     Case: 10-60096 Document: 00511318775 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010

                                       No. 10-60096                         Lyle W. Cayce
                                                                                 Clerk

PAMELA HERVEY,

                                                   Plaintiff - Appellant
v.

MISSISSIPPI DEPARTMENT OF EDUCATION,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                        USDC No. 3:08-CV-180-DPJ-JCS


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this action against the Mississippi Department of Education (MDE),
based, inter alia, on claimed racial discrimination, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Pamela Hervey challenges an
adverse summary judgment. For this appeal, however, she pursues only the
Title VII claim. At issue are: the district court’s relying on MDE’s position
statement to the EEOC, concerning, for summary-judgment purposes, whether
MDE produced a legitimate non-discriminatory reason for Hervey’s discharge;

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                     No. 10-60096

and whether Hervey established a genuine issue of material fact for intentional
discrimination. AFFIRMED.
                                            I.
          Hervey, who is black, began her employment as a teacher at the
Mississippi School for the Deaf (MSD) in 1988. In 2005, she applied for, and was
promoted to, the position of Secondary Principal of MSD’s high school. That
school has a student-body population of 100 students that is ninety-percent
black, with approximately 10 to 15 teachers.
          Within her first year as Secondary Principal, the State Superintendent of
Education, Dr. Bounds, and the Assistant State Superintendent of Education,
Dr. Buckley, initiated a performance review of Hervey. As reflected in the
summary-judgment record, teachers were                complaining about Hervey’s
performance as Secondary Principal and the resulting deteriorating educational
environment at MSD; and, the performance review revealed, inter alia, concerns
about      Hervey’s:   literacy;   not   reporting   inappropriate   student/teacher
relationships; absenteeism; failure to maintain a presence on campus, supervise
employees, or maintain a proper educational environment; and lack of leadership
skills.
          In late November 2006, during Hervey’s tenure as Secondary Principal,
approximately 20, predominantly black, students organized a protest at school,
objecting to the hiring of four black teachers, two of whom were not proficient in
sign language. Hervey initially heard about the students planning a protest in
early November and met with the students to discuss it. According to Hervey,
students were dissatisfied with her hiring teachers who could not sign because
it demonstrated her insensitivity to students’ deafness.         She stated in her
deposition that teachers and staff harboring racial animus manipulated students
into protesting.



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      On 1 December 2006, shortly after the protest, and upon recommendation
by Dr. Buckley, Dr. Bounds terminated Hervey’s employment as Secondary
Principal. In response, Hervey filed a charge of discrimination with the EEOC,
claiming unlawful race discrimination. The EEOC subsequently issued Hervey
a right-to-sue letter.
      On 29 November 2007, Hervey filed this action against MDE in state
court, claiming violations under Title VII and 42 U.S.C. §§ 1981 and 1983, as
well as presenting state-law tort claims. MDE removed this action to district
court and moved for summary judgment.
      On 6 January 2010, following discovery, the district court granted
summary judgment for MDE, holding: it satisfied its burden of producing a
legitimate, non-discriminatory reason for its employment decision, and there
was no genuine issue of material fact (on either pretext or a “cat’s-paw” theory,
as discussed infra) on intentional discrimination.
                                        II.
      A summary judgment is reviewed de novo. E.g., Blow v. City of San
Antonio, 236 F.3d 293, 296 (5th Cir. 2001). It is appropriate when the movant
shows there is no genuine issue as to any material fact and is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(c)(2); see also Roberson v. Alltel
Info. Servs., 373 F.3d 647, 650-51 (5th Cir. 2004) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). In the Title VII context, a genuine issue of material
fact exists if the summary-judgment record would permit a reasonable jury to
return a verdict for the nonmovant on the central issue of intentional
discrimination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Roberson, 373 F.3d at 651-52.      For our de novo review, we examine the
record as a whole, viewing the evidence in the light most favorable to the
nonmovant. E.g., Blow, 236 F.3d at 296.



