     Case: 10-31157    Document: 00511571443         Page: 1    Date Filed: 08/15/2011




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

                                                                           FILED
                                                                        August 15, 2011

                                    No. 10-31157                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



MARILYNN GOREE,

                                                 Plaintiff-Appellant,
v.

COMMISSION LINCOLN PARISH DETENTION CENTER,

                                                 Defendant-Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:09-CV-745


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Marilynn Goree appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee Lincoln Parish Detention
Center on Goree’s claim of employment discrimination. We AFFIRM.
                             I. Facts and Proceedings
        Marilynn Goree, an African-American female, was employed at the Lincoln
Parish Detention Center (LPDC) from 1988 to 2008. During that time, she


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
  Case: 10-31157    Document: 00511571443     Page: 2   Date Filed: 08/15/2011




                                 No. 10-31157

received regular pay raises and promotions, and was given high performance
reviews. In April 2004, she was named as the interim superintendent/warden
of LPDC. She never received the title of permanent superintendent/warden.
Goree contends that her predecessors, all of whom were male, were not required
to serve in the interim position but were immediately appointed as permanent
Superintendent/Warden. Furthermore, Goree contends that LPDC refused to
give her the institutional and personnel support that it gave her predecessors.
      Long before Goree’s claim arose, LPDC faced regular annual deficits and
prisoner overcrowding. In 2006, LPDC began contracting with LaSalle, a private
correctional center management company which is not a party to this appeal, to
address these concerns. In 2007, during a temporary evaluation period in which
LaSalle took over operations of LPDC, LPDC authorized LaSalle to name Sue
Holliday as the warden of the facility, replacing Goree in that role. Goree
remained employed as the interim superintendent. She received the same salary
and retained the same responsibilities, including those associated with the
warden position. Goree claims the hiring of Holliday was a “sham” designed to
skirt possible charges of discrimination. In 2008, LPDC’s directing Commission
voted unanimously to privatize the facility and contract with LaSalle for its
management and operation. The relationship with LaSalle offered cost-cutting
plans as well as access to other LaSalle facilities that could alleviate LPDC’s
overcrowding problem.
      As part of the transfer of authority, LaSalle received discretion over the
appointment of LPDC’s managers, including the superintendent. LaSalle’s
leadership indicated that they were not fully pleased with Goree’s results and
did not believe “she had the strengths required to succeed in the position under
LaSalle’s management.” Goree was replaced by Ed Thompson, an African-
                                       2
   Case: 10-31157   Document: 00511571443     Page: 3   Date Filed: 08/15/2011




                                 No. 10-31157

American male employed by LaSalle, who first became involved with LPDC
during LaSalle’s evaluation period. According to Johnny Creed, LaSalle’s Chief
of Operations, Thompson was chosen because Creed was pleased with his past
work and believed “he had the skills necessary” for the role. At the LPDC
Commission’s request, LaSalle created an administrative role for Goree to fill so
she would not be terminated. In April 2008, as LaSalle transitioned into power,
it offered current LPDC employees two pay options for continuing in their
current positions. Both options entailed a significant pay cut for Goree, who
indicated that she would not accept either option.       As a result, she was
terminated in June 2008.
      On October 28, 2008, Goree filed a charge questionnaire with the Equal
Employment Opportunity Commission (EEOC) and subsequently received a
right-to-sue letter. She filed her lawsuit on May 6, 2009 in district court
alleging, among other things, gender based discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Goree alleges that she was
discriminated against during her tenure as interim Superintendent because the
LPDC did not accord her the same privileges and authority as her male-
predecessors, that her pay was not raised to reflect her increased duties and
responsibilities, and that the LPDC removed her from her position as interim
Superintendent and ultimately terminated her employment based on gender
discrimination. Goree seeks to recover damages, including an award of lost
wages and benefits, in addition to attorneys’ fees.
      After discovery, LPDC moved for summary judgment. The district judge
granted LPDC’s motion on two grounds.            With regard to the alleged
discrimination relating to Goree’s interim status, the district court found that
Goree had not exhausted her administrative remedies because her EEOC charge
                                       3
   Case: 10-31157      Document: 00511571443         Page: 4    Date Filed: 08/15/2011




