     Case: 11-60525     Document: 00511816691         Page: 1     Date Filed: 04/10/2012




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

                                                                            FILED
                                                                           April 10, 2012
                                     No. 11-60525
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SHIRA STALLWORTH,

                                                  Plaintiff-Appellant

v.

SINGING RIVER HEALTH SYSTEM,

                                                  Defendant-Appellee


                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:10-CV-123


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Shira Stallworth filed the instant suit pursuant to Title VII of the Civil
Rights Act and 42 U.S.C. § 1983, alleging that her former employer, Singing
River Health System (Singing River), discriminated against her on the basis of
her religion, subjected her to a hostile work environment, and retaliated against
her. She also alleged a state law claim of intentional infliction of emotional
distress.    According to her complaint, she was hired by Singing River on
February 22, 2009, as a nursing assistant; was criticized and harassed by

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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coworkers regarding her use of her lunch breaks to pray; informed her floor
manager on March 29, 2009, of that criticism and harassment; requested and
was denied additional training shortly after making the informal complaint to
her manager; and was suspended with a recommendation for discharge on May
1, 2009, on the ground that she was not the “right candidate” for the position and
for insubordination.
      Singing River moved for summary judgment, asserting, among other
things, that Stallworth was terminated on May 6, 2009, for legitimate,
nondiscriminatory reasons: her failure to follow nurses’ instructions regarding
patient care and insubordination based on her attempt to circumvent her floor
manager’s denial of additional training by contacting another individual to
obtain the training. The district court granted Singing River’s motion for
summary judgment and dismissed Stallworth’s complaint with prejudice.
      Proceeding pro se, Stallworth appeals the district court’s decision and
moves for leave to proceed in forma pauperis (IFP). She qualifies economically
to proceed IFP in this appeal, and her motion is granted. However, we dispense
with further briefing and, for the reasons below, affirm the district court’s
judgment.
      We review the grant of a motion for summary judgment de novo, applying
the same standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010). “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
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving
party must demonstrate the absence of a genuine issue of material fact, but it
does not need to negate the elements of the nonmovant’s case. Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010). If the moving party meets this initial
burden, then the burden shifts to the nonmovant to set forth specific evidence
to support her claims. Id. The nonmovant’s burden is not satisfied through a
mere showing of “some metaphysical doubt as to the material facts” or by

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“conclusory allegations,” “unsubstantiated assertions,” or “only a scintilla of
evidence.” Id. (internal quotation marks and citation omitted). All facts and
inferences are construed in the light most favorable to nonmoving party. Dillon,
596 F.3d at 266.
      Because Stallworth has not briefed any argument concerning the district
court’s denial of her claims based on a theory of failure to accommodate or
hostile work environment, she has waived any challenge to the denial of such
claims. See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007). Stallworth
also does not contend that her case involved a mixed-motive theory of
discrimination or otherwise challenge whether the district court applied the
correct framework when it analyzed her claims of disparate treatment and
retaliation under the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Under that framework, (1) the plaintiff
must first establish a prima facie case of discrimination; (2) if such a showing is
made, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the challenged employment action; and (3) if the
defendant satisfies that requirement, then the burden shifts back to the plaintiff
to show that the articulated reason was merely a pretext for discrimination.
Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010); Rubinstein v. Adm’rs of
Tulane Educ. Fund, 218 F.3d 392, 399, 401-02 (5th Cir. 2000).
      Regarding her claim of disparate treatment, the district court determined
that Stallworth failed to make a prima facie showing of discrimination.
Stallworth urges us to follow Brady v. Office of the Sergeant at Arms, 520 F.3d
490, 493-94 (D.C. Cir. 2008), and pretermit the issue whether she has made the
requisite prima facie showing given that Singing River has offered legitimate,
nondiscriminatory reasons for the challenged employment actions. She cites no
precedent in this circuit for following Brady, and we decline to do so. See
Atterberry v. City of Laurel, 401 F. App’x 869, 871 n.1 (5th Cir. 2010).
Furthermore, her conclusory assertion that the “[d]istrict court erred in not

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requiring [her] vital witnesses to counterattack Defendant’s arguments” is
unavailing as a challenge to the district court’s decision.
      Her challenge to the district court’s determination that she failed to
establish pretext as to both her claims of disparate treatment and retaliation is
also unavailing. To establish pretext, Stallworth was required to show that
Singing River’s proffered reasons were “false” or “unworthy of credence.”
Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (internal
quotation marks and citation omitted). Her subjective belief that her actions did
not constitute insubordination is insufficient to create an inference of
discriminatory intent by Singing River, and she has failed to rebut Singing
River’s proffered nondiscriminatory reasons for its challenged employment
decisions. See Jackson, 619 F.3d at 467-68; Roberson v. Alltel Info. Servs., 373
F.3d 647, 654 (5th Cir. 2004); Rubinstein, 218 F.3d at 400-01. Thus, she has not
shown error in the district court’s award of summary judgment in favor of
Singing River regarding her claims under Title VII.
      Our analysis of Stallworth’s claims regarding disparate treatment and
retaliation under Title VII applies with equal force to her claims of employment
discrimination under § 1983. See Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007); Bunch v. Bullard, 795 F.2d
384, 387 n.1 (5th Cir. 1986).     Thus, based on our foregoing discussion of
Stallworth’s Title VII claims, we also affirm the district court’s dismissal of
Stallworth’s claims under § 1983. See Brewer v. Wilkinson, 3 F.3d 816, 820 (5th
Cir. 1993) (recognizing that we may affirm on any ground supported by the
record).
      Regarding her state law claim of intentional infliction of emotional
distress, Stallworth asserts that she satisfied the requisite state law standards
because Singing River’s actions were “extreme and outrageous” in that they
amounted to “a termination based on religious practices and retaliation for
complaints regarding those practices.” This bare assertion is conclusory and

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fails to establish error in the district court’s award of summary judgment as to
the claim.
      MOTION GRANTED; AFFIRMED.




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