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      Title VII prohibits an employer from discharging an employee on the basis
of that individual’s race. 42 U.S.C. § 2000e-2(a)(1). Where, as here, plaintiff
alleges individual disparate treatment and there is no direct evidence of
discrimination, the well-known burden-shifting framework, set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), is employed.
      “The     Title   VII   inquiry    is   whether   the   defendant   intentionally
discriminated against the plaintiff.” Roberson, 373 F.3d at 651 (quoting Johnson
v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003)) (internal quotations omitted).
Under the burden-shifting framework, plaintiff must first establish a prima facie
case by showing: (1) she was a member of a protected class; (2) she applied, and
was qualified, for the position in question; (3) she suffered an adverse
employment action; and (4) the position remained open or was filled by someone
outside the protected class. McDonnell Douglas, 411 U.S. at 802-03.
      Here, however, MDE does not contest whether Hervey established a prima
facie case. Therefore, a rebuttable presumption of intentional discrimination
attaches and the burden of production shifts to MDE to provide a legitimate,
nondiscriminatory reason for its adverse employment action. See id. at 802-04;
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219-20 (5th Cir. 2001). This
burden, however, is one of production, not persuasion; that burden remains with
Hervey. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
MDE’s burden requires the production of admissible evidence in support of its
nondiscriminatory reasons. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
255 (1981).
      If MDE articulates a legitimate, nondiscriminatory reason, the intentional-
discrimination presumption is rebutted. E.g., Price v. Fed. Express Corp., 283
F.3d 715, 720 (5th Cir. 2002). The burden shifts back to Hervey to demonstrate
MDE’s reason was merely pretext for unlawful discrimination. Roberson, 373
F.3d at 651.

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      If Hervey demonstrates MDE’s justification was false or pretextual, this
evidence, coupled with evidence of Hervey’s prima facie case, may permit an
inference of unlawful discrimination. Reeves, 530 U.S. at 148. Nonetheless,
even where plaintiff provides some evidence of pretext, our court has held the
“overall lack of any evidence of discriminatory intent” is sufficient to defeat
plaintiff’s claim. E.g., Price, 283 F.3d at 724 (internal citation and quotations
omitted); Vadie v. Miss. State Univ., 218 F.3d 365, 372-73 (5th Cir. 2000);
Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000)
      “[I]f the plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and uncontroverted
evidence that no discrimination had occurred”, summary judgment may be
appropriate. Price, 283 F.3d at 724 (quoting Reeves, 530 U.S. at 148). For
summary-judgment purposes, at issue is whether Hervey presented sufficient
evidence of pretext such that a reasonable jury could infer intentional
discrimination–in other words, whether she created a genuine issue of material
fact on that point. See Rubinstein, 218 F.3d at 399-400.
                                       A.
      As its legitimate, nondiscriminatory reason for Hervey’s discharge, MDE
advanced various reasons, including her: incompetence; failure to maintain a
presence on campus and properly supervise teaching staff; and lack of leadership
skills. The district court relied, inter alia, on MDE’s detailed, unsworn position
statement to the EEOC as evidence of MDE’s legitimate, nondiscriminatory
reasons. Hervey contends the court could not do so. We disagree.
      “Documents presented in support of a motion for summary judgment may
be considered even though they do not comply with the requirements of Rule 56
if there is no objection to their use.” Eguia v. Tompkins, 756 F.2d 1130, 1136
(5th Cir. 1985). Hervey did not object in district court to use of the position
statement. To the contrary, she placed it in the record, by submitting it with her

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                                  No. 10-60096

response to the summary-judgment motion and by questioning Dr. Bounds about
it at his deposition.
      In the alternative, even assuming the court erred in relying on the position
statement, the error was harmless. See id. The deposition testimony of Drs.
Bounds and Buckley provides independent, admissible corroborating evidence
of MDE’s nondiscriminatory reasons for Hervey’s termination.
                                       B.
      Alternatively, Hervey maintains she created a genuine issue of material
fact on whether MDE’s proffered reasons were pretext for unlawful
discrimination. We again disagree.
                                        1.
      Hervey does not contend Dr. Bounds or Dr. Buckley acted with unlawful
discriminatory animus towards her when terminating her. For the reasons that
follow, and based upon our de novo review of the summary-judgment record,
Hervey did not create a genuine issue of material fact on whether MDE’s
legitimate, nondiscriminatory reasons are false or pretextual, and, therefore, has
failed to defeat summary judgment. See, e.g., Evans v. City of Houston, 246 F.3d
344, 350-51 (5th Cir. 2001); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
405 (5th Cir. 1999) (concluding evidence insufficient to survive summary
judgment regarding discriminatory-termination claim where evidence too
speculative and too reliant on isolated incidents); Rubinstein, 218 F.3d at 400
(upholding summary judgment for employer even where some evidence of
pretext, because overall lack of evidence of discriminatory intent). Along that
line, Hervey fails to rebut each nondiscriminatory reason advanced by MDE. See
Wallace, 271 F.3d at 220.
      At the pretext stage, the proper inquiry is whether MDE’s perception of
Hervey’s performance, whether accurate or not, was the reason for her
discharge.    See Laxton v. Gap, Inc., 333 F.3d 572, 579 (5th Cir. 2003). As

