     Case: 19-10604      Document: 00515327616         Page: 1    Date Filed: 03/02/2020




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


                                      No. 19-10604                            FILED
                                                                          March 2, 2020
                                                                         Lyle W. Cayce
ALTON MACKEY,                                                                 Clerk

              Plaintiff - Appellant

v.

ENVENTIVES, L.L.C., doing business as Venture Chemicals,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:17-CV-293


Before DAVIS, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
       This appeal follows the district court’s grant of summary judgment in
favor of Enventives, L.L.C. (“Enventives”) in this race discrimination case. For
the following reasons, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10604
                                  I. Background
      In March 2014, Alton Mackey, who is African-American, began working
as a groundskeeper for Enventives, 1 an oilfield services company, in Gaines
County, Texas. In August 2015, Mackey had shoulder surgery. Mackey
returned to work in October. On November 9, 2015, he was laid off. His
termination marked the beginning of a “reduction in force” in which
Enventives laid off 19 of the 28 employees at its Gaines County facility over
the next few months.
      In December 2017, Mackey sued Enventives. He claimed that
Enventives terminated him because of his race in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e, et seq. He also claimed he was fired because
of a temporary shoulder-related disability in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. In January 2019,
Enventives moved for summary judgment. Mackey opposed the motion as to
his race discrimination claim and abandoned his ADA claim. In April 2019, the
district court rendered summary judgment in Enventives’s favor. This appeal
followed.


                             II. Standard of Review
      “We review a district court’s grant of summary judgment de novo,
viewing all facts and drawing all inferences in a light most favorable to the
non-moving party.” Harville v. City of Houston, Miss., 945 F.3d 870, 874 (5th
Cir. 2019). A movant is entitled to summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a).


      1 At the time Mackey began working for Enventives, he was employed by its
predecessor company, Venture Chemicals, Inc. Because there is no need to distinguish
between the entities, we refer to his employer as “Enventives” throughout this opinion.
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                                        No. 19-10604


                                       III. Analysis
      Title VII of the Civil Rights Act prohibits employers from terminating
employees on the basis of race. 42 U.S.C. § 2000e-2(a)(1). In racial
discrimination cases with no direct evidence of discrimination, 2 the Fifth
Circuit applies the modified McDonnell Douglas burden-shifting framework.
Harville, 945 F.3d at 874 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). The first step is determining whether the plaintiff has made out a
prima facie case of racial discrimination. Id. at 874–75. To do so, a plaintiff
must show that he: (1) is a member of a protected group; (2) was qualified for
the position at issue; (3) suffered an adverse employment action; and (4) was
replaced by someone outside his protected group or was treated less favorably
than other similarly situated employees outside the protected group. Id. at 875.
      Here, the parties agree that Mackey has satisfied the first three
elements of his prima facie case. The fourth element is disputed. Like the
district court, we will assume without deciding that Mackey has satisfied this
fourth element and has therefore made out a prima facie case sufficient to
trigger the next step in the burden-shifting inquiry.
      Once a plaintiff makes out a prima facie case of racial discrimination,
the burden shifts to his employer to produce a legitimate, non-discriminatory
reason for the employee’s discharge. Id. The parties agree that Enventives has
done so by producing evidence that the position of groundskeeper was its least
critical position and, because of a brief downturn in the oil industry, it needed
to cut jobs to save money amid declining revenue.
      This brings us to the crux of the issue in this case. Once an employer
produces a legitimate, non-discriminatory reason for the adverse employment


