     Case: 14-30993      Document: 00513135729         Page: 1    Date Filed: 07/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                      No. 14-30993                                  FILED
                                                                                July 30, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
GURNEY ALFRED,
                                                 Plaintiff–Appellant,
versus
STATE OF LOUISIANA DEPARTMENT OF CORRECTIONS,
                                                 Defendant–Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-801




Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

       Gurney Alfred appeals a summary judgment in his Title VII retaliation
suit against the Louisiana Department of Corrections (“DOC”). Because he
has not adduced evidence creating a fact issue regarding pretext, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30993
                                       I.
      Alfred was a Master Sergeant at the DOC. In May 2010, he filed a griev-
ance against his supervisor, Captain Warren Lemoine, alleging that he had
been reassigned to less desirable duties because he had complained to Lemoine
and had sent letters to Lemoine’s superiors.        Lemoine allegedly entered
Alfred’s office and shouted at him for filing a grievance. In June 2010, Alfred
filed a complaint with the EEOC alleging Title VII violations.

      In the wake of the complaint, Alfred allegedly suffered several acts of
retaliation. The one relevant to this appeal is his being disciplined and ulti-
mately discharged for violating the prison’s document-falsification policy.

      One of Alfred’s responsibilities was letting inmates out for their one hour
of yard time. An inmate could refuse to take yard time, in which event he was
required to sign a log called a Yard Refusal Form (“YRF”), which has columns
titled “Inmates Signature,” “Date,” “Time,” and “Officer Signature.” Inmates
would sometimes refuse to sign the YRF as well. As explained below, the par-
ties dispute the procedure corrections officers were required to follow when an
inmate refused to sign.

      On July 15, 2010, Alfred turned in a YRF on which he had written in all
of the refusers’ names in the “Inmates Signature” column. He did not indicate
that the inmates had refused to sign or that he had written their names in the
signature column. Nor did he get another corrections officer to sign or initial
the form to indicate that the inmates had refused to sign. Although all of the
inmate names were written in the same hand, there was no other indication
on the form that the inmates had refused to sign and Alfred had written in
their names.

      On October 5, Alfred received a VR-1, a form that documents a disciplin-
ary infraction. It notified him that was being written up for violating the
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                                  No. 14-30993
document-falsification policy for writing in the inmates’ signatures on the
July 15 YRF. At Alfred’s first-level hearing on October 21, the assistant war-
den recommended termination based on the seriousness of the charge. After
an appeals process, DOC terminated Alfred on November 29.

                                        II.
      Alfred sued for discrimination and retaliation in violation of Title VII.
The district court granted summary judgment to the DOC on all claims. It
assumed that Alfred had made out a prima facie case of retaliation. Under the
framework for Title VII retaliation suits, the burden shifted to the DOC “to
articulate a legitimate, nondiscriminatory reason for its termination.” Medina
v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). The court determined
that DOC had met that burden by showing that Alfred had violated their
records-falsification policy.

      At that point, Alfred could avoid summary judgment only by “adduc[ing]
evidence that [the employer’s] proffered reason for his termination was merely
a pretext for [ ] discrimination.” Id. at 685. He must show that he “would not
have been terminated ‘but for’ engaging in protected activity.” Id. Although
but-for causation is also part of a prima facie case, “the burden here is more
stringent” and requires the plaintiff to reveal “a conflict in substantial evidence
on the ultimate issue of retaliation.” Id. (quotation omitted). The district court
concluded that Alfred had not shown that the records-falsification explanation
was a pretext for discrimination.

                                       III.
      Alfred appeals the summary judgment on his retaliatory-discharge
claim, contending that he adduced sufficient evidence to create a fact issue on
pretext. “This court reviews a grant of summary judgment de novo.” Royal v.

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                                  No. 14-30993
CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). Summary
judgment is appropriate only if “there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.” Id. There
is a genuine dispute of material fact only if “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. (quotation omitted).

      To show pretext, Alfred makes essentially three groups of contentions.
First, he challenges the existence of the falsification policy and its application
to his actions. Second, he points to inconsistencies in the evidence regarding
when Lemoine actually filled out the VR-1. And third, he highlights the close
temporal proximity between filing his grievance and EEOC charge and being
subjected to the disciplinary procedure.

                                       A.
      Alfred was terminated for violating the document-falsification policy
regarding how he filled out the YRF. The parties dispute whether there was
an established procedure for noting when an inmate refused to sign a YRF.
The DOC produced affidavits of other employees attesting that officers were
supposed to note on the form that an inmate had refused to sign, whereas
Alfred asserted that there was no such requirement.

      It is unnecessary to resolve exactly what the DOC’s policy was for noting
an inmate’s refusal to sign. It is uncontested that the DOC had a policy against
falsifying records, and Alfred has presented no evidence to show that the DOC
did not believe he had falsified the entries on the YRF. The DOC was presented
with a YRF on which all names in the “inmate signature” line had been written
in the same hand, without any notation that Alfred had written the names in
because the inmates had refused to sign. The DOC could reasonably believe
that he had falsified the YRF in violation of policy.


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                                       No. 14-30993
       Alfred has presented no evidence showing that the DOC did not hold this
belief. 1 If he is challenging the document-falsification justification as pretext
because he disagrees that he falsified records, his claim fails because he is dis-
puting the accuracy of his employer’s belief, not its genuineness. See Haverda
v. Hays Cnty., 723 F.3d 586, 596 n.1 (5th Cir. 2013). And if he is challenging
the justification because he thinks the policy cuts too broadly or is otherwise
excessively restrictive if it reaches his conduct, his claims fails because he is
challenging the wisdom of the DOC’s policy, not whether it was applied in a
retaliatory fashion. “Our anti-discrimination laws do not require an employer
to make proper decisions, only non-retaliatory ones.” LeMaire v. La. Dep’t of
Transp. and Dev., 480 F.3d 383, 391 (5th Cir. 2007).