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                                  No. 10-60096

discussed, to defeat summary judgment, Hervey bears the burden of showing
pretext, such that a reasonable jury could infer that MDE’s reason for discharge
was discriminatory. See id. As is more than well known, “conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden on a motion for summary judgment”. Ramsey v. Henderson,
286 F.3d 264, 269 (5th Cir. 2002).
      As an initial matter, and as the district court ruled, Hervey failed to
contest or adequately rebut each nondiscriminatory reason advanced by MDE.
MDE’s nondiscriminatory reasons that Hervey failed to rebut include:           her
failure to maintain a presence on campus, including the day of the student
protest; her lack of oversight of administrative and instructional staff; her
failure to intervene after declining student grades; and her literacy problems.
      In response to MDE’s asserted reason that she failed to maintain campus
presence, Hervey relies on conclusory allegations, without supporting evidence,
to claim she was not frequently absent and did maintain a presence on campus
and properly supervise teachers. Instead of producing evidence to refute MDE’s
assertion, Hervey focuses on the lack of evidence produced by MDE about her
absentee rate. The problem with this assertion rests with the scope of MDE’s
burden:   as discussed supra, it is only of production, not persuasion.        See
Burdine, 450 U.S. at 260 (noting defendant “bears only the burden of explaining
clearly the nondiscriminatory reasons for its actions”) (emphasis added).
      As to the protest, Hervey’s conclusory allegations that she tried to stop the
protest before it happened and was present on campus that day are insufficient.
      Additionally, as the district court ruled, Hervey failed, for defeating
summary judgment, to adequately rebut MDE’s assertion that her discharge was
due to lack of oversight of administrative and instructional staff. Hervey claims
she has no way of responding because MDE did not explain exactly how she
failed to oversee staff. Also, she contends there was no drop in student grades

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and, therefore, no way for her to review teacher-competency issues. Again,
Hervey’s responses are insufficient to create a genuine issue of material fact:
subjective beliefs of discrimination cannot be the basis for judicial relief.
        Similarly, Hervey failed to create a genuine issue of fact on whether her
literacy problems were pretext for discrimination. Once again, she responded
with a subjective and conclusory allegation that there was no evidence of such
problems. Again, bare allegations of racial discrimination are insufficient to
defeat summary judgment. Moreover, as the district court found, she impliedly
admitted to literacy problems in her response to MDE’s summary-judgment
motion when she stated there was “no evidence literacy problems warranted
termination”.
        Hervey contends MDE’s assertion that she was incompetent was pretext
because she received a “meet expectations” score on her performance review and
no disciplinary actions had been taken against her during her employment.
That response, however, does not show MDE’s reason was pretext for unlawful
discrimination. Again, MDE’s belief in the underlying facts supporting its
adverse employment decision, whether accurate or not, is sufficient to constitute
a legitimate, nondiscriminatory reason for its decision. See Laxton, 333 F.3d at
579.
        In other words, taking Hervey’s assertions as true, she does not present
sufficient evidence to defeat summary judgment, regarding whether she was
performing her job at a level at which there could be no legitimate,
nondiscriminatory reason for her termination. Not having received disciplinary
actions and meeting the minimum level of expectation is not dispositive of
Hervey’s job performance.      In short, she fails to create a genuine issue of
material fact on whether MDE believed Hervey was not performing her job at
the level necessary to maintain the desired educational environment.



