material fact
existed when “suspicious sequence of events le[d] up to [plaintiff’s] firing”).
While this factor alone might not be sufficient to satisfy January’s pretext
burden, it “carr[ies] significant weight” in our review. Ameristar Airways,
Inc. v. Admin. Rev. Bd., U.S. Dep’t of Lab., 650 F.3d 562, 569 n.21 (5th Cir.
2011). What screams loudly in this arena is that he was fired based upon his
alleged conduct the day he visited City Hall to obtain necessary information to
file his EEOC complaint. Thus, his conduct that day was not wholly unrelated
to his protected activities; instead, it was clearly related. It certainly appears
that his supervisors were trying to find a way to eliminate him once they knew
he was going to sue the City.
To get to the specifics, Huntsville proffered four reasons for January’s
termination. First, Huntsville cited its investigation, which suggested “that
there [was] a high probability” that January was impaired during his visit to
City Hall. In that context, it alleged that he “refused the offer of a Horizontal
Gaze Nystagmus evaluation and a urinalysis.” In response, January argues
this reason is unworthy of credence because the video recording of him while
he was at City Hall refutes Huntsville’s characterization. Additionally, he
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notes that Lunsford admitted that he was not on duty at the time such that a
standard test for intoxication was not offered.
The majority opinion concludes that this video “does not cast doubt
on Lunsford’s conclusions and provides no evidence that his conclusion was
pretextual.” Majority Op. at 13. The majority opinion attempts to discount
the video by reducing its significance to only January’s “subjective
conclusions.” See Majority Op. at 12–13. In doing so, it ignores the standard
of our review—we must construe the evidence, including this video, in the
light most favorable to January. See Shackelford, 190 F.3d at 409; see also
Fairchild v. Coryell Cnty., 40 F.4th 359, 363 (5th Cir. 2022) (“As is always
true at summary judgment, the facts must be viewed in favor of the
nonmovant . . . . Construing the video[] in favor of the plaintiffs shows that a
jury could reach different conclusions on a number of facts”).
Properly evaluating the evidence here, the video shows that a number
of officials asked January about his condition and spoke with him about what
they thought about his behavior. However, the video also shows that January
repeatedly and consistently explained that he was not impaired and instead
was only experiencing the effects of limited sleep. He remained polite and
composed, as opposed to belligerent or intoxicated, despite repeated (and
often accusatory) questioning from officials and several tense exchanges
between those officials and his wife (once she showed up). Indeed, when
asked about a horizontal gaze test being performed on him, January
respectfully declined and provided a reasonable explanation: that he had not
slept well and was (justifiably) concerned about the circumstances
surrounding his disagreements with Huntsville. Reviewing the whole of this
video, it is revealing that, while January does speak quickly, Huntsville itself
acknowledges that “[t]he video shows January appearing lethargic but not
slurring words.” Importantly, too, given Huntsville’s concession that he was
not on duty and, therefore, not subject to a standard test for intoxication, at
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the very least, it is a fact question whether this is a legitimate basis for firing
versus a pretextual one.
Put another way, instead of him being fired due to misconduct while
on duty, he was fired for alleged misconduct while seeking materials for his
EEOC complaint. Therefore, given the suspicious timing, see Brown, 969
F.3d at 579, and viewing the evidence in the light most favorable to January,
see Shackelford, 190 F.3d at 409, I would conclude that January has adequately
disputed this supposed reason of impairment in the form of intoxication for
his termination. 1 See Gee v. Principi, 289 F.3d 342, 347–48 (5th Cir. 2002)
(concluding that summary judgment was inappropriate where the plaintiff
had “provided sufficient evidence to cast doubt on th[e] [employer’s]
explanation, thereby enabling a reasonable factfinder to conclude that it was
false”).
Huntsville’s second explanation for January’s termination was that he
was “insubordinate by ignoring responsible officials” who told him to “leave
City Hall at least three different times while in the City Manager’s office.”
But this characterization is at odds with what is depicted in the video. In the
video, January does not appear to ever ignore any official order for him to
leave City Hall. Rather, it was January who spontaneously offered, in
response to one official’s questions, to call his wife to pick him up if it would
“make [that official] happy.” Indeed, while he was talking during the video,
his wife arrived to pick him up, so that is consistent with his willingness to
_____________________
1
Another point supports this conclusion: the mere fact that the majority opinion
draws such markedly different determinations from the aforementioned video than I have
made from my review itself underscores why summary judgment was improper—
reasonable minds can clearly differ. Further, the video did not come from an incident that
was wholly and clearly removed from January’s protected activities; rather, as discussed
above, it is a video that was taken when January went to City Hall to get documents relevant to
his EEOC complaint.
