   Case: 12-10730    Document: 00512165967   Page: 1   Date Filed: 03/06/2013




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

                                                                 FILED
                                                               March 6, 2013
                              No. 12-10730
                            Summary Calendar                   Lyle W. Cayce
                                                                    Clerk




ALEXANDER ASSARIATHU; REENA ASSARIATHU; DEVI PILLAI;
SUSAN MATHEW; RADHADEVI PILLAI; KURIAN JOSEPH;
THOMAS THOMAS; SHINY ABRAHAM,

                                        Plaintiffs-Appellants,

versus

LONE STAR HEALTH MANAGEMENT ASSOCIATES, L.P.,
a Subsidiary of Health Management Associates, Inc.,
Doing Business as Dallas Regional Medical Center;
HEALTH MANAGEMENT ASSOCIATES, INCORPORATED,

                                        Defendants-Appellees.




                Appeal from the United States District Court
                     for the Northern District of Texas
                              No. 3:11-CV-99
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                                       No. 12-10730

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Eight respiratory therapists of Indian national origin appeal a summary
judgment dismissing their employment-discrimination and retaliation claims
against former employer Lone Star Health Management Associates, L.P., doing
business as Dallas Regional Medical Center (“DRMC”), and DRMC’s parent,
Health Management Associates, Inc. (“HMA”). We affirm.


                                              I.
       In 2008, DRMC hired Christiaan Evans to head its respiratory depart-
ment. In mid-2009, Evans and DRMC human resources director Alayne Sewick
developed a proposal, to restructure the department, that was reviewed and
approved by HMA human resources director Linda Herriage. As part of the
restructuring, which was announced to department members in November 2009,
all respiratory therapists were required to re-interview for their jobs.
       Evans and Sewick devised ten interview questions that Evans asked each
therapist. The first nine were scored on a scale of 1 to 5 and were designed to
test one of the following characteristics: overall attitude (four questions), abili-
ties (three), knowledge (one), and skills (one). An “extra credit” question, worth
three points and intended to assess knowledge, skills, and abilities, asked, “What
do you bring as an employee to DRMC?”
       Evans took notes while conducting the interviews. Sewick and Evans sub-
sequently awarded each employee a composite scored based on Evans’s notes,
Evans’s recollections of the interviews, and some extrinsic evidence, including


       *
         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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performance appraisals. The maximum score was 48, and DRMC terminated all
fifteen therapistsSSincluding seven of eight plaintiffsSSwho scored below 24.
Plaintiff Kurian Joseph scored above 24 but was also terminated; he had
received a corrective counseling in the previous year.1 In total, sixteen of
DRMC’s thirty-two respiratory therapists were fired: Twelve were Asian, one
was black, and three were white. Of the sixteen remaining, seven were Asian,
two were black, and seven were white. Between January and June 2010, DRMC
hired ten new therapists, seven of whom were white.
       Before his termination in December 2009, A. Assariathu anonymously
called the DRMC compliance hotline and accused Evans of racial discrimination
against Indian employees, including in the restructuring process. Herriage
assigned Sewick to investigate the complaint despite Sewick’s integral role in the
restructuring.2 In the course of her investigation, Sewick interviewed several
respiratory therapists, including plaintiffs A. Assariathu, Thomas Thomas, and
Radhadevi Pillai (“R. Pillai”). Sewick also asked Evans, who was unaware of the
complaint against him, to provide data on his hiring practices since taking over
the department.3 After completing her investigation, Sewick determined that
the restructuring was not discriminatory and that Evans had not otherwise
engaged in discrimination.
       After being fired, the plaintiffs commenced Equal Employment Opportun-
ity Commission proceedings against DRMC, then sued DRMC and HMA, assert-
ing discrimination under the Texas Commission on Human Rights Act


       1
         Four other terminated therapists, including plaintiffs Alexander Assariathu
(“A. Assariathu”) and Devi Pillai (“D. Pillai”), had received corrective counseling in the year
before their termination; all four also scored below 24.
       2
           The complaint did not, however, accuse Sewick of wrongdoing.
       3
        According to DRMC, the data showed that Evans had hired or promoted nine minority
therapists (of unspecified ethnicity) and eight white therapists.

