     Case: 10-20603 Document: 00511485529 Page: 1 Date Filed: 05/23/2011




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

                                                 FILED
                                                                            May 23, 2011

                                     No. 10-20603                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



VERONICA OKON,

                                                   Plaintiff - Appellant
v.

HARRIS COUNTY HOSPITAL DISTRICT,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 USDC 4:09-CV-449


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Veronica Okon (“Okon”) appeals a magistrate judge’s grant of summary
judgment in favor of the Harris County Hospital District (the “District”) on
Okon’s 42 U.S.C. § 1983 claim alleging that the District’s decision to terminate
her employment was motivated by racial discrimination. Because we agree with
the magistrate judge that Okon did not raise a genuine issue of material fact as




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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to whether the District had a policy or custom of racial discrimination, we AFFIRM.
                   I. FACTS AND PROCEDURAL HISTORY
       Okon, an African American female, became a full-time pharmacist with
the District in March 1997. She was terminated on August 19, 2005, allegedly
pursuant to a Reduction-in-Force policy (“RIF”)1 promulgated by the District’s
Board of Managers (“Board”).2 The RIF provided a specific hierarchy for the
reduction of employees. First to be terminated were all pending new hires or
new transfers, followed by contract or agency staff. The third group subject to
termination included employees on entry or performance probation. The fourth
group consisted of employees who had received at least two formal disciplinary
actions within the previous 365 days.3 The final group included employees with
the lowest department-specific grid scores.4 In the event that two or more
employees had the same grid score, the policy provided that length of service
determined retention preference. According to the policy, each department had
to submit a reduction plan, including an assessment of how particular positions
and/or individuals were identified as those to be reduced.




       1
         We note that we have previously held that a reduction-in-force is a legitimate,
nondiscriminatory reason for discharge. EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1181
(5th Cir. 1996).
       2
        Neither party disputes that the District is managed, controlled, and administered by
a Board of Managers appointed by the Harris County Commissioners Court. TEX . HEALTH &
SAFETY CODE ANN . § 281.021 (West 2010); id. § 281.047 (West 2010).
       3
        Okon claimed, and the magistrate judge found, that she did not fall into the fourth
category because the only document in her file for the relevant time period was a verbal
counseling form for violation of a time and attendance policy.
       4
         The RIF required that reduction be based on an evaluation of relevant factors such
as job performance, seniority, and other pertinent department-specific criteria. The
magistrate judge found that the pharmacy department based its grid scores on: a three-year
average of employee performance appraisals; second language skills; scores on a special skills
test; seniority; and availability to work different shifts.

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      Okon filed suit against the District in February 2009, alleging that the
District deviated from its neutral RIF and terminated her because of her race.
Because Okon waited almost four years after her termination to file suit against
the District, she could not assert a claim under Title VII, 42 U.S.C. § 2000e,
which has a two-year statute of limitations. Instead, she brought her claim
under 42 U.S.C. § 1981, which has a four-year statute of limitations. The parties
consented to have a magistrate judge conduct all proceedings. See 28 U.S.C. §
636(c). The judge allowed Okon to amend her complaint to add a claim under 42
U.S.C. § 1983, as a local government cannot be held liable for employment
decisions unless the plaintiff satisfies the “custom or policy” test fashioned for
suits against a municipality under § 1983. Evans v. City of Houston, 246 F.3d
344, 358 (5th Cir. 2001).
      In support of her case, Okon alleged that three other similarly-situated
employees—all of whom were outside her protected class—remained employed,
even though they had less experience or were less qualified. Okon believed that
the decision to terminate her was based on factors outside of those outlined in
the RIF, including her failure to pass a skills test administered by the pharmacy
department. Okon’s immediate supervisor stated in his deposition that the
reductions in the pharmacy department did not conform to his understanding
of the RIF, and those decisions were made without his input by individuals
higher up in management. Of the sixteen terminated in the pharmacy division,
eleven were African American.
      After discovery, the District filed a motion for summary judgment, alleging
that Okon had failed to establish a prima facie case of racial discrimination and
that she had not created a genuine issue of material fact as to the District’s
liability under § 1983. The magistrate judge found that Okon had established




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a fact issue as to whether a violation of § 1981 occurred.5 Specifically, Okon
provided sufficient evidence that: she was a member of a protected group; she
suffered an adverse employment action; she was qualified for her position; and
another similarly-situated employee who was not a member of her protected
class remained in a similar position. The magistrate judge ended the McDonnell
Douglas analysis after finding that the District had not provided a legitimate,
nondiscriminatory reason for its apparent deviation from the RIF when it fired
Okon instead of another similarly-situated employee. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). However, because Okon failed to
raise a genuine issue of material fact as to the District’s § 1983 liability, the
magistrate judge granted the District’s motion for summary judgment. Okon
timely appealed.6
                            II. STANDARD OF REVIEW
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Gelin v. Hous. Auth. of New Orleans, 456 F.3d
525, 527 (5th Cir. 2006); accord Madison v. Parker, 104 F.3d 765, 767 (5th Cir.
1997) (“We review a judgment rendered by a magistrate judge just as we do a
judgment rendered by a district judge.”). Summary judgment is appropriate if


