                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 5, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60413
                         Summary Calendar



JAMES HARVEY, JR.,

                                     Plaintiff-Appellant,

versus


RICHARD STRINGER, in His Official Capacity as Sheriff of Marion
County, Mississippi,

                                     Defendant-Appellee.

                       --------------------
           Appeal from the United States District Court
             for the Southern District of Mississippi
                        USDC No. 02-CV-121
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant, James Harvey, Jr. (“Harvey”), appeals

the district court’s grant of Defendant-Appellee’s motion for

summary judgment on Harvey’s 42 U.S.C. § 2000e-5 retaliation

claim.   Harvey claims that he was terminated by Sheriff Stringer

(“Stringer”) in retaliation for his filing of an EEOC charge



     *
          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that this opinion should not be published and is not precedent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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against Stringer.1   Because we agree with the district court that

Appellant has raised no genuine issue of material fact, we

affirm.

     We review a district court’s grant of summary judgment de

novo.    Price v. Fed. Express Corp., 283 F.3d 715, 719 (5th Cir.

2002).    Summary judgment is appropriate if the evidence, viewed

in the light most favorable to the non-movant, shows that there

are no genuine issues of material fact and that the moving party

is entitled to judgment as a matter of law.   FED. R. CIV. P.

56(c); Price, 283 F.3d at 719.

     In order for a plaintiff-employee to prove a prima facie

case of retaliation, he must show: (1) that the employee engaged

in activity protected by Title VII; (2) the employer took adverse

employment action against the employee; and (3) a causal

connection exists between the protected activity and the adverse

employment action.    Haynes v. Pennzoil Company, 207 F.3d 296, 299

(5th Cir. 2000).

     Harvey and Stringer agree that Harvey satisfied the first

two elements of a prima facie case.   Harvey engaged in an

activity protected by Title VII when he filed his EEOC charge in

January 2001.   Sheriff Stringer took adverse employment action


     1
     Harvey worked as deputy warden at the Marion Walthall
Correctional Facility in Marion County, Mississippi. Sheriff
Stringer, the sheriff of Marion County, is responsible for the
management and control of the facility. Harvey worked as deputy
warden from February 2000 until October 2001.

                                  2
against Harvey when he terminated Harvey in October 2001.

     The district court found that Harvey did not prove the third

element of a prima facie case for retaliation.   Harvey asserts

that he presented sufficient evidence for a reasonable jury to

find that there was a causal connection.   Having reviewed the

record and the briefs on appeal, we find that Harvey has not

presented sufficient evidence to raise a genuine issue of

material fact on causation.

     Harvey did not present any probative evidence to demonstrate

a causal connection between his filing of an EEOC complaint and

his termination.   He submitted four largely irrelevant and/or

inadmissible affidavits to support his contention.   These

affidavits fail to establish a fact issue with respect to

causation.   A reasonable factfinder could not infer causation

from Harvey’s evidence.   Harvey also relies on the close timing

between the filing of his EEOC charge and his termination.   This

Court has recognized that close timing between an employee’s

protected activity and an adverse action against him may provide

the causal connection required to make out a prima facie case.

Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.

1997).   However, a period of 10 months elapsed between Harvey’s

EEOC charge in January 2001 and his termination in October 2001.

This Court has never held that a 10-month time lapse, on its own,

is sufficient to satisfy the causal connection for summary


                                 3
judgment purposes.   See, e.g., Evans v. City of Houston, 246 F.3d

344, 354 (5th Cir. 2001)(“We note that a time lapse of up to four

months has been found sufficient to satisfy the causal connection

for summary judgment purposes.”)(internal quotation and citation

omitted).

     Even if, however, we were to find that Harvey established a

prima facie case of retaliation, Stringer has presented

uncontroverted evidence demonstrating that he had legitimate,

nondiscriminatory reasons for Harvey’s termination.   In a Title

VII retaliation claim, “[a]ssuming the plaintiff is able to

establish his prima facie case, the burden then shifts to the

defendant to demonstrate a legitimate nondiscriminatory purpose

for the employment action.   If the defendant makes the required

showing, the burden returns to the plaintiff to demonstrate that

the employer’s articulated reason for the employment action was a

pretext for the real, discriminatory reason.”   Aldrup v. Caldera,

274 F.3d 282, 286 (5th Cir. 2001).

     Stringer presented evidence of multiple, legitimate reasons

for Harvey’s termination, including the use of inmate labor on

personal property; permitting illegal activities of certain

inmates; permitting physical abuse of prisoners; and failure to

follow proper procedure with regard to narcotics seized from

prisoners.   Such evidence satisfies Stringer’s burden of

articulating a legitimate, nondiscriminatory reason for


                                 4
terminating Harvey’s employment.

     Harvey, in response, has failed to even attempt to provide

evidence to counter most of Stringer’s proffered reasons for his

termination of Harvey.   Accordingly, even if we were to find that

Harvey established a prima facie case of retaliation, we would

find that Harvey did not present sufficient evidence to create a

fact issue regarding the falsity of the reasons provided by

Stringer.

     For the foregoing reasons, the opinion of the district court

is in all ways AFFIRMED.




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