     Case: 12-30788       Document: 00512286371         Page: 1     Date Filed: 06/25/2013




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

                                                                            FILED
                                                                           June 25, 2013

                                    No. 12-30788                           Lyle W. Cayce
                                  Summary Calendar                              Clerk



JOSEPH CEDRIC SHELTON,

                                                  Plaintiff–Appellant
v.

BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND AGRICULTURAL
AND MECHANICAL COLLEGE; KASSIE FREEMAN; TONY CLAYTON; PATRICK
MAGEE; ERNIE HUGHES; SOUTHERN UNIVERSITY SYSTEM FOUNDATION,

                                                  Defendants–Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USCD No. 3:09-CV-968


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant,          Joseph       Shelton,        filed    suit     against
Defendants–Appellees for claims stemming from his termination. His suit
alleged several claims against each Defendant, many of which were disposed of
through summary judgment motions. Ultimately, the only claims remaining
were for Title VII retaliation, § 1983 retaliation, and a Louisiana state law claim


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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for abuse of rights. At the trial below, after Shelton rested his case, the district
judge granted the Defendants’ motion for judgment as a matter of law pursuant
to Rule 50 of the Federal Rules of Civil Procedure. Proceeding pro se, Shelton
timely appealed the district court’s grant of the motion. We AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      Shelton started working for Southern University and Agriculture and
Mechanical College (“the University”) in 2005 in the Office of Admissions as an
assistant to the director of recruiting. All of his positions with the University
were non-tenured, at-will employment positions. In 2007, Shelton testified in
a case filed by the then-University President, Dr. Slaughter, against Southern
University and others, regarding complaints of sexual harassment lodged by
female employees (the “Slaughter litigation”). In March 2009, Slaughter was
terminated from his position as President.
      In July 2009, Kassie Freeman (“Freeman”) was named interim-President
by the Board of Supervisors of the University (the “Board”). Within thirty days
of her succession, she presented a reorganization plan to address budget
concerns. When she first presented the plan to the Board, they voted to table it
until the next meeting. After the next Board meeting, Tony Clayton (“Clayton”),
the Board Chairman, directed several Board members to meet with Freeman’s
staff to see if job eliminations could be reduced. Ultimately, as payroll was a
large percentage of the University’s budget, the Board determined that layoffs
had to be made. Almost a month after being presented the reorganization plan,
the Board voted to approve it. As part of that plan, Shelton was provided a
thirty-day notice of termination, pursuant to the Board-approved plan.
B.    Procedural History
      Shelton filed suit on November 10, 2009, against the Board; Freeman;
Clayton; Patrick Magee, a member of the Board (“Magee”); Southern University

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System Foundation (the “Foundation”); and Ernie Hughes, Foundation interim-
Director (“Hughes”), claiming that he was terminated in retaliation for his role
in the separate Slaughter litigation against the University.
       a. Pre-Trial Dismissals
           From June 2011 to January 2012, the district court ruled on several
dismissal motions and motions for summary judgment. Because Shelton appeals
only the district court’s ruling on the Rule 50 motion, the parties who obtained
dismissals apart from it are not proper parties to this appeal. This includes the
Foundation and Hughes. All claims against the Foundation were dismissed by
January 2012, seven months before trial. All claims against Hughes were
dismissed based on a motion separate from the Rule 50 judgment before us now.
       b. Foundation Dismissed Before Trial
       The Foundation is not a proper party to the appeal. Shelton brought seven
claims against the Foundation.1 On September 9, 2011, the district granted the
Foundation summary judgment on five of Shelton’s claims against the
Foundation,2 and dismissed with prejudice Shelton’s retaliation conspiracy claim
against the Foundation, leaving only the defamation claim pending against the
Foundation. On January 10, 2012, the district court granted the Foundation’s
motion to dismiss with prejudice the defamation claim after a Louisiana state
court issued a final judgment dismissing Shelton’s identical defamation claim.
The district court specifically stated that “[b]ecause no claims remain against the
Foundation, it is excused from trial in this matter.”

       1
        The claims against the Foundation were as follows: (1) a Title VII retaliation claim
under 42 U.S.C. § 2000e; (2) a retaliation claim under 42 U.S.C. § 1983; (3) a Louisiana
statutory claim under the whistleblower statute, La. Rev. Stat. Ann. § 23:967; (4) a retaliation
conspiracy claim under 42 U.S.C. § 1985; (5) a defamation claim; (6) an intentional infliction
of emotional distress claim; and (7) an abuse of rights claim under Louisiana state law.
       2
         The court granted summary judgment on the following claims: the Title VII retaliation
claim, § 1983 retaliation, state law whistleblower claim, abuse of rights, and intentional
infliction of emotional distress.

