     Case: 11-30979     Document: 00511887001         Page: 1     Date Filed: 06/14/2012




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

                                                                            FILED
                                                                           June 14, 2012

                                     No. 11-30979                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DIANNA N. JONES,

                                                  Plaintiff–Appellant,
v.

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:10-CV-372


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Dianna Jones sued her former employer, the Louisiana Department of
Health and Hospitals (DHH), alleging that she was terminated for racially
discriminatory reasons and in retaliation for refusing to assist clients in
obtaining benefits for which they were not qualified. The district court granted
summary judgment to DHH. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30979

                                          I
      Dianna Jones worked for DHH as a social services counselor. During her
employment, she was promoted and assigned to the Patient Assistance Program
at the Red River Mental Health Clinic, where she was the only African-American
employee. Though the parties dispute her exact responsibilities, her job involved
completing applications for patients to obtain pharmaceuticals free of charge.
      When Jones began working at the Red River facility, an incident occurred
between her and a coworker who was required to share a workspace with her,
with the coworker allegedly showing hostility to Jones by slamming cabinet
doors and drawers. The two met with a supervisor, and the coworker apologized.
Jones indicated in her deposition that she did not consider this hostility to be
related to her race.
      Jones asserts that she was subjected to racial slurs while at work.
Specifically, she cites the frequent use of the phrase “shoot a monkey,” which
another employee claimed was used as a replacement for profanity but which
Jones took to be a racial comment. Though Jones alleged in her complaint that
she “voiced her concerns” about the phrase, she stated in her deposition that she
did not report it to a supervisor.
      Jones also alleges that she was pressured to use her position to obtain
pharmaceutical benefits for patients who did not qualify for the program. She
contends she eventually lost her job because she “stood up to the nursing staff
at Red River” on the issue and because of her race. DHH counters that her
termination resulted from a combination of factors, including a suspended
driver’s license, being late to work and leaving early, performing outside
employment during work hours, and a lack of proper documentation in her files.
Jones was replaced by a white female.
      After her termination, Jones contacted the Equal Employment
Opportunity Commission and received a right to sue letter. She then brought

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                                         No. 11-30979

this action for race discrimination and retaliation under Title VII of the Civil
Rights Act of 1964.1 The district court granted summary judgment to DHH
because Jones had not presented sufficient evidence that the non-discriminatory
reasons for her termination proferred by DHH were pretextual. The court
further found no discrimination in her allegations of racial slurs and also
concluded that she had not made a prima facie showing of retaliation, so it
dismissed those claims as well. Jones appeals those determinations.
                                               II
       We review the district court’s grant of summary judgment de novo.2
Summary judgment is proper when the evidence reflects no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.3
To draw this conclusion, we rely on materials in the record, including
depositions, documents, and affidavits; “conclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the non-movant’s burden.”4
We view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor.5
                                              III
       Title VII makes it unlawful for an employer “to . . . discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of




       1
           42 U.S.C. §§ 2000e-2, 2000e-3.
       2
           Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).
       3
           FED. R. CIV. P. 56(a).
       4
        Id.; Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (internal quotation marks
omitted).
       5
           Crawford, 234 F.3d. at 902.

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                                        No. 11-30979

such individual’s race, color, religion, sex, or national origin.”6 A plaintiff may
prove discrimination by direct or circumstantial evidence; in the absence of
direct evidence, as in this case, the claim is analyzed under the framework
provided by the Supreme Court in McDonnell Douglas Corp. v. Green.7 Under
McDonnell Douglas, Jones must establish a prima facie case of discrimination,
at which point the burden shifts to DHH to provide a legitimate, non-
discriminatory reason for its actions.8 If DHH meets its burden, Jones then
bears the burden of demonstrating that DHH’s reasons were actually a pretext
for a racially discriminatory decision.9 “A plaintiff may establish pretext . . . by
showing that the employer’s proffered explanation is false or ‘unworthy of
credence,’” meaning that it was “not the real reason for the adverse employment
action,” at which point an inference of discriminatory motive is typically
permissible.10
       The district court concluded that Jones had established a prima facie case
with respect to her termination and assumed without deciding that she had also
done so with respect to the racial slurs. Neither of these determinations is at
issue on appeal.            This appeal instead challenges the district court’s
determinations on the latter two McDonnell Douglas steps.
                                             A
       Jones asserts that the district court erred in finding that DHH presented
legitimate, non-discriminatory reasons for her termination because the reasons

