     Case: 18-50312      Document: 00514708648         Page: 1    Date Filed: 11/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-50312
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 2, 2018
JOHN GOODE,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

GREENSTREAM INTERNATIONAL, L.L.C.,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-552


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       After John Goode breached company security protocols and challenged
the authority of its security guards, Greenstream International, L.L.C.,
terminated Goode’s employment as a support technician in its IT department.
Goode sued Greenstream, arguing that his termination was the result of race-
and disability-based discrimination. The district court granted summary
judgment in favor of Greenstream. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       I.
      John Goode, a black man, began working for Greenstream International,
L.L.C. (“Greenstream”), in December 2013. At the time of his termination, he
was a support technician in Greenstream’s IT department.
      Greenstream refurbishes, repairs, salvages, and resells used cell phones.
Because Greenstream handles cell phones with protected user data, it
maintains a secure facility and has established a “Security Screening Policy
and Procedure” outlining the company’s security protocols. At the beginning of
each shift, all employees must enter through a checkpoint manned by security
guards. The rules are strict: at 7:55 a.m., employees must quietly form a single-
file line behind the entrance to the security screening area and enter one-by-
one through the metal detector only after being instructed to do so by a security
guard.
      Goode received a copy of the Security Screening Policy and Procedure
during his orientation. The procedure expressly states, “Failure to follow the
directions of the Security Guard or Greenstream International
supervisors during security screening is grounds for immediate
dismissal. . . . ‘Talking back’ to the guard, or other disrespectful or
insubordinate actions during the screening process will not be tolerated.”
Greenstream’s “Team Member Handbook” similarly warns that failure to treat
security guards with “dignity and respect” is “grounds for immediate
termination.” Gary Stephens, Greenstream’s vice president of IT and Goode’s
indirect supervisor, testified that “[s]ecurity is one area that’s not—was not
allowed to be argued with inside the facility.”
      Goode has artificial knees that have metal components. For reasons that
are unclear, Goode was able to pass though the metal detector without
triggering the alarm for approximately the first month of his employment.
After one month, the metal detector’s alarm began to go off each time Goode
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passed through. In accordance with Greenstream’s security protocols, Goode
would then have to go through the metal detector again, and, if the alarm
sounded again, security guards would search him using a hand wand. Because
this process was time-consuming and would hold up the line, Goode requested
and received a change in his schedule to avoid having to go through security at
peak hours. Eventually, Greenstream allowed Goode to walk around the metal
detector. Goode contends that John Parra, Greenstream’s head of security, was
upset that Goode had received an accommodation and threatened him, saying,
“If I want you gone, you[’]r[e] gone.”
      In late 2014 or early 2015, Goode began working as a support technician,
which required he be given a key to the IT room. Goode contends that Parra
initially refused to provide him with a key, though Parra yielded and gave him
a key after about two weeks.
      Goode further alleges that when Parra finally gave him the key, Parra
instructed Goode not to look at the security monitors in the IT room. Goode
looked anyway and claims that all of the cameras were pointed directly at black
men. When he asked Parra why the cameras were positioned that way, Parra
allegedly said: “I just don’t trust black men.” Parra denies this interaction.
Goode claims that he has had other interactions with Parra indicating his race-
based animus and that other managers have made discriminatory comments
to him.
      On February 9, 2015, Greenstream’s HR department sent him a
memorandum regarding the security of the IT room. The memorandum
clarified the procedures Goode must follow when bringing IT equipment
through the security checkpoint, warned him that someone found his keys left
in the IT room door, and reminded him of the importance of maintaining
security in the IT office.