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       Admittedly, the language of the district court’s post-trial judgment is over-
inclusive, broadly dismissing Shelton’s claims as to all defendants, including the
Foundation. But by the time of trial the Foundation had already been dismissed
from the action. Thus, the Foundation is not a party to Shelton’s appeal.
       c. Hughes Dismissed On Res Judicata Grounds
       Hughes is also not a proper party to the appeal. Shelton brought five
claims against Hughes.3 The district court dismissed all claims against Hughes,
other than the defamation claim, in its September 9, 2011 order. Shelton does
not appeal those dismissals.
       Thus, by the time of trial, the only claim pending against Hughes was the
defamation claim. But at trial, Shelton did not present evidence of defamation
or even mention the claim. The district court’s grant of the Rule 50 motion to
dismiss those claims did not relate to Hughes. Instead, the trial court, after
discussing its reasons for granting the Rule 50 motion, also stated it would grant
Hughes’ motion to dismiss, which was based on res judicata. The trial court
signed two separate orders consistent with its announced reasoning.
       The dismissal of the defamation claim against Hughes is unrelated to the
Rule 50 dismissal that Shelton appeals. Shelton does not appeal the granting
of the motion to dismiss the defamation claim, as his briefing is devoid of
discussion on the defamation claim. See Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (“An appellant abandons all issues not raised and argued in its
initial brief on appeal.” (citations omitted)). Hughes is not a proper party to this
appeal.4


       3
         Shelton brought claims for (1) retaliation under 42 U.S.C. § 1983; (2) retaliation
conspiracy under 42 U.S.C. § 1985; (3) defamation; (4) intentional infliction of emotional
distress; and (5) abuse of rights under Louisiana law.
       4
         Even if the Foundation and Hughes were proper parties to the appeal, our affirmance
of the district court’s grant of judgment as a matter of law, discussed below, would dispose of
the claims against them as well.

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      d. Judgment as a Matter of Law Granted As to Board, Freeman,
      and Clayton

      Ultimately, by the time of trial, the only claims still pending were as
follows: a Title VII retaliation claim and Louisiana state claim for abuse of rights
against the Board; a § 1983 retaliation claim and Louisiana state claim for abuse
of rights against Freeman and Clayton.5
      After Shelton rested three days into a jury trial, the Defendants moved for
judgment as a matter of law under Rule 50 on the basis that Shelton had not
presented any evidence that would allow a reasonable juror to find that his
termination was a result of improper retaliation on the basis of his protected
activity. After oral argument, during which Shelton was permitted a break to
review the evidence, the district court granted the motion.
      As to the § 1983 retaliation claim, the district court stated that Shelton’s
witnesses did not present evidence sufficient to go to a jury because there was
no evidence presented that either Freeman or Clayton had any role in Shelton’s
termination. As to the Title VII claim, similarly, the district court held that
Shelton presented no evidence that his role in the Slaughter litigation was a
substantial or motivating factor in the Defendants’ decision to terminate
Shelton’s position. Finally, as to the abuse of rights claim under Louisiana law,
the district court found that there was no evidence that the Defendants’ motives
were to harm Shelton or that his termination otherwise violated “moral rules”
or “fundamental fairness.”
                                 II. JURISDICTION
      Shelton seeks review of a final judgment of the district court. Therefore,
this Court has jurisdiction pursuant to 28 U.S.C. § 1291.



      5
       The defamation claim against Hughes, discussed above, was also pending, but is not
appealed.

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                          III. STANDARD OF REVIEW
      This Court reviews de novo a grant of a motion for judgment as a matter
of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (citation omitted).
Judgment as a matter of law is proper where there is no legally sufficient
evidentiary basis for a reasonable jury to find for the non-moving party. Id.
(quoting Fed. R. Civ. P. 50(a)). This Court must draw all reasonable inferences
in favor of the non-moving party. Lytle v. Household Mfg., Inc., 494 U.S. 545,
554–55 (1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
More specifically, this Court should give credence to the evidence favoring the
non-moving party and any uncontradicted or unimpeached evidence supporting
the moving party, to the extent such evidence comes from disinterested
witnesses. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
                                IV. DISCUSSION
      The issue before this Court is whether the district judge erred in granting
judgment as a matter of law in favor of the Defendants with respect to Shelton’s
claims of Title VII retaliation, retaliation under § 1983, and abuse of rights
under Louisiana law. We agree with the district court. Based on the evidence
presented at trial, there is no legally sufficient evidentiary basis for a reasonable
jury to find in favor of Shelton.
      There are three elements to a prima facie case of retaliation under Title
VII: (1) that the plaintiff engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link existed between
the protected activity and the adverse action. See Evans v. City of Hous., 246
F.3d 344, 352 (5th Cir. 2001). Here, the only element at issue is whether Shelton
established the necessary causal link.
      Similar to Title VII, under a § 1983 retaliation claim, the plaintiff has the
burden of proving that (1) the plaintiff suffered an adverse employment decision;

