     Case: 09-11222     Document: 00511077459          Page: 1    Date Filed: 04/12/2010




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

                                                  FILED
                                                                            April 12, 2010

                                     No. 09-11222                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JOHN W BROOKS,

                                                   Plaintiff-Appellant
v.

LUBBOCK COUNTY HOSPITAL DISTRICT, doing business as UMC Health
System,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:08-CV-92


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        John W. Brooks claims UMC Health System terminated his employment
because of his race and in retaliation for filing various discrimination suits
against UMC.        The district court granted the UMC’s motion for summary
judgment and dismissed the suit, finding Brooks failed to make out a prima facie




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11222

case and that even if he did, Brooks cannot show UMC’s rationales were a mere
pretext. We agree with the district court and affirm.


                                             I
       Brooks, an African American male, was hired by UMC in 1987. Brooks
worked under Charlotte Carlson for over thirteen years in the Patient
Accounting department and was considered a good employee. However, in 2000,
due to corporate restructuring, Brooks began reporting to the Director of
Admitting and problems arose. Carlson asked whether Brooks would like to
return to Patient Accounting and was transferred that year. There he reported
to assistant directors of Patient Accounting, who in turn reported to Carlson.
Brooks had few problems until August of 2005, when Carlson had a job
performance counseling session with Brooks regarding an inappropriate
relationship Brooks had with one of his subordinates.1 During the first quarter
of 2007, after another reorganization, Brooks began to report to Carlson again.
Carlson claims that she quickly assessed Brooks’s performance as “substandard.”
       Meanwhile, in 2001, Brooks brought the first of what has now been three
separate EEOC discrimination charges against UMC. He subsequently sued in
Texas court in 2002, which the court eventually dismissed in 2005. In 2006,
shortly after the Supreme Court denied cert in his original claim, Brooks filed
a second EEOC charge alleging retaliation for the first suit. He again sued, this




       1
         One of Brooks’s subordinates claimed sexual harassment, however Carlson’s review
of emails led her to believe it had been a two-way relationship. The subordinate was assigned
to another supervisor and Brooks was informed that he would be terminated if he participated
in another inappropriate relationship.

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                                  No. 09-11222

time in federal court, and the district court dismissed this suit on May 29, 2007.
We later dismissed Brooks’s appeal for lack of prosecution.2
      On October 5th, 2007, Carlson had another job performance counseling
session with Brooks. Brooks raised a number of issues, including concerns about
his failure to keep up with changes in the commercial area, his ability to perform
as a supervisor, and failure to determine proper payments. Carlson’s report
stated that she had engaged in several conversations with Brooks regarding his
performance and that he claimed a number of personal issues had been holding
him back. She stated that though she had previously given him the benefit of
the doubt, he had become more of a detriment to her department than an asset.
On October 29th 2007, Carlson received an independent consultants report
which revealed Brooks had failed to catch a $400,000 underpayment of one of his
accounts. Carlson asked Brooks to resign and he complied.
      Brooks now sues UMC for a third time alleging that his termination was
the result of race discrimination and retaliation. UMC moved for summary
judgment contending Brooks was terminated solely on the basis of his
performance. The district court granted the motion and Brooks now appeals.


                                         II




      2
        Brooks v. Lubbock County Hosp., No. 07-10733 (5th Cir. Sep. 11, 2007) (Order
dismissing appeal for failure to file briefs).

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                                        No. 09-11222

       We review the grant of a motion of summary judgment de novo.3 A grant
of summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law.4
       We consider claims of intentional discrimination, including both race
discrimination and retaliation claims based on Title VII and 42 U.S.C. § 1981
under the same familiar McDonnell Douglas analysis.5 To sustain a claim under
this framework, the plaintiff must first establish a prima facie case of
discrimination. “To establish a prima facie case of racial discrimination in
employment, an employee must demonstrate that (1) he is a member of a
protected class, (2) he was qualified for the position at issue, (3) he was the
subject of an adverse employment action, and (4) he was treated less favorably
because of his membership of the protected class than were other similarly
situated employees who were not members of the protected class, under nearly
identical circumstances.” 6 To establish a prima facie case of retaliation the
employee must demonstrate: “(1) that the plaintiff engaged in activity protected
by Title VII, (2) that an adverse employment action occurred, and (3) that a
causal link existed between the protected activity and the adverse employment
action.” 7 Once a prima facie case has been established the burden of production



       3
           Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004).
       4
           Id.
       5
       Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002); McDonnell
Doughlas Corp., v. Green, 411 U.S. 792, 802 & n.13 (1973).
       6
      Lee v. Kansas City Southern Railway Co., 574 F.3d 253, 259 (5th Cir. 2009);
McDonnell Douglas Corp, 411 U.S. at 802.
      7
           Raggs, 278 F.3d at 471; Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001).

