                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                June 19, 2006
                         FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 05-60144



URSULA STATEN

                 Plaintiff - Appellant

     v.

NEW PALACE CASINO, LLC

                 Defendant - Appellee



            Appeal from the United States District Court
          for the Southern District of Mississippi, Biloxi
                           No. 1:03-CV-893


Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Ursula Staten appeals the district

court’s order granting summary judgment in favor of the

defendant-appellee New Palace Casino on her employment

discrimination and retaliation claims.      For the following

reasons, we AFFIRM in part and REVERSE and REMAND in part.



     *
        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that this opinion should not be published and is not precedent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.


                                  -1-
                 I.   FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff-appellant Ursula Staten (“Staten”), an African-

American woman, began working for defendant-appellee New Palace

Casino, LLC (“New Palace”) in Biloxi, Mississippi, on November 9,

1999.    New Palace employed Staten as a cook in the Emerald

Courtyard Buffet (“Buffet”) at an hourly rate of $8.00.       On or

around May 1, 2000, New Palace promoted Staten to the supervisory

position of lead baker in Jazzmin’s, one of the restaurants

located in the casino hotel.     Staten received a pay increase to

$10.00 per hour.

     On May 8, 2000, before Staten began working in her new

position, New Palace promoted James Reed (“Reed”) to the sous

chef position at Jazzmin’s.1     Staten and Reed had a long and

acrimonious history from working together at Casino Magic,

another casino located in Biloxi.        As part of a Title VII lawsuit

she initiated against Casino Magic in September 1998, Staten

alleged that Reed had threatened her while they worked together

as cooks at Casino Magic.     Staten and Casino Magic settled in

February 2000.

     After learning of Staten’s prior lawsuit involving

allegations against Reed, on May 16, 2000, New Palace transferred

Staten back to the Buffet and promoted her to the supervisory


     1
        New Palace had employed Reed since January 11, 2000.
Before his transfer to Jazzmin’s, Reed worked as a lead line cook
at Lawana’s, another New Palace food venue.

                                   -2-
position of lead cook on the graveyard shift.2   Staten worked the

graveyard shift the entire time she was employed by New Palace.

As a lead cook at the Buffet, Staten retained an hourly rate of

$10.00.

     Although Staten received no negative remarks or reprimands

in her personnel file during her employment with New Palace, she

experienced problems with certain Caucasian employees working

under her supervision.   Staten testified that Jack Warren

(“Warren”), who worked as a utility or dishwasher employee on the

graveyard shift, refused to follow orders and used racial

epithets against her when she would ask him to do something.

Staten reported Warren’s behavior to her supervisors on several

occasions and requested and received a meeting with management

after Warren’s insubordination continued.   On October 4, 2001,

New Palace gave Warren a final written warning, which stated that

his next warning would result in suspension or termination.

Staten alleges that, even though Warren’s insubordination

persisted throughout her employment with New Palace, Warren was

     2
        Staten testified that Charles Dio, the Executive Chef,
told her that he was aware of her previous lawsuit against Casino
Magic and asked her if she had any problems working with Reed at
the hotel. Staten responded that she did not have any problems
working with Reed. Sometime after this conversation, Staten had
a meeting with Garin Morton, the Kitchen Manager, who informed
her that New Palace was going to transfer her back to the Buffet
because of her prior lawsuit involving Reed. Although Staten did
not file any Equal Employment Opportunity Commission (“EEOC”)
charges against New Palace over her job change, she complained to
New Palace’s Food and Beverage Director, David Vickers
(“Vickers”).

                                -3-
not terminated.    Staten also testified that she had problems with

Adrianne Wathern (“Wathern”), who told New Palace employee Leslie

Walker (“Walker”) on October 26, 2001, that she was going to hit

Staten with a pan if Staten told her to do anything at work.

Staten reported Wathern’s alleged conduct to Jim Poolson

(“Poolson”), the Kitchen Manager for the Buffet.    Poolson told

Staten to get Walker to write and sign a statement describing

what she heard Wathern say and he would look into it.    When

Staten asked Poolson if he spoke with Wathern, he told her he

did.    Staten testified that she could not remember having any

additional problems with Wathern, mainly because New Palace

terminated Wathern shortly thereafter for missing too many days

of work.