       6
           42 U.S.C. § 2000e-2(a)(1).
       7
        Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973)).
       8
           See McDonnell Douglas, 411 U.S. at 802-03.
       9
           See id. at 804-05.
       10
          Laxton, 333 F.3d at 578 (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001)).

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were “false.” She also challenges the district court’s decision that Jones had
failed to present sufficient evidence of pretext. Because an “employer satisfies
the burden of production regardless of the persuasive effect of the proffered
reason,”11 and because doing so triggers the plaintiff’s obligation to establish
pretext, we treat these as one issue: whether Jones has presented evidence that,
taken as a whole, would allow a trier of fact to conclude that the actual reason
for the discharge was discriminatory.12
       DHH provided four non-discriminatory reasons for Jones’s termination.
First, DHH discovered that, due to Jones’s failure to pay a traffic ticket, Jones’s
driver’s license had been suspended, she lacked car insurance, and a bench
warrant had been issued. Because she sometimes drove on state business, DHH
required Jones to reinstate her license and provide documentation, which she
did. Jones does not contest that she had these issues, arguing only that the
problem was taken care of immediately and asserting (without argument) that
DHH could not “justify its termination of Plaintiff based on a fabricated criminal
record.”
       The second reason identified for Jones’s termination was problems with
her attendance at work, including arriving late, leaving early, and not calling in
when she was sick. Jones claims that she was permitted travel time to and from
work and allowed to forego her lunch break to leave early because of her school-
age children, at least until she began resisting the nurses’ demands to fill out
applications for unqualified patients. At that point, she says, she met with her
supervisor, and the timing issue was excused due to her misunderstanding the
policy. DHH, for its part, provided a copy of a “verbal warning” issued to Jones
that informed her that leaving early was “unacceptable and could be falsifying

       11
        Polanco v. City of Austin, Tex., 78 F.3d 968, 976 (5th Cir. 1996) (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515-17 (1993)).
       12
            See Hall v. Gillman Inc., 81 F.3d 35, 37 (5th Cir. 1996).

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                                 No. 11-30979

legal documents” and required her to email her supervisor when she arrived and
left each day. The warning was dated August 1, 2008. DHH also supplied an
email sent by Jones’s supervisor in December of that year referring to Jones’s
continued issues with timing in and out. With respect to Jones’s alleged failure
to call in sick, she stated in an affidavit that she “always called” when she was
sick. Beyond that, she provided a copy of one email from a coworker to Jones’s
supervisor informing him that Jones had called in sick on that day and had been
instructed to call and speak directly to the supervisor.
      DHH further claims that Jones’s termination was in part due to her
performing outside work while on the job. DHH did not have a policy against
outside employment, and Jones disclosed her self-employment as a realtor on the
appropriate state form. Jones’s supervisors, however, noted that she spent her
work hours working on her real estate business instead of her state job,
including viewing seminars and talking on her cell phone, and one supervisor
asserted that “he had to redirect [her] focus during work hours” when he
observed her engaged in outside activity. Jones insisted in an affidavit that she
never viewed online seminars, only did “online review of anything” during her
lunch break, and “rarely” used her cell phone.
      The final reason given for Jones’s termination was a lack of proper
documentation in Jones’s work files. Her supervisor performed a random audit
and determined the documentation was “lacking,” which combined with the
other issues to lead to her dismissal. Jones did not dispute this reason other
than to say she documented in accordance with her training.
      Ultimately, Jones does not dispute that her driver’s license was suspended
or that her documentation failed an audit. While she contends that her leaving
early was excused by her supervisor, she does not contest the issuance of a
warning to her or the validity of the email indicating the problems had not been
resolved several months later. She denies her supervisors’ specific allegations

