     Case: 13-60250       Document: 00512410757         Page: 1     Date Filed: 10/17/2013




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

                                                                            FILED
                                                                         October 17, 2013
                                     No. 13-60250
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




BERENICE GREENLAW DEANES,

                                           Plaintiff–Appellant,

versus

NORTH MISSISSIPPI STATE HOSPITAL,

                                           Defendant–Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 1:11-CV-198




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Berenice Deanes appeals a summary judgment in her race-discrimination
suit. Finding no error, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-60250

       Deanes, a black female, was a nurse at North Mississippi State Hospital
(“NMSH”) for about a year until a 2009 incident with Jane Doe,1 a nineteen-
year-old psychiatric patient, ultimately resulted in her termination.
       Deanes’s account of the incident, which we take as true for purposes of this
appeal, is as follows: Another nurse told her that Doe had not taken her medica-
tions, so Deanes attempted to get Doe to take them, but Doe refused. Doe
started using profanity, “g[o]t loud,” and grabbed Deanes by her arms and tried
to pull Deanes to the floor. Deanes put her arms on Doe’s and began “walking”
her backward toward a couch.              At her deposition, Deanes describes what
followed:
          At the time I remember taking my arms and putting them on top
       of my hands and putting them on top of her hands. And she was
       pulling me all the same time. And there was a struggle because she
       was struggling. She was using all her force to try and get me down.
       And so I remembered us getting to the couch . . . . When she sat
       down on the couch, she released me[,] and I fell backwards from the
       couch.[2]
       The only witness aside from Deanes and Doe was Kerry Whitten, a cam-
pus police officer. He observed some portion of the incident on a video monitor,
but exactly what he saw is disputed. Drawing all inferences in favor of Deanes,
all Whitten saw was Doe “hitting the couch and [Deanes] standing in front of
her,” at which point he rushed to the scene.
       While Whitten was en route, Doe had gotten up from the couch, and
Deanes had a second physical altercation with Doe: Deanes stood with her arms
out, “elbows locked,” fingers pointed upward, and asked Doe to respect her
personal space. Doe then “ran into Deanes’ extended arms and stumbled back-


       1
           We use this moniker to protect the patient’s medical privacy.
       2
        This version was a noticeably different version from what Deanes provided in her pre-
suit EEOC statement, but we accept as true the version Deanes provided under oath in her
deposition.

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                                  No. 13-60250

ward” but remained standing. It appears that this second instance of physical
contact was consistent with techniques taught by NMSH to manage aggressive
behavior by patients.
      The Department of Mental Health (“DMH”) Addendum to the Mississippi
State Employee Handbook requires the following:
      Any employee witnessing or having suspicion of any mistreatment,
      violence, threat, neglect, exploitation, physical abuse, sexual abuse,
      or verbal abuse must report the incident immediately . . . . Failure
      to report the proper authorities is considered a Group III offense.

      Consistent with the Addendum, Whitten told the nurse in charge, Kathy
Gilmore, that he saw Deanes push Doe down on to the couch. Gilmore, in turn,
contacted Jan Botts, a Nurse Executive (who had hired Deanes), and relayed
what Whitten had told her. Botts then called David Ledbetter, the hospital’s
director of risk management, who subsequently initiated an investigation into
whether Deanes had abused a patient as defined by the Employee Handbook,
which states:
      Under no circumstances will an employee strike, shove, pinch,
      engage in sexual acts, neglect[,] or otherwise subject any consumer
      to violent treatment, verbal abuse[,] or exploitation.

      Consumer abuse and neglect are very serious offenses and will
      result in immediate removal from the workplace or termination.
      Further, such actions will lead to prosecution to the fullest extent of
      the law.

      The incident with Doe took place on June 21. On June 22 and 23, Ledbet-
ter interviewed and obtained statements from Whitten, Gilmore, Doe, and other
employees who were present.      He could not obtain a statement from Deanes
because she was out of town attending a seminar, but Deanes prepared a written
statement on June 24. By then, Ledbetter had completed his investigation and
prepared a report.


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      In Gilmore’s written statement, she said that after the incident, Whitten
told her that he saw Deanes push Doe down onto the couch “pretty hard.”
Whitten, in his written statement, did not state that he actually saw a push but
rather states, “I turned around and saw on the women’s unit camera [Deanes]
and [Doe]. [Deanes] has both hands up and the same time [Doe] was falling
backwards on the couch.” When Ledbetter asked Whitten about the discrepancy,
Witten responded that “there was no question that the patient was pushed
back,” that he observed Deanes make “pushing motion,” and “she put her hands
up, she pushed out, the patient went back over the couch.”
      When pressed on this point in his deposition, Whitten made clear that he
did not see the “push,” only the “aftermath”:
      A:    No, I didn’t actually see the push but I saw what [sic] the
            patient landed on the couch and [Deanes] Standing in front of
            her.

      Q:    You have no idea whether or notSSyou have no idea what hap-
            pened, what had occurred prior toSSprior to seeing the patient
            falling on the couch, you have no idea what happened previ-
            ous to that, do you?

