     Case: 11-60239     Document: 00511610609         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011

                                     No. 11-60239                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RACHEL K. BISSETT

                                                  Plaintiff-Appellant
v.

BEAU RIVAGE RESORTS INCORPORATED,

                                                  Defendant-Appellee



               Appeal from the United States District Court for the
                         Southern District of Mississippi
                             USDC No. 1:10-CV-99



Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In this employment discrimination case, Plaintiff-Appellant Rachel Bissett
appeals the district court’s grant of summary judgment in favor of Defendant-
Appellee Beau Rivage Resorts, Inc. (“Beau Rivage”) on her Title VII race
discrimination, sex discrimination, and retaliation claims. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                    FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff-Appellant Bissett, a Caucasian female, began working at the
Beau Rivage casino in 1998. Bissett was the manager of the casino’s count room,
where she supervised the collection and counting of the casino’s money. On July
2, 2007, Bissett submitted a complaint to Beau Rivage’s Human Resources
(“HR”) Department, complaining of a hostile work environment because another
employee made sexually demeaning comments about her. A resulting HR
investigation found that the other employee was in violation of the casino’s
polices, but it also found that Bissett contributed to the environment by
initiating sexual conversations with co-workers.
      In April 2009, Michael Bonayog, a count room supervisor and a
subordinate of Bissett, complained to Glenn Ellis—Bissett’s supervisor and the
casino controller—about Bissett’s behavior in the count room. Bonayog told Ellis
that Bissett regularly made inappropriate age, sex, and race-related comments
to and about other employees. After this conversation, Ellis contacted HR so
Bonayog’s complaint could be investigated.
      On April 17, 2009, Bissett was suspended pending investigation and she
was instructed not to contact any co-workers during the investigation. Despite
this instruction, Bissett contacted one of her subordinates multiple times and
she also contacted another employee at the casino. During the course of HR’s
investigation, thirteen employees, including Bissett, were interviewed and
provided signed statements about Bissett’s conduct. Bissett’s subordinates
provided generally consistent testimony stating that Bissett gave more overtime
to Caucasian employees. The employees also stated that Bissett made numerous
offensive statements about sex, race, religion, age, and other sensitive topics.
      Bissett denies making some of the statements and she also claims that
Bonayog conspired with other minority employees to have her terminated
because she is Caucasian. Bonayog is an Asian/African-American male. To

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explain the supposed conspiracy, Bissett states that the atmosphere in the count
room became racially charged because of the 2008 presidential election and
because of Beau Rivage’s diversity policy. Bissett also states that Bonayog
became upset with her when she promoted a female employee to a lead position
in the count room. Bissett states that Bonayog believed a woman in that
position would hinder the counting process.
      On May 12, 2009, Rogena Barnes, Vice President of HR, issued a
memorandum terminating Bissett’s employment. Barnes concluded that the
evidence gathered in the investigation showed that Bissett had engaged in race
discrimination by giving more overtime to Caucasian employees and that Bissett
also had made numerous racist statements about minorities. Further, Barnes
concluded that Bissett created a hostile work environment because she criticized
employees, ridiculed them for using medical leave, and also made numerous
inappropriate sexual comments to and about co-workers. Finally, Barnes found
that Bissett interfered with the investigation by contacting co-workers while it
was ongoing. Bissett contends that HR’s investigation was one-sided and biased
by racial animus because of Beau Rivage’s diversity policy and because Barnes
is African-American. After Bissett’s termination, Bonayog was promoted to fill
her position as manager of the count room.
      After submitting a charge of employment discrimination with the Equal
Employment Opportunity Commission, Bissett filed the instant suit, alleging
age discrimination, sex discrimination, race discrimination, sexual harassment,
retaliatory discharge, and hostile work environment under Title VII, the Age
Discrimination in Employment Act, and 42 U.S.C. § 1981. The district court
granted the Beau Rivage’s motion for summary judgment and dismissed all of
Bissett’s claims. Bissett now appeals the district court’s grant of summary
judgment on the Title VII race discrimination, sex discrimination, and
retaliation claims, arguing that she raised issues of material fact as to each.