       In addition to reporting her problems with certain Caucasian

employees, Staten repeatedly voiced concerns to the management

about what she perceived to be racial inequalities in the

workplace.    Staten testified that Poolson handled “records of

discussion” or “write-ups” for Caucasian employees differently

than write-ups for African-American employees.    Although she had

to check with Poolson before she wrote up any employee, Staten

testified that Poolson never gave her permission to write up

Caucasian employees, instead saying he would take care of it, but

always gave her permission to write up African-American

employees.    Staten complained to the management about the

disparate treatment and eventually brought her concerns to the

                                 -4-
human resources department and upper management.

     In November 2001, New Palace decided to close the Buffet for

a complete renovation.   As a result, New Palace furloughed

thirty-one Buffet employees.   Staten testified that before New

Palace announced the furlough, Poolson told the six lead

employees working at the Buffet, including Staten, that the

furlough would not affect their jobs.   On November 19, 2001, New

Palace notified all Buffet employees by letters and notices that

unless their names appeared on the new schedule, they would be

furloughed as of November 25, 2001.

     The new schedule showed that four of the six lead employees,

Willie Jean Thomas (“Thomas”), Ruth Sadler (“Sadler”), Michael

Westover (“Westover”), and Johnna Hughes (“Hughes”), retained

their lead positions during the renovation.   Instead of working

as lead employees at the Buffet, however, New Palace transferred

these employees to Jazzmin’s, where they would be doing the same

work with the exception of cooking for the Buffet.3   Of these

employees, Thomas is African-American, and Sadler, Westover, and

Hughes are Caucasian.    The two other lead employees, Staten and

James Shuford (“Shuford”), both of whom are African-American, did

not retain their lead positions during the renovation.

     Staten testified that at the time the layoffs were

     3
        Staten does not allege that these lead employees were
transferred before the furlough. Rather, she claims they were
retained and transferred after other Buffet employees were laid
off.

                                 -5-
announced, she was offered a position as an attendant in the

employee dining room, a non-supervisory, lower-paying position

that she claims amounted to a demotion.4   Staten testified that

she never got an opportunity to accept or reject the position

because after she inquired as to whether her pay as an attendant

would remain the same as her pay as a lead cook (at $10.00 per

hour), without receiving an answer, she was furloughed on

November 25, 2001.   New Palace, on the other hand, claims that

Staten declined the attendant position.

     On January 9, 2002, Staten filed a charge of racial

discrimination and retaliation with the Equal Employment

Opportunity Commission (“EEOC”) against New Palace over her

termination.   Staten alleged that New Palace discriminated

against her based on her race because she “was one of the only

two supervisors laid off,” with the other terminated supervisor

being Shuford, who is also African-American.   She claimed that

New Palace retaliated against her based on her prior lawsuit

against Casino Magic and her complaints to management about

racial disparities in the workplace.


     4
        The parties disagree over the timing and manner in which
New Palace offered Staten an alternative position. Staten
testified that her name appeared under the attendant position on
a new schedule posted the day of the furlough. Staten also
testified that no one from the Palace ever called her at home to
offer her the position. New Palace claimed that after Staten was
furloughed, she was contacted at home by Vickers about an
employee dining room cook position starting at $8.00 per hour and
for a different shift time.

                                -6-
     In response to Staten’s EEOC charge, New Palace took the

position that all Buffet employees had been laid off.

Specifically, in a letter dated March 29, 2002, New Palace

asserted to the EEOC that:

     The entire food and beverage staff that worked in the
     buffet was notified on November 19, 2001 that they would
     be furloughed on November 25, 2001. . . .         All the
     associates that worked in the buffet were furloughed or
     applied for other jobs in the casino.       There was no
     criteria used in determining the furlough, all Associates
     would [sic] worked in the buffet were furloughed.

New Palace claimed that it chose to call the termination a

“furlough” because it wanted to encourage all furloughed Buffet

employees to reapply for their positions after the renovation was

complete.

     In early 2002, Staten began making inquiries about

reapplying for a lead position at New Palace.    Although Staten

maintains that she sent in several applications, New Palace

acknowledges receiving only one application on February 27, 2002.

In her February 27, 2002 application, Staten applied for a lead

baker or any other lead position.     She checked on her application

that she preferred the graveyard shift.    Staten repeatedly called

Troy Trettle (“Trettle”), who was hired by New Palace on January

16, 2002, as the new Food and Beverage Director, about reapplying

for her old position.   New Palace gave Trettle sole discretion

and responsibility to interview and hire employees for the

renovated Buffet, which was set to reopen in May 2002.    During

this process, Trettle interviewed over 200 applicants.