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                                        No. 11-30979

that she pursued her real estate business while at work (other than during her
lunch break), though she does not argue against their perception that her “focus”
needed to be addressed.
      Jones’s contentions do not suffice to carry her burden of showing a genuine
issue of material fact on the issue of pretext. Her partial rebuttals of DHH’s
proffered reasons would not permit a jury to conclude that those were “not the
real reason[s] for the adverse employment action.” Consequently, there is no
basis for inferring a discriminatory motive and no basis for allowing the claim
to go to trial. The district court properly granted summary judgment on this
claim.
                                              B
      Jones does not appear to argue that the alleged racial slurs relate to her
claim for termination. Instead, the district court analyzed that allegation as a
separate discrimination claim. Because DHH failed to challenge Jones’s prima
facie case on that claim, the district court, while noting that it was “hard-pressed
to find an adverse employment action occurred” with regard to that claim,
assumed one had occurred. Adverse employment actions include only ultimate
employment decisions such as hiring, granting leave, discharging, promoting, or
compensating.13          However, Jones has not provided any evidence of
discrimination. We assess “the value of discriminatory remarks by examining
whether the remarks indicated invidious animus and whether the speaker of the
remarks was ‘principally responsible’ for the adverse employment action.”14
Without a showing that the speaker of such remarks was a decisionmaker or had




      13
           See McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007).
      14
        Rios v. Rossotti, 252 F.3d 375, 379 (5th Cir. 2001) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)).

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                                             No. 11-30979

influence over a decisionmaker, a plaintiff cannot show discrimination.15 Jones
does not even attempt to make such a showing, so her claim of discrimination on
these grounds must fail.
          Alternatively, the parties’ briefs refer to this claim as one of a “racially
discriminatory environment,” but neither party cites any law on this issue. The
district court expressly noted that Jones never claimed that the phrase “shoot
a monkey” resulted in a hostile work environment, but to the extent that Jones
makes such a claim, we agree with the district court that she cannot succeed on
it. To determine whether an environment is “hostile” requires looking at all of
the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.”16 “Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment—an environment that a
reasonable person would find hostile or abusive—is beyond Title VII’s
purview.”17 DHH provides an affidavit of a supervisor stating that the phrase
had been used at the facility since before Jones began working there and was
meant as a replacement for profanity. Jones received a similar explanation from
her coworkers, and she does not present any evidence, other than her personal
belief, to the contrary.              Further, she does not cite any other potentially
discriminatory conduct as contributing to a hostile environment. To the extent
that she makes this claim, it cannot survive summary judgment.




          15
               Id. at 379-80 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.
2000)).
          16
               Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
          17
               Id. at 21 (emphasis added).

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                                           No. 11-30979

                                               IV
       Jones also argues that the district court erred in denying her claim that
she was subjected to unlawful retaliation by DHH for her failure to approve
certain clients for benefits. Retaliation claims, like discrimination claims, are
analyzed under the McDonnell Douglas framework when they are based on
circumstantial evidence.18 To establish a prima facie case, “the plaintiff must
establish that (1) [s]he participated in an activity protected by Title VII; (2) [her]
employer took an adverse employment action against [her]; and (3) a causal
connection exists between the protected activity and the adverse employment
action.”19
       “‘Protected activity’ is defined as opposition to any practice rendered
unlawful by Title VII, including making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under Title VII.”20
Jones does not allege that she participated in any activity of this type, instead
arguing that opposition to any unlawful action qualifies as protected activity, a
proposition for which she cites no relevant authority. Jones also does not
attempt to show a causal connection between any protected activity and her
termination. As a result, she fails to make a prima facie case of retaliation.
                                       *        *         *
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       18
            McCoy, 492 F.3d at 556.
       19
            Id. at 556-57.
       20
        Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001) (citing
42 U.S.C. § 2000e-3(a)) (emphasis added).

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