     Case: 13-60206      Document: 00512465318         Page: 1    Date Filed: 12/09/2013




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

                                                                                 FILED
                                                                            December 9, 2013
                                      No. 13-60206                            Lyle W. Cayce
                                                                                   Clerk

JANICE BROWN,

                                                 Plaintiff-Appellant,
v.

MISSISSIPPI STATE SENATE,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-678


Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM: *
       Plaintiff Janice Brown (“Brown”) appeals from the dismissal on
summary judgment of her suit for racial discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).            For the reasons set forth
below, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
      Brown, who is black, began working for the Mississippi State Senate
(“Senate”) in 1995.   She worked in a number of positions for the Senate from
1995 to 2000, when she left the Senate for approximately one year to work for
the governor.   In 2001, she returned to the Senate to work in a few different
positions before transferring to the lieutenant governor’s office as a scheduler
in 2003.   In 2008, at the expiration of the lieutenant governor’s term, Brown
was transferred to the Senate in the position of Committee Assistant.    In that
capacity, she was assigned to assist four Mississippi state senators.
      During the legislative term beginning in 2008, the state-wide budget,
which includes the Senate budget, was reduced due to poor economic
conditions. This budget reduction prompted the Senate to make personnel
decisions through its Rules Committee.        The Committee was headed by
William Hewes, III, but the proposed personnel changes were put forward by
Tressa Guynes (“Guynes”), then Secretary of the Senate.       Guynes proposed
either furloughing the entire Senate staff for five to six days or implementing
a reduction in force (“RIF”).    When the Senate opted for the RIF, Guynes
recommended that the Senate either eliminate entirely or reduce the salary or
hours of ten Senate positions.   As the district court pointed out in its March
7, 2013 Opinion and Order:
            When determining which staff members to
            recommend for the RIF, Guynes considered factors
            including seniority in the currently held position, work
            performance,      the     impact      an     employee’s
            termination/reduction in hours would have on work
            flow, and greatest savings. . . .

            Relevant to the dispute presently before the Court,
            Brown had the second least seniority in the position of

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               Committee Assistant. According to Guynes, when
               evaluating Committee Assistants for the RIF, she
               received complaints regarding Brown’s performance
               from the Senators to whom she was assigned as well
               as from other staff members. Additionally, some of the
               Senators to whom Brown was assigned reported that
               they seldomly used her for assignments and/or relied
               on other Committee Assistants. Finally, the
               elimination of Brown’s position saved the Senate
               $64,000.00, which was several thousand dollars more
               than would have been saved if other Committee
               Assistants had been eliminated during the RIF. 1

       Considering these factors, Guynes recommended that Brown’s position
be eliminated during the RIF, and the Rules Committee unanimously
approved, resulting in Brown’s termination from the Senate. Brown timely
filed an EEOC Charge of Discrimination, alleging “that she had not been given
any reason for her discharge; that she had ‘excellent’ work performance; and
that less experienced white Committee Assistants, about whom complaints
had been made, had been retained.” 2 On August 10, 2011, the EEOC issued
a Determination in which it concluded, based on its investigation, that “it is
reasonable to believe that [Brown] was laid off because of her race in violation
of Title VII.”     Upon receiving a Right to Sue Notice and the Determination,
Brown filed this suit pursuant to Title VII of the Civil Rights Act of 1964,
codified at 42 U.S.C. § 2000e-2(a)(1), et seq.
       The Senate eventually moved for summary judgment under Fed. R. Civ.
P. 56 on Brown’s discrimination claim.           The district court, in a well-reasoned



1      See Brown v. Mississippi State Senate, No. 3:11-cv-678, Opinion and Order at 2-3 (S.D.
Miss. March 7, 2013) (footnote omitted) (hereinafter “Opinion and Order”).
2      Id. at 3.

