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

                                                                            FILED
                                                                         January 23, 2008

                                       No. 07-60041                   Charles R. Fulbruge III
                                                                              Clerk

KHALED RIKABI, M.D.

                                                  Plaintiff-Appellant
v.

JIM NICHOLSON, Secretary, Department of Veterans Affairs

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:05-CV-102


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       The sole issue in this employment retaliation case is whether the plaintiff
has set forth sufficient evidence of pretext to withstand a motion for summary
judgment. Because there is sufficient evidence to create a genuine issue of
material fact whether the employer’s proffered explanation for the adverse
employment action was a pretext for retaliation, we reverse and remand this
matter to the district court for proceedings consistent with this opinion.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-60041

                              I. BACKGROUND
      Khaled Rikabi, M.D., is a Muslim of Lebanese origin, a naturalized citizen
of the United States, and an experienced physician specializing in infectious
diseases. On August 18, 1996, he began working as a staff physician for the
Department of Veterans Affairs at the Biloxi VA Medical Center (the “Center”).
In June 1997, his role was expanded to provide medical care to injured
employees at the Center’s Occupational Health Service. In January 2000, his
role was again expanded to include case management, essentially granting him
the full complement of duties and responsibilities of the Occupational Health
Director. Dr. Gregg Parker, Chief of Staff of the Center, supervised Dr. Rikabi’s
work as a physician. Gary Butterfield, Human Relations Manager, supervised
his work as Occupational Health Director.
      Following the September 11, 2001 attacks, Dr. Rikabi began noticing signs
of anti-Muslim sentiment at the Center. Specifically, he alleges that Dr. Parker
openly referred to Muslims as a threat to the United States. He also alleges that
Butterfield’s wife, who worked as a secretary at the Center, informed him that
she and her husband dislike Muslims and how Muslims live.
      On January 3, 2003, Dr. Parker and Butterfield informed Dr. Rikabi that
they were reorganizing the Occupational Health Service and that they might
“phase out” his position. On January 18, 2003, Dr. Rikabi made a presentation
demonstrating the significant savings that would be lost without an occupational
health physician on site.     Nonetheless, on March 17, 2003, Butterfield
terminated Dr. Rikabi, effective March 27, 2003, explaining that his services
were no longer needed. Although Dr. Rikabi pursued a private practice, he
continued to provide infectious disease consultations at the Center on an
intermittent basis at the request of Dr. Kenneth C. Roberts, Chief of Medicine
at the Center. Dr. Rikabi continues to retain his privileges at the Center.



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      In June 2003, Dr. Rikabi learned that the Center had issued a recruiting
announcement for an occupational health physician - the very position from
which he was terminated. On June 17, 2003, he made a verbal EEO complaint
with the Center’s EEO Manager, Pat Griffin, alleging that Dr. Parker
discriminated against him on the bases of religion and national origin. Almost
immediately, the number of calls requesting his consultation services at the
Center dropped significantly. In fact, almost three hours after making his EEO
complaint, Dr. Parker announced that any patient needing an infectious disease
consult should not be seen by Dr. Rikabi, but should instead be transported to
Pascagoula, Mississippi.    During the next few months, the Center began
reviewing any physician who called Dr. Rikabi for an infectious disease
consultation, intermittently terminated his computer access, and during one
consult, Butterfield said to him, “You’re not supposed to be here. Why are you
here?”
      On February 24, 2005, Dr. Rikabi filed suit in federal court alleging
wrongful termination, hostile work environment, and retaliation claims. The
district court granted summary judgment in favor of the defendant on the
wrongful termination and hostile work environment claims on the ground that
they were untimely.     It also granted summary judgment in favor of the
defendant on the retaliation claim on the ground that Dr. Rikabi failed to
establish pretext. Dr. Rikabi filed this timely notice of appeal.
                        II. STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary
judgment only if “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.