                                -7-
     On April 25, 2002, two months after receiving her

application, Trettle interviewed Staten for a sous chef position,

which was a higher-paying position than the lead positions for

which she had applied.   To date, New Palace maintains that it was

not hiring employees for lead positions in March and April of

2002, during the time Staten’s application was under

consideration.   On May 10, 2002, New Palace contacted Staten

informing her that she had not been hired for the sous chef

position.   Instead, Trettle had hired Mary Kostmayer, a Caucasian

woman, for the sous chef position.

     On June 3, 2002, Staten filed a second charge of

discrimination and retaliation with the EEOC over New Palace’s

refusal to rehire her.   On August 8, 2003, the EEOC issued

determinations as to both the January and June 2002 charges,

concluding that the evidence established violations of Title VII

by New Palace, in that New Palace retaliated against Staten for

engaging in a protected activity.5    After receiving a right-to-

sue letter from the EEOC, on November 19, 2003, Staten filed suit

in federal court, asserting claims of race discrimination and


     5
        The EEOC determinations contain at least two factual
errors. First, the EEOC found that Staten “was the only Lead
Supervisor who was furloughed,” but the record reveals that both
Staten and Shuford were terminated on November 25, 2001. Second,
the EEOC determined that Staten “applied and was interviewed for
a Lead position,” whereas the record indicates that Staten
applied for a lead position but was interviewed for the sous chef
position because New Palace claimed it was not hiring lead
positions.

                                -8-
retaliation over her termination and New Palace’s refusal to

rehire her, pursuant to 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).

     Throughout the EEOC investigation and up until the date it

filed its motion for summary judgment, New Palace maintained that

all Buffet employees had been terminated on November 25, 2001, in

connection with the renovation.    George Conwill (“Conwill”), New

Palace’s Chief Financial Officer and designated deponent under

FED. R. CIV. P. 30(b)(6), testified during his deposition on

August 10, 2004, that New Palace had laid off all Buffet

employees:

     STATEN’S COUNSEL:   Could you please tell me any and all
                         reasons Ms. Ursula Staten was chosen
                         to be placed on furlough status on
                         November the 25th, 2001?

     CONWILL:            We made a business decision to
                         remodel the buffet on the third
                         floor of the casino . . . . So all
                         the personnel that worked in the
                         buffet we laid off for furlough, and
                         they could reapply for a job when we
                         reopened the buffet. So Ursula was
                         terminated and laid off along with
                         31 others that were in the buffet.
                         I believe it was 31 people.

                             . . . .

     STATEN’S COUNSEL:   And your testimony here today is
                         that you are not aware or you don’t
                         know one way or the other if there
                         were   non-African  American   lead
                         employees in the employment of the
                         casino in the buffet on November
                         25th, 2001?

     CONWILL:            I can surmise that if there were any
                         African American leads at the date
                         that we--that worked in the buffet

                                  -9-
                         when we furloughed everyone, they
                         would have been furloughed, too. So
                         by summation, I would say no, they
                         were not, that those are the only
                         leads or they would have been
                         terminated   or    furloughed   with
                         everyone else.

                             . . . .

     STATEN’S COUNSEL:   I’m   talking    about non-African
                         American leads. You don’t know one
                         way or the other if there were non-
                         African--

     CONWILL:            Non-African or African American
                         leads.   If they would have been
                         classified in the buffet at the time
                         of the furlough, they would have
                         been furloughed or laid off.

     STATEN’S COUNSEL:   And not transferred?

     CONWILL:            And not transferred.

                             . . . .

     STATEN’S COUNSEL:   [A]ny criteria used to determine which
                         employees would be subjected to the
                         furlough and which employees were not?

     CONWILL:            Well, the criteria was those that worked
                         in the buffet that we were closing would
                         be laid off or furloughed.

     STATEN’S COUNSEL:   That’s all shifts, day, night, graves?

     CONWILL:            That would be--yeah, that       would    be
                         whoever worked in that venue.

