     Case: 15-41455      Document: 00513618037         Page: 1    Date Filed: 08/01/2016




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

                                    No. 15-41455
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                       August 1, 2016
                                                                         Lyle W. Cayce
TAYLOR WHITE,                                                                 Clerk


              Plaintiff - Appellant

v.

DENTON COUNTY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:13-CV-13


Before STEWART, Chief Judge, and SMITH and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Taylor White (“White”) brought this suit against his
employer Defendant-Appellee Denton County (the “County”) for, inter alia,
unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq., and retaliation in violation of 29 U.S.C. § 215(a). The
district court granted summary judgment in favor of the County due to White’s



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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failure to (1) provide the amount of overtime compensation due and (2)
establish a fact issue showing that the County’s actions would not have
occurred “but for” White’s protected activity under the FLSA. White appeals
the district court’s grant of summary judgment as to his retaliation claim. For
the reasons set forth below, we AFFIRM.
                                      I.
      The relevant facts in this case are not in dispute. Between December
2006 and April 2013, White served as a Detention Officer with the sheriff’s
office in Denton County, Texas. In August 2012, White contacted County
Treasurer, Cindy Brown, to notify her of his concerns that the County was
neither properly nor timely paying him at time-and-a-half over his regular pay
for overtime hours worked during multiple fourteen-day work periods. He filed
suit five months later in January of 2013 against the County for its alleged
violation of the FLSA.
      On April 5, 2013, White was involved in an excessive force incident while
on duty at the county jail. Approximately twenty to thirty minutes before
“lights out,” and after entering the barracks where inmates were housed in the
jail to conduct a time check, White approached inmate Phillip Harrison SO #
59300 (“Harrison”) from behind. Harrison, who did not see White or appear to
know that White was approaching him, was seated on two stacked milk crates
in the middle of the room. White planted his right foot just behind the milk
crates, brought his left leg into a swinging position, and kicked the crates from
underneath Harrison. He extended his hands and quickly placed them behind
Harrison easing Harrison’s fall to the ground. While several others around
Harrison laughed at his fall, Harrison cried out. White walked away smiling
and Harrison remained on the floor for eight minutes. Shortly after returning
to a seated position on the crates, Harrison walked toward White with a heavy

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limp and told an officer seated next to White that he has “decided to let [White]
keep his job.” Although Harrison did not request medical attention of his own
volition—he walked away from his conversation with White, laughing, and
with no limp at all—Joseph Connolly, the Lieutenant for Professional
Standards in the Denton County Sheriff’s Office, recommended that Harrison
undergo a medical evaluation.
      The Denton County Sheriff’s Office maintains a Professional Standards
Unit which, under the direction of Sheriff William Travis, addresses both
background investigations of prospective employees and Internal Affairs
Investigations of current employees. Assistant Chief Deputy Roy Davenport,
who was the Assistant Chief in Charge of the jail at the time of the April
incident, notified Chief Deputy Rex George of White’s physical altercation with
Harrison. Chief Deputy George notified Sheriff Travis. Chief Deputy George
serves as the designee for Sheriff Travis, reviewing and determining what
disciplinary action should be taken with regard to an officer’s violation of
department rules. Both Sheriff Travis and Chief Deputy George reviewed the
video of the altercation between White and Harrison and agreed that the
matter would go forward for investigation with Internal Affairs by Lieutenant
Connolly.   At the time, Chief Deputy George was aware that White was
involved in the underlying lawsuit against the County. Sheriff Travis testified
that when he originally viewed the video of the April incident and concluded
that termination was warranted, he did not know that White had sued the
County. On April 12, 2013, White was placed on administrative leave pending
the completion of the investigation.
      Lieutenant Connolly conducted an internal investigation into White’s
conduct. As part of his employment, White was responsible for performing
specialized law enforcement work in the care and security of inmates to ensure