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      Further, Hervey cannot defeat summary judgment based on her contention
that MDE incorrectly perceived her performance concerning an inappropriate
student/teacher relationship, teacher evaluations, and racial tension on campus.
In that regard, MDE relied on her failure to respond to an inappropriate
relationship between a teacher and student. The summary-judgment record
supports that: Hervey knew the student was going home with the teacher after
school; and Hervey was aware of the relationship and failed to take appropriate
action, in spite of a clear duty to respond.        Refusing to respond to an
inappropriate student/teacher relationship, simply because it was happening
after school hours, is evidence, for summary-judgment purposes, of Hervey’s
incompetence as Secondary Principal. Although Hervey claims she attempted
to report the problem, Dr. Bounds was never made aware of her efforts until
this action ensued. Again, Hervey failed to create a genuine issue of fact on
whether this reason was pretext for unlawful discrimination.
      Similarly, MDE interpreted Hervey’s partial completion of teacher
evaluations as failing to maintain a presence and properly supervise teaching
staff. Hervey submitted her evaluations in response to the summary-judgment
motion.   Many of them are not fully completed, and MDE relied on these
incomplete evaluations in its termination decision. Again, it is of no consequence
that MDE’s interpretation of the incomplete evaluations could have been
inaccurate. See Laxton, 333 F.3d at 579.
      As another legitimate, nondiscriminatory reason for termination, MDE
also advanced Hervey’s failure to respond to the student protest within a
reasonable time after its occurrence. Hervey explained her slow response was
a result of letting the students blow off steam. All of these reasons relied on by
MDE are its perception of the underlying facts. Again, an incorrect belief in the
underlying facts may constitute a legitimate, nondiscriminatory reason for an
adverse employment decision. Id.

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      As for the racial tension on campus, and as the district court held, such
tension did not create a genuine issue of material fact on claimed intentional
discrimination. Hervey devoted most of her briefs in our court discussing racial
problems on campus, but such problems do not create the requisite genuine issue
of material fact on whether Drs. Bounds and Buckley terminated her “because
of” her race. 42 U.S.C. § 2000e-2(a)(1).
                                        2.
      In that regard, our court has cited with approval the “same actor”
inference. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). This
inference is premised on its hardly making sense for an employer to hire
employees from a group against which it bears racial animus and then turn
around and fire them once they are on the job. See id. (citing Proud v. Stone, 945
F.2d 796, 797 (4th Cir. 1991)).
      The district court refused to apply this inference on the ground that Dr.
Buckley, who is black, made the recommendation to terminate Hervey’s
employment. “The fact that the actor involved in both employment decisions is
also a member of the protected class only enhances the inference.” Id. In
addition, Dr. Bounds was involved in both the decision to hire and fire Hervey;
he approved her appointment as Secondary Principal as well as her termination.
      Accordingly, an inference of lack of intentional discrimination is
appropriate. It, of course, is not dispositive. The above-stated reasons are.
                                       C.
      Finally, Hervey contends she produced a genuine issue of material fact of
a cat’s-paw situation (employer’s decision influenced by other individuals
harboring racial animus, the term being derived from the fable regarding a
monkey’s using a cat’s paw to remove chestnuts from a fire: “one used by
another as a tool”. M ERRIAM-W EBSTER’S C OLLEGIATE D ICTIONARY 181 (10th ed.
2001). Review of another circuit’s decision concerning this theory is pending in

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                                  No. 10-60096

the Supreme Court. Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009), cert.
granted, 130 S. Ct. 2089 (2010)). She relies on this theory on the claim that the
ultimate decision-makers, Drs. Bounds and Buckley, acted under the influence
of teachers and staff who exhibited discriminatory animus towards her. We
again disagree.
      “To invoke the cat’s paw analysis, [the employee] must submit evidence
sufficient to establish two conditions: (1) that a co-worker exhibited [racial]
animus, and (2) that the same co-worker possessed leverage, or exerted
influence, over the titular decision-maker.” Roberson, 373 F.3d at 653 (internal
citations and quotations omitted). For the reasons that follow, and based on our
de novo review, Hervey fails to impute discriminatory animus to the decision-
makers under the cat’s-paw theory because she presents no genuine issue of
material fact on whether: (1) her co-workers exhibited discriminatory animus,
and (2) Drs. Bounds and Buckley acquiesced to the influence of teachers and
staff who allegedly sought Hervey’s termination because of her race.
                                         1.
      Regarding the first inquiry, Hervey maintains:       Collier, Moulds, and
Parker, three white teachers, encouraged the student protest in order to have
her terminated because of her race; these three teachers wanted her terminated
for hiring four black teachers, two of whom were not proficient in sign language,
despite teachers’ having been hired in the past who could not sign; Collier stated
that Hervey hired black teachers who were less qualified because Hervey “felt
that we were a black school more than a white school”; a student, Campbell,
stated Parker expressed an intention to see Hervey, and the teachers she hired,
terminated; Parker stated that Hervey “would have trouble with white people
sometimes,” and that Parker “didn’t like the fact that [Hervey] had cliques” that
consisted of “groups of black people”.



