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

                                                 FILED
                                                                           August 27, 2009

                                       No. 08-31023                    Charles R. Fulbruge III
                                                                               Clerk

JOSEPH B PREJEAN,

                                                   Plaintiff - Appellant
v.

RADIOLOGY ASSOCIATES OF SOUTHWEST LOUISIANA INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 2:06-CV-1709


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff–appellant Dr. Joseph Prejean, who is African–American, resigned
from his position as a shareholder–director of Radiology Associates of Southwest
Louisiana, Inc. in the fall of 2002. His resignation occurred in the aftermath of
a threat by two other physicians to leave the group if Prejean was not removed,
although no formal vote was ever held on removing Prejean. Prejean argues his
departure from the group was a constructive discharge resulting from race
discrimination. Prejean brought suit, alleging state law claims as well as a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
claim under 42 U.S.C. § 1981. The district court granted Radiology Associates’
motion for summary judgment, holding that Prejean failed to raise a genuine
issue of material fact rebutting Radiology Associates’ legitimate, race-neutral
explanations for the alleged discharge. For the following reasons, we affirm.
            I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
      In 1993, African–American radiologist Dr. Joseph Prejean joined
Diagnostic Radiology Associates, and he became a part owner one year later,
with an equal right to ownership, reimbursement, and management input. In
1998, the group merged with another radiology group and became Radiology
Associates of Southwest Louisiana, Inc. (“RASL”). At that point, nine doctors
shared ownership of RASL, with Dr. Gene Lampson acting as the group’s
president. Under the employment contract that each of the nine physicians
signed, removal required a two-thirds vote by all the owners. Prejean was the
only African–American shareholder of RASL.
      After the merger in 1998, interpersonal struggles developed within RASL
over such topics as scheduling and a proposed outsourcing of MRI readings. In
early September 2002, two Caucasian shareholders, Dr. Charles Brdlik and Dr.
Donald Thomas, informed Lampson that they were planning to leave the group.
Lampson asked if he could do anything to make them stay, and they replied that
they would be willing to stay if Prejean and Dr. Bruce Knox (a Caucasian
physician) would leave. Lampson took an informal poll of the shareholders and
told Prejean that it appeared two-thirds of the physicians would likely vote to
remove him. He also indicated to Prejean that the only way to avoid a formal
vote was to resign, but that the results of a vote were not yet certain, as Prejean
had yet to present his side of events to the shareholders. Hoping to keep the
group together, Lampson continued attempts to negotiate and later informed
Knox that it appeared that he could remain with RASL if Prejean alone left. On

                                        2
September 17, 2002, before a formal vote was held, Prejean submitted a letter
of resignation, effective December 31, 2002. Knox also resigned shortly after
Prejean.
      In his deposition testimony, Lampson described “clashes” and “power
struggles” between two factions leading up to Prejean’s departure from the
group.     Prejean and Knox often lined up against Brdlik and Thomas at
shareholder meetings.    Brdlik and Thomas apparently lodged a complaint
against Prejean and two other physicians regarding inefficiency. Lampson
expressed the belief that Brdlik’s and Thomas’s “frustration” at “not being able
to compromise” drove them to the decision to leave RASL if Prejean and Knox
were not forced out. Lampson described Prejean as “competent” and “up to par”
and said he personally had no complaints about Prejean’s productivity, but he
also expressed concern that Prejean’s “rough” demeanor lost RASL a potential
contract with Beauregard Hospital.
      In an affidavit filed four years after his deposition, Lampson further
described the situation leading up to Prejean’s departure. The parties dispute
whether these new details are inconsistent with Lampson’s original deposition
testimony. Lampson stated in the affidavit that “some of the other shareholder-
directors had contemplated leaving [RASL] because of work-related conflicts and
issues they had with Dr. Prejean.” He listed inefficiency and a “rough manner
with clients” as examples of these work-related conflicts. He did not mention in
the affidavit that the inefficiency complaint lodged against Prejean was also
directed against two other physicians. In the affidavit, Lampson described
telling Prejean that Brdlik and Thomas “may have [had] enough votes at the
moment to terminate [Prejean’s] contract,” but that he himself believed the
result might change, as Prejean had yet to present his side to the other
shareholders.    Lampson also attached two letters from clients expressing
complaints about Prejean’s demeanor and describing a history of rude behavior.

