     Case: 10-20869     Document: 00511579033         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011

                                     No. 10-20869                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DESSIE F. CHERRY,

                                                  Plaintiff - Appellant
v.

CCA PROPERTIES OF AMERICA, LIMITED LIABILITY CORPORATION,
doing business as Correction Corporation of America,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2244


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Dessie Cherry commenced this lawsuit against her
former employer, CCA Properties of America, L.L.C., claiming that she was
terminated because of her race, sex, and age, and in retaliation for making
complaints about discriminatory treatment she received, and that she had been
subjected to a hostile work environment while employed. Cherry appeals the


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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district court’s order granting CCA’s motion for summary judgment.                        We
AFFIRM.
               I. FACTUAL & PROCEDURAL BACKGROUND
       Dessie Cherry is a 60 year-old African-American woman. Prior to her
termination, Cherry worked for CCA Properties of America, L.L.C. (“CCA”), as
a warden at its Liberty County Jail facility (“LCJ”). CCA’s operation of LCJ was
governed by a two-year contract. During Cherry’s tenure at LCJ, the LCJ
contract was awarded to one of CCA’s competitors, and CCA’s operation of LCJ
ended on December 31, 2006. While CCA was winding down its operations at
LCJ, Cherry was asked by her supervisors to submit applications for warden and
assistant warden positions at other CCA facilities. Cherry applied for several
positions, but was ultimately terminated by CCA on February 9, 2007.
       After receiving a right-to-sue letter from the EEOC, Cherry commenced
this lawsuit against CCA. In her complaint, Cherry made the following claims:
(1) CCA discriminated against her on the basis of her race, sex, and age in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and
the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621(b); (2) CCA
retaliated against her for engaging in “prior protected EEOC activity”; and (3)
Cherry had been subjected to a hostile work environment while employed at
CCA. CCA moved for summary judgment on all of Cherry’s claims, which the
district court granted. The district court first held that, based on the date of her
EEOC questionnaire, Cherry’s allegations of discriminatory conduct occurring
prior to March 5, 2006, were time-barred.1 Turning to Cherry’s remaining
claims, the district court held that CCA had articulated a legitimate, non-


       1
          Cherry alludes to, but does not in any way challenge, this holding on appeal.
Therefore, any error in the district court’s holding on this point is waived, and we do not
consider any claims concerning discrimination alleged to have occurred prior to March 6, 2006.
United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long been the rule in
this circuit that issues not briefed on appeal are waived.”).

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discriminatory reason for her termination that Cherry had not discredited. The
district court also concluded that the conduct Cherry alleged as constituting a
hostile work environment did not “appear[] to be discriminatory, let alone severe
or pervasive enough to create an objectively hostile or abusive work
environment.”     Accordingly, the district court granted CCA’s motion for
summary judgment on all of Cherry’s claims. Cherry appealed.
                         II. STANDARD OF REVIEW
        This court reviews the grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Cerda v. 2004-
EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper
“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.” FED. R. CIV. P. 56(a).
                              III. DISCUSSION
A.      Cherry’s Race, Sex, and Age Discrimination Claims
        Cherry’s discrimination claims are based on circumstantial evidence of
CCA’s discrimination against her. Under the burden-shifting framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Cherry bears the initial
burden of creating a presumption of discrimination by establishing a prima facie
case of discrimination on the basis of her race, sex, or age. See Laxton v. Gap,
Inc., 333 F.3d 572, 578 (5th Cir. 2003). Once Cherry has established a prima
facie case of discrimination, the burden shifts to CCA to “produce a legitimate,
non discriminatory reason for her termination,” which “causes the presumption
of discrimination to dissipate.” Id. If CCA articulates a legitimate, non-
discriminatory reason for Cherry’s termination, Cherry is afforded “an
opportunity to rebut [CCA’s] purported explanation, to show that the reason
given is merely pretextual.” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th
Cir. 2010). Cherry may prove pretext “either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or