Even after Staten’s counsel asked Conwill why certain lead

employees, including Thomas, Sadler, Westover, and Hughes, were

not furloughed, Conwill’s testimony remained the same:

     STATEN’S COUNSEL:   You don’t know why those people were
                         not subjected to the furlough?


                              -10-
     CONWILL:             I do not.

     STATEN’S COUNSEL:    It was your testimony that every
                          employee of the buffet was subjected
                          to the furlough?

     CONWILL:             That was in the buffet at the time
                          of the furlough.

     STATEN’S COUNSEL:    On November 25th, ‘01?

     CONWILL:             Yes.

     With regard to its decision not to interview and rehire

Staten for a lead position, New Palace took the position that it

was not hiring lead personnel during the period in which Staten’s

application was under consideration.    During his deposition,

Trettle testified that he did not “believe [he] hired any lead

positions” but would “have to think about it for a minute.”      He

admitted that he hired April Joyner as a lead baker, but “as far

as hiring other leads, [he] [couldn’t] really say [he] really

hired other leads as per se that [they’re] a lead position.”

Trettle also testified that he was not aware that Staten had

filed a charge of discrimination and retaliation against New

Palace with the EEOC.

     On November 1, 2004, New Palace filed a motion for summary

judgment.   In support of its motion for summary judgment on

Staten’s termination claims of race discrimination and

retaliation, New Palace attached an affidavit of Conwill dated

November 1, 2004, in which Conwill articulated a different reason

for New Palace’s decision to terminate Staten.     Conwill explained


                                 -11-
that the four lead employees who were retained had more tenure

with the company than Staten,6 and Jazzmin’s, the restaurant to

which the four lead employees were transferred, did not operate a

graveyard shift, which was the shift Staten had worked her entire

employment with New Palace.7   Conwill acknowledged that he

previously had given a different reason for Staten’s termination

and explained that when he gave his 30(b)(6) deposition, he “was

not aware that four Lead Cooks from the first and swing shifts of

the Buffet were transferred to Jazzmin’s.”8

     New Palace also moved for summary judgment on Staten’s

refusal to rehire claims of race discrimination and retaliation.

New Palace maintained that it did not hire Staten for a lead

position or a sous chef position because “the un-refuted evidence

demonstrates that Mr. Trettle was not hiring additional ‘Lead’

personnel for the Buffet and he believed that Plaintiff did not

possess the basic knowledge to work as a Sous Chef in the


     6
        New Palace originally hired these employees on the
following dates: Thomas on January 28, 1997; Sadler on January
28, 1997; Westover on January 28, 1997; and Hughes on February
17, 1999. Staten and Shuford, the two lead employees who were
laid off, were hired on November 9, 1999, and June 5, 2000,
respectively.
     7
        The district court apparently accepted New Palace’s
assertion that both Staten and Shuford worked the graveyard
shift. While Staten admitted in her deposition that she worked
the graveyard shift the entire time she was employed by New
Palace, the record indicates that Shuford worked the swing shift
(and not the graveyard shift).
     8
        Despite Conwill’s claimed ignorance, the transfer
documents for all four lead employees bear his initials.
                               -12-
Buffet.”   New Palace further asserted that Trettle had no

knowledge of Staten’s January EEOC charge against New Palace when

he interviewed Staten and decided not to hire her to work in the

renovated Buffet.

     On February 9, 2005, the district court granted New Palace’s

motion for summary judgment.   First, with regard to Staten’s

termination claims of race discrimination and retaliation, the

district court determined that Staten failed to produce evidence

of pretext or provide “any evidence that the Palace’s decision to

terminate her employment, while at the same time transferring the

Caucasian employees to another restaurant, was motivated by

Staten’s race” or “any evidence from which a jury may infer the

Palace retaliated against her . . . .”   Although the district

court acknowledged the inconsistencies between New Palace’s

proffered reasons for terminating Staten, it apparently accepted

New Palace’s explanation, finding that “the Palace explained that

[Conwill] was not aware until his deposition that four lead

employees were not subject to the furlough.”     After considering

Staten’s refusal to rehire claims of race discrimination and

retaliation, the district court held that Staten had produced no

evidence showing that New Palace’s justifications for refusing to

hire Staten were false or pretext for race discrimination or

retaliation.   On February 18, 2005, Staten filed this appeal.

                      II.   STANDARD OF REVIEW

     We review a district court’s grant of summary judgment de
                                -13-
novo, applying the same standard as the district court.           See Blow

v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).

