     Case: 09-10999     Document: 00511172461          Page: 1    Date Filed: 07/14/2010




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

                                                  FILED
                                                                            July 14, 2010
                                     No. 09-10999
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GARY AREY,

                                                   Plaintiff - Appellant

v.

CRAIG WATKINS, In his individual and official capacities; DALLAS
COUNTY,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:07-cv-01960


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Gary Arey appeals the district court’s grant of summary
judgment in favor of appellees Craig Watkins and Dallas County on his
employment discrimination claims. Finding no reversible error, we AFFIRM.
                   I. FACTS AND PROCEDURAL HISTORY
        We recite the facts viewing them in the light most favorable to Arey. Arey
was a prosecutor in the Dallas County District Attorney’s Office for almost


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10999

thirty-three years. He started his career with Dallas County as a prosecutor in
the Juvenile Division, and he eventually became Division Chief of the Juvenile
Division. During Arey’s more than three decades of service, he prosecuted cases,
provided educational and training services, supervised and managed the
Juvenile Division, served on various state task forces, and oversaw numerous
technological improvements in the division.
      Arey’s career ended in 2006, when he received a termination letter from
Watkins, who had just been elected Dallas County District Attorney. After he
was elected, Watkins formed a transition team and began to receive input from
his team and others in the legal community about the Juvenile Division.
Watkins received a number of different negative reports about Arey’s
performance as Division Chief of the Juvenile Division. After receiving these
reports, Watkins terminated Arey. Durrand Hill, an African American, was
appointed to replace Arey, who is Caucasian.
      After he was terminated, Arey brought this suit alleging that he was
terminated because of his race in violation of Title VII of the Civil Rights Act, 42
U.S.C. § 1981, and Chapter 21 of the Texas Labor Code. Appellees moved for
summary judgment on Arey’s Title VII and § 1981 claims, asserting that Arey’s
termination was based on legitimate, non-discriminatory reasons. The district
court found that Arey failed to create a fact issue as to all of Watkins’s proffered
reasons.   As a result, the court granted Appellees’ motion for summary
judgment. The district court then declined to exercise jurisdiction over Arey’s
state law claim. This appeal followed.
                         II. STANDARD OF REVIEW
      Arey appeals the district court’s grant of summary judgment. We review
the district court’s grant of summary judgment de novo, and we may affirm “on
any grounds supported by the record and presented to the court below.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).

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                                    III. DISCUSSION
       Arey’s discrimination claims under Title VII and § 1981 “require the same
proof to establish liability.” Byers v. Dallas Morning News, Inc., 209 F.3d 419,
422 n.1 (5th Cir. 2000). Arey’s claim is based on circumstantial evidence, and
we review such claims under the burden-shifting framework outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).                     The McDonnell
Douglas burden-shifting framework is a familiar one, and this appeal concerns
the third step in the framework.1 Under the third step, Arey had the burden of
producing evidence that would allow a reasonable jury to find that Watkins’s
proffered reasons were pretexts for discrimination.2                 See McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007) (“To carry this burden, the plaintiff
must rebut each nondiscriminatory . . . reason articulated by the employer.”);
Mayberry, 55 F.3d at 1091. The district court found that Arey failed to carry his
burden. We agree.
       In his affidavit, Watkins proffered the following reasons for terminating
Arey: (1) he believed reports from his transition team and others that Arey was
a “non-presence” in the courts under his supervision; (2) he believed reports from
his transition team and others that Arey was a poor administrator and



       1
        Under the first step in the framework, Arey had to establish a prima facie case of
discrimination, Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995), and we
assume for purposes of this appeal that Arey has established a prima facie case. In the second
step, Appellees had the burden of producing legitimate non-discriminatory reasons for Arey’s
termination, id.; we find, and Arey does not dispute, that Appellees satisfied that burden.
       2
          Under the third step, instead of arguing pretext, Arey could have proceeded under
a “mixed-motive” theory. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
In his brief, Arey raises a mixed-motive theory. Arey, however, did not raise such a theory in
the district court. Because Arey is attempting to raise this theory for the first time on appeal,
we find the theory waived, and we will not consider it. Vaughner v. Pulito, 804 F.2d 873, 877
n.2 (5th Cir. 1986) (“If a party fails to assert a legal reason why summary judgment should not
be granted, that ground is waived and cannot be considered or raised on appeal.”).

