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

                                                                            FILED
                                                                           April 15, 2008

                                     No. 07-10917                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BRENNAN MORRISON

                                                  Plaintiff - Appellant
v.

DALLAS COUNTY COMMUNITY COLLEGE; BRENT DUDENHOEFFER,
in his individual and official capacity

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:05-cv-01821


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff Brennan Morrison argues that fact questions should have
prevented the grant of summary judgment in favor of Defendants Dallas County
Community College District and Brent Dudenhoeffer on his race discrimination
and retaliation claims, brought in part under Title VII of the 1964 Civil Rights
Act, and his defamation claim under Texas state law. The Defendants allege



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-10917

that the appeal is frivolous and seek imposition of sanctions. We affirm the
grant of summary judgment but deny the Defendants’ motion for sanctions.
                         I. Facts and Procedural Background
       Brennan Morrison, an African American male, was employed by the Dallas
County Community College District (the “District”) as a Natatorium Supervisor,
i.e., the supervisor of an indoor swimming facility. The facility is at North Lake
College in Irving, Texas, where Morrison was employed from November 2003 to
February 2005. His supervisors were Brent Dudenhoeffer, an Assistant Dean
at North Lake College, and Walter Ritchie, the City of Irving’s Superintendent
of Parks, Athletics and Acquatics.1 As Natatorium Supervisor, Morrison was
responsible for oversight of all services, including supervision of pool staff.
       At some point, Dudenhoeffer began to raise concerns regarding Morrison’s
job performance. Morrison responded with complaints that the requirement that
he report to two supervisors caused confusion and inhibited his job performance.
The District responded by requiring Dudenhoeffer and Morrison to have weekly
progress meetings with two other North Lake College staff members beginning
in October 2004. The meetings provided opportunities for Dudenhoeffer to
explain Morrison’s reporting and job responsibilities, and for Morrison to raise
specific concerns regarding his duties. Morrison’s job performance allegedly
continued to fall below the District’s expectations. During the months of October
and November 2004, Morrison received several written reprimands and
memoranda detailing the District’s expectations.
       On December 8, 2004, the District decided to respond to Morrison’s
continued job-related deficiencies by placing him on “decision-making leave.”


       1
         The Natatorium is operated as a partnership among the District, the City of Irving,
and the Irving Independent School District. The agreement governing the Natatorium
empowered the District to hire the Supervisor (Morrison’s position) according to District hiring
guidelines. Once hired, the Supervisor would report to both the City Aquatic Supervisor
(Ritchie’s position) and an administrator designated by the District (Dudenhoeffer).

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District policy provides that employees with significant on-going deficiencies
receive one day of paid leave followed by a probationary period. Failure to
improve past deficiencies during the probationary period could result in the
employee’s termination. On December 13, 2004, Morrison filed a grievance
against Dudenhoeffer in accordance with the District’s internal grievance
procedure. On December 15, 2004, Dudenhoeffer informed Morrison that he was
being placed on “decision-making leave” for one day and provided Morrison with
documentation for this decision in accordance with the District’s policy.
      Morrison returned to work on December 17, 2004. However, he received
two reprimands in January 2005 and was terminated on February 17, 2005, for
“ongoing job performance deficiencies.” Morrison appealed his termination to
the President of North Lake College, alleging it to be discriminatory, and filed
a charge of discrimination with the Equal Employment Opportunity
Commission. Thereafter, Morrison filed suit in the district court. He now
appeals that court’s grant of summary judgment in favor of Defendants.
                  II. Discrimination and Defamation Claims
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Greenwell v. State Farm Mut.
Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007). Summary judgment may be
granted only if there exists no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
A.    Discrimination Claim
      Morrison has not offered direct evidence of discrimination; therefore, we
analyze his claim under the familiar burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); McCoy v. City of Shreveport,
492 F.3d 551, 556-57 (5th Cir. 2007). Because the District terminated Morrison’s
employment, he satisfies the requirements for a prima facie case under this