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leave, not a refusal to do so. It is also difficult to square Lunsford’s
characterization of January’s conduct with the fact that one official expressly
suggested that it would be acceptable if either an official drove January home
or his wife picked him up. Put simply, the video recording does not show
what Lunsford claims, i.e., that January was “insubordinate” and was “told
to leave City Hall,” yet refused to do so. January has done more than enough
“to cast doubt on this explanation, thereby enabling a reasonable factfinder
to conclude that it was false.” 2 Id. at 348.
Huntsville’s third explanation for January’s termination was that he
harmed its reputation through his “level of impairment, . . . unprofessional
conduct, insubordination and unwillingness to cooperate with officials.”
This explanation is predicated on January having behaved in certain ways. As
January points out, and I discuss above and below, whether he did behave in
an impaired, unprofessional, or insubordinate manner is contradicted by the
video and record evidence. A reasonable factfinder could thus determine that
this reason was false. See id.; Brown, 969 F.3d at 578.
That leaves Huntsville’s final explanation for its decision to fire
January, which was that January engaged in “disrespectful, unprofessional or
disruptive behavior” towards Poe. While January’s interactions with Poe
were not captured on the video in evidence, 3 Poe did give testimony before
the Texas Workforce Commission that is relevant to this issue. Specifically,
Poe testified that she felt threatened by January because, for the “[t]hree to
_____________________
2
In fact, when January was directly told to leave by an official, he promptly did so,
saying “yes sir.”
3
While the video recording in evidence does not show Poe, as discussed further
below it is worth noting that January sought discovery that included “[a] copy of a recording
made by Ms. Poe” of January. Of course, the court denied that request. But needless to
say, such a recording would have obvious probative value to this matter.
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four” minutes she was making copies, January positioned himself in the
doorway of the copy machine room and stated something to the effect of,
“[w]hen all of this comes out, they’re going to be sorry they messed with
me.” Put in its proper context, and drawing all reasonable inferences in favor
of January, Huntsville’s proffered reason is highly pretextual.
As Poe acknowledged, it was entirely normal for January to wait in the
copy machine room with her while she was making copies. That is what most
people do, so there is nothing to support the notion that he was threatening
her by doing so. At some point January made his allegedly threatening
statement, but, as Poe also admitted, she understood this statement to be
directed at Huntsville, rather than herself. Put another way, he was
threatening to sue the City, not to hurt her physically (or otherwise). If telling
one of the employees of a company or city that you are going to sue their
employer is a threat that allows firing, that would be the opposite of the exact
point of the retaliation clause: to preserve the protected activities of
employees to file EEOC claims. Indeed, it is revealing that Poe stated that
January did not threaten her “personally” before immediately explaining
that she was “a part of the [C]ity.” So, in sum, what Poe is trying to
characterize as threatening—and what Huntsville contorted into a violation
of its policies—should be properly construed as normal behavior and an
expression of frustration with Huntsville, rather than Poe, which he has a
right to have. Simply put, when all reasonable inferences are drawn in
January’s favor, Huntsville’s final explanation rings hollow. See Shackelford,
190 F.3d at 409; Gee, 289 F.3d at 348. In sum, all of the claimed reasons
strongly appear pretextual, so, at a minimum, it is a fact issue.
II. Rule 56(d)
If I were the only person writing the appellate opinion, I would reverse
the summary judgment on the retaliation claim and remand for a trial on the
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merits. But, since the majority opinion concludes that summary judgment
was proper on January’s retaliation claims on the evidence then in existence
in the district court, see Majority Op. at 14–15, then I think the majority
opinion should have ruled differently on January’s appeal of the Rule 56(d)
motion denial. With respect to this motion, the majority opinion determines
that January failed to “carry his burden” because he did not demonstrate
how the sought-after discovery would “create a genuine issue of material
fact.” Majority Op. at 6–7 (quotation omitted). To receive relief under Rule
56(d), a party must show that (1) “additional discovery will create a genuine
issue of material fact,” and (2) he “diligently pursued discovery.” Jacked
Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th Cir. 2017) (quotation
omitted). A “non-moving part[y] requesting Rule 56(d) relief may not
simply rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.” Am. Fam. Life Assur. Co. of Columbus v.
Biles, 714 F.3d 887, 894 (5th Cir. 2013) (per curiam) (internal quotation
marks and citation omitted). Rather, he is required to “set forth a plausible
basis for believing that specified facts, susceptible of collection within a
reasonable time frame, probably exist and indicate how the emergent facts, if
adduced, will influence the outcome of the pending summary judgment
motion.” Id. (quotation omitted).
