   Case: 11-60771       Document: 00511940927         Page: 1     Date Filed: 08/01/2012




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

                                                                            FILED
                                                                           August 1, 2012
                                     No. 11-60771
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




MELODY HARRIS,

                                                  Plaintiff-Appellant,

versus

FIRST AMERICAN NATIONAL BANCSHARES, INCORPORATED,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                No. 1:10-CV-139




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Melody Harris sued her former employer, First American National Banc-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60771
shares, Inc. (“FANB”), for firing her for allegedly race-based reasons. Harris
established a prima facie case of discrimination but cannot show that FANB’s
stated reasons are pretext. Accordingly, we AFFIRM the summary-judgment
dismissal.


                                         I.
                                         A.
      Harris, who is black, worked as head teller at an FANB branch until she
was fired and replaced by a white woman, Missy Brooks. FANB asserts that
Harris’s employment was terminated for failure to comply with two distinct com-
pany procedures: (1) the time-clock procedure and (2) the dual-control procedure
for money verification. The time-clock procedure requires an employee to clock
in before servicing a customer or, failing that, to complete a time clock correction
sheet. Over the course of three months, FANB records indicate, Harris violated
that procedure at least fifteen times.
      The dual-control procedure requires that bundles of money be counted and
initialed by one employee and then recounted and initialed by a second employee
to verify the amount. After management learned that Harris was forging
another employee’s initials on the money bundles, she was warned that the dual-
control procedure should be followed without exception. Despite two meetings
about the issue, she continued to violate the procedure by failing to obtain a sec-
ond employee’s initials.
      With violations piling up, Lisa Phelps, FANB’s human-resources manager,
met with Harris to discuss them, but Harris offered no excuse or explanation for
her actions. Phelps terminated her for those violations.


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                                  No. 11-60771
                                       B.
      Harris sued FANB, alleging race discrimination in violation of Title VII
of the Civil Rights Act of 1964. The district court granted FANB’s motion for
summary judgment, and Harris appeals.


                                       II.
      A summary judgment is reviewed de novo, under the same standard
applied by the district court. McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298,
301 (5th Cir. 1993). Summary judgment is appropriate only “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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute about a material
fact is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. at 248. The court must draw all justifiable
inferences in favor of the non-moving party. Id. at 255. Once the moving party
has initially shown “that there is an absence of evidence to support the non-
moving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-
movant must come forward with specific facts showing a genuine factual issue
for trial, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately sub-
stitute for specific facts showing a genuine issue for trial. See SEC v. Recile,
10 F.3d 1093, 1097 (5th Cir. 1993).




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                                   No. 11-60771
                                        III.
      Because Harris provides no direct evidence of discrimination, her claim
must be analyzed using the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff must first establish
a prima facie case by demonstrating: (1) that she belongs to a protected class;
(2) that she was qualified for her position; (3) that her employer took adverse
action against her; and (4) that she was “replaced by someone outside the pro-
tected class” or, in actions alleging disparate treatment, that “others similarly
situated were treated more favorably.” Okoye v. Univ. of Tex. Hous. Health Sci.
Ctr., 245 F.3d 507, 512-513 (5th Cir. 2001); Davin v. Delta Air Lines, Inc., 678
F.2d 567, 570 (5th Cir. Unit B 1982).
      Once established, the prima facie case raises an inference of intentional
discrimination, which the employer must rebut by providing a legitimate and
nondiscriminatory justification for the adverse action. Meinecke v. H&R Block
of Hous., 66 F.3d 77, 83 (5th Cir. 1996). If the defendant can articulate a legiti-
mate justification, the burden shifts back to the plaintiff to show “at a new level
of specificity” that the employer’s alternative explanation is a mere “pretext for
discrimination.” Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633,
639 (5th Cir. 1985), abrogated on other grounds by St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 513 (1993).
      Harris is a member of a protected class. It is undisputed that she was
qualified for the position of head teller at the time of her promotion and that
FANB took adverse action against her. Although Harris has not demonstrated
that FANB treated her less favorably than it treated other similarly situated
employees, she was indeed replaced by a white person, and replacement by a


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                                  No. 11-60771
person outside the plaintiff’s protected class is an alternative means of satisfying
the fourth requirement of the prima facie case. Okoye, 245 F.3d at 512-513.
Therefore, Harris has met her initial burden.
      In response, FANB articulated two reasons for termination: (1) violations
of the time-clock policy and (2) violations of the dual-control policy. FANB has
provided evidence that Harris violated the time-clock policy, and Harris admit-
ted to violating the dual-control policy after being warned on multiple occasions.
Those justifications are sufficient to rebut Harris’s case on a prima facie level,
and so the burden shifts to Harris to show pretext.
      At the pretext stage, the question on summary judgment is whether there
is a conflict in substantial evidence, see Laxton v. Gap Inc., 333 F.3d 572, 578
(5th Cir. 2003), and Harris has not produced any substantial evidence. She spe-
cifically points to the fact that FANB failed to provide clear and convincing evi-
dence of her misconduct at an unemployment compensation hearing, but the
clear-and-convincing standard in an unemployment hearing is much higher than
is FANB’s standard here. FANB was only required to provide the district court
a clear explanation of the nondiscriminatory reasons for its actions, and it bore
no burden of persuading the court, even by a preponderance of the evidence, that
those reasons actually motivated its decision. Tex. Dep’t of Cmty. Affairs v. Bur-
dine, 450 U.S. 248, 250 (1981). Therefore, the fact that FANB did not present
clear and convincing evidence in the unemployment hearing does not support an
inference of pretext.
      The summary judgment is AFFIRMED.




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