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                                    No. 12-10730

(“TCHRA”), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. The
district court granted summary judgment to DRMC and HMA on all claims.


                                          II.
        We review a summary judgment de novo, “using the same stan-
      dard as that employed by the district court under Rule 56.” Ker-
      stetter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). Sum-
      mary judgment is appropriate “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).

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012).
      Under the TCHRA, “[a]n employer commits an unlawful employment prac-
tice if because of race . . . the employer . . . discharges an individual or discrimin-
ates in any other manner against an individual.” TEX. LABOR CODE ANN.
§ 21.051. Discrimination under Title VII occurs if an employer terminates or
fails to promote an employee “because of” a protected characteristic, including
race. 42 U.S.C. § 2000e–2(a)(1). “Moreover, an employer’s action will be found
unlawful if the employee can demonstrate that her race was ‘a motivating factor’
for her firing, even if the employer was also motivated by other lawful factors.”
Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). Section 1981(a)
guarantees that “[a]ll persons within the jurisdiction of the United States . . .
shall have the same right . . . to make and enforce contracts” regardless of race.


                                         III.
      The same evidentiary framework governs discrimination claims brought
under the TCHRA, Title VII, and § 1981. Shackelford v. Deloitte & Touche,LLP,
190 F.3d 398, 404 n.2 (5th Cir. 1999). We apply the burden-shifting approach
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), and its pro-
geny. Vaughn, 665 F.3d at 636. A plaintiff must first demonstrate a prima facie


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                                       No. 12-10730

case, after which the burden of production shifts to the defendant to proffer a
legitimate nondiscriminatory reason for its decision. The presumption of dis-
crimination drops out if the defendant presents a nondiscriminatory reason.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plain-
tiff, who always carries the ultimate burden, “must then offer sufficient evidence
to create a genuine issue of material fact either (1) that the defendant’s reason
is not true, but is instead a pretext for discrimination (pretext alternative); or
(2) that the defendant’s reason, while true, is only one of the reasons for its con-
duct, and another ‘motivating factor’ is the plaintiff’s protected characteristic
(mixed-motive[s] alternative).” Rachid v. Jack In The Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004) (internal marks and citation omitted).


                                              A.
       Because DRMC and HMA do not contest that plaintiffs have presented a
prima facie case of racial discrimination, our analysis begins with DRMC and
HMA’s articulated nondiscriminatory reason for the terminations: departmental
restructuring, citing the seven low scores in the interviews with Evans, and, in
the case of Joseph, prior corrective counseling. Plaintiffs do not dispute that
poor job performance is a legitimate, non-discriminatory reason for termination.
See Little v. Republic Ref. Co., 924 F.2d 93, 96 (5th Cir. 1991). Therefore, DRMC
and HMA have met their burden of production with regard to Joseph.
       Plaintiffs do contend that, despite producing the low interview scores of
the seven other plaintiffs, DRMC and HMA have not articulated a legitimate,
non-discriminatory reason, because the justification for the scores is not “clear
and reasonably specific.”4 In Alvarado, 492 F.3d at 617, we held that the
employer did not meet its burden where the raw interview scores it produced for

       4
         Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007) (citing Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 258 (1981)).

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                                       No. 12-10730

Alvarado were accompanied by “neither an explanation nor evidence of how or
why the interviewers arrived at those scores.” Alvarado is inapposite, however,
because “this is simply not a case where the defendant relies on nothing more
than a unexplained interview score that might be consistent with discriminatory
intent.” Joseph v. City of Dall., 277 F. App’x 436, 441 (5th Cir. 2008) (per cur-
iam). Although conceding that Evans’s interview notes were lost, DRMC and
HMA have extensively explained the scores through deposition testimony and
the production of documents, including the interview questions and the charac-
teristic each question was intended to assess. Whether those explanations are
true is another matter, discussed infra, but DRMC and HMA have satisfied their
burden of production.5


                                              B.
       The burden therefore shifts back to plaintiffs, who must show that the
articulated nondiscriminatory reason for their termination was either (1) pretex-
tual or (2) true, but only one of the reasons for DRMC and HMA’s conduct, and
another “motivating factor” was race. Rachid, 376 F.3d at 312. Plaintiffs allege
both pretext and mixed motives.