                                       3
B. Procedural background
      Prejean filed suit in Louisiana state court, alleging violations of state
employment law. After Prejean amended his complaint to include a claim under
42 U.S.C. § 1981, RASL removed the case to the United States District Court for
the Western District of Louisiana. The district court granted RASL’s motion for
summary judgment as to both the state and federal claims. On the § 1981 claim,
the district court held that Prejean failed to create a genuine issue of material
fact as to whether he and Knox were similarly situated. Alternatively, the
district court held that Prejean did not raise a genuine issue of material fact to
rebut RASL’s legitimate, nondiscriminatory reasons for his alleged discharge.
Specifically, the district court found that Prejean submitted no evidence to show
that the reasons proffered by RASL were pretextual or that his departure from
the practice was the result of intentional discrimination.        Prejean timely
appealed to this court, and we have jurisdiction under 28 U.S.C. § 1291.
                         II. STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
Summary judgment is appropriate when “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 judgment as a matter of law.” F ED. R.
C IV. P. 56(c); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.
2009). “A genuine issue of material fact exists if a reasonable jury could enter
a verdict for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th
Cir. 2008). This court must take all the facts and evidence in the light most
favorable to the non-moving party. Breaux, 562 F.3d at 364.
                               III. DISCUSSION
A. The § 1981 framework



                                        4
       The basic structure of a § 1981 case requires the plaintiff alleging race
discrimination to make an initial prima facie showing that: (1) he belongs to a
protected class; (2) he was qualified for the position he held prior to discharge;
(3) he was discharged from that position; and (4) other similarly situated
individuals who did not belong to the protected class were not discharged.1
Meinecke v. H&R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (applying the
legal framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973) to a discharge case). After the plaintiff has made this showing, the
burden of production shifts to the defendant to rebut the prima facie case by
setting forth one or more legitimate, race-neutral explanations for the challenged
employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (1993).
This burden of production does not involve a credibility assessment by the court.
Id. at 509. If the defendant can provide nondiscriminatory reasons for the
action, the presumptions and burdens of the McDonnell Douglas framework
disappear and the focus turns to the question of “discrimination vel non.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43 (2000).
       “The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.” Id. at 143 (quotation marks omitted). In order to satisfy this burden,
the plaintiff has the “opportunity to prove . . . that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for
discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The plaintiff may do so by showing direct evidence of the employer’s
discriminatory motive, or he may “show[] that the employer’s proffered
explanation is unworthy of credence,” which constitutes one form of
circumstantial evidence of a discriminatory motive. Reeves, 530 U.S. at 143

       1
         The elements of a § 1981 claim are identical to those for a claim under Title VII of the
Civil Rights Act of 1964. Pratt v. City of Houston, 247 F.3d 601, 606 n.1 (5th Cir. 2001).

                                               5
(quotation marks omitted). When determining the question of pretext, the court
may properly consider “the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false, and any
other evidence that supports the employer’s case and that properly may be
considered.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)
(quoting Reeves, 530 U.S. at 148–49). If “no rational factfinder could conclude
that the action was discriminatory,” summary judgment for the employer is
appropriate. Id. (quoting Reeves, 530 U.S. at 148).
B. Prejean’s claim of wrongful discharge under § 1981
      Assuming without deciding that Prejean has shown a prima facie case, he
failed to rebut RASL’s legitimate, nondiscriminatory explanation and did not
otherwise show that intentional discrimination motivated his departure.
      i. Prejean’s prima facie case
      Two of the four parts of Prejean’s prima facie McDonnell Douglas case are
not disputed: he is a member of a protected class and he was qualified for the
position he held before his discharge. However, the issues of whether Prejean
was constructively discharged and whether Prejean and Knox were similarly
situated remain in dispute. The district court found that Prejean raised a
genuine issue of material fact as to the constructive discharge question, but not
as to the similarly situated inquiry. Because we dispose of this case on the
pretext issue, we assume without deciding that Prejean established his prima
facie case.
      ii. RASL’s legitimate, nondiscriminatory reasons for discharge
      RASL has offered several legitimate, race-neutral explanations for
Prejean’s constructive discharge. RASL asserts that Prejean had work-related
conflicts and issues, including “clashes” and “power struggles” with other
members of the organization. In addition, RASL had concerns about Prejean’s
professional conduct and behavior towards clients and patients. Finally, several