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framework.2 However, the District offered several legitimate, nondiscriminatory
reasons for its decision to terminate Morrison. The District cites Morrison’s poor
job performance generally and, more specifically, his failure to submit timely and
accurate time sheets, making unapproved modifications to his work hours,
failure to submit leave forms for his absences, and scheduling special events at
the Natatorium without proper notification.                The burden shifted back to
Morrison to demonstrate (1) that the defendants’ proffered reasons are not true
(pretext theory) or (2) even if the reasons are true, the defendants’ decision was
motivated in part by Morrison’s race (mixed-motive theory). Rachid v. Jack in
the Box, 376 F.3d 305, 312 (5th Cir. 2004).
       Morrison first argues that the District’s proffered reasons are “simply
pretext” and “verifiably false.” To support this argument, Morrison suggests
that Dudenhoeffer’s trustworthiness is “questionable,” argues that he was not
given an opportunity to refute Dudenhoeffer’s allegations of deficient job
performance, asserts that his other supervisor, Ritchie, did not understand
Dudenhoeffer’s concerns over Morrison’s performance, and Ritchie would have
approved a more flexible schedule for Morrison. But none of these assertions
verify the allegation of falsity; Morrison points to no record evidence that would
demonstrate pretext. Therefore, Morrison has failed to put forth evidence that
would rebut any of the District’s proffered legitimate nondiscriminatory reasons.
See Wallace v. Methodist Hosp. System, 271 F.3d 212, 220 (5th Cir. 2001).
       Morrison also attacks the District’s decision to terminate him under the
mixed-motive theory, arguing that he was treated differently than
underperforming white employees because of his race. However, Morrison has
not shown that these employees were given preferential treatment under

       2
        As did the district court, we reject Morrison’s argument that the District’s decision to
place him on one day of paid decision-making leave constitutes an “adverse employment action”
for purposes of establishing a prima facie case of discrimination under the McDonnell Douglas
framework. McCoy, 492 F.3d at 559-60.

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circumstances “nearly identical” to his own. See Okoye v. Univ. of Texas Houston
Health Science Center, 245 F.3d 507, 514 (5th Cir. 2001). He offers three
examples of alleged “differential” treatment. One employee was not disciplined
despite watching pornographic material at work; another was not disciplined
despite being caught asleep on the job. These violations of District policy are
wholly dissimilar to those committed by Morrison. Finally, he alleges that a
white employee at the Natatorium engaged in time sheet violations but was not
disciplined or terminated; however, this employee’s infractions were not
discovered until after her resignation, precluding the District from taking any
disciplinary action against her. These comparisons do not support an inference
of racially motivated decision-making by the District. See id. at 514-15.
      The District has articulated several legitimate nondiscriminatory reasons
for its decision to terminate Morrison. Morrison has failed to rebut these
proffered reasons with record evidence. Thus, his claim for discrimination under
Title VII fails.
B.    Retaliation Claim
      Morrison alleges that the District’s decision to place him on decision-
making leave and terminate him both constitute retaliatory acts under Title VII.
In order to establish a prima facie case of retaliation, Morrison must show that
(1) he engaged in protected activity, (2) he experienced an adverse employment
action following the protected activity, and (3) a causal link between the
protected activity and the adverse employment action. McCoy, 492 F.3d at 556-
57. If a prima facie case of retaliation is established, the McDonnell Douglas
burden-shifting framework is employed. Id. at 557.
      We accept Morrison’s argument that he engaged in protected activity when
he orally complained of race-based discrimination to Dudenhoeffer’s supervisor