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their constitutional rights and welfare are safeguarded in the county jail.
However, in a post-investigation memorandum, Lieutenant Connolly described
White’s behavior as “outside the scope of his responsibilities,” “irresponsible,”
“immature,” having “the potential to create liability,” “set[ting] a poor
example,” and “possibly constitut[ing] criminal conduct and/or a violation of
the inmate’s constitutional rights.” Lieutenant Connolly was aware that White
filed a lawsuit against the County at the time of the investigation.
      Although Lieutenant Connolly did not recommend any particular
disciplinary action at that time, he described White’s conduct as “an offense
serious enough to warrant termination.” The Sheriff’s Office Civil Service
Commission is the body that has final authority regarding the conclusion of
the investigation and determines what disciplinary action, if any, is warranted.
Following   the   Internal   Affairs   investigation,   Chief   Deputy   George
recommended to Sheriff Travis that White be terminated.           Sheriff Travis
agreed, and Chief Deputy George terminated White on April 23, 2013.
                                       II.
      On or about January 10, 2013, White sued the County alleging, inter
alia, three violations of the FLSA for (1) forced payment of compensatory time
in lieu of straight time, (2) forced compensatory time in lieu of overtime pay,
and (3) failure to timely pay both straight time and overtime pay. After his
termination, White filed a Second Amended Complaint, asserting that the
County retaliated against him in violation of the FLSA’s anti-retaliation
provision, 29 U.S.C. § 215(a). White also sought declaratory relief under the
Declaratory Judgment Act, 28 U.S.C. § 2201, and class certification of similarly
situated employees. On March 28, 2014, the district court dismissed White’s
claims for forced compensatory time in lieu of straight time and for failure to
pay straight time and his request for declaratory judgment. The County moved

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for summary judgment on White’s remaining claims, which the district court
granted. White timely appealed the grant of summary judgment only as to his
retaliation claim.
                                      III.
      We review the district court’s grant of summary judgment de novo,
applying the same legal standards that the district court applied. See Harvill
v. Westward Commc’ns, L.L.C., 433 F.3d 428, 433–34 (5th Cir. 2005).
Summary judgment is proper if the evidence shows that there is “no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).      We view all
evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. See Crawford v. Formosa Plastics
Corp., 234 F.3d 899, 902 (5th Cir. 2000). “Even if we do not agree with the
reasons given by the district court to support summary judgment, we may
affirm the district court’s ruling on any grounds supported by the record.”
Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011) (quoting
Lifecare Hosps., Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir.
2005)).
                                      IV.
      The primary issue on appeal is whether the trial court correctly granted
the County’s Motion for Summary Judgment as to White’s FLSA retaliation
claim. The FLSA provides, in pertinent part, that “it shall be unlawful for any
person . . . to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to this chapter.” 29
U.S.C. § 215(a)(3). White’s claim is that the County retaliated against him in

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violation of the FLSA’s anti-retaliation provisions for filing his January 2013
lawsuit. “An employee asserting retaliation under the FLSA may proceed in
one of two ways: by direct or circumstantial evidence.” Monroe Firefighters
Ass’n v. City of Monroe, No. CIV.A. 06-CV-1092, 2009 WL 772829, at *3 (W.D.
La. Mar. 17, 2009). If a plaintiff does not have direct evidence of retaliation,
then his claim is subject to the traditional burden-shifting framework of
McDonnell Douglas Corp. v. Green. See Kanida v. Gulf Coast Med. Personnel
LP, 363 F.3d 568, 577 (5th Cir. 2004) (noting retaliation claims under the FLSA
are subject to the Title VII McDonnell Douglas burden-shifting analysis). As
no direct evidence of retaliation has been presented in this case, we proceed in
light of McDonnell Douglas.
      To establish a prima facie claim of retaliation under the McDonnell
Douglas burden-shifting framework, a plaintiff must demonstrate (1)
participation in a protected activity; (2) an adverse employment action; and (3)
a causal link between the activity and the adverse action.          See Hagan v.
Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008). If a plaintiff meets
this initial burden, the defendant must then articulate a legitimate, non-
discriminatory reason for its decision. Id. The burden then shifts to the
plaintiff to demonstrate that the proffered reason is a pretext for
discrimination. Id.
      Neither White nor the County disputes that White engaged in a
statutorily protected activity or that he suffered an adverse employment
action.   Three months prior to his termination, White lodged a personal
complaint about the wage and hour practices of his employer and asserted a
right adverse to the County; he was fired soon thereafter. With respect to the
third prong, White argues that because his termination occurred “a mere three
months” after the underlying lawsuit was filed, he has established a causal

