     Case: 15-60211      Document: 00513260975         Page: 1    Date Filed: 11/05/2015




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

                                    No. 15-60211
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                          November 5, 2015
                                                                               Lyle W. Cayce
YVETTE TURNER,                                                                      Clerk


              Plaintiff - Appellant

v.

JACKSON STATE UNIVERSITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-612


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Yvette Turner sued her former employer, Jackson State University,
alleging, among other claims, retaliation under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e-3. She appeals the district court’s grant of summary
judgment in favor of Jackson State. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                            I.
      Construing the evidence in the light most favorable to the plaintiff, the
record supports the following facts.             From 1999 until 2002, Turner was
employed at Jackson State as an administrative assistant. In 2002, Turner
filed a charge alleging sexual harassment under Title VII with the Equal
Employment Opportunity Commission (“EEOC”). She then filed a lawsuit
against Jackson State alleging sexual harassment, and the lawsuit was settled
in 2006. As part of the settlement, Jackson State employed Turner as a tenure
track assistant professor with probationary conditions. Her employment was
to be governed by Jackson State’s employment handbook and the policies and
procedures of the Board of Trustees of Mississippi State Institutions of Higher
Learning.
      According to those policies, a tenure track assistant professor with
probationary conditions must apply for tenure in his or her sixth year. Turner
applied for tenure in November 2011. In March 2012, Mark Hardy, Jackson
State’s provost at the time, recommended that Turner be denied tenure, and
Jackson State’s president, Caroline Meyers, accepted that recommendation.
Both parties sent Turner a letter informing her that she had been denied
tenure, and Provost Hardy’s letter specifically encouraged her to “meet with
[her] department chair and college dean to explore alternative employment
options with the University” and referred her to “the Faculty Handbook for
specific procedures related to this recommendation.” Turner then met with
Provost Hardy who told her that she could remain at Jackson State in either a
teaching track or clinical research track position. 1
      Following the denial of her tenure application, Turner appealed the
decision and filed an internal grievance. In September 2012, Turner filed an


      1   Provost Hardy does not remember this conversation.
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EEOC charge alleging various forms of retaliation, including not being
properly advised about the requirements for tenure, in response to her earlier
sexual harassment charge and lawsuit. 2 In the fall of 2012, Turner received
an employment contract for one academic year in a non-tenure track position.
Provost Hardy previously told his secretary that Turner’s contract was for “one
year only.” Turner signed this agreement on October 30, 2012. Turner’s
contract expired in May 2013, and she was then terminated.
      On August 5, 2013, Turner filed a final EEOC charge. This charge
alleged that Turner was fired because of her previously filed EEOC charges,
including those filed in 2002 and 2012. After receiving a right to sue letter,
Turner filed a lawsuit on September 30, 2013 in the Southern District of
Mississippi against Jackson State alleging retaliation and sex discrimination
under Title VII, and additional claims under 42 U.S.C. §§ 1981 and 1982, the
First and Fourteenth Amendments, and several state statutes. The district
court dismissed all of the claims but Turner’s Title VII retaliation claim. On
March 9, 2015, the court granted summary judgment for Jackson State.
Turner appeals only the grant of summary judgment.
                                      II.
      We review grants of summary judgment de novo, applying the same
standard as the district court. Martinez v. Texas Workforce Comm’n-Civil
Rights Div., 775 F.3d 685, 687 (5th Cir. 2014), cert. denied 2015 WL 2473108
(U.S. Oct. 5, 2015) (No. 14-1415). At the summary judgment stage, we review
the facts in the light most favorable to the non-moving party. Id. Summary
judgment should be granted only when there is no genuine dispute of fact and