Summary judgment is proper only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.”     FED. R. CIV. P. 56(c).   On a motion

for summary judgment, we view all facts in the light most

favorable to the nonmoving party.        Blow, 236 F.3d at 296.

                           III.   DISCUSSION

A.   Title VII Framework

     Under Title VII, a plaintiff can prove a claim of

intentional discrimination or retaliation by either direct or

circumstantial evidence.    See Russell v. McKinney Hosp. Venture,

235 F.3d 219, 222 (5th Cir. 2000) (intentional discrimination);

Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005)

(retaliation).   Cases built upon the latter, like this one, are

analyzed under the framework set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973).       See Russell, 235 F.3d at

222; Septimus, 399 F.3d at 608.     Under the McDonnell Douglas

framework, the plaintiff first must establish a prima facie case

of discrimination or retaliation.        See Russell, 235 F.3d at 222

(discrimination);9 Gee v. Principi, 289 F.3d 342, 345 (5th Cir.

     9
        A prima facie case of discrimination requires the
plaintiff to show that: (1) she is a member of a protected group;
                                  -14-
2002) (retaliation).10    If the plaintiff makes a prima facie

showing, the burden then shifts to the employer to articulate a

legitimate, nondiscriminatory or nonretaliatory reason for its

employment action.    See Russell, 235 F.3d at 222; Gee, 289 F.3d

at 345.    The employer’s burden is only one of production, not

persuasion, and involves no credibility assessments.     Russell,

235 F.3d at 222 (citing Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 255-56 (1981)).    If the employer meets its burden

of production, the plaintiff then bears the ultimate burden of

proving that the employer’s proffered reason is not true but

instead is a pretext for the real discriminatory or retaliatory

purpose.    See id.   To carry this burden, the plaintiff must rebut

each nondiscriminatory or nonretaliatory reason articulated by

the employer.    Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.

2003) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220

(5th Cir. 2001), cert. denied, 535 U.S. 1078 (2002)).

     A plaintiff may establish pretext “by showing that the


(2) she was qualified for the position at issue; (3) she was
discharged or suffered some adverse employment action by the
employer; and (4) she was replaced by someone who is not a member
of her protected group or she was treated less favorably than
others similarly situated to her. Byers v. Dallas Morning News,
209 F.3d 419, 426 (5th Cir. 2000).
     10
        To prove a prima facie case of retaliation, the
plaintiff must establish that: (1) she participated in activity
protected by Title VII; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists
between the protected activity and the adverse employment action.
Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th
Cir. 2003).
                                 -15-
employer’s proffered explanation is false or ‘unworthy of

credence.’”   Id. (quoting Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000)).    An explanation is false or

unworthy of credence if it is not the real reason for the

employment action.   Id.   “Evidence demonstrating that the

employer’s explanation is false or unworthy of credence, taken

together with the plaintiff’s prima facie case, is likely to

support an inference of discrimination [or retaliation] even

without further evidence of the defendant’s true motive.”     Id.

“No further evidence of discriminatory animus is required because

‘once the employer’s justification has been eliminated,

discrimination [or retaliation] may well be the most likely

alternative explanation.’”    Id. (quoting Reeves, 530 U.S. at

147).   As the Supreme Court explained in Reeves,

     the trier of fact can reasonably infer from the falsity
     of the explanation that the employer is dissembling to
     cover up a discriminatory purpose. Such an inference is
     consistent with the general principle of evidence law
     that the factfinder is entitled to consider a party’s
     dishonesty about a material fact as affirmative evidence
     of guilt.

530 U.S. at 147 (internal quotation marks and citations omitted);

see also Gee, 289 F.3d at 348 (applying Reeves to a Title VII

retaliation claim and noting “that a factfinder may infer the

ultimate fact of retaliation from the falsity of the

explanation”).

B.   Application of Title VII Framework

     The district court assumed--and New Palace concedes for the

                                -16-
purposes of summary judgment--that Staten established a prima

facie case for each of her claims of race discrimination and

retaliation.   The district court determined that New Palace

presented legitimate, nondiscriminatory and nonretaliatory

reasons for terminating and refusing to rehire Staten, and Staten

does not contest this determination on summary judgment.

Therefore, the only issue presented for our review is whether

Staten has produced sufficient evidence to indicate that New

Palace’s proffered legitimate, nondiscriminatory and

nonretaliatory reasons were pretext for discrimination and

retaliation.

