     Case: 12-60551       Document: 00512112163         Page: 1     Date Filed: 01/14/2013




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

                                                                            FILED
                                                                         January 14, 2013

                                     No. 12-60551                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MARTIA MOFFETT,

                                                  Plaintiff–Appellant,
v.

MISSISSIPPI DEPARTMENT OF MENTAL HEALTH,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-262


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Martia Moffett appeals the district court’s grant of summary judgment in
favor of the Mississippi Department of Mental Health (the Department), her
former employer, on her Title VII retaliation and state-law whistleblower claims.
We agree with the district court that Moffett failed to introduce sufficient
evidence to survive summary judgment and therefore affirm as to both claims.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60551
                                       I.
      Moffett began working for the Department in 1990 as a social worker. In
1998, she was promoted to quality assurance director at Ellisville State School.
Sometime later, Moffett complained that as an African-American employee, she
was paid less than similarly situated Caucasian employees. In 2007, after the
Mississippi State Personnel Board rejected her discrimination claim, Moffett
filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC). The EEOC ultimately concluded that the Department had
not violated applicable antidiscrimination laws. Moffett later filed a Title VII
lawsuit against the Department based on the racial discrimination charge; that
lawsuit was dismissed.
      Following the 2007 charge of discrimination, Moffett alleges that the
Department retaliated against her by removing her from a number of
committees and by demoting her in February 2009 to a position that paid the
same salary but had a lower status within the Department’s organizational
structure.
      After moving to the new position, Moffett began investigating alleged
billing fraud by the Department. She was placed on administrative leave in
August 2009. During her administrative leave, Moffett reported her billing-
fraud suspicions to the Mississippi attorney general’s office.     Moffett also
received a number of reprimands while on leave for incidents that occurred prior
to the leave and received a pretermination notice, which stated that the
Department was considering terminating her employment and outlined its
reasons for doing so. Due to the reprimands, Moffett received another demotion
when she returned from administrative leave, this time with a pay cut of
approximately $20,000 per year. After the demotion, Moffett filed a second
charge of discrimination with the EEOC, alleging that she was demoted in
retaliation for her 2007 charge of discrimination and subsequent lawsuit.

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                                 No. 12-60551
      In early December, Moffett was scheduled to meet with her former
supervisor, Cindy Cooley, to complete a performance appraisal for Moffett’s
former position. Moffett brought Althea Fisher, her supervisor at the time, to
act as a witness to the meeting, but Cooley refused to allow Fisher to attend the
meeting. Rinsey McSwain, assistant director of Ellisville State School and one
of Moffett’s supervisors, offered to sit in on the meeting instead, but Moffett
refused to attend the meeting without Fisher present.         According to the
Department and to a number of witnesses, McSwain gave Moffett a directive to
attend the meeting. Moffett disputes that McSwain directly ordered her to
attend the meeting. Nevertheless, on December 7, Moffett received a reprimand
issued by Fisher, her supervisor at the time, for failing to follow the directive
from McSwain.      She also received a second pretermination notice, again
outlining the Department’s reasons for considering termination. Finally, on
December 22, the Department terminated Moffett’s employment.
      The termination notice indicated that Moffett’s employment was
terminated because her conduct “constitute[d] a breach of agency policy.” It
discussed in detail the December 7 reprimand for failing to follow McSwain’s
directive. It also referenced a number of other written reprimands that Moffett
received while employed at the Department, including an October 21, 2009
reprimand for failing to perform assigned work; three October 6, 2009
reprimands for (1) initiating baseless disciplinary actions against her
subordinates, (2) treating her coworkers in an unprofessional manner, and (3)
insubordination; an August 14, 2009 reprimand for insubordination; a November
27, 2006 reprimand for failing to comply with established written policy; and a
June 22, 1995 reprimand for insubordination.
      Following an unsuccessful appeal of her termination to the Mississippi
Employment Security Commission (MESC), Moffett filed suit against the
Department, alleging that the Department terminated her (1) in retaliation for

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                                         No. 12-60551
her participation in activities protected under Title VII and (2) in violation of the
Mississippi whistleblower statute because she reported the Department’s
allegedly fraudulent billing practices to the Mississippi attorney general. The
district court granted summary judgment in favor of the Department on both
claims, holding (1) that Moffett had not introduced sufficient evidence that the
Department’s proffered nonretaliatory reason for terminating her was pretextual
and (2) that she had not offered evidence that anyone at the Department knew
of her report to the attorney general and thus could not assert a claim under the
Mississippi whistleblower statute. This appeal followed.
                                               II.
       “We review de novo a district court’s ruling on a motion for summary
judgment, applying the same legal standard as the district court in the first
instance.”1 Summary judgment is appropriate if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”2
If the movant meets its initial burden by showing that there is no genuine issue
of material fact, “the burden shifts to the nonmoving party to produce evidence
or designate specific facts showing the existence of a genuine issue for trial.”3
“Doubts are to be resolved in favor of the nonmoving party, and any reasonable
inferences are to be drawn in favor of that party.”4
                                               III.
       Moffett first contends that the district court erred in granting summary
judgment in favor of the Department as to her Title VII retaliation claim. Title



       1
           Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
       2
           FED. R. CIV. P. 56(a).
       3
         Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (quoting Taylor
v. Principal Fin. Grp., 93 F.3d 155, 161 (5th Cir. 1996)) (internal quotation marks omitted).
       4
           Evans v. City of Hous., 246 F.3d 344, 348 (5th Cir. 2001).