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P. 56(c). On a motion for summary judgment, the court must view the facts in
the light most favorable to the non-moving party and draw all reasonable
inferences in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317,
325 (5th Cir. 2004). In reviewing the evidence, the court must therefore “refrain
from making credibility determinations or weighing the evidence.” Turner, 476
F.3d at 343.
                                 III. ANALYSIS
      To establish a claim for retaliation under Title VII, a plaintiff must
demonstrate that: (1) he engaged in protected activity; (2) he suffered an
adverse employment action; and (3) a causal connection exists between the
protected activity and the adverse employment action. See Fabela v. Socorro
Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003).          Once the plaintiff
establishes a prima facie case for retaliation, the burden of production shifts to
the defendant to provide a legitimate non-retaliatory purpose for the adverse
employment action.      Pineda v. UPS, 360 F.3d 483, 487 (5th Cir. 2004).
Assuming the defendant meets this burden, “the employee’s ultimate burden is
to prove that the employer’s stated reason for the adverse action was merely a
pretext for the real, retaliatory purpose.” Septimus v. Univ. of Houston, 399 F.3d
601, 608 (5th Cir. 2005). “To satisfy this burden, the plaintiff must offer ‘some
evidence . . . that permits the jury to infer that the proffered explanation was a
pretext for [retaliation]. The trier of fact may not simply choose to disbelieve the
employer’s explanation in the absence of any evidence showing why it should do
so.’” Pineda, 360 F.3d at 487 (quoting Swanson v. GSA, 110 F.3d 1180, 1185 (5th
Cir. 1997). “[T]he combination of suspicious timing with other significant
evidence of pretext, can be sufficient to survive summary judgment.”
Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999).
      Here, it is undisputed that Dr. Rikabi set forth a prima facie case of
retaliation: (1) he engaged in protected activity; (2) he experienced a significant

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and sudden drop in his workload at the Center; and (3) this action occurred
almost immediately following his protected activity.                 Thus, the burden of
production shifts to the defendant to provide a non-retaliatory explanation for
the adverse employment action and if the defendant meets this burden, the
ultimate burden of persuasion shifts to the plaintiff to provide some evidence of
pretext. Pineda, 360 F.3d at 487.
       At the June 17, 2003 meeting -- a mere three hours after Dr. Rikabi made
his verbal EEO complaint at the Center -- Dr. Parker instructed his staff to stop
using Dr. Rikabi’s services, explaining that Dr. Rikabi had an onsite altercation
and had to be escorted off campus by security.1 In response to Dr. Parker’s
instruction, Dr. Roberts investigated the alleged incident and confirmed that in
March 2003, Dr. Rikabi and his wife had an altercation at the Center and had
to be escorted off campus by security. We initially agree that a reasonable jury
could find the timing of this explanation suspicious given that Dr. Parker used
an incident that occurred three months prior as a justification for his instruction
to stop using Dr. Rikabi’s services. Moreover, at his deposition, Dr. Parker gave
a different justification, explaining that he was actually concerned that Dr.
Rikabi was providing substandard patient care.2 Not only could a reasonable
jury find this subsequent explanation suspicious given that it was not the
explanation provided at the June 17, 2003 meeting, but just ten months prior,
Dr. Parker gave Dr. Rikabi an overall performance rating of “outstanding.”3 In
fact, there is nothing in the record, other than Dr. Parker’s blanket assertion,


       1
           Dr. Parker denies having had knowledge of the EEO complaint at this time.
       2
         Notwithstanding his “concerns,” Dr. Parker still informed his staff that if Dr. Ekenna
or the infectious disease specialist at the Keesler Air Force Base was unavailable, “Dr. Rikabi
was fine.”
       3
          Specifically, Dr. Parker gave Dr. Rikabi a rating of “outstanding” for “clinical
competence,” “education competence,” and “research and development,” and a rating of “highly
satisfactory” for “administrative competence” and “personal qualities.”

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indicating that Dr. Rikabi provided substandard patient care. Incidentally, Dr.
Parker is no longer the Center’s chief of staff and the new chief of medicine has
since inquired about using Dr. Rikabi’s services again because the current
consultation service is highly substandard.          That the Center is now
contemplating the use of Dr. Rikabi’s services again lends doubt to Dr. Parker’s
explanation that Dr. Rikabi provided substandard care. A reasonable jury could
further question the sincerity of Dr. Parker’s varying explanations given that
other physicians at the Center were troubled by his instruction to send patients
to Pascagoula, Mississippi when Dr. Rikabi was offering onsite consultations.
In fact, when asked about the true motive behind Dr. Parker’s instruction, Dr.
Lactancio Fernandes testified at his deposition that “the rumor around the
hospital was that it was because [Dr. Rikabi] had filed an EEO complaint.”
      Given (1) the timing of Dr. Parker’s instruction; (2) the rumor that he was
angry about the EEO complaint; (3) the varying explanations for his instruction;
(4) the fact that his instruction raised concerns about patient care; (5) Dr.
Rikabi’s outstanding performance evaluations; and (6) the fact that the Center
is once again seeking Dr. Rikabi’s services, we conclude that evidence of pretext
sufficient to create a genuine issue of material fact exists. See Shackelford, 190
F.3d at 409 (“[T]he combination of suspicious timing with other significant
evidence of pretext, can be sufficient to survive summary judgment.”).
                              IV. CONCLUSION
      For the foregoing reasons, we reverse the judgment of the district court
and remand this matter for proceedings consistent with his opinion.
      REVERSED AND REMANDED.




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