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Fisher v. Lufkin Industries, Inc.

United States Court of Appeals, Fifth Circuit

February 10, 2017

WILLIAM FISHER, Plaintiff-Appellant Cross-Appellee
LUFKIN INDUSTRIES, INCORPORATED, Defendant-Appellee Cross-Appellant

         Appeals from the United States District Court for the Eastern District of Texas

          Before DENNIS, ELROD, and GRAVES, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge:

         William Fisher brought this action against his former employer, Lufkin Industries, Inc., alleging, inter alia, that Lufkin violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., by discharging him in retaliation for his complaint that his direct supervisor racially harassed him.[1] Following a two-day evidentiary hearing, the presiding magistrate judge, acting as a special master pursuant to 42 U.S.C. § 2000e-5(f)(5) and Federal Rule of Civil Procedure 53, issued a Report and Recommendation recommending that the District Court find facts as follows: although the initial complaint by Fisher that his supervisor racially harassed him by addressing him as "boy" was meritless, Lufkin's subsequent investigation and ultimate discharge of Fisher were motivated by the desire of a coworker and a supervisor to retaliate against him for his protected activity; however, Fisher lied to his supervisors during the investigation and did not fully cooperate in it, and these latter actions by Fisher were sufficient to justify his termination independent of any other proffered reasons.

         Fisher filed objections and moved for an extension of time to file additional objections to the report, but the district court rejected his motion, adopted the Report and Recommendation in full without assigning additional reasons, and therefore dismissed Fisher's retaliation claim. Fisher appeals the district court's decision and its refusal to grant an extension of time to file additional objections to the Report and Recommendation. Lufkin filed a cross-appeal seeking to assess its expert witness's fee against Fisher. We reverse the district court's judgment against Fisher and remand for further proceedings.


         Fisher, an African American man, was first employed by Lufkin in 1991. Fisher experienced three layoffs due to reductions in force but was rehired each time and eventually accumulated ten years of seniority before his termination on May 18, 2009, which is the subject of this lawsuit. He began his employment as a helper but was promoted to machinist in January of 2005. Fisher performed his job in a satisfactory manner, received regular merit raises, and had never been disciplined prior to his termination. At the time that he was terminated, Fisher was fifty-five years old.

          Steve Saxton, Fisher's direct supervisor, is a white man who was approximately thirty-one years old at the time Fisher was terminated. On Friday, March 6, 2009, Saxton instructed Fisher to take his breaks when everyone else did, rather than when Fisher wanted to. When Fisher replied that he could not take breaks when his machine was running during certain operations, Saxton responded, "Boy, I don't know why every time I come over here it's a hassle!" Saxton was angry and spoke with a raised voice. Fisher then stated, "If you're going to harass me, we need to get a steward." Due to union rules, Saxton told Fisher to come to his office while a union steward was summoned. When no steward appeared, Saxton told Fisher to return on Monday so that they could resume the process. After he left, Fisher called Lufkin's Vice President of Human Resources, Paul Perez, and left a voicemail stating that Saxton's use of "boy" in addressing him constituted racial harassment. Perez promptly directed another manager, Ty Thornton, to conduct an investigation. Thornton talked to both Fisher and Saxton and determined that, although Saxton had called Fisher "boy, " he did not intend it as a racially derogatory term. Saxton's supervisor, David Jinkins, was also asked to look into the matter and talk to Saxton. The magistrate judge found that Saxton probably intended "boy" as an exclamation rather than as an epithet for Fisher.

         In April 2009, about a month after that incident, David Rhoden, a white coworker of Fisher's, went to Jinkins and complained that he did not like the fact that Fisher had reported Saxton for using the word "boy" and that he was offended by Fisher's statements that he would get Saxton fired. Jinkins testified that during this conversation Rhoden mentioned that Fisher had long been selling DVDs out of his lunch box and that some of them were pornographic. Rhoden, however, testified that it was Jinkins who raised the question of whether Fisher sold DVDs out of his lunch box. Jinkins called Thornton to hear what Rhoden had to say. Jinkins thereupon came up with a plan for Rhoden to conduct a "sort of sting operation" by buying DVDs from Fisher. Rhoden testified that he had never bought a DVD from Fisher and did not want to buy one even after Jinkins asked him to do so, but he nevertheless agreed to comply after Jinkins told him, "You scratch my back and I'll scratch yours." Rhoden soon bought a DVD from Fisher and took it to Jinkins, but it turned out to be blank. Jinkins instructed Rhoden to try again. The second time, Jinkins was able to view the DVD and said that he thought it was pornographic.

         On May 11, 2009, Jinkins and Thornton called in the chief union steward, Kerroy Thomas. Saxton brought Fisher to a conference room where Thornton, Jinkins, Saxton, and Thomas spoke with Fisher about conducting an unauthorized business on company property that involved pornographic material. Fisher said he did not have any such materials with him that day but did not admit or deny that he was engaged in such activity. He asked why this was coming up now and said that he did not know that "trading" things violated company policy.

         The group then asked Fisher to go with them to open his locker. In the locker, they found a manila envelope that contained five DVDs.[2] Fisher said they were not his and that they must have been planted because the hinges of his locker were broken and anyone could have forced their way in, and he denied selling any videos.[3]

          When asked to allow a search of his car in the parking lot, Fisher initially cooperated but then claimed that he had to leave to tend to his wife, who was ill, and therefore did not allow a search of the passenger compartment. Fisher claimed that while at his locker, he had received a phone call from his wife. Thomas testified that he heard Fisher's phone ring but the other witnesses testified that they did not hear anything.

         After Fisher left work during the attempt to search his car, he was suspended by Thornton pending further investigation. The day after the search, Thornton prepared notes regarding the search, which he and Jinkins eventually presented to Perez. On May 18, 2009, Fisher was terminated via a letter signed by Jinkins, written at Perez's direction, which stated only that he was fired "for a serious ...

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