     Case: 12-30886       Document: 00512216367         Page: 1     Date Filed: 04/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 22, 2013

                                     No. 12-30886                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILFRED ARDOIN,

               Plaintiff - Appellant

v.

POLICE JURY OF EVANGELINE PARISH,

               Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No: 6:11-CV-1659


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Wilfred Ardoin appeals the district court’s order granting summary
judgment for the Police Jury of Evangeline Parish (“Police Jury”) on his
retaliation and race discrimination claims. We AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30886

                       FACTS AND PROCEEDINGS
      The Police Jury employed Ardoin from 1999 through 2008. For the last
two years of his employment, he was a maintenance worker at Crooked Creek
Recreation Area. At a Police Jury meeting in April 2008, Ardoin complained
that he was not paid for overtime, after which his hours were reduced. Also in
spring 2008, the Police Jury initiated an investigation into Crooked Creek
because of the park’s long-running financial troubles.        The investigation
uncovered gross mismanagement of funds, which led the Police Jury to fire the
park’s manager and lay off all part-time employees, including Ardoin, in
November, shortly after the investigative report was released.
      At the beginning of each year, employees laid off by the Police Jury are
subject to rehire for the new year. In January 2009, the Police Jury rehired one
maintenance worker for Crooked Creek, Charlie Hilts, who is black. Ardoin, who
is also black, was not rehired.
      After learning that he would not be rehired, Ardoin filed a charge against
the Police Jury with the Equal Employment Opportunity Commission (“EEOC”),
alleging that the Police Jury’s failure to rehire him was an act of racial
discrimination and in retaliation for his complaints at the April 2008 meeting.
The EEOC was unable to conclude that the Police Jury committed any statutory
violations but advised Ardoin that he could bring suit against the Police Jury in
district court.
      Ardoin filed such a suit, claiming that the Police Jury discriminated
against him because of his race in violation of Title VII and that it retaliated
against him in violation of the anti-retaliation provisions of the Fair Labor
Standards Act (“FLSA”).      Following discovery, the Police Jury moved for
summary judgment on both claims. The district court granted the motion, and
Ardoin appeals.



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                                  No. 12-30886

                                 DISCUSSION
      Ardoin argues on appeal that the district court erred in granting summary
judgment for the Police Jury, because there are genuine issues of material fact
with respect to both his discrimination and retaliation claims.
1. Standard of review
      “We review a district court’s grant of summary judgment de novo, applying
the same standard as did the district court.” Stults v. Conoco, Inc., 76 F.3d 651,
654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We view facts in
the light most favorable to the non-movant and draw all reasonable inferences
in [his] favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996).
2. Title VII race discrimination claim
      To make out a prima facie case of race discrimination under Title VII,
Ardoin must show that:
      (1) he is a member of a protected class, (2) he was qualified for the
      position at issue, (3) he was the subject of an adverse employment
      action, and (4) he was treated less favorably because of his
      membership in that protected class than were other similarly
      situated employees who were not members of the protected class,
      under nearly identical circumstances.
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). As a black person,
Ardoin is a member of a protected class. His employment by the Police Jury as
a maintenance worker for two years is evidence that he was qualified for the
position. And his layoff was an adverse employment action. Therefore, he has
established the first three elements of his prima facie case.
      Ardoin, however, did not establish the final element of his case – that he
was treated less favorably than similarly situated white employees. Construing
the evidence in the light most favorable to Ardoin, the only similarly situated
maintenance employee treated more favorably than Ardoin was Hilts, as he was

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                                      No. 12-30886

the only employee rehired after being laid off.1 But Hilts is black, and thus a
member of Ardoin’s protected class. Because Ardoin did not establish a prima
facie case, the district court did not err in granting the Police Jury’s motion for
summary judgment on his discrimination claim.
3. FLSA retaliation claim
       To succeed in his retaliation claim, Ardoin first must make a prima facie
showing of “(1) participation in protected activity under the FLSA; (2) an adverse
employment action; and (3) a causal link between the activity and the adverse
action.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008).
“If a plaintiff meets this burden, the defendant must then articulate a legitimate,
non-discriminatory reason for its decision.            The burden then shifts to the
plaintiff to demonstrate that the proffered reason is a pretext for
discrimination.” Id.
       Assuming, without deciding, that Ardoin’s comments at the Police Jury
meeting constituted a protected activity as required by the FLSA, he must still
establish a causal link between this activity and the Police Jury’s failure to
rehire him. The only evidence Ardoin proffers to establish this link is the
temporal proximity between his complaint in April 2008 and the Police Jury’s
failure to rehire him in January 2009. Given that we have previously held that
a five-month interval between protected activity and an adverse employment
action is insufficient, without more, to establish the causal link element of a
prima facie retaliation claim, Raggs v. Miss. Power & Light Co., 278 F.3d 463,
471-72 (5th Cir. 2002), the nine-month interval here cannot, by itself, provide


       1
          In February of the same year, Wesley Johnson, a white maintenance worker,
returned to work after his extended leave of absence for cancer treatment. Johnson and
Ardoin were not similarly situated, nor were the employment actions by the Police Jury with
respect to each of them undertaken under nearly identical circumstances, because Johnson
was reinstated after he took a leave of absence to undergo cancer treatment, while Ardoin was
not rehired after he was laid off with all other part-time employees in response to an
investigative report that detailed wrongdoing by park employees.

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                                 No. 12-30886
such a link. Ardoin thus failed to make a prima facie showing of retaliation, and
the district court’s grant of summary judgment for the Police Jury was proper.
                                CONCLUSION
      For the reasons given above, the district court’s order granting summary
judgment for the Police Jury is AFFIRMED.




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