                                      No. 10-31157

did not list complaints predating privatization. The district court also granted
summary judgment on Goree’s termination claims after privatization. It found
that she had not made a prima facie case of discrimination because her
replacement by another female (Sue Holliday) and another African-American
(Ed Thompson) failed to satisfy the elements of a prima facie case.1 However,
the trial court continued its analysis, finding that even if Goree had made a
prima facie case, summary judgment was appropriate because she had not
succeeded in showing that the legitimate justifications for Goree’s termination
offered by LPDC—the necessary privatization of the facility, LaSalle’s
determination that Goree was less-qualified than Thompson, and Goree’s refusal
of an offer of continued employment—were merely pretext. Goree claims these
reasons were mere pretext because the problems sought to be addressed by the
privatization existed continuously and without intensifying before LaSalle was
chosen to take over; because a member of the Commission had a questionable
relationship with LaSalle; and because Goree had received high performance
reviews and positive remarks from LaSalle executives, suggesting that she was
highly qualified for the new position.            The district court rejected these
contentions as “exaggerated, unsubstantiated by the evidence, and/or wholly
irrelevant to a determination of pretext.”
       Goree appeals the trial court’s grant of summary judgment on both issues,
but only addresses the grounds cited in the latter. She does not raise any
objections to the conclusion that she failed to exhaust her administrative



       1
        The district court expressed uncertainty as to what protected characteristics Goree
alleged as the basis for her discrimination claim, and assumed that she based her charge
on race and gender discrimination. On appeal, it is clear that Goree only claims gender
discrimination.
                                             4
   Case: 10-31157    Document: 00511571443       Page: 5   Date Filed: 08/15/2011




                                   No. 10-31157

remedies. Goree claims that the trial court did not construe the evidence in the
light most favorable to her, as summary judgment requires, but instead made
impermissible credibility determinations favoring LPDC when evaluating both
her prima facie case and her argument of pretext.
                            II. Standard of Review
      We review the district court’s grant of summary judgment de novo. See
Paul v. Landsafe Flood Determination, Inc., 550 F.3d 511, 513 (5th Cir. 2008).
Summary judgment is appropriate if there “is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Thus, summary judgment must be granted where a party “fails
to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In the context of
employment discrimination claims, summary judgment is appropriate for the
defendant if the plaintiff fails to establish a prima facie case, or if the defendant
presents evidence of a legitimate reason for the employment decision and the
plaintiff does not create a genuine fact issue over whether the articulated
legitimate reasons are pretextual. Guthrie v. Tifco Industries, 941 F.2d 374, 378
(5th Cir. 1991), cert. denied, 503 U.S. 908 (1992).
                                 III. Discussion
      As an initial matter, because Goree has failed to challenge the district
court’s finding that she failed to exhaust her administrative remedies with
regard to her earlier claims, she has abandoned this issue on appeal. See
McLain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008); Fed. R. App. P.
28(a)(4). Therefore, despite Goree’s continued argument of these earlier claims,
this appeal only concerns the grant of summary judgment on Goree’s allegations
                                         5
   Case: 10-31157    Document: 00511571443    Page: 6   Date Filed: 08/15/2011




                                 No. 10-31157

that she was subject to discrimination in her 2008 termination when LaSalle
took over the management and operations of LPDC.
      Title VII prohibits an employer from discriminating against any individual
“with respect to his compensation, terms, conditions or privileges of employment,
because of such individual’s race, color, religion, sex or national origin.” 42
U.S.C. §2000e.      Where, as in this case, there is no direct evidence of
discrimination, courts use the McDonnell Douglas framework to evaluate Title
VII claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); See also
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000). Like the
district court, we assume arguendo that Goree has made out a prima facie case
and therefore has satisfied the first step of McDonnell Douglas.
      LPDC may rebut the presumption of discrimination raised by the prima
facie case by demonstrating that it had legitimate, nondiscriminatory reasons
for the adverse employment action taken. Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 345 (5th Cir. 2007). The record shows that it did. LPDC
articulated that it made the decision to privatize in order to address
overcrowding and budgetary concerns, and that LaSalle had discretion to choose
the new superintendent.        This court has previously recognized that
reorganization is a legitimate, non-discriminatory reason for termination.
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 356–57 (5th Cir. 2007); Mato v.
Baldauf, 267 F.3d 444, 452 (5th Cir. 2001). LPDC produced evidence showing
that LaSalle chose Thompson because it felt he was better qualified, and Goree
was offered another position at LPDC’s request. Goree admits that she refused
both employment options offered to her, and was subsequently terminated.
      Once LPDC articulates a legitimate, nondiscriminatory reason for Goree’s
termination, the burden shifts back to Goree to prove that the employer’s
                                       6
   Case: 10-31157     Document: 00511571443   Page: 7   Date Filed: 08/15/2011