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connection between both events. White also attempts to bolster his argument
that because decision-making County officials had knowledge of his lawsuit,
he has established a causal link.
      Assuming without deciding that the evidence presented is sufficient to
establish a prima facie case, the County has satisfied its burden of establishing
a legitimate, non-retaliatory reason for firing White: White’s excessive use of
force against an inmate in violation of the County’s policy. According to the
record, White was terminated for “intentionally and recklessly” kicking two
stacked milk crates, causing an inmate to fall to the floor in a supine position,
in violation of various provisions of the Denton County Sheriff’s Office Code of
Conduct. In support of its finding that White should be terminated, the County
presented evidence including a video depicting physical action taken against
the inmate and the affidavits of Lieutenant Connolly, Sheriff Travis, and
others. The unprofessional use of force by White, even if in jest, presents
sufficient justification for the County’s decision to terminate White, as he was
in violation of the County’s clear and undisputed policies. See McCoy, 492 F.3d
at 561–62 (concluding that the city’s proffered nondiscriminatory reason for
retrieving a police lieutenant’s badge and gun and placing the lieutenant on
leave stemmed from unwanted workplace conduct and the need to comply with
rules administered by the city).
      Assuming a prima facie case, and in light of the County’s legitimate, non-
retaliatory reason for White’s termination, White must present evidence, direct
or circumstantial, that the County’s reason was pretext. “A plaintiff may
establish pretext either through evidence of disparate treatment or by showing
that the employer’s proffered explanation is false or unworthy of credence.”
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “An explanation is false
or unworthy of credence if it is not the real reason for the adverse employment

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action.” Id. In determining whether pretext is present, we note that the issue
here is not whether the County made an erroneous decision, but whether that
decision was made with a retaliatory motive. See Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
      Relying on Pittman v. Collins, White cites the following to establish
pretext: (1) knowledge of White’s lawsuit by those making the decision to
terminate him; (2) the County’s failure to adhere to established Sheriff’s Office
policies; (3) the County’s discriminatory treatment of White in comparison to
similarly situated employees; (4) evidence that the County’s stated reason for
discharge was false; and (5) Sheriff Travis’s expression of a negative attitude
toward employees who sue the County.             See No. 4:08-CV-257, 2010 WL
1330752, at *5 (E.D. Tex. Mar. 30, 2010).
      First, White’s attempt to prove pretext by showing that County decision-
makers knew of his lawsuit and took an adverse employment action shortly
thereafter fails. While close timing may be sufficient to make out a prima facie
case, “once the employer offers a legitimate, nondiscriminatory reason that
explains both the adverse action and the timing, the plaintiff must offer some
evidence from which the jury may infer that retaliation was the real motive.”
McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) (quoting
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997)); see also
id. (concluding that knowledge of a protected activity, without evidence from
which a reasonable juror could infer that defendant’s proffered reasons were
pretextual, such as evidence of past discriminatory conduct toward plaintiff, is
insufficient to survive summary judgment). At the time of Sheriff Travis’s
recommendation that White be terminated, he was unaware that White had a
suit pending against the County. White has failed to traverse this testimony.
Furthermore,    Lieutenant    Connolly       testified   that,   in   conducting    his

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investigation, knowledge of White’s lawsuit in an unrelated matter did not
impact his investigation nor did Lieutenant Connolly receive pressure, either
formally or informally, to sustain an allegation against White.
      White’s second claim—that the County failed to adhere to established
policy—fails to pass muster. White cites no internal policy that was violated
in carrying out his termination, nor is White’s claim that his conduct was
trivial sufficient to show pretext, as he was in clear violation of County policy.
See Pittman, 2010 WL 1330752, at *5 (“[T]he undisputed evidence indicates
Plaintiff was terminated for failure to comply with the County’s uniform
policy.”); see also Paris v. Sanderson Farms, Inc., 542 F. App’x 370, 375 (5th
Cir. 2013).
      Third, White points to alleged examples of disparate treatment to show
pretext. He contends that numerous other detention officers violated County
policies but were not terminated.       “[A]n employee who proffers a fellow
employee as a comparator in an employment discrimination case [must]
demonstrate that the employment actions at issue were taken under nearly
identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th
Cir. 2009) (citation and internal quotation marks omitted). “The employment
actions being compared will be deemed to have been taken under nearly
identical circumstances when the employees being compared held the same job
or responsibilities, shared the same supervisor or had their employment status
determined by the same person, and have essentially comparable violation
histories.” Id. While White has proffered evidence of several other incidents
between detention officers and inmates, none involved the same supervisor nor
was the employment decision made by the same person. Thus, in order to show
pretext, White must present evidence of an employee who engaged in similar