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      Based on our de novo review of the summary-judgment record, Hervey has
failed to create a genuine issue of fact on whether her co-workers harbored racial
animus towards her and wanted her terminated because of her race.             See
Rubinstein, 218 F.3d at 400. To the contrary, for summary-judgment purposes,
the evidence shows these teachers were aware of racial tension at school, and
some students were angry about the hiring of two teachers who were not
proficient in sign language. Collier and Parker’s comments were not related to
the employment decision at issue nor is there evidence tending to show they
were made proximate in time to the adverse employment decision. Many of
these statements were made in their depositions after that decision. Moreover,
even if Collier, Moulds, and Parker expressed a desire to see Hervey terminated,
there is no genuine issue of material fact on whether they wanted her
terminated because of her race. Therefore, the cat’s-paw theory is not applicable.
                                        2.
      In the alternative, regarding the second prong for that theory, Hervey
contends:   Collier, Moulds, and Parker exerted influence over the ultimate
decision-makers because Dr. Buckley knew of racial tension between them and
Hervey. Again, based upon our de novo review of the summary-judgment record,
there is no genuine issue of material fact regarding such a position.
      Although Hervey produced evidence tending to show Drs. Bounds and
Buckley were aware of racial tensions at school, there is no evidence they (the
decision-makers) knew of the alleged racial animus of Collier, Moulds, and
Parker and acted upon that basis in their employment decision. In support of
her contention that the decision-makers were influenced by teachers who
exhibited racial animus, Hervey maintains: Dr. Buckley testified she received
teacher complaints regarding Hervey and took those complaints into
consideration in deciding whether to recommend Hervey’s termination, and at
least one complaint said Hervey was causing racial problems at school; Drs.

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                                  No. 10-60096

Bounds and Buckley were aware Collier, Moulds, and Parker were encouraging
the protest because they wanted Hervey terminated because of racial tensions
on campus; Dr. Buckley admitted she took the protest into consideration in
recommending Hervey’s firing and Dr. Bounds relied on Dr. Buckley’s
recommendation in making the ultimate decision to terminate Hervey; and she
repeatedly told Drs. Bounds and Buckley the white teachers wanted to have her
fired, but they did nothing.
      As the district court held, and pursuant to our de novo review of the
summary-judgment record, there is no genuine issue of material fact whether
either Dr. Buckley or Dr. Bounds was aware of racial animus among teachers
and made a decision on that basis. With regard to their knowledge of racial
animus among teachers, Hervey relies on conversations with Drs. Bounds and
Buckley where Hervey expressed her opinion that Collier, Moulds, and Parker
were trying to have her terminated because of her race. Needless to say, simply
because Hervey expressed that opinion to Drs. Bounds and Buckley does not
create a genuine issue of material fact on whether they knew such racial animus
existed.
      There is no evidence demonstrating Dr. Buckley or Dr. Bounds spoke to
these teachers or were aware of any actual animus. Hervey has shown merely
the ultimate decision-makers were aware of racial tension at school, and took the
protest into account in making the employment decision. Drs. Bounds and
Buckley’s deposition testimony offers no indication they were privy to the
teachers’ animus and does not tend to show Hervey was terminated because
of her race.
      In any event, our court has held such comments to be mere stray remarks
where the speaker had no influence over the decision-making process. See
Wallace, 271 F.3d at 223.      These three teachers did not participate in the
decision to terminate Hervey, and Hervey has not produced any evidence to

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show they “possessed [the requisite] leverage or exerted influence” over the
ultimate decision-makers. Roberson, 373 F.3d at 653. In sum, these statements
were not made by any individual with authority over the employment decision
at issue.
      Based on our review of the summary-judgment record, in the light most
favorable to Hervey, she has also failed to establish a genuine issue of material
fact on this second prong for the cat’s-paw theory. See, e.g., Price, 283 F.3d at
724-25 (affirming summary judgment where plaintiff failed to produce sufficient
evidence from which factfinder could infer racial discrimination); Roberson, 373
F.3d at 655 (same); Rubinstein, 218 F.3d at 400 (same). As stated, it is not
applicable.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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