Importantly, however, these motions “are broadly favored and should
be liberally granted,” given that Rule 56(d) “is designed to safeguard non-
moving parties from summary judgment motions that they cannot adequately
oppose.” Id. (internal quotation marks and citations omitted). Thus, “[i]n
evaluating district courts’ rulings on Rule 56(d) motions, we generally
assess[] whether the evidence requested would affect the outcome of a
summary judgment motion.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 423
(5th Cir. 2016). We have found an abuse of discretion as to a Rule 56(d)
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motion where “a specific piece of evidence . . . would likely create a material
fact issue.” Id. (emphasis added).
With regard to the first Rule 56(d) requirement, that January must
have shown that “additional discovery will create a genuine issue of material
fact,” Jacked Up, L.L.C., 854 F.3d at 816 (quotation omitted), January set
forth a plausible basis for concluding that certain facts likely exist and
suggested how those facts would influence summary judgment, see Biles, 714
F.3d at 894 (quotation omitted). In his Rule 56(d) motion, January explained
that information he sought through discovery, but did not receive, was
“germane to the issues raised in the [summary judgment] motion.” In
addition, January highlighted his previous attempts to access this discovery,
including his March 10 letter to the district court, 4 a follow up email, and a
declaration from his counsel about those communications.
This collective context establishes a “plausible basis” for
understanding the relevance of the sought-after evidence. Id. (quotation
omitted). Further, in contrast to cases like Biles, where we concluded that
sought-after evidence was unlikely to affect the outcome of summary
judgment, here it is clear that evidence of Poe’s recording and the record of
the outside investigation would likely affect summary judgment. See id. at
895. Such evidence could discredit Huntsville’s characterization of
January’s conduct or clarify the extent to which Huntsville’s leadership was
aware of January’s discrimination contentions. However one looks at all of
the discovery, at least some of the information sought in January’s request,
_____________________
4
In this letter, January elaborated on his request for more discovery as to Poe,
stating that “[s]he claim[ed] that she felt threatened.” January explained that Poe had been
“fired” by Huntsville “because she had made a surreptitious recording of Mr. January”
and wrote that he accordingly sought “[a] copy of the recording made by Ms. Poe.” This
letter further explained that he sought a copy of the file for the outside investigation that
was initiated after he “presented a number of complaints, including discrimination issues.”
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alongside the likely probative value of that evidence, support his satisfaction
of the first Rule 56(d) requirement. See Renfroe v. Parker, 974 F.3d 594, 601
(5th Cir. 2020).
Turning to the second Rule 56(d) requirement, that January must
have “diligently pursued discovery,” Jacked Up, L.L.C., 854 F.3d at 816(quotation omitted), the majority opinion focuses on the fact that the
discovery period ended on March 2, 2022, and January’s first outreach to the
district court regarding the discovery dispute was on March 10, 2022.
January then submitted his Rule 56(d) motion in his response to Huntsville’s
motion for summary judgment approximately two months later.
It’s true that we have affirmed a district court’s denial of a Rule 56(d)
motion where the movant “did not move to compel production of the[]
documents during the discovery period.” Id. However, in that case, we
specifically observed that the movant first raised the need for additional
discovery in its response to a motion for summary judgment. Id. But here,
January initially raised these discovery disputes prior to his response to
Huntsville’s motion, only days after the discovery period ended. This case
is plainly distinguishable, then. See id. Moreover, the parties themselves
both acknowledged that, as of their joint motion to extend the discovery
deadline, they had been diligent in their discovery-related efforts. 5
In sum, it is clear that that we can identify, at minimum, several
“specific piece[s] of evidence that would likely create a material fact issue,”
Smith, 827 F.3d at 423, including Poe’s purported recording of January and
the evidence of the outside investigation. Therefore, and in light of the fact
_____________________
5
Furthermore, as the majority opinion acknowledges, January sent his letter to the
district court in accordance with the court’s internal procedures. See Majority Op. at 5 n.1.
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that Rule 56(d) motions are broadly favored, see Biles, 714 F.3d at 894, I would
conclude the district court abused its discretion in denying January’s motion.
Accordingly, I conclude that the district court erred in granting
summary judgment on January’s retaliation claims. Given that the majority
opinion affirms that, I disagree with its affirmance of the district court’s
denial of January’s Rule 56(d) motion. Therefore, I would reverse and
remand for further consideration of these issues.
24