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                             STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo,
construing all facts and inferences in the light most favorable to the nonmoving
party. Cerda v. 2004-EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary
judgment is proper only when the movant demonstrates that no genuine issue
of material fact exists and that he is entitled to judgment as a matter of law.
Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005); Fed. R.
Civ. P. 56(a).
                                   ANALYSIS
      1. Title VII Race and Sex Discrimination
      Under Title VII, race or sex discrimination can be established either
through direct or circumstantial evidence. Wallace v. Methodist Hosp. System,
271 F.3d 212, 219 (5th Cir. 2001). Where the plaintiff offers circumstantial
evidence—as is the case here—we use the McDonnell Douglas burden shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
      Under this framework, a plaintiff must first establish a prima facie case
of discrimination. Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
To do so, a plaintiff must show that she: (1) is a member of a protected class;
(2) was qualified for her position; (3) suffered an adverse employment action; and
(4) was subjected to treatment less favorable than similarly situated employees
outside the protected class or was replaced by someone outside the protected
class. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir.
2001). Once the plaintiff makes a prima facie case, the burden shifts to the
employer to “produce a legitimate, nondiscriminatory reason for her
termination.” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).       If the
defendant offers such a reason, the burden shifts back to the plaintiff to show
that either (1) the defendant’s alleged justification was pretext for
discrimination, or (2) that the defendant’s reason, although true, is only one of

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the reasons for its conduct and that another motivating factor was the plaintiff’s
protected characteristic. Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir.
2007).
       The first two steps of the framework are not at issue because the
circumstances of Bissett’s discharge establish prima facie cases of both race and
sex discrimination and because Beau Rivage has offered its findings of
misconduct as its reason for discharging Bissett.             Therefore, we limit our
analysis to whether Beau Rivage’s claimed reason for discharging Bissett was
merely pretextual and whether discriminatory animus was a motivating factor
in Beau Rivage’s decision.1 Bissett carries the burden of creating an issue of
material fact and “unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Brown v. City of Hous., Tex., 337 F.3d 539, 541 (5th Cir. 2003).
       First, as to her race discrimination claim, Bissett argues that the decision
to terminate her was actually due to her race because (1) Beau Rivage’s decision
incorporated false evidence submitted by minority subordinates who had
conspired to have her fired because she is Caucasian; and because (2) Beau
Rivage conducted a one-sided investigation so it could terminate her as part of
its diversity initiative.
       The district court properly rejected both of these arguments, finding no
evidence that the decision to terminate Bissett was influenced by racial animus.
As to her first argument, Bissett does not offer any evidence to support her claim
that subordinates conspired to have her terminated because she is Caucasian.
Bissett vaguely describes how the environment in the counting room became
racially charged during the 2008 presidential campaign.                     Beyond this
generalized assertion though, Bissett is not able to demonstrate that her

      1
       Bissett argues both that her discharge was pretextual and that discriminatory animus
was a motivating factor in the discharge.

