     Case: 11-10930     Document: 00511871170         Page: 1     Date Filed: 05/30/2012




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

                                                                            FILED
                                                                           May 30, 2012

                                     No. 11-10930                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ALEXIS M. PICARD


                                                  Plaintiff - Appellant

v.

CITY OF DALLAS


                                                  Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-634


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Alexis Picard appeals the district court’s grant of summary judgment in
favor of the City of Dallas on her Title VII retaliation claim. Because the district




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10930

court properly found that Picard failed to overcome Dallas’ legitimate
nondiscriminatory justification for her termination, we AFFIRM.
        Picard was hired for a six month probationary period by the Dallas
Department of Water Utilities as a chemist in December 2008 and assigned to
the Southside water treatment plant (“Southside”). Her supervisor at Southside
was Kiran Makanji, who oversaw multiple chemists and generally managed
Southside’s quality control procedures. Following the probationary period, the
Dallas civil service board rejected a request by a senior supervisor, Morgan
Dadgostar, to extend the probationary period and terminated Picard on June 10,
2009.
        While working at Southside, Makanji made Picard uncomfortable on
multiple occasions from January until May. Allegedly Makanji asked her to stay
late so they could be alone together, touched her shoulder, and even told her he
loved her on separate occasions. In February 2009 and again in April 2009,
Picard reported to Bill Gase, Makanji’s supervisor, that Makanji had been
“acting weird” and requested a transfer, but the transfers were rejected. In May
2009, Picard contacted Dodgostar, Gase’s supervisor, who initiated an
investigation of Makanji and ultimately decided to transfer Picard to the Central
wastewater treatment plant (“Central”) on May 27th.
        Throughout her probationary period, Picard admits she was making
mistakes in her work both before and after the transfer, but alleges Makanji’s
performance reviews exaggerated the mistakes. She also claims her work was
improving when she was transferred to Central. The civil service board cited the
mistakes and poor quality of work in rejecting Dodgostar’s request to extend
Picard’s probationary employment.
        Following her termination, Picard filed a lawsuit against Dallas for sexual
harassment and retaliation. The district court granted summary judgment to
Dallas. Picard appeals only on grounds of retaliation.

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                                  No. 11-10930

      “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 pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” Id. In determining whether a genuine issue as to any material fact exists,
we view the evidence in the light most favorable to the nonmoving party.
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
      The McDonnell Douglas burden shifting framework is used to evaluate
circumstantial evidence of retaliation. McCoy v. City of Shreveport, 492 F.3d
551, 556 (5th Cir. 2007). Under McDonnell Douglas, the plaintiff must first
present a prima facie case of retaliation. Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 484 (5th Cir. 2008). Once this occurs, the burden shifts to the employer
to advance a legitimate, non-discriminatory reason for the adverse employment
action. Id. To overcome an employer’s legitimate, nondiscriminatory reason, the
plaintiff must show it is a pretext for discrimination. Id.
      Picard has presented a prima facie case of retaliation. Dallas advanced a
legitimate, nondiscriminatory reason for terminating Picard: her performance
deficiencies. Her claim hinges on the third step in the McDonnell Douglas
framework. She alleges that the request to extend the probationary period
indicates her performance deficiencies did not justify her termination and that
her sexual harassment complaint was the true motivation.
      The district court addressed this alleged “inconsistency” and noted that the
request from Dadgostar to extend Picard’s probationary employment undermines
the allegation the termination was in retaliation for her reports of sexual
harassment. We find the district court’s logic persuasive. Had Dallas wanted
to terminate Picard in retaliation for the sexual harassment allegation,
Dadgostar would not have sought an extension in Picard’s probation. Instead,

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                                 No. 11-10930

despite her performance deficiencies, Dadgostar requested an extension which
the Dallas civil service board rejected. Picard’s continued mistakes after five
months on the job were the basis for poor evaluations. Her job performance was
repeatedly and consistently cited as the basis for her termination. Picard has
not shown that her sexual harassment complaint was a pretext or motivated
Dallas’ ultimate decision to terminate her at the end of her six-month
probationary employment.
      Though Picard presented a prima facie case of retaliation, she has not
presented sufficient evidence to create a genuine issue of material fact that the
legitimate, non-discriminatory reason the City has provided for her termination
was a pretext for retaliation or that retaliation was a motivating factor.
Therefore we AFFIRM the ruling of the district court.




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