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                                          No. 09-11222

shifts to the employer who must furnish a legitimate nondiscriminatory
explanation.8 If the employer provides such an explanation, the inference of
discrimination falls away and the burden shifts back to the employee to
demonstrate the explanation is a mere pretext for discrimination or retaliation.9
We turn first to the claim of race discrimination and then to the retaliation
claim.
      The district court found Brooks failed to establish the fourth prong of his
prima facie case: that he was treated less favorably because he was African
American than similarly situated employees of a different race. In support of his
prima facie case, Brooks claims two Anglo American employees did not suffer the
same disciplinary consequences, job performance counseling and termination,
even after they allegedly also lost as much as $600,000.
      In order to establish a prima facie case, Brooks must establish that the
Anglo American employees were “similarly situated to him.” We “require that
an employee who proffers a fellow employee as a comparator demonstrate that
the employment actions at issue were taken ‘under nearly identical
circumstances.’” 10 The employee being compared must have “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.         And, critically, the plaintiff’s conduct that drew the adverse




         8
             Lee, 574 F.3d at 259; Evans, 246 F.3d at 354-55.
         9
             Lee, 574 F.3d at 259; Evans, 246 F.3d at 354-55.
         10
              Lee, 574 F.3d at 260.

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                                      No. 09-11222

employment decision must have been ‘nearly identical’ to that of the proffered
comparator who allegedly drew dissimilar employment decisions.”11
       To demonstrate Brooks offers a series of emails purporting to show two
Anglo American employees also lost significant amounts of money through the
mismanagement of accounts. It is difficult from the record to determine what,
if anything, the evidence Brooks offers demonstrates. However, even assuming
the evidence demonstrates the other employees lost money as well, he has not
show the other employees were similarly situated. Brooks makes no showing
that he and the other employees had essentially comparable violation histories.12
When the mismanagement of the account was discovered, Brooks had recently
undergone a job performance counseling session in which Carlson detailed a
litany of complaints and concerns regarding Brooks’s job performance. Carlson’s
report stated Brooks failed to follow through on instructions, received no respect
from the employees he supervised, could not identify problems, failed to
determine correct payments, failed to respond to emails such that Carlson had
to be cc’ed on all of his emails, and many other problems. Nor was that his first
job performance counseling session. Brooks disputes none of this but offers no
evidence the other employees’ performances were similarly deficient. Brooks
cannot establish a prima facie case of race discrimination.
       The district court also found Brooks failed to establish a prima facie case
of retaliation as he failed to prove that his termination was causally connected
to his EEOC complaints and lawsuits. Brooks offers three incidents which he

       11
            Id.
       12
          See Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir.
2001) (finding other employees with disciplinary infractions to be sufficiently dissimilar as
they had less severe disciplinary histories).

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                                       No. 09-11222

claims supports a finding of a causal connection. He claims another supervisor
threatened to terminate him in July of 2006, that on May 17, 2007 Carlson made
a direct threat to terminate Brooks for filing the EEOC charges, and that
Carlson demanded Brooks apologize to the CFO of UMC and another manager
for filing the EEOC charges. Importantly, the comments were made while
Brooks’s second suit was ongoing and before it was dismissed by the district
court. Brooks did not bring any additional claims between when the comments
were made and his eventual termination.                  The causal link between his
termination and the EEOC charges and lawsuits is weak at best.
      However, even assuming Brooks made out a prima facie case, Brooks does
not provide evidence demonstrating UMC’s legitimate reason for firing him was
merely a pretext. “Our job as a reviewing court conducting a pretext analysis is
not to engage in second-guessing of an employer’s business decisions.” 13 As the
district court found, UMC presents a legitimate reason for terminating Brooks,
his progressively worsening job performance culminating in his failure to catch
a $400,000 underpayment in one of his accounts. Brooks admits the error and
does not dispute the other allegations regarding his poor performance. Rather
he claims that his performance was due to stressful working conditions caused
by Carlson’s counseling sessions and emails berating him for mistakes. It is
unclear how, even if this is true, it would demonstrate UMC’s rationale was
pretext as opposed to Brooks’s increasing inability to perform his job. Brooks
offers no evidence suggesting that the counseling sessions were initiated with
unlawful motive as opposed to an honest effort to get Brooks’s performance back
to the levels it had been previously. Carlson had previously given Brooks good


      13
           LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007).

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                                       No. 09-11222

reviews—even while his first suit was ongoing 14 —and she claims to have
considered Brooks a friend up until his performance began to decline. Nor does
Brooks’s allegation that Carlson threatened him demonstrate UMC’s rationale
was a pretext. The comment was made five months before the job performance
counseling session and auditor’s report. It does not suggest, and Brooks does not
claim, that the allegations of poor performance or the report’s findings were
untrue. As Brooks offers little to no evidence suggesting UMC’s claim that it
terminated Brooks for performance reasons is false, he cannot demonstrate it
was merely a pretext for retaliation.
       Brooks has not demonstrated a genuine issue of material fact evidencing
unlawful discrimination or retaliation by UMC in it’s termination of Brooks.
The district court’s grant of summary judgment is AFFIRMED.




       14
          This court has recognized that when the same actor who fired the employee also hired
him gives an inference against discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658
(5th Cir. 1996). The same logic applies here: Carlson recruited Brooks in 2000 to come back
to work for her department and did not find problems until another employee complained of
an inappropriate relationship in 2005, even after Brooks’s first suit was filed in 2002.

                                              8