                                              1.
       Pretext can be established by showing disparate treatment or that the
“[legitimate] explanation is false or ‘unworthy of credence.’” Vaughn, 665 F.3d
at 637. Disparate treatment is established by proving that the employer treated
similarly situated employees differently for “nearly identical conduct.” Id.



       5
         See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993) (“[T]he burden-of-
production determination necessarily precedes the credibility-assessment stage. The employer
need only articulate a lawful reason, regardless of what its persuasiveness may or may not
be.”) (internal quotation omitted).

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                                       No. 12-10730

       Plaintiffs allege that Evans yelled at Indian respiratory therapists when
he was dissatisfied by their performance yet never treated caucasian employees
rudely. Plaintiffs make no showing, however, that the newly-hired caucasian
therapists engaged in the same or similar conduct as did plaintiffs. See Little,
924 F.2d at 96–97.6 Most of plaintiffs’ arguments focus on the alleged falsity of
DRMC and HMA’s nondiscriminatory explanations, which are “unworthy of
credence if . . . not the real reason for the adverse employment action.” Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “Evidence demonstrating the
falsity of the defendant’s explanation, taken together with the prima facie case,
is likely to support an inference of discrimination even without further evidence
of defendant’s true motive.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
897 (5th Cir. 2002). But, “[m]erely casting doubt on the employer’s articulated
reason does not suffice to meet the plaintiff’s burden of demonstrating dis-
criminatory intent.” Bienkowski v. Am. Airlines, 851 F.2d 1503, 1508 n.6 (5th
Cir. 1988).
       Plaintiffs contend that DRMC and HMA’s proffer of departmental restruc-
turing as the nondiscriminatory reason is false, because (1) 2009 performance
appraisals were not conducted for terminated employees; (2) the department
restructuring was never implemented; (3) DRMC and HMA gave inconsistent
reasons for plaintiffs’ termination; and (4) DRMC and HMA committed multiple
violations of their own policies and procedures in (a) investigating A. Assaria-
thu’s discrimination complaint and (b) losing Evans’s interview notes. Though

       6
         Hiring patterns can constitute evidence of disparate treatment. Palsasota v. Haggar
Clothing Co., 342 F.3d 569, 575-77 (5th Cir. 2003). In Haggar, 95% of the terminated employ-
ees were males over age 40, and 95% of the employees hired in their place where females
under 40. Id. at 577. Here, 75% of the terminated therapists were of Indian origin, whereas
70% of the newly hired therapists were caucasian. Unlike the employer in Haggar, however,
DRMC does explain why it chose to terminate mostly Asian therapists as part of a plan to
“reconfigure” its respiratory department. See id. Plaintiffs’ allegation that their lower scores
on a test with facially neutral questions constitute a cloak for invidious discrimination thus
goes to falsity, not disparate treatment.

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                                   No. 12-10730

embedded within a racial discrimination claim, most of plaintiffs’ arguments
constitute nothing more than a criticism of DRMC and HMA’s subjective busi-
ness decision to terminate them.
      “[W]e do not view the discrimination laws as vehicles for judicial second-
guessing of business decisions.” Walton v. Bisco Indus., Inc., 119 F.3d 368, 372
(5th Cir. 1997). That DRMC and HMA’s choices were arguably wrong or poorly
executed does not change our analysis “so long as those decisions are not the
result of discrimination.” Jackson v. Watkins, 619 F.3d 463, 468 n.5 (5th Cir.
2010) (per curiam). Moreover, DRMC and HMA’s alleged “disregard of its own
hiring system does not of itself conclusively establish that improper discrimin-
ation occurred or that a nondiscriminatory explanation for an action is pretex-
tual.” EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1182 (5th Cir. 1996) (inter-
nal quotation omitted).
      With respect to plaintiffs’ argument that DRMC personnel’s allegedly
inconsistent reasons for their termination raise a fact issue under Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408 (5th Cir.2007), the plaintiffs
“ask[] too much of Burrell,” because DRMC’s “rationale has essentially remained
the same.” Nunley v. City of Waco, 440 F. App’x 275, 277-78 (5th Cir. 2011) (per
curiam). To make out a discrimination claim, plaintiffs “must establish some
nexus between the employment actions taken” and their race. Tex. Instruments,
100 F.3d at 1182 (internal quotation omitted). Because plaintiffs’ falsity argu-
ments rest only on a “bald assertion” that such a nexus exists, they cannot sur-
vive summary judgment. Id.


