     Case: 18-30856   Document: 00515058061    Page: 1   Date Filed: 07/31/2019




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

                                No. 18-30856                         FILED
                                                                 July 31, 2019
                                                                Lyle W. Cayce
LABRITTANY K. HASSEN,                                                Clerk

             Plaintiff–Appellant,

v.

RUSTON LOUISIANA HOSPITAL COMPANY, L.L.C., doing business as
Northern Louisiana Medical Center,

             Defendant–Appellee.


                Appeal from the United States District Court
                   for the Western District of Louisiana


Before KING, SMITH, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      In this Title VII race-discrimination case, LaBrittany Hassen contends
that Ruston Louisiana Hospital denied her a full-time nurse position and later
fired her from her part-time position because she’s black. The district court
granted summary judgment to the hospital, concluding that Hassen failed to
satisfy the McDonnell Douglas burden-shifting framework. We AFFIRM.

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                                       No. 18-30856
        LaBrittany Hassen worked at a large hospital called the Northern
Louisiana Medical Center as a PRN nurse. 1 “PRN” stands for “pro re nata”—a
Latin phrase, which (roughly translated) means “in the circumstances.” 2 In
other words, PRN nurses are as-needed workers. 3 Although Hassen had
applied for a PRN position, she had also applied for a full-time position. But
the hospital interviewed and hired her only as a PRN. This was in February
2012.
        On the same day, the hospital hired two full-time nurses with less
experience than Hassen. One had no nursing experience; and the other had
graduated only one year before with merely a temporary license. Hassen, on
the other hand, had graduated from nursing school three years before and had
her full license. Even so, all three nurses had the same duties.
        The reason for these hiring decisions? Hassen says that it’s because she’s
black, whereas the two full-time nurses are white.
        Two months after starting work, Hassen saw notices for two full-time
vacancies. She approached her supervisor about the positions, but her
supervisor replied that Hassen wasn’t qualified. So Hassen didn’t apply.
        Next, Hassen alleges that the hospital fired her because of her race.
What happened was this: In the summer of 2012, Hassen told her supervisor
that she had accepted a full-time nursing position elsewhere. In response, the
hospital fired her. The hospital prefers the phrase “purging” for removing a
PRN from the work pool. Whatever the term, Hassen ascribes her termination
to race discrimination. The hospital disputes this.



        1 For our review, we view the facts in the light most favorable to Hassen as the
nonmovant, drawing all reasonable inferences in her favor. See Morris v. Town of
Independence, 827 F.3d 396, 399 (5th Cir. 2016).
        2        Pro         re       nata,           OXFORD          ENGLISH      DICTIONARY,
https://www.oed.com/view/Entry/238171?redirectedFrom=pro+re+nata#eid.
        3 See id. (“For an occasion as it arises; . . . as required, as needed.”).

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                                     No. 18-30856
      The hospital says that Hassen’s hours at her new full-time job directly
conflicted with the only shifts available to PRN nurses. The hospital also
underscores that it told Hassen that she remained “eligible for re-hire” if she
applied. And the hospital stresses that Hassen never applied for re-hire.
      Hassen timely filed a discrimination complaint with the EEOC. The
EEOC found “reasonable cause to believe” that the hospital violated Title VII.
Unable to settle with the hospital, the EEOC ended its investigation and issued
Hassen a right-to-sue letter. Off to federal court.
      But Hassen didn’t fare well there. Applying the McDonnell Douglas
framework, 4 the district court granted the hospital’s summary-judgment
motion, dismissing the suit with prejudice. The court held that Hassen had
made a prima facie case that the hospital didn’t hire her for a full-time position,
but that she failed to show that the hospital’s stated explanation was mere
pretext. The court also held that Hassen failed to make a prima facie case that
her firing was improper. But the court held that even if she had, she still failed
to show that the hospital’s justification was mere pretext.

                                           II
      Standards for assessing summary judgment are well settled. A district
court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 5 We review a grant of summary judgment de novo,
applying the same standard as the district court. 6 But we view the evidence
and draw all justifiable inferences in favor of the nonmovant. 7 Even so,




      4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
      5 FED. R. CIV. P. 56(a).
      6 Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
      7 Id.