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on December 13, 2004.3 Morrison also alleges that both his placement on one
day of paid decision-making leave and his termination constitute adverse
employment actions. Even were we to make the generous assumption that
placing an employee on one day of paid leave is an adverse employment action,
Morrison fails to establish the requisite causal link between his lodging the oral
complaint and the District’s decision to place him on leave. Undisputed record
evidence shows that the decision to place Morrison on leave was made on
December 8, five days prior to Morrison’s voicing his complaint.
       Morrison’s termination occurred approximately two months after his oral
complaint. Assuming this two-month time period is sufficient to establish a
causal link and satisfy the elements of Morrison’s prima facie case, the District
explained that the termination was a result of documented job performance
deficiencies that occurred during Morrison’s post-leave probationary period.
“[O]nce the employer offers a legitimate, nondiscriminatory reason that explains
both the adverse action and the timing, the plaintiff must offer some evidence
from which the jury may infer that retaliation was the real motive.” Swanson
v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
       On appeal, Morrison asserts that he “can surely make his prima facie case
of retaliation;” this may be, but he just as surely fails to offer any evidence that
would rebut the District’s proffered nondiscriminatory reasons for his
termination. Morrison’s subjective belief that he was treated unfairly, even
Ritchie’s alleged belief that Morrison was treated unfairly, is not sufficient to

       3
          We assume that this allegation – taken from Morrison’s deposition testimony – is true.
We note, however, that Morrison also filed a written grievance on the same day. The written
grievance made no mention of race and gave no indication that Morrison believed he was
opposing racially-motivated actions by Dudenhoeffer or the District. As the district court
correctly noted, the written grievance does not constitute protected activity. See Tomanovich
v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (“Although filing an official complaint
with an employer may constitute statutorily protected activity under Title VII, the complaint
must indicate the discrimination occurred because of sex, race, national origin, or some other
protected class.”).

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rebut the specific nondiscriminatory reasons offered by the District. Little v.
Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991).
      For these reasons, Morrison’s Title VII retaliation claim also fails.
C.    Defamation Claim
      Finally, Morrison claims that Dudenhoeffer defamed him by telling a third
party that Morrison was terminated for fighting. Texas law recognizes slander
per se and slander per quod. Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.
2005). Morrison argues that Dudenhoeffer’s statement constitutes slander per
se because it caused injury to his office, business or profession. See id.
      The district court properly rejected this argument. In order to constitute
slander per se under this analysis, a statement must be “so obviously harmful”
to the defendant’s professional reputation that damages may be presumed. See
e.g., Shearson Lehman Hutton, Inv. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.
1991) (statement suggesting that stock broker would lose his license was
slanderous per se “because it is aimed at his conduct as a licensed stockbroker
and it asserts a matter incompatible with his practicing that profession”);
Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App. 1989) (“To charge an employee
with dishonesty in his dealings with his employer is slanderous per se . . . .”).
Dudenhoeffer’s alleged statement does not rise to the level of “so obviously
harmful” to Morrison’s occupation or profession that a court may presume he has
suffered damages.
      Thus, Morrison must prove that his reputation was actually damaged as
a result of Dudenhoeffer’s statement. Moore, 166 S.W.3d at 384. The district
court found that Morrison had offered no evidence of actual damages. On
appeal, Morrison does not dispute this finding. Instead, he suggests only that
the district court misapplied the law because “[i]n a defamation per se context,
damages are presumed without proof of injury.” As noted above, Dudenhoeffer’s
statements were not per se defamatory. Because Morrison fails to point us to