                                 No. 10-31157

proffered explanation is pretextual. McDonnell Douglas, 411 U.S. at 802. “A
plaintiff can establish pretext either through evidence of disparate treatment or
by showing that the employer’s proffered explanation is false or unworthy of
credence.” Nasti v. Cabi Specialty Chems., 492 F.3d 589, 593 (5th Cir. 2007)
(internal quotation marks omitted); See also Reeves, 530 U.S. at 143. Goree did
not meet this burden.
      First, Goree’s evidence does not raise a fact issue over whether LPDC’s
privatization was commercially necessary. See Mato, 267 F.3d at 452 (finding
no pretext in a retaliation context because the plaintiff did not introduce
evidence tending to contradict the employer’s assertion that a reorganizational
plan which led to the plaintiff’s termination was necessary “to improve its
operation and cut its budget.”). By Goree’s own admission, the problems facing
LPDC were real and unresolved. She argues only that the problems were not
any worse when the decision to privatize was made, and questions the choice of
LaSalle based on a single Commission member’s ties to the company. Goree’s
allegations—even if true—do not alter the fact that LPDC, acting through a vote
of the entire Commission, made its decision to address the stated problems of
deficits and overcrowding. As we have stated many times before, this court will
not engage in second-guessing of an employer’s business decisions. See, e.g.,
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007); Mato,
267 F.3d at 452. Neither the wisdom of LPDC’s timing nor the choice of private
company are up for debate when those actions were legitimate business
decisions. Even proof that those decisions were in hindsight poorly made, as
Goree asserts, would not establish that they were false or were mere pretext for
discrimination. Id.
      Furthermore, Goree admitted that she was not terminated as a direct
                                       7
   Case: 10-31157   Document: 00511571443     Page: 8   Date Filed: 08/15/2011




                                 No. 10-31157

result of privatization, but only after her failure to accept either employment
option offered to her. However, she did not present evidence that identical
employment options were not offered to other LPDC employees, or that men who
rejected those terms were treated more favorably. See Berquist, 500 F.3d at
356–57 (finding no pretext in the decision to terminate employees who refused
to sign an agreement after an acquisition because similarly situated employees
who agreed to be reassigned under modified terms were retained). Because
Goree did not rebut LPDC’s legitimate reason for her termination or offer
evidence of disparate treatment in the transition, she has not raised a genuine
dispute over whether her dismissal for failure to agree to modified employment
terms was mere pretext.
      Finally, to the extent Goree argues that she should have received the new
superintendent position, she does not argue and has not put forth evidence to
show she was “clearly better qualified” for that position than Thompson. Price
v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002). Goree points to the
statements of LaSalle executives commending her work as interim
superintendent and her high performance reviews. However, these statements
all referenced her work before privatization; the summary judgment record
shows that these same executives’ assessment of her qualifications for a post-
privatization role were much less favorable, particularly when compared to
comments made about Thompson before his hire.           LaSalle assessed that
Thompson and Goree had different traits, and an employer has broad discretion
to choose which type of experience it prefers when filling an open position. See
E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir. 1995).
      None of Goree’s arguments raised a fact issue as to the credibility of the
reasons offered by LPDC for her termination or the existence of a true motive of
                                       8
   Case: 10-31157   Document: 00511571443     Page: 9   Date Filed: 08/15/2011




                                 No. 10-31157

discrimination. The district court was able to reach this conclusion without
making improper credibility assessments because the evidence submitted by
Goree—even if taken as true—does not dispute the earnestness of LPDC’s
choices. Simply disputing LPDC’s business judgment is not enough to prove
pretext without producing evidence that the reasons stated were pretextual.
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999).
Because Goree’s pretext arguments do not raise a genuine issue of material fact
as to whether LPDC discriminated against her because of her gender, we find
that the district court properly granted summary judgment to LPDC on Goree’s
claims of discrimination. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001).
                               IV. Conclusion
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                       9