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opinion, applied the modified McDonnell Douglas framework as applied by this
Court in Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004), and
numerous other cases.        The district court found that although Brown had
presented a prima facie case of wrongful termination, the Senate had
presented evidence to show a legitimate, non-discriminatory justification for
terminating Brown as part of the broader RIF for at least four different
reasons.    The district court further found that Brown had failed to present
evidence to show that these reasons were pretextual or that race was a
motivating factor.      Thus, the district court granted summary judgment in
favor of the Senate and dismissed Brown’s suit with prejudice.                     Brown
appeals.
                                            II.
       The district court possessed subject matter jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction over this timely appeal under 28 U.S.C.
§ 1291.
                                           III.
      We review the grant of summary judgment de novo, using the same
standards as the district court under Fed. R. Civ. P. 56. 3 Here, the issue is
whether Brown, who as plaintiff bears the ultimate burden of proof, produced
evidence to create a genuine issue of material fact and thus survive summary
judgment.      It is undisputed that Brown presented no direct evidence of
discrimination, only, at best, circumstantial evidence.            Thus, we apply the




3      See Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.
2007) (citing Jones v. Comm’r, 338 F.3d 463, 466 (5th Cir. 2003)).

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burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-805 (1973), and its progeny. 4
       “Under this three-part scheme, a plaintiff must first establish a prima
facie case of discrimination by showing: (1) he belongs to a protected group; (2)
he was qualified for the position sought; (3) he suffered an adverse employment
action; and (4) he was replaced by someone outside the protected class.” 5 If
the plaintiff succeeds in establishing a prima facie case, “the burden shifts to
the defendant to produce a legitimate, nondiscriminatory justification for its
actions.” 6    At this second stage, the defendant need only produce evidence
which, taken as true, would permit a finding that the defendant acted for a
nondiscriminatory reason. 7
       If the defendant meets this burden, the plaintiff is not entitled to an
inference of discrimination at the third stage. Instead, “the plaintiff must
then offer sufficient evidence to create a genuine issue of material fact that
either (1) the employer’s reason is a pretext or (2) that the employer’s reason,
while true, is only one of the reasons for its conduct, and another ‘motivating
factor’ is the plaintiff’s protected characteristic.” 8             Even if the plaintiff
presents such evidence, summary judgment against the plaintiff may still be
appropriate depending on a number of factors, including “the strength of the
plaintiff’s prima facie case, the probative value of the proof that the employer’s



4      See Price v. Federal Exp. Corp., 283 F.3d 715, 719-20 (5th Cir. 2002).
5      Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
6      Id. (citing McDonnell Douglas, 411 U.S. at 802).
7      Id. (citing Hicks, 509 U.S. at 509).
8      Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir. 2007)
(footnote omitted).

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explanation is false, and any other evidence that supports the employer’s case
and that properly may be considered,” if “no rational factfinder could conclude
that the action was discriminatory.” 9
                                           IV.
      Here, the district court correctly found that Brown succeeded in
establishing a prima facie case because she showed that she “is black and
therefore in a protected class; that she was qualified for the Committee
Assistant position she held; that she was terminated from that position; and
that a white Committee Assistant, Donna Ramsdale (‘Ramsdale’), was retained
during the RIF.” 10     Thus, Brown succeeded in raising the presumption of
discrimination, and the burden of production shifted to the Senate to produce
a “legitimate, nondiscriminatory justification for its actions.”
      At this second stage, the district court correctly found that the Senate
had produced evidence of such a justification because the Senate presented
ample evidence that Brown’s termination occurred as part of a broader RIF
necessitated by economically driven state-wide and Senate budget cuts. 11 The
Senate put forward at least four independent reasons for terminating Brown
during the RIF: First, the Senate showed that she was the least senior
employee in her position of Committee Assistant. 12                Second, the Senate
demonstrated that her termination “impacted the least amount on the
workplace” because deposition testimony showed, among other things, that she
did not have a heavy workload and was not used or was only seldom used by


9     Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
10    Opinion and Order at 8.
11    Id.
12    Id. at 10-12.

