     Case: 19-60118      Document: 00515231726         Page: 1    Date Filed: 12/11/2019




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

                                                                              FILED
                                                                        December 11, 2019
                                      No. 19-60118
                                                                           Lyle W. Cayce
                                                                                Clerk

DEL DENNIS,

               Plaintiff - Appellant

v.

ACADEMY, LIMITED; BERNICE HAMPTON-BEAN,

               Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:17-CV-1018


Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff Del Dennis challenges the district court’s summary judgment
dismissal of his suit for discriminatory discharge under 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964. We AFFIRM.
                                             I.
       Del Dennis, who is black, was employed as a team leader by Defendant
Academy Sports Ltd., a sporting and outdoor goods retailer. Dennis began


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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working for Academy as a team member in April 2014 and was promoted to
the position of team leader in February 2015. Team leaders have greater
responsibilities than team members and are held to a higher standard of
conduct.
        On April 13, 2017, Dennis was leaning on a cart inside Academy’s
warehouse when a white employee, Matt Brewer, pulled the cart out from
under Dennis. Dennis yelled at Brewer, saying he could have said “excuse me.”
Brewer responded, “I know,” and then walked away. Dennis confronted Brewer
but was dissatisfied with Brewer’s response.
        Dennis spoke with Brewer’s direct supervisor, Bernice Hampton-Bean,
who is black. Dennis told her what happened and that some day someone will
beat Brewer instead of speaking to his supervisor. According to Hampton-
Bean, Dennis was visibly upset during the conversation. She also later said
Dennis stated that he, personally, would beat Brewer. Dennis denies saying
this.
        Hampton-Bean spoke with Brewer, who told her he no longer felt safe
coming to work. She then reviewed the surveillance tape and concluded that
Brewer grabbed the cart without realizing Dennis was leaning on it. The tape
was not produced during discovery and apparently no longer exists.
        Hampton-Bean reported the incident to the store director, Matt Stewart,
recalling her conversations with Dennis and Brewer. On May 8, 2017, Stewart,
who is white, terminated Dennis’s employment, citing the incident between
Dennis and Brewer. Hampton-Bean also issued a final warning to Brewer for
failing to act in a professional and acceptable manner.




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       In December 2017, Dennis filed the instant suit against Academy and
Hampton-Bean. 1 In November 2018, Defendants moved for summary
judgment, which the district court granted. This appeal followed.
                                              II.
       We review a grant of summary judgment de novo. 2 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.” 3
                                             III.
       Title VII provides that it is “an unlawful employment practice for an
employer . . . to discharge any individual . . . because of such individual’s
race[.]” 4 Section 1981(a) provides: “All persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make
and enforce contracts . . . as is enjoyed by white citizens[.]” 5 Dennis provides
no direct evidence of racial discrimination. Accordingly, we apply the
McDonnell Douglas burden-shifting framework. 6




       1  Plaintiff named Hampton-Bean as a co-defendant on the ground that her conduct
amounted to tortious interference with Dennis’s employment contract under Mississippi law.
The district court, after dismissing the federal claims, also dismissed Plaintiff’s state law
claim without prejudice.
        2 Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016).
        3 FED. R. CIV. P. 56(a).
        4 42 U.S.C. § 2000e-2(a)(1).

        5 The analysis of Dennis’s § 1981 claim is identical to the analysis of his Title VII

claim. Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017).
        6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Under this

framework, the plaintiff “carr[ies] the initial burden under the statute of establishing a prima
facie case of racial discrimination.” Id. at 802. Once the plaintiff has met this burden, it
“shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.” Id. If the employer has articulated such a reason, then the plaintiff is
“afforded a fair opportunity to show that [the employer’s] stated reason for “[the employee’s]
rejection was in fact pretext.” Id. at 804.


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       It is undisputed that Dennis, a member of a protected group, was
qualified for his position and was subjected to an adverse employment action.
Dennis contends this is a work-rule violation case, and the district court found
a fact issue as to whether Dennis threatened Brewer. As a result, Dennis has
made out a prima facie case. 7
       In response, Academy claims that it terminated Dennis because he
violated its “Safe Workplace Policy” and his obligations as a team leader.
Dennis does not dispute that Academy has produced a legitimate, non-
discriminatory reason for terminating Dennis.
       Instead, Dennis attempts to establish pretext. He first argues that “he
has disputed each and every allegation by Academy through his testimony, and
a jury could conclude that race was a motivating factor as Ms. Hampton-Bean
chose to protect Brewer, who is white, by making fraudulent claims.” But
Dennis’s testimony only demonstrates that the events are disputed. It falls
short of evincing Hampton-Bean’s or Academy’s discriminatory intent.
       Dennis next argues that a jury could reasonably infer pretext from
Academy’s failure to preserve and produce the surveillance tape of the incident.
Because it is undisputed that Dennis failed to even request the video during
discovery, this argument does not get off the ground.
       Last, Dennis asserts that Hampton-Bean’s alleged racial animus can be
imputed to Stewart, the ultimate decisionmaker. To prevail on a “cat’s paw
theory,” a plaintiff “must submit evidence sufficient to establish two
conditions: (1) that a co-worker exhibited discriminatory animus, and (2) that
the same co-worker possessed leverage, or exerted influence, over the titular


       7Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (“[A] prima facie
case may be established by showing that the plaintiff did not violate the work-rule for which
he was disciplined.”).


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decisionmaker.” 8 Even if Dennis could establish that Hampton-Bean exerted
influence over Stewart, Dennis has not established that Hampton-Bean
exhibited discriminatory animus. Accordingly, no discriminatory animus can
be imputed to Academy, and this argument fails.
                                             IV.
       For the reasons set forth above and as stated in the district court’s
opinion, we affirm the district court’s dismissal of Plaintiff’s suit.




       8Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (internal quotation
omitted).


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