     Case: 10-41331     Document: 00511519355          Page: 1    Date Filed: 06/23/2011




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

                                                  FILED
                                                                            June 23, 2011

                                     No. 10-41331                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SUE MANAWAY,

                                                   Plaintiff - Appellant
v.

THE MEDICAL CENTER OF SOUTHEAST TEXAS,

                                                   Defendant - Appellee




                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:09–CV–356


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Sue Manaway filed this lawsuit against The Medical Center of Southeast
Texas, alleging that The Medical Center fired her because of her age and race,
and in retaliation for complaints she made about discrimination at The Medical
Center. Manaway appeals the magistrate judge’s order granting The Medical
Center’s motion for summary judgment on all of Manaway’s claims.                           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41331

              I. FACTUAL & PROCEDURAL BACKGROUND
      Sue Manaway is a former employee of The Medical Center of Southeast
Texas (the “Medical Center”). Prior to her termination, Manaway was employed
in the Medical Center’s telemetry unit. In June 2007, Manaway’s schedule was
changed so that she was no longer the “charge nurse” in telemetry, and the
position began to rotate between several different nurses.1 In October 2007,
Manaway’s supervisor, Shannon Smith, began to receive complaints about
Manaway’s work performance.
      Smith stated that, as a result of these complaints, she removed Manaway
from her charge nurse rotation for her shift on November 2, 2007, but did not
give Manaway advance notice. Manaway called Smith’s home to complain about
her removal and abruptly hung up while speaking with Smith. That same day,
Manaway notified the Medical Center’s Alertline that she had been removed
from her shift without advance notice. In a follow-up call to the Alertline, she
stated that Smith had threatened to send the Ku Klux Klan to a co-worker’s
house and that white employees were paid at a higher rate than black
employees.
      On November 8, 2007, Manaway met with Smith, Jennifer Barroeta (the
Medical Center’s Director of Human Resources), and Heidi Wolf (the Medical
Center’s Chief Nursing Officer). At the meeting, Smith apologized for removing
Manaway from her shift as charge nurse without notifying her first.               But
Manaway was told that her behavior in response to the shift change was
unacceptable and was given performance counseling for hanging up abruptly on
her supervisor in violation of the Medical Center’s customer service policy.
      On November 16, 2007, Manaway did not appear for her shift and was
given a verbal warning for having six absences in a twelve-month period. On


      1
         On appeal, Manaway does not argue that her removal from the position of charge
nurse is the basis for her discrimination and retaliation claims.

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January 10, 2008, the charge nurse requested Manaway to take a patient
assignment but Manaway responded that she was too busy. Smith and another
Medical Center employee met with Manaway on January 17, 2008, to address
her refusal to take a patient assignment, and, although Manaway disputed that
she had refused to take the assignment from the charge nurse, Manaway
assured Smith that there would be no problems in the future.
      On January 23, 2008, the charge nurse reassigned two patients from
Manaway to another nurse, Tiffany Guillroy, and reassigned two patients from
Guillroy to Manaway. Guillroy requested that Smith assign these patients to
her because she had cared for them previously, and Smith instructed the charge
nurse to make the change.        Manaway allegedly refused to accept the
reassignment, and no patients were reassigned. On January 28, 2008, Manaway
met with Smith and Barroeta to address her refusal to accept the reassignment.
Manaway abruptly left the meeting before it was finished, and she was sent a
final warning about her conduct by mail.
      On February 9, 2008, the charge nurse asked Manaway to perform an
assessment on a new patient.      Manaway allegedly refused to perform the
assessment, and the charge nurse drafted a memorandum of the incident and
sent it to the Medical Center’s administration. As a result of Manaway’s alleged
conduct, Smith recommended that Manaway be terminated. On February 15,
2008, Manaway had a final meeting with Wolf, in which Manaway expressed
several concerns she had with other employees’ conduct in the telemetry unit.
Among these concerns she expressed was that the other employees were
“tattling” on her. After the meeting, Wolf drafted a memorandum outlining
Manaway’s conduct that warranted termination, which included her difficulty
accepting her removal from the charge nurse position and her refusal to accept
direction from other charge nurses. Wolf concluded that Manaway’s termination
would be appropriate, and discussed the issue with Baroetta. Baroetta and Russ

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Folis (the Medical Center’s Corporate Director of Human Resources) discussed
Manaway’s insubordination and lack of cooperation during her performance
counseling, which included making unrelated complaints about other employees.
Folis approved Manaway’s termination.
      After her termination, Manaway commenced this lawsuit against the
Medical Center, alleging three bases for liability: (1) she was terminated on the
basis of her race, in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 (the “Title VII claim”);
(2) she was terminated on the basis of her age, in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq.
(the “ADEA claim”); and (3) she was terminated in retaliation for complaints she
made about the Medical Center’s discriminatory practices, in violation of Title
VII and § 1981 (the “retaliation claim”). Manaway claimed her refusal to accept
assignments and insubordination were “bogus,” and that the real reasons for her
termination were her race and age and the complaints she had made regarding
racial discrimination at the Medical Center. The parties agreed to have the case
proceed before a magistrate judge.
      The Medical Center moved for summary judgment on all of Manaway’s
claims, stating that she had failed to make out a prima facie case of racial
discrimination, age discrimination, or retaliation, and argued that the real
reason for her termination was insubordination. The magistrate judge granted
the Medical Center’s motion for summary judgment on all of Manaway’s claims,
concluding that she had failed to make out a prima facie case on any of her
claims. In the alternative, the magistrate judge concluded that Manaway had
failed to allege a genuine dispute over whether the Medical Center’s reason for
her termination was pretextual. Manaway appealed.




