     Case: 10-60845    Document: 00511581232         Page: 1    Date Filed: 08/24/2011




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

                                                                          FILED
                                                                        August 24, 2011

                                    No. 10-60845                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



REVEREND LOUIS BAILEY

                                                 Plaintiff - Appellant
v.

DOLGENCORP, L.L.C.,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:08-CV-253


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Reverend Louis Bailey (“Bailey”) appeals the district court’s grant of
summary judgment in favor of Dollar General Corporation (“Dolgencorp”).
Before us is Bailey’s claim against Dolgencorp for unlawful termination in
retaliation for his Equal Employment Opportunity Commission (“EEOC”) filing.
                          FACTS AND PROCEEDINGS
        Bailey was hired as a loader in the shipping department at Dolgencorp in


       *
        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not be published and is not precedent except under the limited circumstances set forth in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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1999. In March 2007, Bailey took his supervisor’s hand and prayed for her
illness to go away even though she did not request the prayer. The parties
dispute whether the supervisor complained about the prayer or if she was simply
concerned about it. After reviewing the incident, Dolgencorp management chose
to terminate Bailey in April of 2007. Bailey challenged his termination by filing
complaints with Dolgencorp’s internal alternative dispute resolution program
and the EEOC. The internal alternative dispute resolution panel concluded that
Dolgencorp should not have terminated Bailey. Dolgencorp accepted the panel’s
conclusions and reinstated Bailey in May of 2007.
      Dolgencorp has a “progressive” discipline policy. It issues warnings called
“counselings” for substandard work, correctable conduct, and correctable
attendance problems. The progressive discipline policy has three levels: a verbal
counseling, a written counseling, and a final counseling.                   Dolgencorp
management records and tracks each counseling. When a Dolgencorp employee
receives a final counseling, he is placed on probation for one year. If he receives
any counseling during the one-year probationary period, he is terminated.
Bailey received verbal and written counselings in January and February of 2007,
respectively, for substandard work loading trucks.
      Upon his reinstatement in May, Bailey’s manager issued him two
counselings for prior violations of company policy. One was a written counseling
for violating the company’s anti-harassment policy by praying for his ill
supervisor in an unwanted manner. The second was a final counseling written
on March 20, 2007 for Bailey’s substandard performance in loading a truck.1

      1
         Dolgencorp issues counselings only while employees are working. Bailey was on
vacation for several days attending a funeral in late March. He returned to work on April
3, 2007, and his managers told him that he was being terminated for praying for his
supervisor in an unwanted manner. Because Bailey was in the process of being terminated
for his unwanted prayer when he returned from his trip, Dolgencorp did not issue the

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The final counseling for the truck load triggered the one-year probationary
period for Bailey.
      On March 6, 2008, a truck arrived at the Dolgencorp store in Elizabeth,
Louisiana, and fifteen cases of merchandise fell to the ground when the truck’s
doors were opened. The assistant manager of the Elizabeth store reported the
damage. After investigation, Dolgencorp determined that Bailey and a colleague
were responsible for loading the truck.             While the parties dispute the
thoroughness with which Bailey’s managers conducted their investigation, they
do not dispute that this incident took place less than one year after Bailey’s final
counseling dated March 20, 2007. Bailey received a counseling for this incident
and was terminated by his supervisor Donna Azar (“Azar”).
      Bailey filed a lawsuit against Dolgencorp for unlawful termination in
retaliation against his EEOC filing. Dolgencorp moved for summary judgment.
The district court granted summary judgment because Bailey could not
“demonstrate a triable issue of fact on [the] causal connection” between his
EEOC filing and termination.          The district court also found that Bailey’s
evidence of pretext failed “to demonstrate a genuine issue of material fact” and
that there was insufficient evidence to “create a genuine issue of fact as to
whether retaliation was a motivating factor” in Dolgencorp’s decision. Bailey
appeals.
                            STANDARD OF REVIEW
      “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a


March 20 final counseling until his May reinstatement.