     1.   Discrimination and Retaliation Based on Staten’s
          November 2001 Termination

     Staten points out that New Palace offered inconsistent

explanations throughout the litigation as to why it terminated

her, initially taking the position before the EEOC and in

Conwill’s 30(b)(6) deposition that all Buffet employees had been

furloughed, and later explaining in Conwill’s affidavit that the

four lead employees who were retained had more seniority than

Staten and worked different shifts.   Staten maintains that New

Palace’s inconsistent explanations are enough to withstand

summary judgment and that the district court misapplied Reeves in

concluding otherwise.   Staten alternatively contends that she

should be allowed to prove her termination claims under the

mixed-motive framework, as set forth by this court in Rachid v.


                               -17-
Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004).

     New Palace counters that it made a “mistake” in offering

inconsistent justifications for its decision to terminate Staten

and that when it realized its mistake, it corrected the record

and provided all relevant documentation to Staten.   New Palace

argues that Reeves requires something more than a mistake or an

inconsistent explanation for an issue of discrimination or

retaliation to reach a jury and that the district court properly

granted summary judgment on Staten’s termination claims.    We

disagree.

     When an employer offers inconsistent explanations for its

employment decision at different times, as here, the jury may

infer that the employer’s proffered reasons are pretextual.      See

Gee, 289 F.3d at 347-48 (determining summary judgment was

improper where the plaintiff produced evidence that the

employer’s explanation for her non-selection had been

inconsistent and there were discrepancies between the

decisionmaker’s affidavit and testimony); see also EEOC v. Sears

Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (“[T]he fact

that Sears has offered different justifications at different

times for its failure to hire Santana is, in and of itself,

probative of pretext.”) (citing, inter alia, Dominguez-Cruz v.

Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“[W]hen a

company, at different times, gives different and arguably

inconsistent explanations, a jury may infer that the articulated

                              -18-
reasons are pretextual.”), and EEOC v. Ethan Allen, Inc., 44 F.3d

116, 120 (2d Cir. 1994) (holding that a reasonable juror could

infer that the shifting and inconsistent explanations given by

the employer at trial were pretextual, developed over time to

counter the evidence suggesting discrimination)); Zaccagnini v.

Chas. Levy Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003)

(“[T]he consistency of the explanation provided by an employer at

the time of an employment decision and in an administrative

proceeding is evidence of the veracity of the employer’s

explanation at summary judgment.”).    The timing of an employer’s

changing rationale is also probative of pretext.    See Jaramillo

v. Colo. Judicial Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005)

(“The timing of the change [in the employer’s explanation for its

decision] has been found to support the inference of pretext when

it occurs after significant legal proceedings have occurred.”);

Sears Roebuck & Co., 243 F.3d at 853 (“[A] factfinder could infer

from the late appearance of Sears’s current justification that it

is a post-hoc rationale, not a legitimate explanation for [its

employment decision].”).

     Given New Palace’s inconsistent explanations for Staten’s

termination and the timing of its changing rationale, a

factfinder could conclude that, in the words of the Supreme

Court, New Palace’s “asserted justification is false” or

“unworthy of credence.”    530 U.S. at 148, 147; see also Russell,

235 F.3d at 225 (reiterating that it is the province of the jury

                                -19-
to choose among conflicting versions and make credibility

determinations).   Contrary to the district court’s determination,

Staten was not required to produce additional independent

evidence of discrimination or retaliation for New Palace’s

decision to terminate her.     See Gee, 289 F.3d at 348 (stating

that under Reeves “a plaintiff may withstand a motion for summary

judgment without adducing additional, independent evidence” of

discrimination or retaliation).    Rather, as this court previously

has explained, “evidence of the prima facie case plus pretext

may, and usually does, establish sufficient evidence for a jury

to find discrimination.”     Evans v. City of Bishop, 238 F.3d 586,

592 (5th Cir. 2000).11   Accordingly, we reverse the district

court’s order granting summary judgment on the issues of race

discrimination and retaliation for Staten’s termination.    Having

reached this conclusion, we need not address Staten’s alternative

arguments under Rachid and the mixed-motive framework.



