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

                                                 FILED
                                                                        August 13, 2009

                                    No. 09-60103                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk



EDDIE MCKINNEY

                                                 Plaintiff - Appellant
v.

BOLIVAR MEDICAL CENTER

                                                 Defendant - Appellee




                  Appeal from the United States District Court
                    for the Northern District of Mississippi
                            USDC No. 3:07-CV-209


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Eddie McKinney (“McKinney”) appeals the district
court’s grant of summary judgment on his retaliation and discrimination claims
against his former employer, Defendant-Appellee Bolivar Medical Center
(“Bolivar”). For the following reasons, 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not be published and is not precedent except under the limited circumstances set forth in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.
                                  No. 09-60103

                       FACTS AND PROCEEDINGS
      McKinney, who is black, began working as a speech therapist for Bolivar
in 1998. In 2005, McKinney’s employment status changed from full time to “as
needed” because, according to Bolivar, the services provided by its other speech
therapist, Stephanie Hutchinson (“Hutchinson”), were in greater demand with
patients and her performance was superior to McKinney’s. McKinney also took
issue with his reassignment to a smaller office and the new billing and
documentation policies imposed on the staff. In September 2006, McKinney was
terminated for failing to comply with these policies and making unjustified
accusations of racism against his supervisors.
      In October 2006, McKinney filed a charge of discrimination with the EEOC
under the Equal Pay Act, arguing that Hutchinson received a higher pay based
on her sex. He later amended his charge with a claim that the wage disparity
was due to his race. After obtaining his right to sue notice from the EEOC,
McKinney filed this lawsuit in October 2007. His state and federal claims
against Bolivar include race discrimination and retaliation under 42 U.S.C. §
1981, thus circumventing Title VII’s requirement that discrimination and
retaliation claims be first raised before the EEOC. The district court granted
Bolivar’s motion for summary judgment on all of McKinney’s claims. On appeal,
McKinney only challenges the dismissal of his § 1981 claims of race
discrimination and retaliation.
                         STANDARD OF REVIEW
      “This court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” Condrey v. SunTrust
Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary


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judgment, “[t]he evidence and inferences from the summary judgment record are
viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.
Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment
is proper when 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.” Kane v. Nat’l Union
Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see
also F ED. R. C IV. P. 56(c).
                                 DISCUSSION
       First, McKinney argues that the district court improperly dismissed his
claim of race discrimination. To establish a prima facie case of discrimination
under § 1981, a plaintiff must show: (1) membership in a protected class; (2) that
he was qualified for the position; (3) that he suffered an adverse employment
action; and (4) that he was replaced by a person outside his protected class.
DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). The burden then shifts to
the employer to articulate “a legitimate, nondiscriminatory reason” for its
employment action. Id. If the employer meets this burden, the plaintiff bears
the final burden of proving that the employer’s proffered reason is a pretext for
discrimination—either through evidence of disparate treatment or by showing
that the employer’s explanation is false or unworthy of credence. Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       We will assume, as the district court did, that McKinney made a proper
prima facie showing of race discrimination. We agree with the district court that
Bolivar met its burden by offering two nondiscriminatory reasons for
terminating McKinney. Bolivar has presented ample evidence of McKinney’s


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poor work performance, including his over-billing of patients on several
occasions and his failure to comply with Bolivar’s documentation policies, and
further alleges that McKinney made unjustified accusations of racism against
his supervisors.    McKinney has not shown that the performance based
justification for terminating him was pretextual; in fact, he does not even appear
to challenge Bolivar’s allegations regarding his performance. This alone would
be reason enough to dismiss the discrimination claim because a plaintiff is
required to rebut each nondiscriminatory reason articulated by his employer to
carry his burden of demonstrating pretext. See id.
      With respect to Bolivar’s claim that he improperly accused his superiors
of racism, McKinney denies ever making such statements. However, regardless
of whether McKinney made the alleged accusations, the relevant issue is
whether Bolivar believed in good faith that such accusations were made and
whether McKinney was truly terminated based on that good faith belief. See
Waggoner v. City of Garland, 987 F.2d 1160, 1165–66 (5th Cir. 1993) (holding
that a plaintiff has not demonstrated that the employer’s reason for terminating
him was pretextual if the employer reasonably believed the complaint of sexual
harassment lodged against the plaintiff and acted on it in good faith). Even
assuming that McKinney’s supervisors falsely reported the accusations of
racism, McKinney has offered no evidence that Bolivar knew or had reason to
believe that these accusations were fabricated.
      McKinney claims that, even if Bolivar itself was innocent of any
discriminatory intent, his supervisors’ discriminatory attitudes should be
imputed to Bolivar. Indeed, an employer may be held liable if it “acted as a
rubber stamp, or the ‘cat’s paw’ for [a supervisor’s] prejudice, even if the


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[employer] lacked discriminatory intent.” Russell v. McKinney Hosp. Venture,
235 F.3d 219, 227 (5th Cir. 2000) (quotation omitted). However, in order to use
the “cat’s paw” analysis, a plaintiff must show that the supervisor who
influenced the adverse employment action exhibited “discriminatory animus”
towards him. Id. McKinney has provided no evidence that his supervisors
acted with race-based animus in complaining that McKinney had called them
racists. In fact, McKinney testified that he never heard racial comments or
witnessed his white co-workers being treated differently while employed at
Bolivar. There is therefore no “discriminatory animus” on the part of Bolivar
employees that could be imputed to Bolivar.            Accordingly, McKinney’s
discrimination claim fails and was properly dismissed by the district court.
      Next, McKinney contends that the district court erred in dismissing his
claim that he was terminated in retaliation for allegedly accusing his supervisors
of racism. To establish a prima facie case of retaliation under § 1981, a plaintiff
must show: (1) he participated in an activity protected by Title VII; (2) his
employer subjected him to an adverse employment action; and (3) a causal
connection exists between the protected activity and the adverse action. Davis
v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). “An employee
has engaged in activity protected by Title VII if [he] has either (1) ‘opposed any
practice made an unlawful employment practice’ by Title VII or (2) ‘made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing’ under Title VII.” Long v. Eastfield Coll., 88 F.3d 300, 304
(5th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). McKinney concedes that he did
not engage in any protected activity.
      Nevertheless, he alleges that Bolivar retaliated against him because it


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believed that he was engaging in protected activity and that such a
misperception suffices for a retaliation claim. See Fogelman v. Mercy Hosp.
Inc., 283 F.3d 561, 571–72 (3d Cir. 2002) (holding that a plaintiff’s retaliation
claim is cognizable even in the absence of protected activity, as long as his
employer perceived him to be engaged in such activity). As noted by the district
court, the Fifth Circuit has not adopted this perception theory of retaliation.
Furthermore, nothing in the record suggests that Bolivar believed McKinney to
be engaged in protected activity or that it terminated him for that reason. On
the contrary, the evidence supports Bolivar’s assertion that McKinney was
terminated due to his poor work performance and his unfounded accusations of
racism. Accordingly, summary judgment on McKinney’s retaliation claim was
proper.
                                CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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