     Case: 09-50466     Document: 00511000454          Page: 1    Date Filed: 01/11/2010




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

                                                  FILED
                                                                          January 11, 2010

                                     No. 09-50466                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LOUISE MOORE,

                                                   Plaintiff - Appellant
v.

REEVES COUNTY; REEVES COUNTY JUVENILE BOARD,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 4:08-CV-27


Before KING, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Louise Moore, an African-American woman, appeals
the district court’s grant of summary judgment in favor of Reeves County and
the Reeves County Juvenile Board on her Title VII, 42 U.S.C. § 2000e, and 42
U.S.C. § 1981 sex and race discrimination claims. Moore alleges that she was
terminated from her position as the chief juvenile probation officer in the
Reeves/Loving County Juvenile Probation Department on account of her race


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50466

and gender. On appeal, Moore only presses her race discrimination claims and
argues that the trial court erred in holding that: (1) Reeves County was not
Moore’s employer; (2) Moore was not an employee under Title VII; and (3) Moore
did not raise any fact issue regarding whether the Reeves County Juvenile
Board’s reason for terminating her was pretextual. For the following reasons,
we AFFIRM the judgment of the district court.
                               BACKGROUND
      Louise Moore was the chief juvenile probation officer in the Reeves/Loving
County Juvenile Probation Department (the “Department”). She was appointed
to her position by the Reeves/Loving County Juvenile Probation Board (the
“Board”).    In her role, Moore directed and supervised the juvenile services
program.     The Board holds the ultimate responsibility of supervising and
managing the Department, including decisions about whether to terminate
employees.
      In late 2005, a dispute arose between Moore and a subordinate juvenile
probation officer, Mary Ann Acosta.     In December 2005, Moore prepared a
critical evaluation of Acosta that prevented Acosta from receiving her maximum
compensation under the Department’s new incentive pay program. In response,
Acosta filed a formal grievance with the Board. In January 2006, the Board
heard Acosta’s grievance. However, instead of taking formal action on the
grievance, a member of the Board agreed to meet personally with Moore and
Acosta on a regular basis in an effort to resolve the conflicts between Moore and
Acosta and improve the performance of the Department. Moore and Acosta both
agreed with this plan.
      However, in July 2006, Acosta notified Moore that she intended to submit
another grievance to the Board.     In response, Moore discharged Acosta for
“insubordination.” Acosta appealed Moore’s decision to the Board, and the Board
reversed the discharge and reinstated Acosta at a meeting on August 8, 2006.

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At an “emergency meeting” on August 18, 2006, the Board hired a consultant,
Nancy Baird, to evaluate the Department’s problems and make findings and
recommendations to the Board.       The Board informed employees, including
Moore, about the steps it was taking to resolve the problems within the
Department.
      After reviewing the Department in August 2006, Baird presented findings
and recommendations which the Board adopted at its meeting on September 1,
2006. These recommendations included specific actions that Moore and Acosta
should take to improve communications and resolve conflict. Specifically, Baird
recommended that Moore attend management training; prepare a plan of action
to improve communication in the Department; and meet individually with the
Department staff to review their professional development plans. Baird also
recommended that Acosta develop a plan of action to improve communication
with Moore. To follow-up on these recommendations, Baird was to complete a
subsequent evaluation and report for the board forty-five days later.
      After conducting her follow-up evaluation, Baird presented her findings
and recommendations to the Board on October 20, 2006. In her November 5,
2006, written report detailing these findings, Baird noted that Moore had not
followed several of her recommendations. Specifically, Baird determined that
Moore had attended some training sessions, but she had not attended
appropriate training; Moore had developed an insufficient plan of action to
improve Department communications because the plan did not include specifics,
measurable goals, or timelines; Moore had neither delivered professional
development plans to all Department staff as recommended nor reviewed
professional development plans individually with all Department staff; and
Moore had not met with Acosta to discuss Acosta’s professional development
plan. Further, Baird found that Acosta had complied with her recommendations
because she had developed a detailed plan of action, which she provided to Baird.

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Based on these findings, the Board voted to terminate Moore at its October 20,
2006, meeting.
      Moore properly exhausted administrative remedies, received her right to
sue letter, and filed suit in federal court on July 17, 2008, alleging race and sex
discrimination under Title VII and § 1981. The Board and Reeves County filed
their motion for summary judgment in March 2009. The district court granted
summary judgment in favor of the Board and Reeves County on April 30, 2009,
and entered final judgment in favor of the defendants the same day. Moore now
appeals the grant of summary judgment on her race discrimination claims.
                                 DISCUSSION
           A. Standard of Review and Title VII, § 1981 Framework
      “We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court.” Pegram v. Honeywell, Inc., 361 F.3d
272, 278 (5th Cir. 2004). Summary judgment is appropriate where the record
shows that “there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c); Pegram, 361
F.3d at 278. “A dispute about a material fact is ‘genuine’ if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Davis
v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004) (quotation marks
omitted). The summary judgment test for discrimination claims under § 1981
is the same as the test for discrimination claims under Title VII. Id.
      Since Moore does not allege any direct evidence of discrimination, we apply
the familiar McDonnell Douglas burden-shifting analysis. Id. (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).          “To survive summary
judgment under McDonnell Douglas, the plaintiff must first present evidence of
a prima facie case of discrimination.” Id. at 317. If the plaintiff presents a prima
facie case of discrimination, then an inference of discrimination arises, and the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason

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for the underlying employment action. Id. “If the employer is able to state a
legitimate rationale for its employment action, the inference of discrimination
disappears and the plaintiff must present evidence that the employer’s proffered
reason was mere pretext for racial discrimination.” Id.
      “On summary judgment, [at the pretext stage], the plaintiff must
substantiate his claim of pretext through evidence demonstrating that
discrimination lay at the heart of the employer’s decision.” Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002). “To carry this burden, the plaintiff must
produce     substantial   evidence    indicating    that     the   proffered   legitimate
nondiscriminatory reason is a pretext for discrimination.” Laxton v. Gap, Inc.,
333 F.3d 572, 578 (5th Cir. 2003). “Evidence is substantial if it is of such quality
and weight that reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.”           Id. at 579 (quotation marks
omitted).
       Pretext may be established “either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Id. at 578 (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000)). “To raise an inference of discrimination, the
plaintiff may compare his treatment to that of nearly identical, similarly situated
individuals.”   Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.
2005). However, to establish disparate treatment, a plaintiff must show that the
employer gave preferential treatment to another employee under “nearly
identical” circumstances.     Id.    Alternatively, “[a]n explanation is false or
unworthy of credence if it is not the real reason for the adverse employment
action.” Laxton, 333 F.3d at 578. “Whether summary judgment is appropriate
depends on numerous factors, including ‘the strength of the plaintiffs prima facie
case, the probative value of the proof that the employer’s explanation is false, and
any other evidence that supports the employer’s case and that properly may be

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considered.’” Price, 283 F.3d at 720 (quoting Reeves, 530 U.S. at 148–49).
                    B. Moore’s Race Discrimination Claims
       Both parties agree that Moore has made a prima facie case of
discrimination and that the Board has met its burden of offering a legitimate,
nondiscriminatory reason as to why Moore was discharged. Accordingly, the
question before us is whether Moore has raised a fact issue regarding whether
the Board’s proffered reason for Moore’s termination—that Moore did not follow
Baird’s recommendations—was pretextual.
       Moore argues that the Board’s reasons for firing her were pretextual for
two reasons. First, Moore contends that she received “disparate treatment”
because a subordinate juvenile probation officer, Acosta, also did not comply with
Baird’s recommendations and was not fired. Second, Moore contends that the
Board’s reasons for firing her are “unworthy of credence” both because the
consultant’s recommendations were not finalized until after Moore was
terminated and because the final written report was inaccurate.
       We are not persuaded by Moore’s contention that Moore was subject to
disparate treatment because Acosta was not fired. At the time, Moore was the
chief juvenile probation officer and Acosta was a subordinate juvenile probation
officer.   As such, Moore, by her own admission, is vested with different
responsibilities than Acosta. Further, Baird’s report, which formed the basis for
the   Board’s   decision,   indicated   that   Acosta    complied   with    Baird’s
recommendations and that Moore did not. Though Moore contends that she
actually did comply with Baird’s recommendations, Baird concluded otherwise
and the record supports Baird’s conclusion. Specifically, the record shows that
the Board warned Moore that the training she proposed to attend was not
appropriate; that Moore’s plan of action does not list measurable goals and
timelines; and that Moore did not meet individually with all employees.
Additionally, Moore’s statements that Acosta did not comply with Baird’s

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recommendations are conclusory and unsupported by any evidence. Accordingly,
we conclude that Moore has not presented the kind of substantial evidence
required to show disparate treatment of similarly situated employees in nearly
identical situations such that a reasonable factfinder could conclude that the
Board’s reason for terminating Moore was pretextual. Bryant, 413 F.3d at 478.
      We are also not persuaded by Moore’s contention that the Board’s proffered
reason for terminating her was “unworthy of credence” because Baird did not
finalize her report until after Moore was fired and because Baird’s report
contained inaccuracies.    While Baird did not finalize her report until after
Moore’s termination, the record reflects that Baird was present at the October 20,
2006, meeting of the Board and that Baird made a presentation regarding her
follow-up review of the Department. Further, Moore’s contention that the report
is inaccurate is not supported by the record. In her appellant brief, Moore only
reiterates actions that she took after Baird’s recommendations and makes
conclusory statements that she complied with Baird’s recommendations.
However, as discussed above, the record supports Baird’s determination that
Moore had not complied with her recommendations. Accordingly, we conclude
that Moore has failed to present the kind of substantial evidence necessary to
support   a   reasonable    factfinder’s    determination    that   the   Board’s
nondiscriminatory reason for Moore’s termination was unworthy of credence and
thus pretextual. Price, 283 F.3d at 722.
      Because Moore fails to meet her burden showing that the Board’s proffered
nondiscriminatory reason for terminating her was pretextual, summary
judgment in favor of the Board and Reeves County on Moore’s discrimination
claims is appropriate. Thus, even if we assume that Moore is correct(in arguing
to sustain her Title VII claim) that Reeves County is her employer or that she is
an employee of the Board and Reeves County under Title VII, Moore still has not
shown that the Board’s proffered reason for firing her is pretextual, and as such,

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Moore’s discrimination claims under both Title VII and § 1981 against the Board
and Reeves County fail. Accordingly, we need not resolve Moore’s two other
issues on appeal—whether Reeves County was Moore’s employer and whether
Moore was an “employee” for Title VII purposes—to conclude that summary
judgment in favor of the Board and Reeves County is appropriate here.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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