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      On February 20, 2015, Goode arrived at work and attempted to walk
around one of the metal detectors, triggering an alarm. Goode claims that a
security guard “yelled at [him]” and asked him “why [he] d[id] that.” Goode
admits that he “took offense at the way he was being spoken to and told the
guard not to talk to him that way.”
      A security manager reported the incident to Parra, who took Goode to
the HR office. Goode admits that, during this meeting, he lost his temper with
Parra, stating that he “got right in [Parra’s] face” and that he raised his voice.
Parra and an HR employee referred the incident to Stephens. Stephens
consulted Greenstream’s director of HR, who had witnessed Parra and Goode’s
exchange. The director of HR consulted with Greenstream’s vice president of
operations, who in turn consulted with Greenstream’s chief executive officer.
All three agreed that Goode should be terminated, and Stephens terminated
Goode’s employment. Although Parra sent Stephens an email summary of his
interaction with Goode, Greenstream and Parra deny that Parra was involved
in the decision to terminate Goode.
      Goode brought suit in state court, alleging discrimination and retaliation
in violation of the Americans with Disabilities Act (“ADA”), Title VII of the
Civil Rights Act of 1964 (“Title VII”), and 42 U.S.C. § 1981. 1 Greenstream
removed the suit to federal court, and the district court dismissed Goode’s ADA
and Title VII claims. Greenstream later moved for summary judgment on
Goode’s remaining § 1981 claim. In response, Goode withdrew his retaliation
claim but opposed the entry of summary judgment on his discrimination claim.
The district court granted Greenstream’s motion for summary judgment,




      1  Goode also initially alleged that he was discriminated and retaliated against in
violation of Texas law, but amended his complaint to remove the state-law claims after the
case was removed to federal court.
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holding that Goode had failed to provide direct or circumstantial evidence of
discrimination. Goode appeals.
                                       II.
      We review “a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.” Rogers v. Bromac
Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is
proper “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). When reviewing a motion for summary judgment, we “view[] all facts
and evidence in the light most favorable to the non-moving party.” Moss v.
BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). “Where the non-moving
party fails to establish ‘the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial,’ no genuine
issue of material fact can exist,” and summary judgment should be entered
against that party. Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th
Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
                                      III.
      Goode argues that the district court erred in granting summary
judgment on his § 1981 claim. The district court found that Goode did not
produce direct or circumstantial evidence of discrimination. We agree.
      We consider claims of racial discrimination under § 1981 and Title VII
“under the same rubric of analysis.” Raggs v. Miss. Power & Light Co., 278
F.3d 463, 468 (5th Cir. 2002). “An employee can prove discrimination through
direct or circumstantial evidence.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d
987, 992 (5th Cir. 2005). Evidence is “direct” if it “proves the fact [of
discrimination] without inference or presumption.” Id. Alternatively, an
employee may provide circumstantial evidence of discrimination by
demonstrating that “(1) [he] is a member of a protected class, (2) he was
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qualified for the position that he held before being discharged, (3) he was
discharged, and (4) his employer filled the position with a person who is not a
member of the protected class.” Raggs, 278 F.3d at 468. Once a plaintiff
“establishes a prima facie case of discrimination, the burden then shifts to the
employer to produce evidence that its actions were justified by a legitimate,
nondiscriminatory reason.” Id. If the employer satisfies its burden of
production, “the burden then shifts back to the plaintiff to show by a
preponderance of the evidence that the employer’s nondiscriminatory
explanation is pretextual.” Id.
      Goode argues that Parra’s discriminatory comments constitute direct
evidence of discrimination. “To qualify as direct evidence of discrimination,
workplace comments ‘must be “1) related [to the protected class of persons of
which the plaintiff is a member]; 2) proximate in time to the terminations; 3)
made by an individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.”’” Rodriguez v. Eli Lilly &
Co., 820 F.3d 759, 764 (5th Cir. 2016) (alteration in original) (quoting Auguster
v. Vermilion Par. Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001)). Although Goode
cites his own testimony that Parra made racially discriminatory statements,
the alleged comments were not made proximate in time to his termination.
Goode further highlights an email Parra sent to Stephens regarding the
February 20 incident, but the email does not include remarks related to
Goode’s race. And Goode does not argue that Parra had any authority to
terminate his employment or that any individual with authority to terminate
his employment made discriminatory remarks. Therefore, we conclude that
Goode has failed to provide direct evidence of discrimination.
      Nor do we find that Goode has provided circumstantial evidence of the
alleged discrimination. Like the district court, we assume arguendo that Goode
has established a prima facie case of discrimination. See Raggs, 278 F.3d at
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468. The burden thus shifts to Greenstream “to produce evidence that its
actions were justified by a legitimate, nondiscriminatory reason.” Id.
Greenstream satisfies its burden of production here. Greenstream provided
evidence that it takes security very seriously due to the nature of its work and
that violation of its security policy was a fireable offense. Prior to Goode’s
termination, Greenstream issued a written reprimand to Goode concerning a
previous run-in with security and violation of company policy by leaving his
keys in the door to the IT room. 2 And Goode admits that he was disrespectful
to Parra on the day his employment was terminated.
       Because Greenstream satisfied its burden, the burden shifts back to
Goode to establish, by a preponderance of the evidence, that Greenstream’s
nondiscriminatory reason is pretextual. See id. We find that Goode has failed
to satisfy his burden. Goode first analogizes his case to Laxton v. Gap Inc., 333
F.3d       572   (5th   Cir.   2003),     arguing     that     Greenstream’s       proffered
nondiscriminatory reason is false. In Laxton, the employer fabricated reasons
for firing the employee: it accused her of hiring a bank robber, failing to report
a sick day, misusing the store’s walkie-talkie system, and violating store policy.
Id. at 579. The Laxton employee presented evidence at trial that her employer’s
accusations were either false or so de minimis a reasonable jury could believe
they were not the real reasons for her termination. Id. at 580-81. In contrast,
Goode admits that he acted aggressively towards security guards. And he fails
to present any evidence rebutting Greenstream’s assertion that it strictly
enforces its security policy. Therefore, because there is no dispute that Goode