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any evidence of actual damage, we conclude that the district court properly
granted summary judgment to Dudenhoeffer on Morrison’s defamation claim.
      In light of the forgoing, we AFFIRM the district court’s grant of summary
judgment to the District and Dudenhoeffer.
                            III. Motion for Sanctions
      The District and Dudenhoeffer move this Court to impose sanctions on
Morrison for pursuing this appeal, which they describe as frivolous. This Court
has the discretion to penalize frivolous appeals by awarding “just damages and
single or double costs to the appellee.” Fed. R. App. P. 38. “An appeal is
frivolous if the result is obvious or the arguments of error are wholly without
merit.” Coghlan v. Starkey, 852 F.2d 806, 810-11 (5th Cir. 1988). Under Rule
38, we may impose sanctions on the client, his counsel, or both. Id. at 818.
Morrison responds that he should not be sanctioned because (1) discrimination
cases are inherently fact-based and this precludes a finding that his appeal is
wholly without merit and (2) an appeal based on a “questionable legal position”
is not frivolous if “the underlying litigation is complex or confusing.”
      First, although we recognize that employment discrimination cases are
generally fact-intensive, there is nothing inherently complex or confusing about
Morrison’s claims. In fact, the McDonnell Douglas framework was developed
over thirty years ago in order to clarify and simplify the burdens of production
and persuasion in discrimination cases. That framework is routinely applied by
federal courts to claims such as Morrison’s. Second, the fact-intensive nature of
an employment discrimination suit does not relieve a litigant from his
responsibility to pursue only those legal claims that are justified by the facts.
Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999).
      In addition, Morrison’s brief to this Court essentially ignores the findings
and rationale of the district court. Morrison embarks upon a factual recitation
and legal analysis of his case that gives no indication as to which facts and legal

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arguments the district court credited, and which ones it rejected.            More
importantly, Morrison does not tell this Court with any specificity why the
district court erred in applying the law to the facts of his case. Our de novo
standard of review on summary judgment appeals does not render the district
court’s decision irrelevant. It should come as no surprise that “failing to explain
how the trial court erred or to present cogent or clear arguments for reversal”
may warrant sanctions under Rule 38. Abbs v. Principi, 237 F.3d 1342, 1345
(Fed. Cir. 2001).
      Morrison’s counsel also treads very close to blatant misrepresentations of
the record; at best, counsel is guilty of gross mistakes in citations to the record.
For example, the brief asserts that Morrison’s decision-making leave day was not
paid time off, as the District represented. First, this fact was irrelevant to the
district court’s decision and, therefore, not a material fact for summary judgment
purposes. The district court concluded that the timing of the District’s decision
to place Morrison on leave (and not the compensated or uncompensated nature
of that leave) precluded Morrison from relying on the leave day for purposes of
establishing a prima facie case of retaliation. Second, Morrison purports to
support this argument with no less than eight citations to the record. Not one
of these eight record citations even mentions the decision-making leave day,
much less supports Morrison’s proposition that it was unpaid leave.
      In another example, Morrison attributes the following direct quote to
Ritchie: “you could tell by the tone in Dudenhoeffer’s voice it was about race.”
The record reveals that this is a loose – and borderline misleading – paraphrase
of Ritchie’s testimony, not a direct quote. Morrison also cites Ritchie’s deposition
testimony for the proposition that Ritchie believed Morrison was being treated
unfairly because of race. In fact, Ritchie’s deposition testimony establishes only
that Morrison complained to Ritchie that Morrison believed he was being treated
unfairly because of race. Significant misrepresentations of the record and

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selectively quoting from the record in a manner that would seriously mislead the
reviewing court may constitute sanctionable conduct. See Williams v. Phillips
Petroleum Co., 23 F.3d 930, 940-41 (5th Cir. 1994).
      Morrison’s appeal lacks merit, but this does not necessitate a finding of
frivolousness. Coghlan, 852 F.2d at 810 n.10. We are mindful of the chilling
effect that the imposition of sanctions could have on other litigants. See id. at
810-11; Abbs, 237 F.3d at 1346. We are presented with a very close case for
sanctions. Morrison and his counsel’s failure to engage the reasoning of the
district court, be this a legal strategy or simply careless preparation, is an
unhelpful method of appeal.      We also note our serious concern regarding
counsel’s careless and arguably misleading citations to the record. While we are
dissatisfied with counsel’s approach to this appeal, we are unable to say that the
appeal is so “wholly without merit” as to warrant sanctions.
      Therefore, the District and Dudenhoeffer’s motion for sanctions is
DENIED. The summary judgment is AFFIRMED.




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