   Case: 11-30744       Document: 00511974976         Page: 1     Date Filed: 09/05/2012




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

                                                                            FILED
                                                                        September 5, 2012
                                       No. 11-30744
                                                                           Lyle W. Cayce
                                                                                Clerk



MALCOLM ARMSTRONG

                                                  Plaintiff-Appellant,

versus

K & B LOUISIANA CORPORATION, Doing Business as Rite Aid;
RITE AID HEADQUARTERS CORPORATION

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:10-CV-1647




Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Malcolm Armstrong appeals a summary judgment in favor of his former
employer, K&B Louisiana Corporation and Rite Aid Headquarters Corporation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30744

(jointly, “Rite Aid”) on Armstrong’s claim that Rite Aid fired him in retaliation
for complaints about racial harassment, in violation of Title VII of the Civil
Rights Act of 1964. We affirm.


                                       I.
      Armstrong, who is black, worked for Rite Aid for several years, first as a
Pharmacy Manager and then as a Pharmacy District Manager. At a meeting
with Richard Ellison, a human resources manager, in May 2008, Armstrong said
that some pharmacists working below him did not want to work for a black
supervisor. Armstrong alleges that he made similar remarks to Ellison and
others on multiple occasions between June 2008 and April 2009, complaining of
racism among four pharmacists.
      In April 2009, Armstrong was disciplined for paying a pharmacist for drive
time and mileage to drive to her home store, in violation of company policy.
Armstrong received a final, written warning that future action could involve fur-
ther discipline, including termination. The next month, Armstrong’s supervisor,
Regional Vice President Tammy Rogers, received a complaint from a salaried
staff pharmacist that Armstrong told her she would not be paid for all the time
she had worked in another store. An investigation revealed that Armstrong in
fact had told two pharmacists he would not pay them for all the hours they had
worked and that he had twice logged on to Rite Aid’s timekeeping system and
intentionally decreased the hours worked by those two employees, thus decreas-
ing the amount each was paid. During the investigation, Armstrong did not
admit to altering the employees’ hours intentionally.
      Armstrong has since admitted to altering the two employees’ hours. He
now claims that he told them they would not be paid for their time working on
inventory and that they did not obtain pre-approval for the excess time. Rite
Aid’s policy is that a salaried pharmacy manager will not be paid for hours

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                                   No. 11-30744

related solely to the preparation of physical inventory. It has no policy that a
pharmacy manager will not be paid for hours worked during a controlled drug
inventory or that a salaried staff pharmacist will not be paid for hours worked
doing any type of inventory.
      Based on the results of the investigation, including the evidence that Arm-
strong had altered the timekeeping system records to deny the two employees
pay for hours they had worked, Rogers and the human resources department
decided to terminate Armstrong’s employment effective June 12, 2009.
      Armstrong sued in response, asserting claims for retaliatory discharge,
racial harassment, and retaliatory harassment. Armstrong abandoned his two
harassment claims, and the district court granted summary judgment in favor
of Rite Aid after finding that Armstrong had failed to establish a genuine issue
of material fact as to whether Rite Aid’s proffered reasons for Armstrong’s dis-
missal were false or pretextual.


                                        II.
      We review a summary judgment de novo. LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 386 (5th Cir. 2007). “Summary judgment is appropriate
when the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Breaux v. Halliburton Energy Servs., 562 F.3d
358, 364 (5th Cir. 2009) (internal quotation marks omitted); see FED. R. CIV. P.
56(a). A genuine issue of material fact exists if a reasonable jury could enter a
verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d
899, 902 (5th Cir. 2000). To defeat a properly pleaded motion for summary
judgment, “the nonmovant must go beyond the pleadings and designate specific
facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Celotex Corp. v. Catrett, 477

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                                  No. 11-30744

U.S. 317, 325 (1986)). The court must resolve factual controversies in favor of
the nonmoving party, see id., but the nonmoving party cannot satisfy its burden
merely by establishing “some metaphysical doubt as to the material facts,” Mat-
sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), by con-
clusional allegations in affidavits, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990), or “by only a scintilla of evidence,” Little, 37 F.3d at 1075 (internal
quotation marks omitted).


                                        III.
      The burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973), applies to Title VII unlawful retaliation cases. Long v.
Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). To establish a prima facie case
of retaliation, a plaintiff must show that (1) he participated in an activity pro-
tected by Title VII, (2) he suffered an adverse employment action, and (3) there
is a causal relationship between the protected activity and the adverse employ-
ment action. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir.
2009). If the plaintiff establishes a prima facie case, the burden of production
shifts to the defendant to provide a legitimate, non-retaliatory reason for its
action. Long, 88 F.3d at 304-05. If the defendant does so, the plaintiff must
show that the defendant’s proffered reason was merely a pretext for unlawful
retaliation. See Byers v. Dall. Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000).
      In Title VII retaliation claims, protected activities include (1) opposing any
practice deemed an unlawful employment practice (the “opposition clause”) or
(2) making a charge, testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing under Title VII (the “participation clause”).
Douglas v. DynMcDermott Petrol. Operations Co., 144 F.3d 364, 372 (5th Cir.
1998). Armstrong’s prima facie case rests exclusively on the opposition clause,

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                                  No. 11-30744

because he did not participate in any investigation or proceeding relevant here.
For his actions to satisfy the opposition clause, Armstrong must have had an
objectively reasonable belief that Rite Aid was engaged in employment practices
barred by Title VII. See Byers, 209 F.3d at 428.
      Viewed in the most favorable light possible, Armstrong’s prima facie case
fails for lack of any objectively reasonable belief that Rite Aid was violating
Title VII. He adduces no objective evidence that any pharmacists under his
management disdained working for a black supervisor so strongly as to require
Rite Aid to remedy the situation. By Armstrong’s admission, none of the
complained-of pharmacists ever said anything racist to him or told him that that
pharmacist did not want to work for him. The regional vice-president who ulti-
mately fired him, Armstrong admits, was not a racist and did not tolerate racism
among the pharmacists. Armstrong details pharmacist Tom Myers’s personal
animosity toward him but fails to identify any racial element, other than the
bare assertion that the animosity began at first sight, when Myers presumably
first noticed Armstrong’s race.
      With no objective evidence of his subordinates’ racial animus, Armstrong
offers only conclusional allegations to support his prima facie case. Therefore,
the summary judgment is AFFIRMED.




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