       5
         The elements of discrimination claims under Title VII and § 1981 are the same. Pratt
v. City of Houston, 247 F.3d 601, 606 n.1 (5th Cir. 2001). To establish a prima facie case of
intentional discrimination in a reduction-in-force case, Okon must show the following: (1) she
is a member of a protected group; (2) she was adversely affected by the employer’s decision;
(3) she was qualified for another position at the time of discharge; and (4) there is sufficient
evidence, either circumstantial or direct, from which a fact finder may reasonably conclude
that the employer intended to discriminate in taking the adverse employment action.
Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996). If the plaintiff establishes a
prima facie case, the burden of production shifts to the employer to assert a legitimate,
nondiscriminatory reason for the employment action. Auguster v. Vermilion Parish Sch. Bd.,
249 F.3d 400, 402 (5th Cir. 2001).
       6
          We have jurisdiction over this case pursuant to 28 U.S.C. § 636(c)(3). See also FED .
R. CIV . P. 73(c) (“In accordance with 28 U.S.C. § 636(c), an appeal from a judgment entered at
a magistrate judge’s direction may be taken to the court of appeals as would any other appeal
from a district-court judgment.”).

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the moving party can show that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(a). “A factual dispute is ‘genuine’ where a reasonable party would return a
verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273,
282 (5th Cir. 2003) (citation omitted). In considering a summary judgment
motion, we view the evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.
2006).    However, “[u]nsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
                                 III. DISCUSSION
      We focus here on the only issue briefed by the parties—whether Okon
presented evidence sufficient to raise a genuine issue of material fact as to the
District’s liability under § 1983.7 To establish municipal liability under § 1983,
Okon must show that the District had a policy or custom that caused her
constitutional deprivation. World Wide Street Preachers Fellowship v. Town of
Columbia, 591 F.3d 747, 752 (5th Cir. 2009). Respondeat superior liability does
not exist in § 1983 actions. Id. at 752-53. Rather, Okon must demonstrate that
(1) the municipality had a policy or custom, of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional violation
was the “moving force” behind the policy or custom. Id.
      We have defined an official policy for purposes of § 1983 liability as “‘[a]
policy statement, ordinance, regulation or decision that is officially adopted and
promulgated by the municipality’s lawmaking officers or by an official to whom
the lawmakers have delegated policy-making authority.’” Bennett v. City of


      7
         Because neither party challenges the magistrate judge’s conclusion that Okon
established a prima facie case of racial discrimination or the judge’s McDonnell Douglas
analysis, we express no opinion as to the correctness of those holdings.

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Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam). Thus, “[w]hen
the person who committed the challenged act is in charge of policymaking in that
part of the government, ‘policy’ can sometimes be found to have been established
by the very act itself.” Hampton Co. Nat’l Sur. LLC v. Tunica Cnty., 543 F.3d
221, 227 (5th Cir. 2008).      In such cases, “[t]he act must be by a final
decisionmaker who also is a policymaker, unconstrained by policies imposed
from a higher authority.”      Id.    Our task “is to ‘identify those officials or
governmental bodies who speak with final policymaking authority for the local
governmental actor concerning the action alleged to have caused the particular
constitutional or statutory violation at issue.’” Gelin, 456 F.3d at 527 (quoting
McMillian v. Monroe Cnty., 520 U.S. 781, 784-85 (1997) (citation omitted)). The
identification of officials who act as policymakers is a question of state law. Id.
      Alternatively, a policy may consist of a “persistent, widespread practice of
city officials or employees, which, although not authorized by officially adopted
and promulgated policy, is so common and well settled as to constitute a custom
that fairly represents municipal policy.” Bennett, 735 F.2d at 862; see also
Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010) (“A pattern of
conduct is necessary only where the municipal actors are not policymakers.”),
cert. filed, No. 10-1036 (U.S. Feb. 14, 2011). Either the governing body of the
municipality or an official to whom that body has delegated policy-making
authority must have actual or constructive knowledge of such a custom. Bennett,
735 F.2d at 862. “Actual knowledge may by shown by such means as discussions
at council meetings or receipt of written information.” Bennett v. City of Slidell,
728 F.2d 762, 768 (5th Cir. 1984) (en banc). Constructive knowledge “may be
attributed to the governing body on the ground that it would have known of the
violations if it had properly exercised its responsibilities, as, for example, where
the violations were so persistent and widespread that they were the subject of
prolonged public discussion or of a high degree of publicity.” Id.