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some of the senators to whom she was assigned. 13                Third, the Senate
presented uncontroverted evidence that two of Brown’s assigned senators and
some of her co-workers had complained about her work performance. 14
Fourth and finally, the Senate presented uncontroverted evidence that Brown
was selected because her termination resulted in cost savings based on the fact
that she earned eight to ten thousand dollars more than that paid to the
retained employee, Ramsdale. 15
      At the third stage, the burden shifted back to Brown to “create a genuine
issue of material fact that either (1) the employer’s reason is a pretext or (2)
that the employer’s reason, while true, is only one of the reasons for its conduct,
and another ‘motivating factor’ is the plaintiff’s protected characteristic.” 16
The district court explained in detail how Brown failed to do so for each the
Senate’s proffered reasons.       At the district court as well as on appeal, Brown
has argued that the Senate changed its rationale for terminating her or failed
to present evidence to support its decisions, but she has failed to create a
genuine issue of material fact by presenting evidence to support her
arguments.
      For example, with respect to the calculation of seniority, Brown argues
at length that the Senate wrongly calculated seniority based on time in a
particular position rather than overall time of service at the Senate. As the
district court already pointed out, however, Brown presented no evidence that
the Senate was bound to calculate seniority in any particular manner, nor did


13    Id. at 12-14.
14    Id. at 14-17.
15    Id. at 17-18.
16    Burrell, 482 F.3d at 412 (footnote omitted).

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Brown present any evidence that the Senate calculated seniority differently for
any other employee. 17 Thus, Brown has failed to prove any factual basis for
those allegations.
      Similarly, Brown asserts that Guynes, apparently the Senate’s primary
decision-maker for the termination decision, changed her explanation
regarding the calculation of seniority from the time of the EEOC investigation
to the time of discovery in this suit, but the record does not support Brown’s
rather strongly worded accusations. Guynes’s May 17, 2010 Memorandum to
Brown’s file regarding her termination due to the RIF clearly ties the
calculation of Brown’s seniority to her position as committee assistant, 18 and
our review of the summary judgment evidence reveals that Guynes’s deposition
testimony is consistent with the Memorandum. There is nothing in the record
to suggest that Guynes “changed her story” during discovery once she “realized
she had been caught in a lie,” as Brown asserts.               Brown’s unsupported
allegations fail to create a genuine issue of material fact concerning the
calculation of seniority for purposes of the RIF decision-making process.
      Most of Brown’s arguments on appeal must fail for similar reasons.
Brown repeatedly claims that certain witnesses are obviously lying or have
changed their testimony without presenting any evidence to justify those
accusations. Moreover, Brown primarily points to the testimony of witnesses
who did not have problems with her job performance. That is a red herring.
The true issue is whether some employees did have problems with her



17    Opinion and Order at 11.
18     The second paragraph of the Memorandum begins, “The least seniority for C/As (last
2 hired) is Janice Brown and Donna Ramsdell . . . ,” then proceeds to discuss how Brown’s
seniority in the Committee Assistant position was calculated.

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performance to support the Senate’s stated reason. The Senate submitted
ample deposition testimony concerning Brown’s poor job performance, and
Brown failed to contradict that testimony in any way.
      Finally, Brown continues to argue that the district court failed to
sufficiently consider the EEOC’s August 10, 2011 determination letter, which
stated, in part, that interviews with her “assigned Senators and co-workers
who allegedly complained did not corroborate [the Senate’s] articulated
reasons for its action.” Brown’s reliance on the EEOC letter as evidence is
misplaced.     As we have long made clear, “the EEOC’s findings of racial
discrimination are not dispositive in later racial discrimination suits.” 19
      That is especially true here given the facial deficiencies with the EEOC
letter in light of the testimony given during discovery. As the district court
noted, the EEOC letter did not disclose who had been interviewed during the
EEOC investigation. It is undisputed that some of Brown’s assigned senators
and some of her co-workers had no problems with her performance, just as it
is undisputed that some of them did.            Although the EEOC letter does not
corroborate the testimony of that latter group, it also does not constitute
independent evidence which would controvert it. Brown was required to come
forward with evidence to controvert the affirmative testimony of those
witnesses, and she failed to do so. 20
      In short, Brown has not presented sufficient evidence to refute any of the
Senate’s proffered reasons for making the decision to terminate her during the
RIF, so she has failed to show that the stated reasons were merely pretextual.


19    Price, 283 F.3d at 725.
20     Brown’s other arguments were correctly addressed by the district court and will not
be discussed again here.

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Moreover, Brown has not presented any evidence that racial discrimination
was even a “motivating factor” behind her termination.     On these facts, no
rational factfinder could find racial discrimination.     The district court
therefore properly granted summary judgment in the Senate’s favor.
                                    V.
     Accordingly, we affirm.




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