      2   Turner amended her 2012 EEOC charge in January 2013 to reflect ongoing
retaliation in the form of not being compensated fairly.
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the moving party is entitled to judgment as a matter of law. Id. (quoting Fed.
R. Civ. P. 56(a)).
      Title VII makes it unlawful for an employer to discriminate against an
employee “because [the employee] has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
establish a claim of retaliation, a plaintiff must first establish a prima facie
case by showing: “(1) he participated in an activity protected by Title VII; (2)
his employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007).
The burden then shifts to the employer to provide a legitimate, nonretaliatory
reason for the adverse employment action.        Id.   The plaintiff then must
establish that the employer’s reason was pretext for retaliation. Id. The
Supreme Court recently held that a plaintiff alleging retaliation under Title
VII must establish that “his or her protected activity was a but-for cause of the
alleged adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013). Because Turner cannot meet her burden
under this framework, her claim fails.
      The district court held that Turner established a prima facie case of
retaliation and that Jackson State provided a legitimate, nonretaliatory
justification for her termination, but that Turner did not establish a genuine
issue of fact as to pretext. Even if Turner can establish a prima facie case of
retaliation, Jackson State provided a legitimate reason for her termination—
her contract ended and was not extended because she did not meet the
requirements set forth in the relevant employment policies. Turner contends


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that this reason was pretext, and instead, she was terminated because she filed
EEOC charges. We disagree.
      Jackson State provided a legitimate business justification for Turner’s
termination. At this stage of the burden-shifting framework, “[t]he employer's
burden is only one of production, not persuasion, and involves no credibility
assessment.” McCoy, 492 F.3d at 557 (citation omitted). Jackson State’s
policies, which governed Turner’s probationary tenure track position, state:
      A faculty member who is not awarded tenure must have his/her
      tenure track contract terminated at the end of the seventh year of
      the probationary period, although he/she may apply for a non-
      tenure track position through the normal application process. The
      individual cannot be reappointed to a faculty position after not
      being awarded tenure without going through the application
      process.

These policies also state:

      Faculty members who are not awarded tenure during that time
      period must be given a one-year terminal contract at the end of
      their sixth year, which expires at the end of the seven-year period
      or placed in a non-tenure track position upon the recommendation
      of the department chair.

Jackson State’s proffered nonretaliatory justification for Turner’s termination
was that she did not submit an application to extend her employment and that
her department chair did not recommend her for tenure. The record supports
Jackson State’s justifications. Several Jackson State administrators explained
the process for granting a non-tenure track position to a professor that has
been denied tenure, including President Myers, who stated that granting a
professor a non-tenure track position is rare and is only warranted based on
need and expertise. Provost Hardy’s letter specifically instructed Turner to
review these policies, and Turner herself admitted that she never submitted
an application. In addition, the Dean of the College of Education, Daniel

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Watkins, stated in his deposition that Turner’s department chair did not
recommend her for such a position. Jackson State met its burden of production
in offering a legitimate, nonretaliatory reason for Turner’s termination. See
McCoy, 492 F.3d at 557.
     Turner argues that there is an issue of fact as to whether Jackson State’s
justification was pretext.    “[O]nce the employer offers a legitimate,
nondiscriminatory reason that explains both the adverse action and the
timing, the plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.”    McCoy, 492 F.3d at 562 (citation
omitted). Turner must establish that she would not have been terminated but
for her filing of EEOC charges. See Nassar, 133 S. Ct. at 2534. Turner argues
that a reasonable juror could infer pretext and causation based on several
assertions and different pieces of evidence: (1) Turner’s department head at
the time did not have any problems with Turner and was unaware that she
needed to recommend Turner for further employment; (2) Dean Watkins said
Turner would always have a job working at Jackson State while Watkins was
dean; (3) Turner could receive a recommendation long after the contract was
signed in October; (4) the temporal proximity between the date of her receipt
of the contract and her last EEOC charge; (5) Turner’s previous department
head recommended her for tenure; and (6) there was no evidence of any other
professor that Jackson State terminated because it did not have a
recommendation.
     Standing alone, these arguments are not sufficient to show pretext.
Turner presented no evidence contradicting Jackson State’s claims that it
enforces policies that require a terminal employment contract following a
denial of tenure and also require a recommendation from the department chair
to extend the contract. In addition, Turner has not presented any evidence
showing that her department chair recommended her for such a position.
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Altogether, Turner did not present evidence from which a jury could infer that
retaliation, instead of the failure to follow university policies, was Jackson
State’s reason for her termination. As a result, there is no genuine issue of
material fact as to whether Turner’s filing of EEOC charges was a but-for cause
of her termination from Jackson State. See Nassar, 133 S. Ct. at 2534; McCoy,
492 F.3d at 562.
                                     III.
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Jackson State.




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