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                                        No. 18-30856
barebones, conclusory, or otherwise-unsupported assertions won’t cut it; 8 the
nonmovant “must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial.” 9

                                               III
        When—as       here—a       plaintiff    proffers    circumstantial       evidence     of
discrimination, the plaintiff must satisfy the Supreme Court’s McDonnell
Douglas framework. 10 It’s a three-part burden-shifting scheme. As we recently
explained in Morris, the framework first requires the plaintiff to establish a
prima facie case of discrimination. 11 To do that, the plaintiff must show:
   1.   She’s a member of a protected group;
   2.   She was qualified for the position at issue;
   3.   The employer fired her or took some adverse employment action; and
   4.   The employer replaced her with someone outside the protected group or
        treated her less favorably than other similarly situated employees
        outside the protected group. 12

Then, the burden shifts to the defendant. The defendant must “articulate a
legitimate non-discriminatory reason for the adverse employment action.” 13 If
the defendant does, the burden shifts back to the plaintiff, who must offer
evidence that the employer’s reason was mere pretext. 14
        Here, the parties don’t dispute the first two prima facie elements. Hassen
is black, a protected class. And she holds a nursing degree. The hospital doesn’t



        8 Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated
assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.”).
        9 LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
        10 McDonnell Douglas, 411 U.S. at 802.
        11 Morris, 827 F.3d at 400 (citing Burton v. Freescale Semiconductor, Inc., 798 F.3d

222, 227 (5th Cir. 2015)); Paske v. Fitzgerald, 785 F.3d 977, 984 (5th Cir. 2015) (citing Burrell
v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411–12 (5th Cir. 2007)).
        12 Morris, 827 F.3d at 400 (citing Willis v. Cleco Corp., 749 F.3d 314, 319–20 (5th Cir.

2014)).
        13 Id. (citing Burton, 798 F.3d at 227).
        14 Id. (citing Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004)).

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                                       No. 18-30856
challenge her qualifications. We first decide Hassen’s failure-to-hire claim.
Then we consider her termination claim.
                                              A
       Hassen’s prima facie case on her failure-to-hire claim is cut-and-dried.
First, the hospital didn’t hire her for the full-time position. And her hospital
supervisor discouraged her from applying for a promotion. Adverse
employment action: check. Second, the hospital concedes that it hired two
white nurses for full-time positions despite not hiring Hassen. Less favorable
treatment: check. So Hassen carries her prima facie burden.
       But the hospital offers legitimate nondiscriminatory explanations—
Hassen applied for a PRN position; during the interview Hassen never asked
about a full-time position; she accepted a PRN position without inquiring about
a full-time position instead; and she never actually applied for a full-time
position online after getting the PRN position.
       The dissenting opinion is concerned that the hospital has changed its
story about its initial hiring decision; proffering different reasons on appeal
than it did at the district court. True, in Caldwell, we held that when an
employer switches its story, that casts doubt on those explanations. 15 But
there, the employer completely switched its justification. At first, the employer
claimed that the employee had refused to work. 16 But then later, the employer
changed its story; saying merely that the employee failed to seek out extra
work. 17 Or take this court’s 2007 decision in Burrell, which Caldwell cites. 18



       15  850 F.3d 237, 242 (5th Cir. 2017).
       16  Id.
        17 Id.
        18 Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408 (5th Cir. 2007).

Alert readers will notice a citation slip-up here. Dr Pepper has 23 flavors but 0 periods. The
court mis-punctuated America’s oldest major soft drink. Born in 1885 (one year before Coca-
Cola), Dr Pepper ditched the period in the 1950s after an errant logo design squished the
letters so that the curvy script looked like “Di: Pepper.” See Dr Pepper (@drpepper), TWITTER
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                                     No. 18-30856
There, Dr Pepper (the employer) changed its story about why it didn’t promote
an employee. 19 First, Dr Pepper said only that the employee lacked purchasing
experience. 20 Second, Dr Pepper said only that the employee lacked bottling
experience. 21 And third, Dr Pepper said only that the employee lacked
“purchasing experience in the bottling industry.” 22
      Respectfully, this case is different. All along, the hospital has given a
group of reasons that collectively explain why it didn’t offer Hassen a full-time
position.
      To reiterate, both at the district court and on appeal, the hospital
explained that it offered Hassen a PRN position because she applied for that
position; during her interview she didn’t ask about a full-time position; and
once offered a PRN position, she accepted without asking about a full-time
position. Admittedly, the hospital originally also added to this litany its initial,
mistaken belief that Ms. Hassen didn’t even apply for a full-time position. But
unlike in Caldwell or Burrell, this was not its sole argument at the district
court that it later swapped out for something new on appeal.
      Rather, this was a single, mistaken component of an overarching
argument that the hospital maintains on appeal: Its hiring decision was merely
part of a routine, perfunctory hiring process.
      That’s why the hospital highlights that during the same time that
Hassen was employed there, the hospital also hired at least six other black