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unworthy of credence.” Laxton, 333 F.3d at 578 (citation and internal quotation
marks omitted).
      Cherry alleged that CCA discriminated against her on the basis of her
race, sex, and age by requiring her to apply for other positions within CCA after
CCA lost the LCJ contract and then rejecting her for those positions. To
establish a prima facie case of discrimination, Cherry must prove that “(1) she
is a member of a protected class, (2) she was qualified for her position, (3) she
suffered an adverse employment action, and (4) others similarly situated were
more favorably treated.” Rutherford v. Harris County, Tex., 197 F.3d 173, 184
(5th Cir. 1999) (sex discrimination claim); see also Smith v. City of Jackson,
Miss., 351 F.3d 183, 196 (5th Cir. 2003) (applying same standard for age
discrimination claim); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d
507, 512–13 (5th Cir. 2001) (applying same standard for race/national origin
discrimination claim).
      There does not appear to be any dispute between the parties that Cherry
has made a prima facie showing that she was a member of a protected class, that
she was qualified for the position of warden, and that she suffered an adverse
employment action when she was terminated.           Cherry’s prima facie case
stumbles, however, when she attempts to prove that other, similarly situated
CCA employees were treated more favorably. In her briefing before this court,
Cherry claims that she was the “only African American female Warden over the
age of 56 years old who was not rehired by CCA after it lost the LCJ contract.”
However, she has submitted no evidence to substantiate this claim.
      As further evidence that similarly situated CCA employees were treated
more favorably, Cherry points to Robert Lacy, a fellow warden who Cherry
claims successfully applied for a transfer from one CCA facility to another. Like
Cherry, however, Lacy is an African-American, so he is not a proper comparator
for demonstrating that her termination was the product of racial discrimination

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by CCA. See Williams v. Trader Publ’g Co., 218 F.3d 481, 484 (5th Cir. 2001) (to
prove disparate treatment, “plaintiff may use circumstantial evidence that she
has been treated differently than similarly situated non-members of the protected
class” (emphasis added)). For this same reason, Cherry’s failure to provide any
evidence of Lacy’s age precludes using him as a comparator to prove that
Cherry’s termination was based on her age.
      Moreover, Lacy’s ability to transfer from one CCA facility to another is not
evidence that Cherry’s termination for failure to secure a transfer was motivated
by discriminatory animus because those employment decisions were not made
under sufficiently similar circumstances. See, e.g., Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 259 (5th Cir. 2009) (“[W]e require that an employee who proffers
a fellow employee as a comparator demonstrate that the employment actions at
issue were taken under nearly identical circumstances.” (citation and internal
quotation marks omitted)). Lacy, unlike Cherry, was not employed at a facility
with an expiring contract when he transferred, but achieved his transfer by
swapping facilities with another CCA warden. Obviously, Cherry could not swap
facilities with another warden because CCA had lost the LCJ contract.
Therefore, Lacy is not a proper source of comparison for CCA’s decision to
terminate Cherry. Because Cherry has not proven every element of a prima
facie claim for race, sex, and age discrimination, the district court properly
granted summary judgment on those claims.
      Cherry has also failed to rebut CCA’s proffered legitimate, non-
discriminatory reason for her termination. There is no dispute that the CCA
positions at LCJ were lost when CCA’s contract for that facility expired. This
court has previously recognized that a reduction in force is a legitimate, non-
discriminatory reason for termination. See Berquist v. Wash. Mut. Bank, 500
F.3d 344, 356–57 (5th Cir. 2007) (reorganization of department, which
eliminated plaintiff’s position, was a legitimate, non-discriminatory reason for

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termination); see also Stingley v. Den-Mar, Inc., 347 F. App’x 14, 20 (5th Cir.
2009) (reduction in staff after the loss of a lucrative contract is a legitimate, non-
discriminatory reason for termination). CCA avers that Cherry was terminated
as a result of the loss of the LCJ contract because she would not accept any
available, out-of-state warden or assistant warden positions with CCA.
       Cherry contends that CCA’s stated reason for her termination is
pretextual because she applied—but was ultimately not considered—for several
out-of-state positions with CCA. As evidence of her intent, Cherry points to her
applications to out-of-state warden positions in Prairie, Minnesota and Cal City,
California,2 as well as several out-of-state assistant warden positions, and her
accompanying email stating that she wished to be considered for these positions
to remain with CCA.
       However, a full view of the summary judgment record demonstrates that
there is no genuine dispute over Cherry’s willingness to accept an out-of-state
position with CCA. Her supervisor at the LCJ facility and CCA’s staffing
manager both testified that, during the period of vacancy for the positions for
which Cherry applied, she unequivocally stated that she was not interested in
positions with CCA outside of Texas.3 Cherry’s supervisor also testified that,
even after applying to the out-of-state positions, she “continued to refuse to
accept or to move beyond Texas.” As her supervisor and the staffing manager
testified, Cheney was ultimately not considered for these positions because of her



       2
           The Cal City position had been filled prior to Cherry’s application.
       3
         After her termination, Cherry applied to two other positions within CCA for which she
was rejected: a facilities management position, which required seven years of experience as
a corporate real estate and facilities manager, and a position as warden at the T. Don Hutto
Residential Center, which required fluency in Spanish. On appeal, Cherry does not
specifically discuss the rejection of either application as a basis for concluding that CCA
discriminated against her. In any event, Cherry has not demonstrated that she was qualified
for either position.