                                          2.
      Under the mixed-motive theory, a plaintiff can defeat summary judgment
by offering “sufficient evidence to create a genuine issue of material fact . . . that
the defendant’s reason, while true, is only one of the reasons for its conduct, and

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                                         No. 12-10730

another ‘motivating factor’ is the plaintiff's protected characteristic.” Rachid,
376 F.3d at 312. Plaintiffs point to statements made by Evans as evidence that
discriminatory animus was a motivating factor in DRMC’s decision to terminate.
       According to four of the plaintiffs, Evans expressed a desire to put a “new
face” on the department; no plaintiff, however, has presented evidence—beyond
a subjective belief7—that Evans meant a “non-Indian” or “white” face. Indeed,
when asked, Evans clarified his statement as referring to his desire to hire
“more respiratory, that’s all.” Joseph has claimed that, on two occasions, Evans
vowed to “get rid of these people,” meaning Joseph and another technician in one
incident and plaintiffs Shiny Abraham and D. Pillai in the other. On one of
those occasions, Evans allegedly referred to the objects of his ire as “lazy, lousy
people.”
       But there is no evidence–again, beyond some plaintiffs’ subjective belief
—that Evans meant “Indian people” rather than “employees with whom he was
dissatisfied.” Plaintiffs further allege that Evans was generally rude to Indian
employees. As noted above in our discussion of disparate treatment, there is no
summary judgment evidence that Evans differently treated Asian and caucasian
employees who engaged in similar conduct. See Vaughn, 665 F.3d at 637.
       One of the caucasian respiratory therapists, Rick Daniel, did make unam-
biguously discriminatory comments against Indians on numerous occasions to
multiple plaintiffs. The record shows that although Daniel was intimately
involved in the planned departmental restructuring, he had no role in the ante-
cedent termination decisions. When asked whether he “recall[ed] discussing
with Chris Evans regarding the terminations of the employees in the depart-
ment during the restructuring,” Daniel stated that “the only thing I really


       7
        See Kennerson v. Guidry, 135 F. App’x 639, 641 (5th Cir. 2005) (“[An] . . . employment
discrimination . . . plaintiff’s subjective belief an insufficient defense to a summary judgment
motion . . . .”); see also Elliot v. Grp. Med. & Surgical Serv., 714 F.2d 556, 564 (5th Cir. 1983).

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                                       No. 12-10730

remember is when [Evans] first mentioned [the departmental restructuring] to
me and we started talking about the list [of employees scheduled to be termin-
ated], there was one person on the list [Abraham] I tried to talk him out of, but
I wasn’t successful.” Thus, based on Daniel’s testimony, we agree with the dis-
trict court that plaintiffs have provided no evidence that he had any influence
on the decision to terminate plaintiffs.8


                                              IV.
       In addition to discrimination, Title VII prohibits retaliationSSan employer
may not “discriminate against any of his employees . . . because [the employee]
has opposed any practice made an unlawful employment practice by this sub-
chapter, or because he has made a charge . . . in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Plaintiffs contend that
DRMC and HMA retaliated against them by terminating their employment after
A. Assariathu had complained about Evans’s allegedly discriminatory practices
and other plaintiffs participated in Sewick’s subsequent investigation. “[T]he
familiar McDonnell Douglas burden-shifting framework applies in Title VII
retaliation cases.”9 “A plaintiff establishes a prima facie case of retaliation by
showing (i) he engaged in a protected activity, (ii) an adverse employment action
occurred, and (iii) there was a causal link between the protected activity and the
adverse employment action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644,
657 (5th Cir.), cert. denied, 133 S. Ct. 136 (2012). We agree with the district

