     Case: 14-40501      Document: 00512845022         Page: 1    Date Filed: 11/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40501                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        November 21, 2014
ELLEN MAE BURTON,                                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:13-CV-41


Before PRADO, OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Ellen Mae Burton, a white female, alleges race discrimination in
violation of Title VII of the Civil Rights Act as a result of a recommendation
that she be terminated as a Texas Department of Criminal Justice (“TDCJ”)
parole officer for serious policy violations. The district court granted summary
judgment to TDCJ. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40501
      Burton was a parole officer for TDCJ at its office in Galveston.        In
February 2012, Burton instructed an offender to report to the parole office, and
then had the offender sign a release to transfer temporary custody of her child
to another person, outside the Child Protective Services (“CPS”) system.
Burton worked in conjunction with or at the directive of a sheriff’s deputy, who
was not a TDCJ employee and was not in Burton’s chain of command. As a
result, Burton was charged with violating TDCJ Rule 43, a Level 1 offense,
which prohibits any action on the part of an employee that jeopardizes the
integrity or security of the agency’s institutions, calls into question the
employee’s ability to perform effectively and efficiently in the employee’s
position or casts doubt upon the integrity of the employee. The conduct that
TDCJ found violated Rule 43 was Burton’s acting beyond the scope of a parole
officer’s duties to effectuate the transfer of custody of an offender’s child,
outside the CPS system.        After a disciplinary hearing, dismissal was
recommended.     Burton resigned in lieu of termination.        Burton filed a
complaint against TDCJ alleging race discrimination in violation of Title VII,
42 U.S.C. § 2000e et seq., and retaliation under Tex. Fam. Code § 261.110(f)(4).
The district court granted summary judgment to TDCJ.
      We apply the familiar McDonnell Douglas burden-shifting framework to
Burton’s claim of race discrimination. Burton must first establish a prima facie
case of discrimination by demonstrating that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was subject to an adverse
employment action; and (4) she was replaced by someone outside her protected
class or was treated less favorably than other similarly situated employees
outside her class. See Haire v. Bd. of Sup’rs of Louisiana State Univ. Agric. &
Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013); see also Lee v. Kansas City S.
Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (applying this framework to a claim
of disparate treatment in discipline). If she does so, the burden of production
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                                No. 14-40501
shifts to TDCJ to provide a legitimate, non-discriminatory reason for the
adverse action.   Haire, 719 F.3d at 362-63.      If TDCJ produces sufficient
evidence showing a legitimate justification, the burden shifts back to Burton,
who must produce evidence sufficient to raise a genuine issue of fact that
TDCJ’s proffered reason is a pretext for discrimination. Id. at 563. Burton
may establish pretext by showing that a discriminatory motive more likely
motivated TDCJ’s decision or that TDCJ’s proffered justification is unworthy
of credence. See id.; see also Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 147 (2000). However, a plaintiff cannot prove that an employer’s
proffered reason is pretextual merely by disputing the correctness of the
employer’s decision.     See LeMaire v. Louisiana Dept. of Transp. and
Development, 480 F.3d 383, 391 (5th Cir. 2007).
      The district court found that Burton could not establish a prima facie
case of discrimination, because she had not pointed to other employees who
were similarly situated but treated more favorably.      In the district court,
Burton pointed to four African-American employees who she alleges committed
more serious violations but received discipline short of termination. Burton
was terminated for facilitating the transfer of custody of an offender’s minor
child, thereby exceeding the role of a parole officer. The summary judgment
record shows that the four employees Burton alleges were treated more
favorably were disciplined for very different misconduct, such as failing to
submit required reports regarding the offenders they monitored, failing to
complete required investigations, and slapping an offender on the shoulder.
The district court found that the comparator employees were not similarly
situated, and thus Burton had failed to established a prima facie case.
      Even if we assume that Burton has established a prima facie case, which
we doubt, TDCJ has produced more than sufficient evidence to meet its burden
to show a legitimate, non-discriminatory reason for Burton’s termination, and
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                                         No. 14-40501
Burton has produced no evidence that raises a genuine dispute of fact as to
pretext. Competent summary judgment evidence shows that TDCJ’s decision
to terminate Burton was based on its finding that she acted beyond the scope
of a parole officer’s duties by working with a sheriff’s deputy to effectuate the
transfer of custody of an offender’s child, outside the CPS system, thereby
potentially interfering with the functions performed by another state agency
charged with protecting child welfare.               Burton does not dispute that she
engaged in the conduct, and does not produce sufficient evidence of other
employees who engaged in similar conduct and were treated differently.
Hence, she fails to rebut TDCJ’s proffered justification.                  1   Burton’s pro se
appellate brief, even construed liberally, focuses almost wholly on her assertion
that the conduct she engaged in was justified in the circumstances of the
situation. However, in conducting a pretext analysis, we do not “engage in
second-guessing of an employer’s business decisions.” LeMaire, 480 F.3d at
391. Title VII does not require employers to make correct decisions, only non-
discriminatory decisions. See id. Summary judgment is appropriate because
Burton has failed to raise a fact dispute as to pretext. See Haire, 719 F.3d at
362-63; Lemaire, 480 F.3d at 391.
       Burton’s state law claim for retaliation was also properly dismissed
because it is barred by the Eleventh Amendment. See Harris v. Angelina
County, Tex., 31 F.3d 331, 338, n.7 (5th Cir. 1994); Aguilar v. Tex. Dept. of
Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
       On appeal, Burton also makes brief assertions that she was deprived of
her right to a jury trial and that she received ineffective assistance of counsel.


       1 Burton argues on appeal that she was replaced by an African-American woman, and
asserts that this establishes a prima facie case. Since she did not raise this fact in the district
court and does not produce any supporting evidence, this evidence is outside the record.
Further, even if we assume that fact to be true and consider it, it would not be sufficient to
rebut TDCJ’s legitimate, non-discriminatory justification and raise a fact issue as to pretext.
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                                No. 14-40501
Of course, the right to trial by jury does not prevent a court from granting
summary judgment. Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir. 1988).
Nor does a plaintiff in a civil case possess a Sixth Amendment right to the
effective assistance of counsel. See Sanchez v. United States Postal Service,
785 F.2d 1236, 1236 (5th Cir. 1986).
                                Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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