     11
        Under Reeves, there are two instances in which a showing
of pretext is insufficient to get the plaintiff past summary
judgment: (1) when the record conclusively reveals some other,
nondiscriminatory or nonretaliatory reason for the employer’s
decision; or (2) when the plaintiff creates only a weak issue of
fact as to whether the employer’s reason was untrue and there is
abundant and uncontroverted independent evidence that no
discrimination or retaliation occurred. 530 U.S. at 148; see
Russell, 235 F.3d at 223 (describing the use of these instances
as “rare”). The parties have not argued--and we do not conclude
--that this is one of those “rare” exceptions to Reeves: the
record does not conclusively reveal some other reason for the
termination (other than the two inconsistent explanations), and
Staten’s showing of pretext is not weak. See Laxton, 333 F.3d at
585.
                                 -20-
     2.   Discrimination and Retaliation Based on New Palace’s
          May 2002 Refusal to Rehire Staten

     Staten contends that she can rebut the nondiscriminatory and

nonretaliatory reasons articulated by New Palace for its refusal

to rehire her for a lead position and that the district court

erred in not properly evaluating her challenges of pretext.12

First, Staten argues that New Palace’s explanation that it was

not hiring lead personnel is a pretext for discrimination and

retaliation because the record conclusively shows that New Palace

was hiring lead employees in March and April of 2002.   Second,

Staten claims that New Palace’s justification that Trettle did

not know about her January EEOC charge is a pretext for

retaliation because Trettle’s testimony is not credible.   Staten

alternatively contends that she should be allowed to prove her

refusal to rehire claims under the mixed-motive framework as set

forth in Rachid.

     New Palace maintains that Trettle was not hiring lead

personnel when Staten’s application was under consideration and

therefore this justification is not a pretext for discrimination

or retaliation.13   Responding to Staten’s argument that New


     12
        Staten does not challenge the district court’s
conclusion that she failed to produce sufficient evidence to
support her contention that she was more qualified than Mary
Kostmayer for the sous chef position.
     13
        New Palace has represented in its memoranda and briefs
before the district court and this court that it was not hiring
lead personnel. See, e.g., R. at 80, 232 (stating that “the un-
refuted evidence demonstrates that Mr. Trettle was not hiring
                                -21-
Palace retaliated against her by refusing to rehire her, New

Palace asserts that the uncontroverted evidence shows that

Trettle did not know Staten had filed an EEOC charge against New

Palace at the time he interviewed her and made his decision not

to hire her.

     Our review of the record supports Staten’s claim of pretext

regarding New Palace’s explanation that it was not hiring lead

personnel.     The record indicates that New Palace hired one lead

baker and three lead cooks in March and April of 2002:    April

Joyner as a lead baker on March 26, 2002, and Rodney Bryant,

Tyree Valentine, and Sommai Boudreaux, as lead cooks on March 7,

2002, March 19, 2002, and April 17, 2002, respectively.14    This

unrefuted evidence directly contradicts New Palace’s explanation

that it was not hiring any lead personnel in March and April of

2002, when Staten submitted her application for consideration.


additional ‘Lead’ personnel for the Buffet”); id. at 239 (noting
at the time Trettle was interviewing candidates, he was not
hiring any additional lead positions). At oral argument, New
Palace’s attorney reiterated the company’s position that it was
not hiring lead personnel during March and April of 2002.
     14
        The record also shows that New Palace hired Sheryl
Hughey (“Hughey”) as a lead baker on April 25, 2002. New Palace
explained before the district court that Hughey was not hired as
a lead baker in April 2002, but instead was hired as a cook in
April and transferred to the lead baker position on June 24,
2002. It is not clear why New Palace did not attempt to refute
the evidence concerning its hiring of Joyner, Bryant, Valentine,
and Boudreaux, as lead employees in March and April of 2002,
before the district court or this court. This evidence was
included as one of the exhibits that Staten submitted to the
district court with her response to New Palace’s motion for
summary judgment.
                                 -22-
Considering all the facts and drawing all inferences in favor of

Staten, a factfinder is simply not required to believe New

Palace’s proffered justification and could “reasonably infer from

the falsity of the explanation that the employer is dissembling

to cover up a discriminatory purpose.”   Reeves, 530 U.S. at 147;

see also Evans, 238 F.3d at 592 (“[E]vidence of the prima facie

case plus pretext may, and usually does, establish sufficient

evidence for a jury to find discrimination.”).15   Because this is

the only explanation given by New Palace on Staten’s race

discrimination claim and because Staten has submitted sufficient

evidence to show that this explanation is false, we reverse the

district court’s order granting summary judgment on the issue of

race discrimination for the refusal to rehire claim.