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subordinate employees disagreed with anything other than her political views
or the offensive manner in which she discussed President Obama.2 Bissett also
claims that the existence of the conspiracy is evidenced by a single statement
made by Bonayog to HR, which states “[w]e [subordinates] have all talked and
[we] don’t feel like Rachel can change. We’re afraid that if she does come back
that we will all be targeted.” Rather than establishing the presence of a race-
based conspiracy, this statement suggests that the employees thought Bissett
would not change her inappropriate behavior and were also worried that she
would retaliate against them for reporting her misconduct to HR.
       Regarding Bissett’s second argument—that HR conducted a one-sided
investigation so she could be fired to increase diversity—Bissett again fails to
submit any evidence supporting this assertion. Bissett contends that she was
a victim of Beau Rivage’s diversity policy, which states that “[Beau Rivage]
value[s] diversity and consider[s] it an important and necessary tool that will
enable us to maintain a competitive edge,” and that “[Beau Rivage] is committed
to maintaining a workforce that reflects the diversity of the community.” Bissett
offers no evidence to support her contention that she was actually terminated to
increase diversity. Indeed, there is no evidence in the record showing that HR
investigated the complaints against Bissett differently because she is Caucasian
or considered her race when deciding to terminate her. Bissett cannot create an
issue of material fact simply by stating her own unsubstantiated belief that the
diversity policy led to her discharge.3 See Portis v. First Nat’l Bank of New

       2
         Evidence that Bissett’s subordinates may have considered Bissett a racist because of
the offensive statements that she made about President Obama and African-Americans does
not prove that these same employees also possessed racial animus against Bissett.
       3
         See, e.g., Jones v. Bernake, 493 F. Supp.2d 18, 29 (D.D.C. 2007) (“[T]he mere existence
of a diversity policy, without more, is insufficient to make out a prima facie case of reverse
discrimination.”); Reed v. Agilent Techs., Inc., 174 F. Supp.2d 176, 185–86 (D. Del. 2001)
(“Merely producing anecdotal evidence regarding the aspirational purpose of an employer’s
diversity policy, and its intent to ameliorate any underutilization of certain groups, is not

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Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994) (“Generalized testimony by an
employee regarding his subjective belief that his discharge was the result of
discrimination is insufficient to make an issue for the jury in the face of proof
showing an adequate, nondiscriminatory reason for his discharge.” (internal
punctuation omitted) (quoting Elliott v. Grp. Medical & Surgical Serv., 714 F.2d
556, 566 (5th Cir. 1983)).4 Thus, Bissett fails to offer any evidence raising an
inference of racial discrimination.
       Second, the district court also properly dismissed Bissett’s sex
discrimination claim. Bissett alleges that Beau Rivage terminated her because
of her gender. To support this accusation, Bissett claims that Bonayog, her
subordinate, previously remarked that he was unhappy when a female co-worker
was promoted by Bissett to a lead position. Bissett claims that Bonayog’s sexist
statement about this other co-worker shows that he also had discriminatory
animus towards her.




sufficient . . . Instead, [a plaintiff] must show that such policies were actually relied upon in
deciding to terminate his employment.” (quotation marks omitted)).
       4
          Bissett’s claim that HR’s investigation of her misconduct was a mere vehicle for its
diversity policy centers on the accusation that Barnes fabricated evidence. In particular,
Bissett claims that Barnes falsely concluded that Bissett stated “Come on, niggers, let’s leave”
at the end of a shift to her employees. Bissett denies making the statement and now accuses
Barnes of fabricating it because Barnes is an African-American who “let her racial blinders
interfere with her interaction with a white subordinate.”
        The offensive comment attributed to Bissett by Barnes appeared in one of the
statements that was submitted to HR during the investigation. Taken in context, it is not
clear whether the comment was made by Bissett or not. Whether or not HR incorrectly
attributed this statement to Bissett, however, is irrelevant given that there is no evidence that
HR’s investigation of Bissett’s conduct was influenced by any racial animus. Other than
assuming an African-American HR employee cannot fairly review evidence submitted to her,
Bissett offers no evidence showing that Barnes, or anyone else in HR, acted with racial animus
or handled the investigation differently because Bissett is Caucasian. Bryant v. Compass Grp.
USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (stating that evidence that an employer’s
investigation came to an incorrect conclusion does not establish racial motivation behind an
adverse employment decision).