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       The causation prong of municipal liability requires a plaintiff to “show that
the municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397,
404 (1997). “[P]roof that a municipality’s legislative body or authorized
decisionmaker has intentionally deprived a plaintiff of a federally protected right
necessarily establishes” the municipality’s culpability and causation. Id. at 405.
However, where a plaintiff claims not that the municipality directly inflicted the
injury, but caused an employee to do so, “rigorous standards of culpability and
causation must be applied to ensure that the municipality is not held liable
solely for the actions of its employee.” Id.
       Turning to Okon’s case, Okon has not presented evidence of a widespread
or persistent practice by the District or its employees of basing termination
decisions on race.       Although Okon alleges that the RIF affected multiple
employees, she has not produced evidence that the RIF was repeatedly deviated
from so as to discriminate against employees over a time span sufficient to
support the existence of a custom for which the District may be held liable. See
Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (“[O]ne act is not
itself a custom.”).
       Okon argues that the District’s liability stems from the actions of the
Board itself in allegedly approving a deviation from the RIF. Both parties agree
that the Board is the District’s official policymaker on employment policy.8 Yet,
Okon does not allege that the Board members themselves harbored racial
animus and thus singled out Okon for termination. Although Okon asserts that
the Administrative Director of the Pharmacy Department, or, more generally,


       8
         Under Texas law, the Board manages, controls, and administers the District. See TEX .
HEALTH & SAFETY CODE ANN . §§ 281.021, 281.047 (West 2010). The Board also has authority
to hire employees. Id. § 281.028.

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“upper management” manipulated the RIF to discriminate against her, Okon
does not argue that the Board delegated its policymaking authority to any
particular subordinate.9
       Further, Okon has not created a fact issue as to whether the District may
be liable under a ratification theory, as she has not shown that the Board had
actual or constructive knowledge of and approved any alleged racial animus
underlying the decision to terminate her.10 Although the RIF required that each
department’s reduction plan include reasons for why each individual or position
was selected for termination, the evidence Okon presented does not raise a fact
issue as to whether the Board was in fact aware of any alleged racial animus
towards Okon. Okon has not shown that the Board received prior notice of racial
discrimination committed by subordinates or that the Board was alerted to the
basis for the decision to terminate Okon during any purported review of the




       9
         We also note that simply because a member of upper management may have placed
Okon on the termination list does not mean that such an official was delegated final
policymaking authority by the Board. See St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)
(“Simply going along with discretionary decisions made by one’s subordinates, however, is not
a delegation to them of the authority to make policy.”); Bennett, 728 F.2d at 769 (stating that
delegation “requires more than a showing of mere discretion or decisionmaking authority on
the part of the delegee”). Thus, the Supreme Court has held that a city would not
“automatically be liable under § 1983 if one of its employees happened to apply the policy in
an unconstitutional manner, for liability would then rest on respondeat superior.” City of
Canton v. Harris, 489 U.S. 378, 387 (1989); see also Bolton v. City of Dallas, 541 F.3d 545, 549
(5th Cir. 2008) (“When an official’s discretionary decisions are constrained by policies not of
that official’s making, those policies, rather than the decision-maker’s departure from them,
are the act of the municipality.” (quoting Praprotnik, 485 U.S. at 127)).
       10
          Use of the ratification theory has been limited to “extreme factual situations.” World
Wide Street Preachers Fellowship, 591 F.3d at 755 (quoting Peterson v. City of Fort Worth, 588
F.3d 838 (5th Cir. 2009), cert. denied, 131 S. Ct. 66 (2010)). Only if “the authorized
policymakers approve a subordinate’s decision and the basis for it” would their ratification be
chargeable to the municipality. Praprotnik, 485 U.S. at 127 (emphasis added); see also World
Wide Street Preachers Fellowship, 591 F.3d at 755 (“[U]nless the subordinate’s actions are
sufficiently extreme—for instance, an obvious violation of clearly established law—a
policymaker’s ratification or defense of his subordinate’s actions is insufficient to establish an
official policy or custom.”).