      2   Mackey does not argue that there is direct evidence of racial discrimination.
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                                  No. 19-10604
action, the burden shifts back to the plaintiff to make one of two showings. At
the summary judgment stage, the plaintiff must offer sufficient evidence to
create a genuine dispute of material fact that either (1) the employer’s
proffered reason for the adverse action is not true but is instead pretext for
discrimination (pretext inquiry) or (2) the reason, while true, is only one reason
for the adverse action, another being that racial discrimination was a
motivating factor (mixed motives inquiry). Vaughn v. Woodforest Bank, 665
F.3d 632, 636 (5th Cir. 2011). If the plaintiff succeeds on either ground, he will
survive a motion for summary judgment. See id.
A. Pretext
      To establish pretext, an employee must show that his employer’s
“proffered explanation for his termination is false or ‘unworthy of credence.’”
Id. at 637 (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). “Such
rebuttal evidence, combined with the prima facie case, will suffice to create a
genuine [dispute] of material fact such that summary judgment is
inappropriate.” Id. at 637–38.
      Mackey argues that Enventives’s stated reason is false for several
reasons. First, during its reduction in force, Enventives laid off seven of its
eight African-American employees while only laying off 12 of its 19 Hispanic
employees and retaining its only Caucasian employee. Second, the person who
actually told him he was being fired, Juan Perez, the facility’s plant manager,
told Mackey he was being fired because he was working too slowly and was
overly limited by his shoulder operation. Perez said nothing about Mackey’s
position’s being eliminated as part of a reduction in force. And third, in the
months leading up to Mackey’s layoff, Perez often directed racial slurs and
epithets toward Mackey and the facility’s other African-American workers.
Because Enventives has failed to introduce any evidence to contradict these
showings, Mackey argues that he should survive summary judgment on
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                                  No. 19-10604
pretext grounds.
      We disagree. The question before us at this stage is whether a reasonable
jury would believe Mackey’s version of events and conclude that Enventives’s
stated reason for laying him off is false. Harville, 945 F.3d at 874 (“[A] factual
dispute is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”) (internal quotation marks omitted). The
undisputed facts show that Enventives’s monthly revenue dipped significantly
in the fall of 2015. As a result, its co-owners, Jay Cowan and Michael Kilchrist,
along with Operations Manager Rich Foreman, decided to implement a
gradual reduction in force. The co-owners decided that Mackey should be the
first to go because groundskeeper was “the least needed position” that had “the
least bearing on the company’s production.” Even though the record shows that
Perez actually fired Mackey, gave him different reasons for the termination
from those provided by Enventives’s co-owners, and had directed racial slurs
toward Mackey and other African-Americans at work, Mackey has failed to
produce any evidence suggesting that Perez had a say in the owners’ decision
to lay him off. We therefore hold that on the undisputed record a reasonable
jury would not conclude that Enventives’s stated reason for laying off Mackey
was either false or unworthy of credence.
B. Mixed Motives
      Even when an employee fails to show that his employer’s stated reason
for terminating him is pretext for race discrimination, the employee can still
survive summary judgment if he shows that his race was merely a “motivating
factor” in his employer’s decision. 42 U.S.C. § 2000e-2(m) (“[A]n unlawful
employment practice is established when the complaining party demonstrates
that race . . . was a motivating factor for any employment practice, even though
other factors also motivated the practice.”); see Chapple v. Tex. Health &
Human Servs. Comm’n, 789 F. App’x 985, 988 n.3 (5th Cir. 2019) (per curiam).
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                                No. 19-10604
      Mackey relies on the same facts to support his mixed motives argument
as he did to support his pretext argument. But his mixed motives claim suffers
from the same fatal flaws as his pretext claim. The undisputed record shows
that Enventives’s owners implemented a reduction in force that resulted in it
laying off 19 of the 28 employees at its Gaines County facility. A majority of
the facility’s Hispanic workers—in addition to all but one of its African-
American workers—were victims of the layoff. Nothing in the record suggests
that Perez, Mackey’s immediate supervisor, played a role in deciding to
implement the layoff or in deciding the order in which employees would be let
go. Under these facts, we hold that a reasonable jury would not conclude that
Mackey’s race was a motivating factor in Enventives’s decision to terminate
him. See Dailey v. Shintech, Inc., 629 F. App’x 638, 640–42 (5th Cir. 2015)
(affirming summary judgment for employer in race discrimination case even
though the employee’s supervisor had made racially charged comments toward
the employee on several occasions).


                              IV. Conclusion
      For the foregoing reasons, we hold that Mackey has failed to create a
genuine dispute of material fact sufficient to survive Enventives’s motion for
summary judgment. We therefore AFFIRM the judgment of the district court.




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