       8
         See Sandstad, 309 F.3d at 899–900 (“[S]tatements constitute evidence of discrimina-
tion if they indicate [prohibited] animus and the speaker is principally responsible for the
plaintiff’s firing.”) (emphasis added); see also Jackson v. Cal-Western Packaging Corp., 602
F.3d 374, 380 (5th Cir. 2010) (“[C]omments are evidence of discrimination only if they are . . .
made by an individual with authority over the employment decision at issue . . . .”) (internal
quotation omitted).
       9
        Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001), abrogated on other grounds by
Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011).

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                                        No. 12-10730

court that the retaliation claims of Abraham, D. Pillai, Joseph, and Susan
Mathew fail at step one, because they concede that they did not engage in a pro-
tected activity. Because those plaintiffs do not challenge that portion of the dis-
trict court’s ruling, we consider their retaliation claims abandoned.10
       We next consider the plaintiffs who participated in the complaint and sub-
sequent investigation: A. Assariathu, Reena Assariathu, R. Pillai, and Thomas.
Assuming arguendo that those plaintiffs have made out a prima facie case,
DRMC and HMA have offered a legitimate, non-retaliatory reason for their ter-
mination, as discussed in part III.A above. The burden then shifts back to
plaintiffs.
       To defeat a motion for summary judgment, a plaintiff must demon-
       strate “a conflict in substantial evidence on [the] ultimate issue” of
       “but for” causation. Evidence is “substantial” if it is of such quality
       and weight that reasonable and fair-minded men in the exercise of
       impartial judgment might reach different conclusions.

Hernandez, 670 F.3d at 658.11 Because plaintiffs offer no proof that the alleged
retaliatory motive was a necessary cause of their termination, their retaliation



       10
         See Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 701 n.1 (5th Cir. 2004) (“As a
general matter, arguments raised in the district court but omitted from the appellate brief are
waived.”).
       11
          As the district court explained, this application of “but for” causation to the ultimate
issue at “step three” of the McDonnell Douglas framework was unaffected by Smith v. Xerox
Corp., 602 F.3d 320 (5th Cir. 2010), in which we held that a plaintiff may satisfy the “causal
link” prong of a prima facie case by showing that a protected activity was a “motivating” or
“substantial” factor. Nunley, 440 F. App’x at 280-81. See Long v. Eastfield Coll., 88 F.3d 300,
305 n.4 (5th Cir. 1996) (“At first glance, the ultimate issue in an unlawful retaliation caseSS
whether the defendant discriminated against the plaintiff because the plaintiff engaged in con-
duct protected by Title VIISSseems identical to the third element of the plaintiff’s prima facie
caseSSwhether a causal link exists between the adverse employment action and the protected
activity. However, the standards of proof applicable to these questions differ significantly. The
ultimate determination in an unlawful retaliation case is whether the conduct protected by
Title VII was a “but for” cause of the adverse employment decision . . . . The standard for
establishing the “causal link” element of the plaintiff’s prima facie case is much less strin-
gent.”) (internal citations omitted).

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                                       No. 12-10730
claims fail. See Nunley, 440 F. App’x at 280.
       The summary judgment is AFFIRMED.12




       12
         Because all of plaintiffs’ discrimination and retaliation claims against DRMC and
HMA fail as a matter of law, we join the district court in declining to address the additional
grounds for affirmance urged by HMA. Accord Palmer v. Waxahachie Indep. Sch. Dist., 579
F.3d 502, 506 (5th Cir. 2009) (“[I]t is an elementary proposition, and the supporting cases too
numerous to cite, that this court may affirm the district court’s judgment on any grounds sup-
ported by the record.”) (internal citation omitted).

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