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      Bissett’s sex discrimination claim fails for several reasons. First, there is
no evidence suggesting that Bonayog, or anyone else for that matter, possessed
gender-related discriminatory animus towards Bissett. See Dulin v. Board of
Comm’rs of Greenwood Leflore Hosp., 646 F.3d 232, 237 (5th Cir. 2011) (stating
that stray remark must be related to employment decision at issue).
      Second, even assuming that Bonayog’s statement about a different
employee is somehow relevant to Bissett’s discharge, this piece of evidence is
insufficient to create an issue of material fact under either pretext or mixed
motive theories. As to pretext, Bonayog’s statement is insufficient to show that
Beau Rivage’s stated reason for discharging her—discriminatory practices and
other gross misconduct—was not the actual reason for her discharge. See
Palasota v. Haggar Clothing Co., 342 F.3d 569, 577 (5th Cir. 2003) (per curiam)
(stating that stray remarks are probative of discriminatory intent except where
they are “the only evidence of pretext”). Indeed, HR’s decision to terminate
Bissett was based on the generally consistent statements of multiple employees,
who stated that Bissett engaged in serious misconduct. See Evans v. City of
Hous., 246 F.3d 344, 355 (5th Cir. 2001) (stating that employee’s claim cannot
survive summary judgment “merely because she disagrees with [her employer’s]
characterization of her disciplinary history” (citation and internal quotation
marks omitted)).
      Further, even under a mixed motive analysis, where we assume that
Bonayog’s discriminatory animus played some role in the adverse employment
action, there is no issue of material fact. There is no question that Beau Rivage
carried its burden of showing that it still would have terminated Bissett for
legitimate reasons given the extensive record of serious misconduct, much of
which Bissett does not even deny. Smith v. Xerox Corp., 602 F.3d 320, 327 (5th




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Cir. 2010); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312–14 (5th Cir. 2004).5
Accordingly, Bissett has failed to establish a material issue of fact with respect
to her claim of sex discrimination.
       2. Title VII Retaliation
       Bissett also argues that her termination in 2009 was in retaliation for her
2007 complaint of sexual harassment.               To establish a prima facie case of
retaliation, a plaintiff must show: (1) that she participated in an activity
protected by Title VII; (2) that her employer took an adverse employment action
against her; and (3) a causal connection between the protected activity and the
materially adverse action. Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129
(5th Cir. 2011). “If the plaintiff makes a prima facie showing, the burden then
shifts to the employer to articulate a legitimate . . . non-retaliatory reason for its
employment action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th
Cir. 2008) (quoting McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.
2007)). If the employer satisfies this burden, the plaintiff then must prove that
the employer’s reason is pretextual. Aryain, 534 F.3d at 484.
       The district court correctly found that Bissett does not establish her prima
facie case because she did not show a causal link between her 2009 termination
and her 2007 complaint of sexual harassment. The two events are separated in
time by nearly two years and there is no other evidence suggesting that the



       5
         Bissett also argues that the district court misapplied the Supreme Court’s recent
decision in Staub v. Proctor Hospital. 131 S. Ct. 1186 (2011). In that decision, the Supreme
Court found that the cat’s paw doctrine can create liability for an employer where there is no
evidence of bias on the part of the final decisionmaker if that decisionmaker took into account
a biased negative evaluation by the terminated employee’s supervisor. Id. at 1192–94. The
Supreme Court, however, declined to reach the issue of whether the cat’s paw doctrine applies
to a discriminatory act committed by a subordinate employee that influenced the decision-
maker. Id. at 1194 n.5 (“We express no view as to whether the employer would be liable if a
co-worker, rather than a supervisor, committed a discriminatory act that influenced the
ultimate employment decision.”). We need not resolve this open issue because Bissett fails to
show the presence of discriminatory animus among any of her subordinates.

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events are related. See Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007)
(finding that lapse of two years is too distant to establish an inference of
causation); Evans, 246 F.3d at 354 (stating a time lapse of four months can
establish causation through temporal proximity when paired with other
evidence). Thus, Bissett’s claim of retaliation also fails.
                                  CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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