                                              B.
       The second set of facts giving rise to a pretext inference, according to
Alfred, is the inconsistency in the evidence regarding the timeline leading to
his VR-1’s being issued. One discrepancy on which he relies is an inconsistency
in Lemoine’s testimony regarding the timeline of Alfred’s involvement. There
is some evidence that Lemoine actually did fill out the VR-1 on July 19, alleg-
edly the day the falsified reports were brought to his attention. In an affidavit,
Lemoine stated that he “received the Yard Refusal Form” from Serena Griffey,
the secretary for Camp RC, on July 19. He stated that he wrote the VR-1 for
falsifying documents and that he disciplined Lieutenant Myers for his failure



       1  Alfred points out that Sergeant Lenon Johnson testified that corrections officers
were instructed to print inmates’ names on the YRF if the inmates refused to sign. Johnson
testified, however, that guards were not supposed to write the inmates’ names in the inmate-
signature column, which is what Alfred did. Johnson also stated that guards needed to note
on the form that the inmate refused to sign, and they were supposed to get a second officer
to verify the refusal on the sheet. Johnson’s testimony does not create a fact issue on whether
writing the inmates’ names in the inmate-signature column would be seen by the DOC as
attempted falsification.
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                                 No. 14-30993
to catch the falsification that same day; Myers was responsible for reviewing
and initialing the YRF before Griffey received it. Lemoine did not specify the
date on which he wrote or signed the VR-1, but he did say that he punished
Myers “as a result of the VR-1” that he issued to Alfred, and the record includes
a notice from Myers’s personnel file stating that he was counseled on July 19
at 5:15 a.m. That matches the affidavit submitted by Assistant Warden Jos-
eph Lamartiniere, who stated that Lemoine had prepared the VR-1 on July 19.
And the Deputy Warden, Leslie Dupont, submitted an affidavit stating that he
had put Alfred on forced leave with pay in July “because he was issued two
VR-1s,” of which one was the document-falsification VR-1.

      Alfred contends that several pieces of evidence are inconsistent with the
above account and create a fact issue regarding when Lemoine found out about
the violation. First, Lemoine’s signature on the VR-1 is dated “9-22-10.” The
DOC did not present evidence explaining why Lemoine signed the VR-1 so long
after he was first notified of the violation. Lamartiniere’s affidavit indicates
that the length of time between preparing and signing the VR-1 in this case
was a delay that was out of the ordinary.

      Second, in a deposition taken before he filed his affidavit, Lemoine gave
testimony that could be read to say that he did not receive the Yard Refusal
Form until September:
   Q. ― and you signed this [VR-1] September the 22nd, 2010 relating to
      an incident that was back two months earlier.
   A. Yeah, because that's when I got the paperwork back.
   Q. What paperwork are you talking about?
   A. The yard refusal form.
   Q. That's the ― what Ms. Griffey brought to you?
   A. Right.
   Q. So is that normal, that those yard refusal forms just sit around for
      two months before they're brought to your attention?
   A. She was the secretary for three camps, so she has a lot ― lots of
      paperwork coming in every day.
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                                 No. 14-30993
Lemoine stated that he “got the paperwork back” on September 22 and that
the paperwork was the YRF. He did not state from whom he got the form back
or what he meant when he said he got the form “back.” Alfred contends that
testimony shows Lemoine received the YRF in the first instance in September,
contradicting the other evidence discussed earlier.

      The third inconsistency is the timing of Lemoine’s counseling of Myers.
Lemoine’s affidavit states that he counseled Myers the same day he received
the YRF, July 19, and the form documenting the counseling is signed and dated
July 19 at 5:15 a.m. When asked in a deposition whether he was “was aware
of Captain Lemoine actually having received” the YRFs from Griffey, however,
Myers stated that he “was showed the next morning when [Lemoine] received
them from her,” right before his counseling meeting. The testimony is not
clear, but it could be read to show that Myers received counseling the day after
Lemoine received the YRFs instead of the same day. Relatedly, Alfred points
out that the VR-1 says Lemoine received the falsified forms at approximately
5:15 a.m., yet the counseling-documentation form from Myers’s file is also
dated July 19, 5:15 a.m., which makes the timeline implausible because those
two events purportedly happened in sequence.

      The questions raised by those inconsistencies are insufficient to preclude
summary judgment because they do not create a genuine dispute about a mate-
rial fact. At most, the preceding discussion shows there is a factual dispute
regarding when Lemoine first received notice of the records-falsification viola-
tion and when he decided to write the VR-1. “[T]emporal proximity alone,
when very close, can in some instances establish a prima facie case of retali-
ation.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir.
2007). But temporal proximity is insufficient by itself to show but-for causa-
tion, which is the relevant requirement for pretext. Id.; see also Medina, 238

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                                  No. 14-30993
F.3d at 685 (stating that plaintiff must show but-for causation at pretext
stage). Alfred has not demonstrated how the timeline inconsistencies provide
any support for his narrative beyond potentially placing events at times that
better support his theory of retaliation. Because temporal proximity is insuffi-
cient, neither the inconsistencies nor the established, short period of time over-
all between Alfred’s alleged protected activity and his termination renders the
summary judgment erroneous.

      AFFIRMED.




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