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(2) the plaintiff’s speech involved a matter of public concern; (3) the plaintiff’s
interest in commenting on matters of public concern outweighs the defendant’s
right in promoting efficiency; and (4) the plaintiff’s speech motivated the adverse
employment action. Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th
Cir. 2001) (citation omitted). The only element at issue is the last.
      Finally, under a Louisiana tort claim for abuse of rights, the plaintiff must
prove one of the following: (1) the predominant motive for the defendant’s
exercise of a right is to cause harm; (2) that there is no legitimate motive for the
exercise of the defendant’s right; (3) exercising the right violates moral rules,
good faith, or elementary fairness; or (4) the exercise of the right is for a purpose
other than that for which it was granted. Steier v. Heller, 732 So. 2d 787, 791
(La. Ct. App. 1999) (citations omitted).
      On appeal, Shelton raises three specific issues, none of which merits
reversal. First, he argues that the district court should not have granted the
Defendants’ Rule 50 motion without giving him further opportunity to cure the
deficiencies with his case. Specifically, he claims he did not get to fully examine
Lawson, another Board member, and did not get to review trial transcripts.
However, when asked by the district court, Shelton was unable to identify for the
court how Lawson’s testimony would help him oppose the Rule 50 motion. In
fact, Lawson was not even present at the Board meeting during which the
reorganization plan was approved. Even in his briefs before this Court, Shelton
does not identify anything specific that Lawson would have provided, instead
stating only that “nothing is really certain in litigation.” He has not provided
this Court or the district court with any indication of how specifically the
additional witness would cure the deficiency. Further, two Board members
testified that their votes were not influenced by the litigation. Thus, the district
court did not err in ruling on the Rule 50 motion after Shelton rested his case-in-
chief, notwithstanding Shelton’s indication that he would cross-examine—or

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even call as a witness—another Board member. Shelton does not explain his
alleged error in reduced time at trial; we note the district court granted his
request for a break to review evidence.
       Second, Shelton argues that because trial had already commenced, any
qualified immunity defense raised by Defendants “was waived once suit had
gone to trial.” Shelton’s support for this novel argument is the Supreme Court’s
statement that because qualified immunity is “an immunity from suit rather
than a mere defense to liability . . . it is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
       Leaving aside that this argument is incorrect, Shelton’s qualified
immunity argument is moot. The district court did not base its holding on any
qualified immunity claims made by Defendants. Instead, it held that Shelton
failed to establish a causal link between his protected action and his
termination. “There is no evidence that would allow this case to go to the jury
that the plaintiff’s exercise of his First Amendment rights in the Slaughter case
was the—was a substantial or a motivating factor [in Shelton’s termination].”
The district court dismissed the abuse of rights claim and the Title VII claim on
similar grounds. Finally, Shelton argues that, contrary to the district court’s
finding, there was ample evidence of a causal connection between his protected
conduct and his adverse employment action. He states, mainly relying on a
District of Connecticut opinion, that the issue of whether he established a causal
connection was for the jury due to the “copious” evidence he provided.6


       6
         Shelton cites a recent Fifth Circuit case as stating that “[w]here there is close timing
between an employee’s protected activity and an adverse employment action, retaliatory
animus is established.” Appellant’s Br. at 27 (purporting to cite Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398 (5th Cir. 1999)). However, that sentence does not appear in
Shackelford.
        In fact, Shelton’s citation misrepresents what Shackelford states, which is: “where
there is a close timing between an employee’s protected activity and an adverse employment
action, the employer must offer ‘a legitimate, nondiscriminatory reason that explains both the

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       Far from being “copious,” the evidence is in fact scant.                  The three
witnesses with decision-making authority that Shelton called testified that the
reductions were motivated by budget concerns. One of the Board members
Shelton called testified that there was no mention of the Slaughter litigation
during the discussions about the reorganization plan. Slaughter, the outgoing
President, told interim-President Freeman that she would have to make
reductions in personnel to comply with budget reductions. Shelton offers no
legally sufficient evidence to discredit or rebut the Defendants’ argument that
he was terminated in response only to budget issues.
       Shelton’s trial testimony further demonstrated the lack of evidence
establishing a causal connection. There was a two-year lapse between his
participation in the Slaughter litigation and the Board’s reorganization leading
to his termination. Moreover, between the two incidents, the Board approved a
raise for Shelton. These facts undermine any allegation of a causal connection
between his testimony and his termination. See, e.g., Raggs v. Miss. Power &
Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (holding a several-year lapse and
intervening positive evaluation undermined causal connection).                      Finally,
interim-President Freeman gave Shelton an opportunity, as she did many
employees, to share his vision for his role in her administration. He did not take
advantage of the opportunity. He “pledged his loyalty” to her, but when asked
about what he did for the University, walked out of her office.
       Ultimately, no reasonable jury could conclude that retaliation was the
reason for Shelton’s termination.



adverse action and the timing.’” Shackelford, 190 F.3d at 408 (quoting Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). Had a licensed attorney so blatantly
misrepresented a case, he or she would likely be subject to sanctions. It seems that Shelton
“borrowed” the language verbatim from another brief in a related matter. See Br. of
Plaintiff–Appellant at *31, Slaughter v. Atkins, 396 F. App’x 984 (5th Cir. 2010). Even though
Shelton is pro se, he has an obligation to not mislead the court.

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                               V. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
judgment as a matter of law.




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