     Although Staten has successfully rebutted New Palace’s

explanation that it was not hiring lead personnel, she must rebut

each nonretaliatory reason articulated by New Palace to prevail

on her claim of pretext for her retaliation claim.     See Laxton,

333 F.3d at 578.   In addition to its explanation that it was not

hiring lead personnel, New Palace offered Trettle’s deposition,

in which he testified that he did not know that Staten had filed

an EEOC charge against New Palace at the time he interviewed her

and made the decision not to hire her.   Staten has produced no



     15
        Again, the parties have not argued--and we do not
conclude--that this is one of those “rare” exceptions to Reeves.
See Laxton, 333 F.3d at 585; cf. Reeves, 530 U.S. at 148.
                               -23-
evidence to contradict New Palace’s asserted explanation;

instead, she attempts to show pretext by challenging the veracity

of Trettle’s testimony.   Specifically, Staten points to the fact

that Trettle could remember only her name after interviewing over

200 applicants, Trettle had her application for two months before

interviewing her, and Trettle’s testimony that she answered his

interview questions incorrectly is refuted by her testimony and

affidavits filed by two other applicants.

     “To raise an inference of pretext in the face of the

employer’s legitimate, non[retaliatory] explanation, the

plaintiff must undermine the employer’s credibility to the point

that a reasonable jury could not find in its favor.”   Jaramillo,

427 F.3d at 1310 (citing Russell v. Acme-Evans Co., 51 F.3d 64,

70 (7th Cir. 1995)).   In other words, the plaintiff must present

evidence so “that a jury could find that the employer (or its

decisionmaker) lacks all credibility.”   Id. (internal quotation

marks and citation omitted) (emphasis added).   Staten’s attempts

to undermine Trettle’s testimony are unpersuasive.   Her alleged

irregularities in the interview process are simply not strong

enough so that a jury could find that Trettle “lacks all

credibility.”   See id.

     Because we conclude that Staten’s attempted showing of

pretext is insufficient, we must address Staten’s alternative

argument that in light of Desert Palace, Inc. v. Costa, 539 U.S.

90 (2003), and Rachid, 376 F.3d 305, she should be allowed to

                               -24-
assert a mixed-motive alternative to the “but for” standard

required for retaliation claims.16    Under this lower standard,

Staten would only have to prove sufficient evidence that her EEOC

charge against New Palace was a “motivating factor” in New

Palace’s decision not to rehire her.    This circuit has not

extended the holdings of Desert Palace or Rachid, both of which

concern discrimination claims, to Title VII retaliation claims.

See Septimus, 399 F.3d at 607 n.7 (refusing to decide whether

Desert Palace or Rachid affect the legal standard for Title VII

retaliation claims).   Without deciding whether the mixed-motive

framework modifies the McDonnell Douglas framework for Title VII

retaliation claims, we conclude that Staten has provided no

evidence, direct or circumstantial, from which a reasonable jury

could logically infer that her EEOC charge was a motivating

factor in New Palace’s refusal to rehire her.    Accordingly, we

affirm the district court’s order granting summary judgment on

Staten’s retaliation claim for New Palace’s refusal to rehire



     16
        In Rachid, this court held that Desert Palace modifies
the McDonnell Douglas analysis in Age Discrimination and
Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, cases such that a
plaintiff can proceed on a mixed-motives theory even without
direct evidence. In other words, the plaintiff can offer
sufficient evidence to create a genuine issue of material fact
“either (1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or
(2) that the defendant’s reason, while true, is only one of the
reasons for its conduct, and another motivating factor is the
plaintiff’s protected characteristic (mixed-motives
alternative).” 376 F.3d at 312 (internal quotations marks,
citation, and alteration omitted).
                               -25-
her.

                           IV.   CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s

order granting summary judgment on the issue of retaliation for

New Palace’s refusal to rehire Staten, and REVERSE and REMAND the

district court’s order granting summary judgment on the issues of

race discrimination and retaliation for Staten’s termination and

race discrimination for New Palace’s refusal to rehire her.

       AFFIRMED in part; REVERSED and REMANDED in part.




                                 -26-