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matter of law” FED. R. CIV. P. 56(a).
                                 DISCUSSION
      A.    Discriminatory Retaliation
      Bailey claims that Dolgencorp fired him in retaliation for his EEOC filing.
“[I]n order to establish a prima facie case of retaliation, the plaintiff must show
(1) that he engaged in an activity protected by Title VII; (2) that an adverse
employment action occurred; and (3) that there is a causal link between the
protected activity and the adverse employment action.” Manning v. Chevron
Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). When evaluating discrimination
claims, this court employs the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), superceded by statute, 42 USC § 2000e-2(m). Under this framework,
a plaintiff must
      demonstrate a prima facie case of discrimination; the defendant
      then must articulate a legitimate, non-discriminatory reason for its
      decision to terminate the plaintiff; and, if the defendant meets its
      burden of production, the plaintiff must then offer sufficient
      evidence to create a genuine issue of material fact either (1) that the
      defendant’s reason is not true, but is instead a pretext for
      discrimination (pretext alternative); or (2) that the defendant’s
      reason, while true, is only one of the reasons for its conduct, and
      another ‘motivating factor’ is the plaintiff’s protected characteristic
      (mixed-motives alternative).
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (internal
citations and quotations omitted); see also Smith v. Xerox Corp., 602 F.3d 320,
330 (5th Cir. 2010) (the Price Waterhouse burden-shifting scheme applies to
retaliation claims).     The plaintiff must establish a prima facie case of
discrimination before the burden shifts to the defendant. See Manning, 332 F.3d
at 881.


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      B.     Prima Facie Case for Bailey’s Retaliation Claim
      The parties do not dispute that Bailey engaged in a protected activity by
filing an EEOC claim or that Bailey suffered an adverse employment action
when he was terminated by Azar in April of 2008. Thus, Bailey has established
the first two prongs of a prima facie case of retaliation. The only question is
whether Bailey showed a “causal link between the protected activity and the
adverse employment action.” Id. at 883.
      Bailey claims that he has raised a genuine issue of material fact that his
EEOC filing caused Dolgengorp to fire him. First, despite “several infractions
for which he received disciplinary counselings earlier in his career,” Bailey
argues that he was disciplined in March 2007 and 2008 only because of his
EEOC complaint.2 He next alleges that Dolgencorp failed to follow its normal
procedures in investigating his loading errors before issuing his 2008 counseling
because his managers were upset with his EEOC filing. Finally, Bailey asserts
that the eleven-month lapse between his EEOC filing and his ultimate
termination is insufficient to show that there was no connection between his
protected activity and his termination.
      His arguments fail, however, because he cannot show a vital prerequisite
to the retaliation claim: that the decisionmaker knew of the protected activity.
      [I]n order to establish the causation prong of a retaliation claim, the
      employee should demonstrate that the employer knew about the
      employee’s protected activity. . . . If an employer is unaware of an
      employee’s protected conduct at the time of the adverse employment
      action, the employer plainly could not have retaliated against the
      employee based on that conduct.



      2
        Bailey also seems to allege that his counselings in January and February 2007
were related to his EEOC filing. Counselings prior to the EEOC complaint could not have
been caused by the EEOC complaint.

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Id. (internal citations and quotation marks omitted).
      Azar denies that she was aware that Bailey had filed an EEOC claim, and
Bailey does not dispute that Azar was the decisionmaker in his termination. He
has not presented any evidence that Azar knew of his EEOC claim, but simply
alleges that Azar is not a credible witness.
      The party opposing summary judgment must be able to point to
      some facts which may or will entitle him to judgment, or refute the
      proof of the moving party in some material portion, and . . . the
      opposing party may not merely recite the incantation, “Credibility,”
      and have a trial on the hope that a jury may disbelieve factually
      uncontested proof.
Curl v. Int’l Bus. Machs. Corp., 517 F.2d 212, 214 (5th Cir. 1975) (quoting Rinieri
v. Scanlon, 254 F. Supp. 469, 474 (S.D.N.Y. 1966)); see Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 258 (5th Cir. 2009) (“Lee offers only speculative inferences to
support his assertion, which is insufficient to demonstrate the existence of a
genuine issue of material fact”). As such, Bailey has not raised a genuine issue
of material fact on the causal connection between his EEOC claim and his
termination. Because Bailey cannot establish a prima facie case, his retaliation
claim must fail.
                                CONCLUSION
      The district court’s grant of summary judgment is AFFIRMED.




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