      A:    Nope

      ...

      Q:    Did she push the patient in a violent manner?

      A:    From the way she hit the couch that’s what it looked like.

      Q:    Could the patient have ran into her outstretched arms and
            fall backwards on her own momentum?

      A:    I don’t believe so, no.
      Ledbetter’s three-page investigative report summarized the statements
and interviews and recounted Ledbetter’s interview with Doe, who told him,


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                                  No. 13-60250

“I don’t feel good because the nurse push[ed] me down on the couch Sunday
night[,] and I hit my head on the wooden end.” Ledbetter sent his report to Botts
and Greg Sappington, the NMSH personnel officer.
      Deanes then went on vacation starting June 25, returning to work on
July 2, whereupon she was asked to attend a meeting with Botts and Sap-
pington. She was given a pre-termination notice, which placed her on adminis-
trative leave pending a final determination. BottsSSwho had hired DeanesSS
recommended terminating Deanes based on the “investigative report and our
handbook.”    Sappington testified that he did not “personally recommend”
terminating Deanes, but “based on the evidence, [had] no choice but to probably
terminate her based on our policy.”
      Deanes rejected an invitation to resign and instead filed a grievance ask-
ing for a formal termination hearing with Dr. Paul Callens, the Director of
NMSH. Callens was the final decisionmaker as to Deanes’s termination, and at
the conclusion of a hearing he terminated Deanes. He testified that he based his
decision on Whitten’s and Doe’s statements and that he did not believe Deanes’s
version of the events.
      Several months later, Deanes filed a charge of discrimination with the
EEOC, which determined that reasonable cause existed to believe she was dis-
charged because of her race, so it issued a notice of right to sue. Deanes then
sued, alleging that NMSH terminated her on the basis of race in violation of
Title VII. The district court granted summary judgment in favor of NMSH.
Because, as the district court correctly held, Deanes has failed to meet her bur-
den of producing substantial evidence indicating that NMSH’s proffered non-
discriminatory reason for her termination is pretextual, we affirm.


                                        I.
      We review a summary judgment de novo, applying the same standards as

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                                  No. 13-60250

did the district court, which accurately stated the relevant standard for sum-
mary judgment: “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” FED. R. CIV. P. 56(a). An issue of material
fact is genuine if a reasonable jury could return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
      A party asserting that a fact cannot be or is genuinely disputed
      must support the assertion by: (A) citing to particular parts of mate-
      rials in the record, including depositions, documents, electronically
      stored information, affidavits or declarations, stipulations (including
      those made for purposes of the motion only), admissions, interroga-
      tory answers, or other materials; or (B) showing that the materials
      cited do not establish the absence or presence of a genuine dispute,
      or that an adverse party cannot produce admissible evidence to sup-
      port the fact.

FED. R. CIV. P. 56(c)(1). We must view the facts in the light most favorable to
Deanes and draw all reasonable inferences in her favor. Deville v. Marcantel,
567 F.3d 156, 164 (5th Cir. 2009).


                                        II.
      It is “an unlawful employment practice for an employer . . . to discharge
any individual . . . because of such individual’s race . . . .” 42 U.S.C. § 2000e-
2(a)(1). As the district court correctly pointed out, because Deanes attempts to
prove her case circumstantially, we apply the framework explained in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973): Deanes must first establish a
prima facie case of discrimination by establishing that (1) she was a member of
a protected group; (2) she was qualified for the position she held; (3) she suffered
an adverse employment decision; and (4) she was replaced by someone outside
her protected group. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507,
513 (5th Cir. 2001) (citations omitted).


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      The district court was correct to conclude that Deanes has made a prima
facie case, so NMSH bore the burden of producing a nondiscriminatory reason
for terminating her. That burden, though, is one of production, not persuasion.
Parker v. State of La. Dep’t of Educ. Special Sch. Dist., 323 F. App’x 321, 237 (5th
Cir. 2009). Again, the district court was correct that NMSH plainly met that
burden by asserting that it terminated Deanes for patient abuse.
      Because NMSH has articulated a reason that, if believed, would support
a finding that the action was nondiscriminatory, the inference of discrimination
created by Deanes’s prima facie case disappears, and she is left with the ulti-
mate burden of proving intentional discrimination. This case turns, then, on
whether she met her burden of producing “substantial evidence” that the prof-
fered legitimate nondiscriminatory reason is a pretext for discrimination.


                                        III.
      To demonstrate pretext, Deanes must do more than merely show that
NMSH was mistaken in firing her, even by its own terms; she must establish
that it fired her on account of race. LeMaire v. La. Dep’t of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007); Sandstad v. C.B. Richard Ellis, Inc., 309 F.3d 893,
899 (5th Cir. 2002). Pretext may be established “either through evidence of dis-
parate treatment or by showing that the employer’s proffered explanation is
false or ‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)). On both fronts, Deanes fails to meet her burden.


