Unreported / Non-Citable
Background
Lethornia J. Whiticar, Jr., an African-American employee of Louisiana Children’s Medical Center, began working as an Engineer II at New Orleans East Hospital in 2018. He was promoted to Engineer I and then Chief Engineer in October 2022. Whiticar alleged that his direct supervisor, Karl Warner, subsequently undermined his work and discriminated against him. Whiticar said he complained to the hospital’s human-resources director in November 2022.
Warner gave Whiticar a negative performance review in January 2023, and Danielle Willis, the hospital official who supervised Warner, demoted Whiticar to Engineer I the following month. Whiticar sued under 42 U.S.C. § 1981, alleging discrimination and retaliation. After dismissing the discrimination claim as time-barred, the district court granted summary judgment on the remaining retaliation claim because Whiticar had not shown that Willis knew about his complaint or that the hospital’s performance-based explanation was pretextual.
The Court’s Holding
The Fifth Circuit affirmed. Even crediting Whiticar’s testimony that he complained to human resources, the court held that he failed to produce evidence that Willis—the official who decided to demote him—knew of the protected activity. His earlier favorable reviews and the hospital’s policy allowing performance-improvement plans did not tend to establish Willis’s knowledge, and the approximately three-month interval between the complaint and demotion created, at most, a weak causal inference that could not overcome the unrebutted evidence that Willis was unaware of the complaint.
The court also held that the claim would fail for lack of pretext even if Whiticar could establish a prima facie causal link. Willis said she demoted him because she personally observed performance problems in the Chief Engineer role, including difficulty preparing the hospital for cold weather and operating its automation system, and Warner’s evaluation identified additional deficiencies. Whiticar did not produce evidence disputing Willis’s performance-based explanation. The court declined to consider a cat’s-paw theory first raised in Whiticar’s reply brief and noted that the record contained no evidence Warner knew of the protected activity in any event.
Key Takeaways
- A retaliation plaintiff must offer some direct or circumstantial evidence that the relevant decisionmaker knew about the protected activity.
- A roughly three-month gap between a complaint and an adverse action, without additional evidence of knowledge, supported at most a weak causal inference.
- A plaintiff cannot establish pretext merely by attributing discriminatory intent to a supervisor when the evidence does not rebut the stated performance concerns of the actual decisionmaker.
Why It Matters
The decision underscores that temporal proximity alone may not carry a retaliation claim past summary judgment when the employer presents unrebutted evidence that the decisionmaker lacked knowledge of the protected conduct. Plaintiffs should develop evidence connecting their complaint to the person responsible for the challenged action, such as communications, changed behavior, or other circumstantial indicators of awareness.
The opinion also illustrates the importance of presenting all liability theories at the proper stage. A cat’s-paw argument raised for the first time in a reply brief will not ordinarily be considered on appeal, particularly where the evidentiary record does not support the theory.