“Fishing-Expedition” Evidence and Disputed Discipline Can Create a Jury Question on Retaliatory Pretext (Cat’s Paw) at Summary Judgment

I. Introduction

In Phillips v. Enterprise Products Company (5th Cir. Jan. 9, 2026) (per curiam) (unpublished), the Fifth Circuit reversed summary judgment for an employer on a truck driver’s retaliation claims under Title VII and 42 U.S.C. § 1981. Justin Phillips, an African American driver, alleged that after he complained to his supervisor (Korey Dugas) that white drivers were being favored and not disciplined for the same conduct, Dugas initiated a retaliatory process to get him fired—culminating in an effort to solicit additional negative information (“Perfect! Exactly what I needed.”) to “push” Phillips over a disciplinary threshold.

The key issues were whether Phillips produced enough evidence of pretext and but-for causation to survive summary judgment under the McDonnell Douglas framework, and whether the district court improperly resolved factual disputes and credibility issues that belong to a jury.

II. Summary of the Opinion

The Fifth Circuit held that, although Enterprise articulated a legitimate reason for termination (poor work performance), Phillips presented sufficient evidence from which a reasonable juror could find that retaliation was the but-for cause of his termination. The court emphasized the summary-judgment posture: it must draw all justifiable inferences in Phillips’s favor and may not weigh credibility.

The court identified several evidentiary strands that, taken together, created a genuine dispute of material fact: (1) Dugas’s admission that Phillips’s discrimination accusation “absolutely” offended him; (2) suspicious temporal proximity between the complaint and the termination recommendation; (3) disputed facts regarding key incidents used to justify termination; and (4) evidence suggesting Dugas sought out additional negative information to secure termination approval—supporting an inference of retaliatory pretext and a cat’s paw theory even if final decisionmakers lacked animus. The judgment was reversed and remanded.

III. Analysis

A. Precedents Cited

1. Summary judgment standards and the “jury’s role”

• Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020): Provided the de novo review standard and the Rule 56 framing (“no genuine dispute as to any material fact”).
• Coleman v. BP Expl. & Prod., Inc., 19 F.4th 720, 726 (5th Cir. 2021): Reinforced that all evidence and justifiable inferences must be viewed in favor of the nonmovant; the panel used this to correct the district court’s inference-drawing.
• Shelly C. ex rel. Shelbie C. v. Venus Indep. Sch. Dist., 878 F.2d 862, 863 (5th Cir. 1989): Quoted for the core principle that evidentiary conflicts are resolved at trial, not on summary judgment—central to the panel’s critique that the district court made credibility determinations.

2. Retaliation framework, causation, and pretext proof

• McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The burden-shifting framework governing circumstantial-evidence retaliation claims.
• Shahrashoob v. Tex. A&M Univ., 125 F.4th 641, 652–53 (5th Cir. 2025): Confirmed that McDonnell Douglas applies to Title VII retaliation, framing the burden shift once a prima facie case is established.
• LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007): Supported two propositions the panel applied carefully: (i) job performance is a legitimate non-retaliatory reason for termination; and (ii) merely disputing the underlying facts of the employer’s decision is not automatically enough for pretext—yet Phillips did more than a bare dispute because the district court misread record evidence and improperly chose between competing versions.
• Feist v. La., Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013): Supplied the “but-for” causation requirement for retaliation at the pretext stage.
• Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577–78 (5th Cir. 2020): Used for two key points: (i) pretext may be shown by evidence suggesting a retaliatory motive more likely motivated the employer; and (ii) “any evidence that casts doubt” on the employer’s justification can support pretext. The panel also relied on Brown for the cat’s paw articulation (relevant because the ultimate decisionmakers were not shown to be retaliatory).
• Saketkoo v. Adm'rs of Tulane Educ. Fund, 31 F.4th 990, 1002 (5th Cir. 2022): Provided the Fifth Circuit’s phrasing that a plaintiff must show a “conflict in substantial evidence” to reach a jury on pretext; the panel found that conflict present.

3. Temporal proximity plus “something more”

• Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243–46 (5th Cir. 2019): A principal comparator for the panel’s reasoning: temporal proximity alone is insufficient, but combined with other significant evidence of pretext can defeat summary judgment. The court analogized Phillips’s evidence to Garcia to conclude an inference of pretext was reasonable.
• Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409–10 (5th Cir. 1999): Quoted (via Garcia) for the same proposition—suspicious timing plus other evidence can suffice.

4. “Offended” decisionmaker evidence as insufficient alone

• Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 F. App'x 484, 488–90 (5th Cir. 2013) (per curiam): Used to reject the idea that an employer’s being “mad” (or here, “absolutely” offended) by protected activity alone proves pretext, while leaving room for it to matter in combination.

5. § 1981 retaliation standard alignment

• Scott v. U.S. Bank Nat'l Ass'n, 16 F.4th 1204, 1209 (5th Cir. 2021): Cited for applying the same analytical rubric to § 1981 retaliation as to Title VII, allowing the panel to address both claims together.