(Jan. 28, 2019, 3:12 PM), https://twitter.com/drpepper/status/1090024798133108736; see also
Charles Scudder, Five Things to Know About Texas’ Dr Pepper, DALL. NEWS (Jan. 3, 2018),
https://www.dallasnews.com/life/texana/2018/01/29/five-things-know-texas-dr-pepper
(“Don’t use a period. Period.”).
        19 Burrell, 482 F.3d at 413.
        20 Id.
        21 Id.
        22 Id.

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                                 No. 18-30856
candidates for registered-nurse positions. Thus, the hospital has proffered—
and maintained—the same legitimate, nondiscriminatory explanations.
      So Hassen needed to offer evidence that the hospital’s reasons were mere
pretext. But the district court noted that she “produced no evidence that [the
hospital] informed White nurses, but not Black nurses of available positions,
or that [the hospital] has hired White nurses, but not Black nurses, without an
online application.” And in her briefs, Hassen merely recites her burden under
the McDonnell Douglas framework. She doesn’t present any new evidence or
point to any overlooked evidence that, if true, would prove that the hospital’s
stated reasons are mere pretext. She never shows that the hospital intended
to, or did, discriminate based on race. Thus, Hassen hasn’t carried her burden.
      Yet Hassen urges us to consider her employer’s discouragement from
applying for a promotion separately from the initial failure to hire. But her
initial brief, complaint, and motion in opposition all treat the issue as part of
the failure to hire. Even if we did divide these supposedly distinct issues, it
would make no difference. Hassen would not be able to make a prima facie
showing on the failure to promote: Hassen didn’t allege that the hospital
treated her differently from white nurses seeking promotions. Even if she had,
she didn’t rebut the hospital’s explanation: Hassen never actually applied.
                                       B
      For Hassen to win on her termination claim, she must again make a
prima facie case. Then, she must rebut the reasons that the hospital gave (this
time for firing her).
      Turning to the prima facie case: The district court held that purging
Hassen from the work pool (i.e., firing her) wasn’t an adverse employment
action. But termination is a classic example of adverse employment action
under our caselaw.


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                                      No. 18-30856
      In our decision this year in Nall, the adverse action was termination. 23
In our 2014 opinion LHC Group, the adverse action was also termination. 24
And in our 1999 case Zenor, the adverse action was again termination. 25 Here,
whatever the reason—and even though the hospital told her she could
reapply—the hospital fired Hassen. So, under the McDonnell Douglas
framework, Hassen established that element of her prima facie case.
      Yet the district court held otherwise. It held that this firing wasn’t an
adverse employment action because Hassen herself caused it—by taking full-
time employment elsewhere. But the district court’s approach conflates the
prima facie stage with the next stage; where defendants may present a
legitimate explanation. In McDonnell Douglas, the Supreme Court required
the plaintiff to show that there was some adverse employment action. But it
put the burden on the defendant to show that the action was reasonable—i.e.,
“legitimate” and not for an impermissible reason (e.g., race). 26
      In his special concurrence in Nall, Judge Costa characterized a
termination in a helpful way: “To use a modern phrase, the firing ‘is what it
is’: the railroad has all along acknowledged that it fired Nall because of
concerns about his Parkinson’s. That’s discrimination on the basis of a
disability. . . . [T]he hard issue in this one is not whether there was
discrimination but whether that discrimination was justified.” 27
      Similarly, the issue here is not whether the hospital fired Hassen.
Instead, there are two issues: (1) whether the hospital retained similarly




      23 Nall v. BNSF Ry. Co., 917 F.3d 335, 342 (5th Cir. 2019).
      24 EEOC v. LHC Grp., Inc., 773 F.3d 688, 700 (5th Cir. 2014).
      25 Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 855 (5th Cir. 1999).
      26 McDonnell Douglas, 411 U.S. at 802–03.
      27 Nall, 917 F.3d at 351–52 (Costa, J., concurring).