       2   Goode argues that his separation notice did not discuss these incidents and,
therefore, they are “irrelevant to this analysis.” Goode did not raise this argument before the
district court; therefore, we decline to consider it for the first time on appeal. See Stewart
Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000)
(“It is a bedrock principle of appellate review that claims raised for the first time on appeal
will not be considered.”).
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violated Greenstream’s security policy by yelling at Parra, Laxton is
inapplicable.
      Goode next disputes the fact that his behavior was disruptive. But it is
not our job to dictate what may constitute appropriate workplace conduct for a
certain employer. Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556, 566 (5th
Cir. 1983) (noting that employee did not challenge “the objective truth of the
company’s stated ground of dissatisfaction with him,” only that it was
“inadequate to warrant his termination,” and leaving “such judgments . . . for
the employer, not for the court”).
      Goode urges us to apply the “cat’s paw” theory, arguing that even though
Parra did not have authority to terminate his employment, Parra influenced
Stephens’s decision. “[A]n employer can be held liable for a discrimination
claim . . . even if the ultimate decisionmaker [him]self holds no discriminatory
animus as long as the plaintiff can demonstrate that [his] decision was
influenced by another who does hold such animus.” See Fisher v. Lufkin Indus.,
Inc., 847 F.3d 752, 758 (5th Cir. 2017). To connect Parra’s discriminatory intent
to his termination, Goode must show that Parra was either responsible for or
had influence over his termination. See Reed v. Neopost USA, Inc., 701 F.3d
434, 441-42 (5th Cir. 2012) (noting that “[w]here a plaintiff offers remarks as
circumstantial evidence . . . [he] need only show (1) discriminatory animus (2)
on the part of a person that is either primarily responsible for the challenged
employment action or by a person with influence or leverage over the relevant
decisionmaker”). Goode only argues the latter. But other than an email from
Parra to Stephens summarizing the February 20 incident, Goode does not point
to any evidence that Parra influenced Stephens’s decision to terminate Goode’s
employment. Greenstream’s executives made the decision to terminate Goode’s
employment in consultation with each other and the director of HR. Parra was
not involved in these discussions. And Parra’s email was not the only evidence
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supporting Goode’s termination—Greenstream’s director of HR also witnessed
the February 20 incident, and Goode had committed prior security violations
as well. Thus, Goode’s argument is without merit.
     Therefore, because Goode failed to rebut Greenstream’s proffered
legitimate, nondiscriminatory reason, we find that Greenstream’s motion for
summary judgment was properly granted.
                                    IV.
     For the foregoing reasons, we AFFIRM the judgment of the district court.




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