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                                          No. 12-60551
VII prohibits employment discrimination against “any individual” because of the
individual’s “race, color, religion, sex, or national origin.”5                  Title VII also
prohibits retaliation against employees who seek its protection, forbidding
employer actions that discriminate against an employee because she “has
opposed any practice made an unlawful employment practice” by Title VII or
because she “has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under Title VII.6
       “[T]he allocation of the burden of proof in Title VII retaliation cases
depends on the nature of the plaintiff’s evidence.”7 If the plaintiff relies on
circumstantial evidence to prove causation, as Moffett does here, we use the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,8
under which the plaintiff carries the initial burden of establishing a prima facie
case of retaliation.9 To meet this burden, the plaintiff must show that (1) she
participated in an activity protected by Title VII, (2) the employer took an
adverse employment action against her, and (3) there is a causal connection
between the protected activity and the adverse employment action.10 If the
plaintiff succeeds in making this prima facie showing, “the burden then shifts
to the employer to articulate a legitimate, nondiscriminatory or nonretaliatory
reason for its employment action.”11 The employer’s burden is simply a burden

       5
           42 U.S.C. § 2000e-2(a).
       6
           Id. § 2000e-3(a).
       7
        Smith v. Xerox Corp., 602 F.3d 320, 327 (5th Cir. 2010) (citing Fierros v. Tex. Dep’t of
Health, 247 F.3d 187, 191 (5th Cir. 2001)).
       8
           411 U.S. 792 (1973).
       9
           Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).
       10
        McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (citing Banks v. E.
Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
       11
            Id. at 557 (citing Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)).

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                                         No. 12-60551
of production, and it does not involve a credibility assessment.12 “If the employer
meets its burden of production, the plaintiff then bears the ultimate burden of
proving that the employer’s proffered reason . . . is a pretext for the real . . .
retaliatory purpose. To carry this burden, the plaintiff must rebut each . . .
nonretaliatory reason articulated by the employer.”13
      In the district court, the Department did not dispute that Moffett
participated in Title VII activities or that it took adverse employment actions
against her; rather, it disputed that she had established causation. The district
court assumed that Moffett had established causation but held that even under
that assumption, Moffett failed to offer sufficient evidence that the Department’s
legitimate nonretaliatory reasons for her demotion and discharge were
pretextual.
      Like the district court, we need not reach the causation issue because even
assuming that Moffett has shown a causal link sufficient to establish a prima
facie case of retaliation, she has not offered sufficient evidence of pretext to
survive summary judgment. We thus assume, without deciding, that Moffett
has made a prima facie case of retaliation. The Department, in turn, has met its
burden of production by offering a legitimate, nonretaliatory reason for Moffett’s
termination, specifically that Moffett received numerous reprimands for various
workplace offenses, culminating in her “staunch refusal to comply with a
directive” from McSwain, her supervisor.
      Moffett, therefore, “must offer some evidence from which the jury may
infer that retaliation was the real motive.”14 Moffett argues that her own
deposition testimony, in which she denies that McSwain ever gave her a


      12
           Id. (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)).
      13
           Id. (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
      14
           Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).

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                                        No. 12-60551
directive to attend the meeting in question, establishes a genuine dispute as to
an issue of material fact. However, Moffett’s own evidence on this point is
inconsistent at best. In a transcript of the hearing before the MESC, submitted
by Moffett in support of her opposition to summary judgment, Moffett admits in
sworn testimony that McSwain asked her to come into her office and meet with
her. Additionally, in an earlier affidavit and in her briefing to the district court,
Moffett initially argued that McSwain was not her supervisor at the time of the
meeting, so there was “no possibility” that she failed to follow a supervisor’s
directive. It was only after the Department pointed out that McSwain was “at
the top of the chain of command for all employees,” including Moffett, that
Moffett attempted to correct this error by submitting a second affidavit.
Moffett’s last-minute effort to create a dispute of material fact is not enough to
prevent summary judgment.15
       Further, even if Moffett had established a genuine dispute as to whether
McSwain in fact ordered her to attend the meeting, the issue is not whether the
Department’s assessment of the events leading up to her termination was
accurate.       Rather, “the issue is whether [the Department’s] perception of
[Moffett’s] performance, accurate or not, was the real reason for her
termination.”16 As the district court correctly noted, Moffett’s then-supervisor
Fisher issued the December 7 reprimand, and Moffett offered “no evidence that
would tend to show that Fisher did not, in fact, believe” that McSwain gave

       15
          See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346-47 (5th Cir. 2007)
(holding that a Title VII plaintiff who submitted an affidavit that was inconsistent with her
deposition testimony did not offer sufficient evidence to rebut the defendant’s proffered
nondiscriminatory explanation for the plaintiff’s dismissal); Albertson v. T.J. Stevenson & Co.,
749 F.2d 223, 228 (5th Cir. 1984) (“Although the court must resolve all factual inferences in
favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where
none exists. Thus, the nonmovant cannot defeat a motion for summary judgment by
submitting an affidavit which directly contradicts, without explanation, his previous
testimony.” (citation omitted)).
       16
            Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999).