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conduct, shared the same job or responsibilities as White and who had
comparable violation history.
      He has failed to do so. Specifically, White points to a 2009 incident
involving a verbal altercation with an inmate and a 2011 incident that involved
mistreatment of and denying privileges to inmates. However, Sheriff Travis
was not in charge at the time. Even if White could point to these instances,
they are not sufficient. In both scenarios the officers received suspension
without pay for two to three days for their “unbecoming conduct.” But neither
of these incidents involved an officer instigating an unprovoked physical
altercation. And indeed, the most similar incident to White’s conduct occurred
in 2011 and involved a former detention officer who was terminated after
entering an inmate’s cell, grabbing the inmate by the throat, and choking him.
Although White attempts to distinguish his conduct from that of another
terminated officer, we conclude that this 2011 incident is most similar to
White’s conduct, as both detention officer’s conduct involved unprovoked
physical force. Just as termination was warranted there, White’s physical
force, however mild or in jest, warranted termination under the County’s rules.
      White also stated that his conduct occurred under nearly identical
circumstances to a fourth incident involving an officer who lifted and slammed
an arrestee on the ground while searching him in a holding area; that officer
was not terminated. Although both scenarios involved physical force, we agree
with the district court that unlike the instant case, the cited altercation
involved a heightened security scenario and a potential for a struggle which
warranted some use of physical conduct. Accordingly, White has failed to
demonstrate that he was treated differently from similarly situated employees
under nearly identical circumstances.


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      Next, although White argues the falsity of the County’s non-retaliatory
reasons, he has presented no evidence of inconsistencies or shifting
explanations for his firing. See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d
589, 594 (5th Cir. 2007). In fact, the thorough investigation conducted by
Lieutenant Connolly—which included multiple interviews and the review of
video surveillance—along with the objective nature of the lieutenant’s
investigation greatly reduces the likelihood that the County’s legitimate
reason for terminating White is a pretext for an unlawful purpose. See Jones
v. Overnite Transp. Co., 212 F. App’x 268, 274–76 (5th Cir. 2006). “Our job as
a reviewing court conducting a pretext analysis is not to engage in second-
guessing of an employer’s business decisions.” LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 391 (5th Cir. 2007).
      Finally, White argues that Sheriff Travis possessed discriminatory
animus generally towards those who have filed suit against the County and
that this animus influenced the decision to terminate White. In an October
2012 letter to a former Denton County officer who sued the County following
his firing, Sheriff Travis stated that the officer should, instead of suing, “have
enough self respect [sic] to go find another job and show that person, you never
slowed me down!” Sheriff Travis then went on to inform the former officer that
he would need to drop his lawsuit if he ever again intended to work for the
Denton County Sheriff’s Office. While Sheriff Travis did express a negative
attitude toward another detention officer’s filing of a lawsuit against the
County, White fails to point to any evidence that Sheriff Travis directed any
animus toward White specifically. See, e.g., Bergen v. Cont’l Cas. Co., 368 F.
Supp. 2d 567, 582 (N.D. Tex. 2005) (finding that a general negative attitude,
by itself, is insufficient to raise a genuine issue of material fact of a retaliatory
motive in defendant’s decision to terminate plaintiff because “[t]he context and

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content of [defendant’s] remark [wa]s devoid of any expression of a negative
attitude toward [plaintiff]”.).    Although Sheriff Travis’s statement may
indicate a general negative attitude, by itself, it is insufficient to raise a
genuine issue of material fact of a retaliatory motive in the County’s decision
to terminate White. Id. Since we have considered the remainder of White’s
evidentiary proffer and found it insufficient, White has failed to produce
substantial evidence of pretext outside of Sheriff Travis’s letter. See, e.g., Ray
v. United Parcel Serv., 587 F. App’x 182, 195–96 (5th Cir. 2014).
      After reviewing the record, we conclude that White has failed to establish
a genuine issue of material fact regarding pretext. There is no dispute that
White engaged in excessive force in violation of County policy. Thus, White’s
belief that the County’s “decision was motivated by discrimination, however
genuinely held, is not sufficient evidence of pretext.” Septimus v. Univ. of
Houston, 399 F.3d 601, 610 (5th Cir. 2005); see also Ross v. Univ. of Tex. at San
Antonio, 139 F.3d 521, 526–27 (5th Cir. 1998) (holding that the plaintiff’s
generalized statements about relative qualifications or treatment of similarly
situated employees is insufficient to defeat summary judgment).          Because
White has failed to create a fact issue as to pretext, he has not shown that he
would not have been terminated but for his lawsuit.
                                         V.
      For the foregoing reasons, we AFFIRM.




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