                                       6
members of RASL believed Prejean’s “rough” tactics caused the group to lose a
potential hospital contract. At this stage of the burden-shifting framework,
credibility determinations are not appropriate. St. Mary’s Honor Ctr., 509 U.S.
at 509. Taken as true, these reasons support a finding that RASL was not
motivated by racial animus. See id. Therefore, RASL satisfied its burden of
production.
       iii. Prejean’s Evidence of Pretext
       We must next determine whether Prejean has shown that the discharge
was driven by discrimination.          Because Prejean does not offer any direct
evidence of discrimination,2 he must show by circumstantial evidence that
RASL’s “proffered reason[s] [are] simply a pretext for discrimination.” Manning
v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003). Keeping in mind the
ultimate focus of the court’s inquiry—discrimination vel non—“it is not enough
. . . to dis believe the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.” Reeves, 530 U.S. at 147 (omission
and emphasis in original, quotation marks omitted). “[S]ummary judgment is
inappropriate if the evidence taken as a whole . . . creates a reasonable inference
that [race] was a determinative factor in the actions of which plaintiff
complains.” Pratt, 247 F.3d at 606–07 (quotation marks omitted).
       Where we have applied Reeves to reverse a grant of summary judgment,
substantially more evidence of pretext has been required than the evidence
presented by Prejean.        Price, 283 F.3d at 724.         For example, where two
unsuccessful candidates for promotion made Title VII and § 1981 claims, they
avoided summary judgment by providing evidence that “the plaintiffs were



       2
        While the record includes several remarks that might arguably be described as direct
evidence of racism, Prejean’s counsel specifically stated during oral argument that the
argument on appeal rests solely on the disparate treatment between Knox and Prejean as
circumstantial evidence of pretext and racial discrimination.

                                             7
obstructed in their efforts to complete the hiring process, the plaintiffs’
qualifications were superior, the successful candidate was given special
treatment, and the supervisor had allegedly discriminated on previous
occasions.” Id. (discussing Pratt, 247 F.3d at 607). Another Title VII plaintiff
was held to have “presented sufficient evidence of pretext when the evidence
indicated that the employer’s proffered reason [for not promoting plaintiff]—that
plaintiff’s application was not received in time—could in fact be false.” Id.
(discussing Blow v. City of San Antonio, 236 F.3d 293 (5th Cir. 2001)). There,
the plaintiff brought forth evidence that her department “deliberately failed to
publicize the job opening” and “actively discouraged” her application. Blow, 236
F.3d at 297.
       In comparison, although Prejean attempts to create a genuine issue of
material fact by relying on RASL’s “shifting and conflicting” reasons for
Prejean’s discharge,3 his attempt ultimately fails to create an issue of fact with
regard to a conclusively nondiscriminatory reason for the discharge: the loss of
the contract with Beauregard Hospital. Prejean fails to show that this reason
is unworthy of credence. This concern was consistently raised by Lampson in
both the deposition and the affidavit four years later. Lampson stated in his
deposition that “some of the [RASL shareholders felt] that [Prejean]’s tactics
were too rough” and had caused RASL to lose the potential contract. The record
does not reflect that any other physicians were to blame for the loss of the
contract.4 Prejean did not put forth any evidence—unlike the plaintiffs in Pratt


       3
         Specifically, Prejean holds out alleged inconsistencies between Lampson’s deposition
testimony and affidavit as creating genuine issues of material fact. However, these
inconsistencies are largely semantic, rather than substantive.
       4
        Prejean argues in his brief and at oral argument that the disparate treatment
between Prejean and Knox shows evidence of pretext. Prejean insists that he has established
disparate treatment on the grounds that Brdlik and Thomas initially had the same complaints
against both Prejean and Knox, but Knox was allowed to stay after further negotiations.
While some of the complaints leveled against Prejean were also directed at Knox (i.e., the

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and Blow—to show either that he did not contribute to the loss of the contract
or that his fellow shareholders did not believe that he was at fault. Prejean has
simply not made any showing that this race-neutral reason was merely
pretextual or unworthy of credence.
       Even if Prejean had successfully demonstrated that RASL’s explanations
were pretextual, the record still “does not support an inference that intentional
discrimination was the real reason for the employment decision.” Price, 283 F.3d
at 723.    In sum, Prejean failed to raise a genuine issue of material fact
permitting an inference that intentional discrimination motivated his discharge
from RASL. Therefore, we affirm the district court’s grant of summary judgment
for RASL.
                                   IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




complaint of inefficiency and the dispute over whether to outsource MRI readings), the loss
of the hospital contract is purely attributed to Prejean. Nowhere in the record does it indicate
that Knox was involved.

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