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continuing intractability regarding out-of-state positions. Cherry does not
directly dispute this testimony.
        Moreover, both Cherry and her supervisor testified that she was offered
out-of-state positions with CCA as assistant warden, but did not accept those
positions. To further underscore this point, Cherry also testified that it was her
understanding that she could have remained employed with CCA if she agreed
to move out of state and accept an assistant warden position. Accordingly,
Cherry has failed to create a genuine dispute over whether CCA’s reason for her
termination was pretextual, and the district court properly granted summary
judgment in favor of CCA on her discrimination claims.
B.      Cherry’s Retaliation Claim
        Cherry next argues that the district court improperly dismissed her
retaliation claim. This court applies the McDonnell Douglas burden-shifting
framework to retaliation claims. See Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 348 (5th Cir. 2007). To establish a prima facie retaliation claim,
Cherry must prove that: (1) she participated in a protected activity; (2) she
suffered an adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse action. Hernandez v. Yellow
Transp., Inc., 641 F.3d 118, 129 (5th Cir. 2011).
        As evidence of engaging in protected activity, Cherry points to the fact that
she was terminated within two months of completing an EEOC questionnaire.
See 42 U.S.C. § 2000e-3(a) (making it unlawful for an employer to discriminate
against an employee “because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
this subchapter”). What Cherry has failed to establish, however, is that there
was any causal connection between her completion of the EEOC questionnaire
and her termination, because there is no evidence from which to conclude CCA
was aware of her complaint. See Manning v. Chevron Chem. Co., 332 F.3d 874,

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883 (5th Cir. 2003) (“[I]n order to establish the causation prong of a retaliation
claim, the employee should demonstrate that the employer knew about the
employee’s protected activity.”). The fact that an employee is terminated after
engaging in protected activity, alone, is typically not sufficient to create a
genuine issue of material fact on the issue of retaliation. See Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 807–08 (5th Cir. 2007).
        Assuming, however, that Cherry has made a prima facie case of
retaliation, her claim still fails. As discussed above, Cherry has not refuted
CCA’s legitimate, non-retaliatory reason for her termination: that she was
terminated because CCA lost the LCJ contract and she was not willing to
relocate out of state. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473,
486–87 (5th Cir. 2008). Therefore, the district court properly granted CCA’s
motion for summary judgment on Cherry’s retaliation claim.
C.      Cherry’s Hostile Work Environment Claim
        Cherry next claims that, while employed at CCA, she was subjected to a
hostile work environment on account of the fact that she is an “African American
female over the age of 56 years.” As evidence of the hostility she faced based on
her status while an employee at CCA, she points to the following acts: (1) she
was required to submit daily reports to her supervisor beginning in August 2006;
(2) she, unlike Lacy, was not assisted in her completion of her applications for
warden and assistant warden positions; (3) she did not receive annual appraisals
for 2005 and 2006; and (4) CCA required her to apply for warden and assistant
warden positions after the closure of LCJ.
        This claim fails. First and foremost, Cherry has presented no competent
summary judgment evidence from which this court, or the district court, could
conclude that any of the complained-of actions were taken on account of her
membership in a protected class. See Frank v. Xerox Corp., 347 F.3d 130, 138
(5th Cir. 2003) (requiring plaintiff to prove that “the harassment complained of

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was based on race”); Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871,
873 (5th Cir. 1999) (requiring plaintiff to prove “that the harassment was based
on sex”); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (“[T]he very
fact that the discriminatory conduct was so severe or pervasive that it created
a work environment abusive to employees because of their race, gender, religion,
or national origin offends Title VII’s broad rule of workplace equality.” (emphasis
added)). Instead, Cherry broadly claims that her pleadings and the record before
the district court have sufficiently proven her hostile work environment claim,
which is insufficient to create a genuine issue of material fact regarding her
claim. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002) (a non-movant cannot defeat summary judgment by presenting
“conclus[ory] allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation”).
      Moreover, beyond referring to the conduct she considers hostile, Cherry
has not argued how the complained-of acts were “severe or pervasive enough to
create an objectively hostile or abusive work environment—an environment that
a reasonable person would find hostile or abusive.” See Harris, 510 U.S. at 21.
Thus, Cherry’s hostile work environment claim was properly dismissed at
summary judgment.
                               IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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