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                                      No. 18-30856
situated white nurses (the other half of the prima facie case); and (2) if so,
whether the hospital has a legitimate reason for the different treatment. 28
      Hassen failed to make out the rest of her prima facie case. She didn’t
show that she was treated differently from similarly situated white nurses.
The district court noted that the hospital “produced undisputed evidence that
it commonly purges [people] . . . when they find full-time employment
elsewhere.”
      Even if Hassen had made a prima facie case, the hospital met its
McDonnell Douglas burden: Hassen’s schedule at her new full-time job
elsewhere conflicted with the only shifts available to PRN nurses. The hospital
even told Hassen that she was eligible for re-hire if she applied. Hassen retorts
that the hospital required PRN nurses to work only one shift a month, which
she says she had time for. But the only shifts that the hospital had for PRN
nurses conflicted with Hassen’s new job. And Hassen identified no evidence
that would prove that this explanation is mere pretext.
                                      *      *    *
      In sum, Hassen failed to carry her McDonnell Douglas burdens on both
of her claims. The district court correctly granted summary judgment, and we
AFFIRM.




      28   McDonnell Douglas, 411 U.S. at 802.
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                                 No. 18-30856
KING, Circuit Judge, concurring in part and dissenting in part:
      I agree with the majority that the district court appropriately entered
summary judgment in favor of the hospital on Hassen’s failure-to-promote and
discriminatory-termination claims. But I would reverse the district court’s
entry of summary judgment on Hassen’s failure-to-hire claim. Hassen has
rebutted the hospital’s proffered nondiscriminatory explanation for not hiring
her by presenting evidence that the hospital’s explanation is false.
      In the district court, the hospital argued that Hassen did not apply for
the full-time position. But the hospital has since abandoned this argument
because Hassen attached a copy of her application for the full-time position to
her opposition to summary judgment. “A plaintiff may establish pretext either
through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or ‘unworthy of credence.’ . . . An explanation is
false or unworthy of credence if it is not the real reason for the adverse
employment action.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)
(quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
By demonstrating that the hospital’s proffered reason was false, Hassen has
raised a genuine issue of material fact sufficient to survive summary judgment.
See Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (“[T]he question
is not whether the plaintiff proves pretext, but rather whether the plaintiff
raises a genuine issue of fact regarding pretext.” (quoting Thornbrough v.
Columbus & Greenville R.R. Co., 760 F.2d 633, 646 (5th Cir. 1985), abrogated
on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993))); see
also Laxton, 333 F.3d at 578 (“No further evidence of discriminatory animus is
required because ‘once the employer’s justification has been eliminated,
discrimination may well be the most likely alternative explanation . . . .’”


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                                  No. 18-30856
(omission in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147-48 (2000))).
      In its reply brief below, and now on appeal, the hospital shifted its
reasoning: now, the hospital agrees that Hassen applied for full-time
employment, but it argues that Hassen also indicated that she would accept a
PRN position. The majority accepts this explanation at face value. But in fact,
the hospital’s “inconsistent explanations for an employment decision ‘cast
doubt’ on the truthfulness of those explanations.” Caldwell, 850 F.3d at 242
(quoting Gee v. Principi, 289 F.3d 342, 348 (5th Cir. 2002)) (finding employee
raised a genuine issue of fact regarding pretext by showing that employer’s
explanations had “transformed over time”). Thus, the hospital’s shifting
explanations for not hiring Hassen for the full-time position further support
her position that there is a genuine issue of material fact as to whether the
hospital’s explanation was pretextual.
      The majority does not address these points, instead concluding that
Hassen “merely recite[d] her burden under the McDonnell Douglas framework”
and failed to “present any new evidence or point to any evidence” in support of
her position. But Hassen expressly rebutted the hospital’s proffered reason by
arguing that the hospital’s initial explanation was false and pointing to the
evidence in the record that she applied for the full-time position. She has thus
met her burden to raise a genuine issue of fact regarding pretext.
      For these reasons, I would conclude that Hassen has presented a fact
issue sufficient to survive summary judgment on her claim for failure to hire
for the full-time position, and as to that claim, I respectfully dissent.




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