                                        A.
      Deanes takes issue with NMSH’s reliance on the “word of a mental
patient” over Deanes in concluding that she had committed patient abuse. Yet,
Doe’s statement was consistent with that of Whitten, the only other witness.

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Deanes then attacks Whitten’s statement primarily by challenging that he did
not really “see” the putative push. Nevertheless, Ledbetter was surely entitled
to conclude that what Whitten did see (the patient hitting the couch forcefully,
Deanes standing above her) was consistent with Doe’s statement that she had
been pushed. Most importantly, what Deanes described as happening (holding
onto Doe’s arms and “walking” Doe backward until she fell onto the couch) is
consistent with Doe’s being “pushed.” The fight here seems semantic.
      Callens was presented with Ledbetter’s investigative report, which con-
tains statements from Whitten and Doe that Deanes had committed patient
abuse by pushing Doe down onto the couch. Deanes’s attacks on Doe’s and Whit-
ten’s statements amount to no more than disputing whom Ledbetter (and the
others who recommended Deanes’s termination) should have believed. And
“simply disputing the underlying facts of an employer’s decision is not sufficient
to create an issue of pretext.” LeMaire, 480 F.3d at 391; see also Little v. Repub-
lic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). We have affirmed summary judg-
ment on similar facts. See Jackson v. Cal-Western Packaging Corp., 602 F.3d
374, 379 (5th Cir. 2010).
      Deanes also notes that NMSH did not “defer” to findings in the investiga-
tion by the State Board of Nursing, which had decided to “close[]” its investiga-
tion “without formal charges being filed at this time.” What Deanes failed to
point out, and what renders her argument at least slightly misleading, is that
the Board did not close its case until six months after NMSH had terminated
Deans. We cannot say that Deanes has presented “substantial evidence” that
Callens’s decision was based on anything but a good-faith belief that Deanes
probably abused Doe.


                                        B.
      Before the district court, Deanes argued that similarly situated white

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                                  No. 13-60250

employees were treated more favorably. Deanes does not seem to press the argu-
ment with any gusto on appeal: The issue is alluded to as the tenth item in a
bulleted list in her brief, and the discussion is more of an allusion than an argu-
ment. Nevertheless, the district court ably and carefully went through each of
the instances of alleged disparate treatment. For almost every one of them,
Deanes was prepared to offer only inadmissible hearsay, which she cannot use
to defeat summary judgment.
      There are two instances in which Deanes was able to produce admissible
evidence, but as the district court correctly pointed out, they do not help Deanes
meet her burden. Disparate treatment occurs where an employer treats one
employee more harshly than other “similarly situated” employees for the “nearly
identical” conduct. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.
2009). The “employee being compared must have ‘held the same job or responsi-
bilities, shared the same responsibilities, shared the same supervisor or had
their employment status determined by the same person, and have essentially
comparable violation histories.” Brooks v. Lubbock Cnty. Hosp. Dist., 373 F.
App’x 434, 436 (5th Cir. 2001) (quoting Lee, 574 F.3d at 260).
      Deanes alleges that Suzy Gildea, a white female, was insubordinate (a
Group II offense) and used profanity toward a patient (a Group I offense).
Deanes does not allege that Gildea was not punished, but she complains that
Gildea was only reprimanded and forced to write a letter of apology. These epi-
sodes (as well as her unkempt “overall appearance,” and “not handl[ing] situa-
tions that come up in a professional manner,” whatever that means), however,
are not Group III offenses like patient abuse, nor are they sensibly “nearly iden-
tical” to patient abuse.
      Deanes alleges that Dustin Carter, a white male, had a confrontation with
a patient and elbowed him in the mouth, causing the patient’s mouth to bleed,
but Carter was not terminated. Yet, Deanes was the nurse on duty that day,

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and her report does not mention Carter’s hitting the patient; she checked “none”
on the report regarding patient abuse. In her deposition, she even testified
under oath, “I did not see it as patient abuse at that time.” The district court
was, therefore, correct that Deanes failed to identify any similarly situated white
employees who were treated more favorably than she.


                                        C.
      Because of Deanes’s failure to identify any similarly situated white
employee who was treated more favorably than she, there is no error in the dis-
trict court’s treatment of the EEOC’s determination that reasonable cause
existed to believe that Deanes was discharged based on her race. The court
acknowledged, consistent with Price v. Federal Express Corp., 283 F.3d 715 (5th
Cir. 2002), the probative value of EEOC determinations, and so it did not “ignore
the manpower and recesses expended on the EEOC investigation and the exper-
tise acquired by” EEOC investigators, Smith v. Universal Services, Inc., 454 F.2d
154, 158 (5th Cir. 1972). But it noted that the EEOC decision rested on the
premise that there were similarly situated white employees who violated had
NMSH policy. Because that premise was false, the district court discounted the
EEOC determination accordingly.
      Because the district court correctly determined that Deanes failed to meet
her burden of producing substantial evidence to rebut NMSH’s proffered race-
neutral reason for firing her, the summary judgment is AFFIRMED.




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