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                                       No. 12-60551
Moffett a directive and that Moffett, in turn, refused to follow that directive. In
the MESC transcript offered by Moffett, Fisher testified under oath that she
witnessed McSwain directing Moffett to meet with her and Moffett refusing to
do so. Moffett has offered no evidence that Fisher issued the December 7
reprimand in bad faith, nor has she offered evidence that the Department
officials who relied on the reprimand did so as a pretext.
      Additionally, Moffett’s termination notice cites six other reprimands that
Moffett received during her employment. Although Moffett is required to “rebut
each nondiscriminatory or nonretaliatory reason articulated by the employer”
in order to survive summary judgment,17 Moffett does not argue that the
Department’s reliance on these reprimands was pretextual.                Instead, she
contends that “[w]hile the prior reprimands were referenced in the notice of pre-
termination, they were not the reason given for termination.” That statement
is simply not supported by the record. The district court thus did not err in
granting summary judgment in favor of the Department as to Moffett’s Title VII
retaliation claim.
                                            IV.
      Second, Moffett argues that the district court erred in granting summary
judgment in favor of the Department as to her whistleblower claim. Under
Mississippi law, state agencies may not “dismiss or otherwise adversely affect
the compensation or employment status of any public employee because the
public employee testified or provided information to a state investigative body.”18
The statute defines a whistleblower as “an employee who in good faith reports
an alleged improper governmental action to a state investigative body[,] . . . an
employee who in good faith provides information to a state investigative body,


      17
           McCoy, 492 F.3d at 557.
      18
           MISS. CODE ANN. § 25-9-173(1) (2012).

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                                         No. 12-60551
or an employee who is believed to have reported alleged improper governmental
action to a state investigative body or to have provided information to a state
investigative body but who, in fact, has not reported such action or provided such
information.”19 So long as a qualifying employee proves that the adverse action
she suffered was the “direct result” of her report,20 she may be reinstated,
recover back pay, or, in some cases, receive damages.21
      The district court held that Moffett did not offer sufficient evidence that
anyone at the Department was aware of her report to the attorney general and
thus that she could not prove that her termination was the direct result of her
report, as required by the statute.            Moffett argues that the Department’s
knowledge of her report to the attorney general can be inferred through
circumstantial evidence.
      In support of this contention, Moffett cites her own affidavit, in which she
states that she told McSwain that she would report the alleged fraud to the
attorney general if the Department did not address it. In her earlier sworn
deposition testimony, however, Moffett was questioned about her conversation
with McSwain and did not mention her threat to make a report to the attorney
general’s office:
      Q: And what did you report to Ms. McSwain and Mr. Hendrix?
      A: That according to the information and what I had perceived, it
      appeared there had been some falsifying documentation. . . .
      ....
      Q: Did you tell them anything else?
      A: That was it.


      19
           Id. § 25-9-171(j).
      20
           Id. § 25-9-173(3).
      21
           Id. § 25-9-175.

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During the deposition, Moffett also admitted that she had not informed anyone
at the Department that she actually made the report.
       In the district court, the Department argued that the affidavit should be
stricken because it was inconsistent with Moffett’s deposition testimony. Moffett
argued that the deposition testimony referenced a different conversation with
McSwain than the affidavit and thus that the two statements were not
inconsistent. The district court did not reach the issue of whether to strike the
affidavit because it held that the affidavit at best established that the
Department knew that Moffett threatened to make a report, not that the
Department knew that she followed through with her threat. This, the district
court reasoned, was insufficient because the statute requires that the employer
had actual knowledge of a report. We do not reach the question of whether
actual knowledge is required under the statute because we hold that the
contradictory affidavit should not be considered.
       “It is well settled that this court does not allow a party to defeat a motion
for summary judgment using an affidavit that impeaches, without explanation,
sworn testimony.”22 On appeal, Moffett has not offered any explanation for the
inconsistency between her affidavit and her deposition testimony, and, even if
she had, her explanation before the district court was inadequate.23 Moffett
“cannot manufacture a disputed material fact where none exists,”24 and the
district court correctly granted summary judgment in favor of the Department
as to her whistleblower claim.




       22
          S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing Thurman
v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir. 1992)).
       23
            See id. at 495-96; Thurman, 952 F.2d at 136 n.23.
       24
            Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984).


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                                No. 12-60551
                            *        *         *
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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