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pharmacy department’s plan.11 See Beattie, 254 F.3d at 604 (noting the “rubber
stamp” exception to the actual knowledge requirement, but stating the general
rule that “[w]ithout a showing that the board had actual knowledge of the
alleged improper basis of [a supervisor’s] recommendation, the board cannot be
liable for the alleged retaliation”); see also Harris v. Victoria Indep. Sch. Dist.,
168 F.3d 216, 225 (5th Cir. 1999) (reversing a grant of summary judgment after
finding that the Board of Trustees acquired actual knowledge of the illegal basis
underlying the decision to transfer the plaintiff; therefore, the Board’s action
affirming that decision could fairly represent official policy); Milam v. City of
San Antonio, 113 F. App’x 622, 625 n.3 & 626 (5th Cir. 2004) (unpublished)
(noting that if a policymaker approved a decision to transfer an employee
knowing of the supervisor’s retaliatory motive for doing so, the governmental
entity could be liable; however, if the policymaker lacked awareness of the basis
for that decision, the policymaker had not ratified it and could not be held
liable).
         While this case was on appeal, the Supreme Court’s decided Staub v.
Proctor Hospital, 131 S. Ct. 1186 (2011).12 Staub fleshed out the “cat’s paw”
theory of liability, holding that a decisionmaker’s exercise of judgment is not



         11
          In an attempt to create a fact issue, Okon submitted several documents with her
response to the District’s motion for summary judgment. One such document indicates that
the head of the pharmacy department recommended her termination. The justification given
for that action was “position elimination,” not Okon’s race. According to the RIF, the
department-specific plans were to be approved by administration and reviewed by legal
counsel prior to implementation. Okon presented a time line indicating that the pharmacy
department’s reduction plan was reviewed with the “Administrative Director,” the
“Administrator,” “Legal,” and the “HR Administrator.” The time line further notes a meeting
with the Board, but does not indicate the topic of that meeting nor that the meeting in fact
occurred. The time line is not accompanied by an affidavit. Assuming arguendo that the time
line is competent summary judgment evidence, it still fails to raise a fact issue as to whether
the Board had actual knowledge of any alleged racial animus.
         12
              We requested and received from the parties supplemental briefing addressing this
case.

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always a superseding cause of an adverse employment action if: (1) a
subordinate acts with illegal animus intending to cause the adverse action; and
(2) the subordinate’s acts were a proximate cause of the adverse action. Id.
Prior to Staub, our court had recognized this “rubber stamp” or “cat’s paw”
exception, which allows for imputation of the tainted motives of a subordinate
to   the   policymaker   if   the    policymaker   accepted   the   subordinate’s
recommendations without evaluation. See Rios v. Rossotti, 252 F.3d 375, 381-82
(5th Cir. 2001); Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 604 n.14 (5th
Cir. 2001).
      Although Okon asserts that the Board approved the decisions of its
subordinates, she has not argued that the Board merely rubber-stamped those
personnel decisions. Because Okon failed to present any evidence or argument
to support a “cat’s paw” theory of liability, we do not express an opinion on such
claims under § 1983 in light of Staub.       See Beattie, 254 F.3d at 604 n.14
(declining to address the exception because, although the plaintiff suggested that
a school board “rubber stamped” an employment decision, the employee
presented no evidence to support that assertion); see also Brown v. N. Panola
Sch. Dist., No. 10-60685, 2011 U.S. App. LEXIS 6779, at *2 (5th Cir. Mar. 31,
2011) (expressing no view on the legal standard applicable to cat’s paw claims
under § 1983 after sua sponte examining Staub).
      Finally, we turn to Okon’s “failure to train” argument as an alternative
route to impose liability on the District. We requested supplemental briefing
from the parties on the Supreme Court’s recent decision in Connick v.
Thompson, 131 S. Ct. 1350 (2011). Review of the supplemental briefing confirms
that Connick essentially forecloses Okon’s argument that the District may be
liable under a “failure to train” theory based on a one-time deviation from the
neutral RIF. See id. (holding that a district attorney’s office may not be held
liable under § 1983 for failure to train based on a single Brady violation). While

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a municipality’s failure to train its employees can give rise to § 1983 liability in
certain circumstances, the inadequacy of the training must amount to
“deliberate indifference to the rights of a person with whom the [employees]
come into contact.” World Wide Street Preachers Fellowship, 591 F.3d at 756
(quoting City of Canton, 489 U.S. at 388). Okon has not provided evidence of a
pattern of violations and has not created a fact issue as to the obvious
inadequacy of the District’s training policies or that such inadequacy was likely
to result in a constitutional violation.13 See Goodman v. Harris Cnty., 571 F.3d
388, 395 (5th Cir. 2009) (“To establish deliberate indifference, ‘a plaintiff must
usually demonstrate a pattern of violations and that the inadequacy of the
training is obvious and obviously likely to result in a constitutional violation.’”
(quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (per curiam)
(internal quotation omitted))), cert. denied, 130 S. Ct. 1146 (2010).
       In sum, Okon has not produced sufficient evidence to create a genuine
issue of material fact as to whether the District had a custom or policy that
served as a motivating force behind Okon’s alleged constitutional deprivation.
We therefore AFFIRM summary judgment for the District.




       13
         In fact, Okon’s supervisor stated in his deposition that he was trained by the District
on the importance of equal protection laws and in how to apply the District’s policies,
practices, and procedures in a nondiscriminatory manner.

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