Foster v. Ferrellgas

United States Court of Appeals
for the Fifth Circuit

No. 20-50446
Summary Calendar

Wendy Foster,

Plaintiff—Appellant,

versus

Ferrellgas, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:18-CV-204

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Wendy Foster brought racial discrimination and retaliation claims
against her former employer, Ferrellgas, Incorporated (“Ferrellgas”). The
district court concluded that Foster had not established a prima facie case of
discrimination or retaliation, and that in any event Foster had not rebutted

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 18, 2020

Lyle W. Cayce
Clerk
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Ferrellgas’s proffered legitimate reasons for its actions. Because we agree
that Foster failed to make out a prima facie case on any of her claims, we
AFFIRM.
I. Background
Foster, who alleges that she suffered racial discrimination as a black
woman, was hired in December 2014 as a Crude Logistics Scheduler in the
Midland, Texas office of Bridger Administrative Services, LLC (“Bridger”),
an oilfield hauler. As a Crude Logistics Scheduler, Foster used a computer
system to schedule and dispatch trucks. Several months into Foster’s tenure,
Bridger was acquired by Ferrellgas, a propane distributor and retailer. At that
time, Foster was hired by Ferrellgas with no meaningful change in her job
functions.
Prior to receiving her job offer from Bridger, Foster interviewed with
Thomas Glenn, the Regional Operations Manager for the Midland office.
Foster alleges that at the interview, Glenn told her that her starting salary
would be $50,000 per year, but that within thirty days her salary would
increase to $65,000 per year. Yet after thirty days had gone by, Foster still
had not received her promised raise. When she complained to Glenn, he told
her he would get back to her.
Glenn was eventually fired and replaced by Lyle Lowrance. Foster
complained repeatedly to Lowrance about her missing raise, but to no avail.
In her deposition, Foster testified that Lowrance advised her that she was not
getting the raise because she was black. However, she also indicated that
Lowrance was not responsible for denying her the raise, as she stated that he
had been trying to help her get the raise. By Foster’s account, Lowrance did
not identify who determined Foster’s salary, nor did he explain why he
believed Foster was being discriminated against due to her race.
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Lowrance was eventually fired too, and Foster continued to complain
about her raise to her new supervisors, Bart Larson and Larry Garren, as well
as other Ferrellgas managers. She last complained about her raise during a
“personal meeting” with Larson and Garren on February 8, 2016.
Ferrellgas terminated Foster on February 15, 2016. According to
Ferrellgas, Foster was terminated as part of a larger reduction in force due to
a company-wide financial crisis. During Foster’s employment, Ferrellgas
employed at least eight white Crude Logistics Schedulers, all of whom made
at least $60,000 per year. Foster recalled training several white women who
were hired as dispatchers after she started, and she overheard these women
say that they were making $65,000 per year. Ferrellgas’s records showed
that there were two white female Crude Logistics Schedulers making
$65,000 per year during the period of Foster’s employment.
In September 2016, Foster filed a discrimination charge with the
Texas Workforce Commission and the Equal Employment Opportunity
Commission.
1

Foster filed suit in November 2018. As relevant here, she alleged that
Ferrellgas had paid her less than her white colleagues and terminated her due
to her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e–2000e-17, and had terminated her in retaliation for complaining
about her disparate treatment, also in violation of Title VII. Ferrellgas moved
for summary judgment, which the district court granted. Foster timely
appealed.

1
Foster amended her charge in January 2017, alleging the same discriminatory
actions as in her September 2016 charge.
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II. Discussion
We review a district court’s grant of summary judgment de novo,
viewing all admissible evidence “in the light most favorable to the nonmoving
party and drawing all reasonable inferences in that party’s favor.” Kariuki v.
Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (quotation omitted). A district
court must grant summary judgment “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).
Plaintiffs may prove employment discrimination “by direct or
circumstantial evidence, or both.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340
(5th Cir. 2019) (quotation omitted). Where plaintiffs rely on circumstantial
evidence, courts employ the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Nall, 917 F.3d
at 340. Under McDonnell Douglas, the plaintiff must first present a prima
facie case of discrimination by showing that she:
(1) is a member of a protected group; (2) was qualified for the
position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by
someone outside her protected group or was treated less
favorably than other similarly situated employees outside the
protected group.
Roberson-King v. La. Workforce Comm’n, Off. of Workforce Dev., 904 F.3d 377,
381 (5th Cir. 2018) (cleaned up). If the plaintiff makes out her prima facie
case, “the burden shifts to the employer to provide a legitimate, non-
discriminatory reason for the employment decision.” Id. (quotation
omitted). If the employer provides such a reason, “the burden shifts back to
the plaintiff to show the reason is merely pretextual.” Id. (quotation
omitted).
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The district court ruled that Foster did not make out her prima facie
case on her disparate pay claim because she did not identify evidence showing
a similarly situated employee of a different race who was better paid.
Following the same reasoning, the district court dismissed Foster’s
discriminatory termination claim because Foster did not show that she was
similarly situated to any of the employees Ferrellgas retained after her
termination. To show that a fellow employee was similarly situated, a Title
VII plaintiff must demonstrate that they were in “nearly identical”
circumstances. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507,
514 (5th Cir. 2001) (quotation omitted). This “inquiry is case-specific and
requires us to consider the full variety of factors that an objectively reasonable
decisionmaker would have found relevant in making the challenged
decision.” Lindquist v. City of Pasadena, 669 F.3d 225, 234 (5th Cir. 2012)
(cleaned up); see also Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir.
2019) (explaining that when evaluating employee similarity under Title VII,
“courts consider whether the employees (i) held the same job description,
(ii) were subject to the same standards, (iii) were subordinate to the same
supervisor, and (iv) had comparable experience, education, and other
qualifications” (quotation omitted)), cert. denied, 140 S. Ct. 381 (mem.)
(2019).
Although Foster shared a job title and a supervisor with the white
employees she identified as being in similarly situated positions, she provided
virtually no evidence concerning their relevant qualifications, nor did she
establish that they performed comparable work. Indeed, at her deposition,
Foster repeatedly disclaimed any knowledge of what her co-workers did.
Further, even though Foster trained higher-paid colleagues, this evidence
does not exclude the possibility that these individuals had more industry
experience, superior education, or different job responsibilities. Thus, the
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district court properly granted summary judgment on Foster’s disparate pay
and discriminatory termination claims.
2