B. Legal Reasoning

1. The court’s core correction: summary judgment is not a “mini-trial”

A major driver of reversal was methodological: the district court effectively credited Enterprise witnesses over Phillips and treated contested incidents as established. The Fifth Circuit highlighted record problems (including an apparent mismatch between testimony and which PPE incident it addressed), and stressed that when evidence supports competing inferences, the jury decides what happened and why. This re-centering on Rule 56’s limits is as important as the retaliation doctrine itself.

2. Pretext and but-for causation: a cumulative-evidence approach

The panel did not hold that any single fact compelled a retaliation finding. Instead, it held that a reasonable juror could infer pretext and but-for causation from the totality:

• Animus evidence: Dugas testified he was “absolutely” offended by the accusation of racial favoritism. Under Etienne, that is not enough alone—but it can contribute to the overall inference.
• Timing: Dugas initiated termination efforts about 25–35 days after the complaint; termination followed rapidly. Under Garcia and Shackelford, suspicious timing plus other evidence can be enough.
• Disputed incidents: Phillips disputed whether he failed to wear PPE (in February), used a cellphone, and refused a load. The panel emphasized that resolving those disputes against Phillips at summary judgment was error.
• “Fishing expedition” evidence: Dugas contacted the Promix plant manager immediately after recommending termination and, upon receiving an old email chain plus a new allegation, responded: “Perfect! Exactly what I needed.” A jury could read this as soliciting ammunition to ensure termination—particularly because management said the new “cell phone” issue would “push” Phillips over 100 points.

3. Cat’s paw: linking a biased supervisor to an unbiased decisionmaker

The court noted Phillips’s reliance on a cat’s paw theory (discussed using Brown v. Wal-Mart Stores East, L.P.): even if upper management lacked retaliatory animus, a jury could find Dugas—motivated by retaliatory animus—took steps intended to cause termination, and that those steps were the but-for cause of the firing. The “Perfect! Exactly what I needed” exchange functioned as a key causal link: it supported an inference that Dugas generated or amplified the basis that ultimately moved decisionmakers to terminate.

4. The court’s restraint: performance problems do not immunize an employer at summary judgment

Enterprise had substantial evidence of prior discipline, and the panel acknowledged Phillips lacked the kind of positive performance record present in Garcia and Shackelford. But the court still held a jury could find that retaliation was the “final straw” that accelerated or ensured termination. The point is not that poor performance is irrelevant; it is that, on this record, it did not eliminate the possibility that retaliation was the determinative cause.

C. Impact

1. Practical litigation impact (despite unpublished status)

The opinion is “not designated for publication” (5th Cir. R. 47.5), so it is not binding precedent. Even so, it is likely to be cited persuasively for several practice-oriented propositions consistent with published Fifth Circuit law:

• “Suspicious timing” must be evaluated with the surrounding narrative—especially when the record suggests a rapid escalation after protected activity.
• Employer “evidence gathering” can look like pretext when it appears targeted, post-complaint, and aimed at manufacturing a termination-justifying event or threshold.
• Points-based discipline systems do not foreclose retaliation claims; plaintiffs may argue the system was applied or supplemented in a way that a jury could see as retaliatory.
• Cat’s paw remains a potent theory where a supervisor supplies the content that drives upper-management action, even when upper management is not overtly biased.

2. Compliance/HR impact

For employers, the decision underscores risks in: (1) adding late-breaking allegations to reach a termination threshold, (2) relying on second-hand accusations without clear corroboration, and (3) allowing the accused supervisor (post-complaint) to control the evidentiary pipeline to decisionmakers. For employees, it illustrates what kinds of circumstantial evidence may collectively create a jury issue even when there is a documented performance history.

IV. Complex Concepts Simplified

• Summary judgment: A pretrial ruling granted only when no reasonable jury could find for the nonmoving party. Courts must not choose which witnesses to believe.
• McDonnell Douglas framework: A three-step structure for circumstantial proof: (1) employee shows a prima facie case; (2) employer offers a legitimate reason; (3) employee shows that reason is a pretext for retaliation.
• Pretext: Evidence that the employer’s stated reason is not the real reason. It can be shown by inconsistencies, suspicious timing, disputed facts, or evidence that suggests retaliation more likely motivated the action.
• But-for causation (retaliation): The employee must show the adverse action would not have happened absent the retaliatory motive—even if other factors (like performance) also existed.
• Temporal proximity: Closeness in time between protected activity (complaining of discrimination) and an adverse action. Helpful but usually insufficient alone.
• Cat’s paw liability: Even if the final decisionmaker is unbiased, the employer can be liable if a biased supervisor’s actions were intended to cause, and actually caused, the adverse action.
• Points-based discipline threshold: A system where infractions add points; reaching a set number may trigger termination. The legal question becomes whether the threshold was reached fairly or manipulated in retaliation.

V. Conclusion

Phillips v. Enterprise Products Company reinforces a familiar but often-dispositive principle in Fifth Circuit retaliation cases: courts cannot grant summary judgment by resolving contested facts or crediting the employer’s narrative when the record supports competing inferences. Even with significant prior discipline, a plaintiff may reach a jury where the evidence—suspicious timing, disputed incidents, and indicia of a supervisor’s post-complaint “fishing expedition” to secure termination—could support a finding that retaliation was the but-for cause under a cat’s paw theory.