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supervisor; (3) he believed that the Juvenile Division, under Arey’s leadership,
was ineffectual, at best, and was a “dumping ground” for underperforming
assistant district attorneys; (4) he did not believe, based on the reports he
received and his perceptions, that Arey should lead a department as important
as the Juvenile Division; (5) he believed terminating Arey and replacing him
with Hill would provide a significant break with the past administration; and (6)
he believed that Hill would be more trustworthy and loyal than Arey.
      In his brief, Arey only addressed the first four reasons proffered by
Watkins. To create a fact issue as to these reasons, Arey must have presented
evidence that would allow a reasonable jury to find that Watkins’s reliance on
reports from his transition team and others was not in good faith, see Mayberry,
55 F.3d at 1091 (“‘We do not try in court the validity of good faith beliefs as to an
employee’s competence.’” (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th
Cir. 1991))), and that Watkins did not actually perceive or base his decision on
the perception that the Juvenile Division had become ineffective and a dumping
ground under Arey’s leadership, see Shackelford v. DeLoitte & Touche, LLP, 190
F.3d 398, 408–09 (5th Cir. 1999) (stating that, in cases such as this, the issue is
“whether [the employer’s] perception of [the employee’s] performance, accurate
or not, was the real reason for [his or] her termination”). Moreover, to create a
fact issue as to these reasons, our precedents require Arey to do more than show
that Watkins’s investigation of his credentials was inadequate and that a more
thorough investigation would have shown Arey’s good qualities. Discrimination
law addresses only discrimination, not general unfairness in employment
relationships. See LeMaire v. La. Dep’t of Transp. & Dev. ex rel Louisiana, 480
F.3d 383, 391 (5th Cir. 2007). Indeed, “‘[e]ven an incorrect belief that an
employee’s    performance     is   inadequate   constitutes   a   legitimate,   non-
discriminatory reason’” for termination. See Mayberry, 55 F.3d at 1091 (“‘[A]
dispute in the evidence concerning . . . job performance does not provide a

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sufficient basis for a reasonable factfinder to infer that [a] proffered justification
is unworthy of credence.’” (quoting Little, 924 F.2d at 97) (first and second
alterations in original)); see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 899 (5th Cir. 2002) (“Merely disputing [the employer’s] assessment of [the
employee’s] performance will not create an issue of fact.”).
       To rebut Watkins’ first four reasons, Arey produced evidence showing that
he received positive performance reviews, that he was involved in the Juvenile
Division’s day-to-day activities, that he received numerous awards, and that he
was given a number of prestigious appointments for his work.                      While this
evidence creates a dispute as to the thoroughness and accuracy of the reports
that Watkins received, this evidence falls short of showing that Watkins did not
rely on those reports in good faith. Arey does not present any evidence showing
that Watkins was aware of this lack of thoroughness or accuracy, nor does he
present any other evidence that would allow a reasonable jury to find that
Watkins did not rely on the reports in good faith. Moreover, Arey has not
presented any evidence that would allow a reasonable jury to find that Watkins
did not perceive, or base his decision on the perception, that the Juvenile
Division had become ineffective and a dumping ground for underperforming
attorneys. Without more, Arey’s evidence, at most, creates only a dispute as to
the correctness of Watkins’s beliefs and the thoroughness of his investigative
process, and, as stated above, such a dispute is not sufficient to create a jury
question as to Watkins’s first four proffered reasons.
       Because we conclude that Arey failed to rebut any of these reasons, we
need not determine whether he had to rebut them all. Accordingly, we agree
with the district court’s determination that Arey failed to meet his burden under
the third step of the McDonnell Douglas framework.3

       3
          Pursuant to Federal Rule of Civil Procedure 56(f), Arey might have been able to
discover additional evidence to create a fact issue as to all of Watkins’s proffered reasons. In

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                                   IV. CONCLUSION
       While Arey’s evidence could support a conclusion that Watkins’s decision-
making process lacked thoroughness, our job as a reviewing court in conducting
a pretext analysis does not include second-guessing how Watkins arrived at his
decision because “[o]ur anti-discrimination laws do not require an employer to
make proper decisions, only [non-discriminatory] ones.” LeMaire, 480 F.3d at 391
(5th Cir. 2007). As shown above, under our precedents, which we are bound to
follow, Arey has failed to present evidence that would allow a reasonable jury to
find that Watkins’s decision to terminate him was discriminatory one.
Accordingly, we AFFIRM.




the proceedings below, Arey did ask for a Rule 56(f) continuance, which the district court
denied. Arey, however, failed to appeal the district court’s denial of that motion. Accordingly,
we cannot consider it.

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