Title VII retaliation claims are also evaluated under the McDonnell
Douglas framework. Septimus v. Univ. of Hous., 399 F.3d 601, 608 (5th Cir.
2005). To make out a prima facie case of retaliation, a plaintiff must establish
that: “(1) she engaged in protected activity; (2) the employer took a
materially adverse action against her; and (3) a causal link exists between her
protected activity and the adverse action.” Wheat v. Fla. Par. Juv. Just.
Comm’n, 811 F.3d 702, 705 (5th Cir. 2016).
Foster contends that she engaged in protected activity by complaining
to her supervisors about being paid less than her white co-workers. Because
Title VII protects informal complaints so long as the plaintiff “reasonably
believed” the challenged employment practice violated Title VII, Foster
likely engaged in protected activity to the extent she made such complaints.
EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016); see 42 U.S.C.
§ 2000e-3(a) (making it unlawful to retaliate against any employee for
“oppos[ing] any practice made an unlawful employment practice by this

2
On appeal, Foster argues that Lowrance’s statement that she would not receive a
raise because of her race obviates the need to make out a McDonnell Douglas prima facie
case based on circumstantial evidence. Foster did not present a direct evidence claim to
the district court, and we will not consider it for the first time on appeal. See Celanese Corp.
v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010) (“The general rule of this
court is that arguments not raised before the district court are waived and will not be
considered on appeal.”). Even if we did consider it, in order to qualify as direct evidence
of discrimination, the comment must, among other things, have been “made by an
individual with authority over the employment decision at issue.” Clark v. Champion Nat’l
Sec., 952 F.3d 570, 581 (5th Cir. 2020), cert. denied, 2020 WL 6385801 (mem.) (Nov. 2,
2020); see also Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001).
Foster’s admission that Lowrance did not decide her salary and that she did not know the
basis for his statement precludes consideration of this statement as direct evidence of
discrimination.
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subchapter”). Further, there is no dispute that Ferrellgas took a materially
adverse action against Foster by firing her.
Nevertheless, Foster did not provide evidence raising a fact issue on
causation. Foster asserts that because she complained to Larson and Garren
about her pay one week before her termination, there is sufficient temporal
proximity between her protected activity and the adverse action to infer
retaliatory animus. We have recognized that “timing alone” is enough to
establish causation at the prima facie stage if “the protected act and the
adverse employment action [are] very close in time.” Porter v. Houma
Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–49 (5th Cir. 2015)
(cleaned up) (holding that protected activity and adverse action six-and-a-
half weeks apart were sufficiently close to demonstrate causation). But
Foster has presented no evidence that she engaged in protected activity
during the relevant meeting with Larson and Garren. Rather, she avers only
that she “asked again about [her] raise,” without any reference to claims of
racially disparate treatment. As the meeting with Larson and Garren does
not qualify as protected activity, its proximity to Foster’s discharge does not
support an inference of retaliatory intent. Because Foster does not specify
the date of any other meeting where she purportedly engaged in protected
activity, there is insufficient evidentiary support of temporal proximity to
raise a genuine issue of material fact on causation.
3

The district court properly determined that Foster did not raise a fact
issue that would demonstrate a prima facie case of discrimination or

3
Foster argues that there is additional evidence in the record that establishes
causation, including Lowrance’s statement described above. Yet once again, Foster did
not present this argument to the district court, and thus we will not consider it on appeal.
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retaliation. Thus, there is no need to consider the validity of Ferrellgas’s
explanations for Foster’s salary and termination. We AFFIRM.

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