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                            II. STANDARD OF REVIEW
        This court “review[s] 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.” F ED. R. C IV. P. 56(a).
                                   III. DISCUSSION
A.      Manaway’s Title VII and ADEA Claims
        Manaway’s Title VII and ADEA claims are analyzed under the burden-
shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–03 (1973).2 See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374,
378 (5th Cir. 2010) (applying the McDonnell Douglas framework to an ADEA
claim). Under this framework, the plaintiff must first create a presumption of
discrimination by making a prima facie case. Laxton, 333 F.3d at 578. This
requires the plaintiff to 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.” Willis
v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006) (regarding Title VII
claims) (citation and internal quotation marks omitted); see also Smith v. City
of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003) (same regarding ADEA
claims).
        Once the plaintiff has made a prima facie case, the burden shifts to the
employer to “produce a legitimate, non-discriminatory reason for her
termination,” which “causes the presumption of discrimination to dissipate.”


       2
         Manaway hints in her brief that there is direct evidence of Smith’s age discrimination
against her. Manaway has not properly briefed this argument, and we do not consider it. See
Fed. R. App. P. 28(A)(9)(a); see also United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.
2010) (“It is not enough to merely mention or allude to a legal theory.” (citation and internal
quotation marks omitted)).

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Laxton, 333 F.3d at 578 (citation omitted). The plaintiff may prove pretext
“either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or unworthy of credence.” Id. (citation
and internal quotation marks omitted). With this framework in mind, we turn
to Manaway’s Title VII and ADEA claims.
      There is no dispute in this case that Manaway has met the first three
prongs of proving a prima facie case for her Title VII and ADEA claims.
Manaway is a 58-year-old, African-American woman, she was qualified for her
position, and she suffered an adverse employment action when she was
terminated. There is a dispute, however, over whether Manaway has made a
prima facie case of disparate treatment by stating that other Medical Center
employees who refused assignments were not terminated. Because the burden
for establishing a prima facie case is “very minimal,” see Nichols v. Loral Vought
Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (citation and internal quotation marks
omitted), and because we decide Manaway’s Title VII and ADEA claims on the
basis of pretext, we assume, without deciding, that Manaway has made a prima
facie case of discrimination. See Okoye v. Univ. of Tex. Houston Health Science
Ctr., 245 F.3d 507, 513 (5th Cir. 2001).
      The Medical Center stated that Manaway was terminated because of her
insubordination and refusal to carry out patient assignments, which satisfies its
burden of providing a “legitimate, non-discriminatory” reason for Manaway’s
termination. See Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164,
167–68 (5th Cir. 1999) (“The failure of a subordinate to follow the direct order
of a supervisor is a legitimate nondiscriminatory reason for discharging that
employee.”). Manaway has failed to carry her burden of proving that there is a
genuine dispute over whether the Medical Center’s proffered reason is a pretext
for race or age-based animus.



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      Manaway first argues that her termination was pretextual because she did
not refuse patient assignments. However, the record undisputedly shows that
Manaway was asked by supervisors to carry out patient assignments and that
those assignments were not carried out. Manaway’s “assertion of innocence
alone does not create a factual issue as to the falsity of [the employer’s] proffered
reason for terminating [her].” Jackson, 602 F.3d at 379; see also Evans, 246 F.3d
at 355 (stating that employee’s claim cannot survive summary judgment “merely
because she disagrees with [her employer’s] characterization of her disciplinary
history” (citation and internal quotation marks omitted)).            Furthermore,
Manaway does not dispute that she hung up on her supervisor in violation of the
Medical Center’s policy and left a counseling session before it was completed.
      Manaway next argues that the Medical Center’s reason for her
termination was pretextual because similarly situated employees were not
terminated for similar conduct. See Laxton, 333 F.3d at 578. Proof of disparate
treatment requires her to “demonstrate that the misconduct for which she was
discharged was nearly identical to that engaged in by an employee not within
her protected class whom the company retained.” Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 221 (5th Cir. 2001) (citation, internal alteration, and internal
quotation marks omitted).       Manaway points to two other employees who
allegedly engaged in similar conduct but were not terminated. Manaway claims
that one white employee, Marva Roan, would routinely yell at co-workers and
refused assignments. Manaway claims that another white employee, Debra
Vanover, would read novels and work on crossword puzzles and also refused
assignments. She claims that neither of these employees was reprimanded or
fired for her conduct.
      However,      Manaway    has   provided    no   evidence,   aside   from   her
unsubstantiated assertion, to establish that Vanover or Roan refused
assignments. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th

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Cir. 2007) (“[A] party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.” (internal
citation and quotation marks omitted)). Nor has she claimed that Smith and the
Medical Center’s administrators were, with the exception of Roan’s yelling,
aware of Vanover and Roan’s conduct. See Wallace, 271 F.3d at 221 (stating that
employees were not similarly situated, in part, because “no one in a supervisory
capacity was aware” of the other employee’s actions). Finally, she has not
provided any evidence that Vanover or Roan had her track record of refusing
counseling for misconduct and insubordination, which the Medical Center’s
employees testified as contributing to her termination. See id. (“[T]he conduct
at issue is not nearly identical when the difference between the plaintiff’s
conduct and that of those alleged to be similarly situated accounts for the
difference in treatment[.]”). Accordingly, Manaway has not created a genuine
dispute over the Medical Center’s disparate treatment of employees.
       Finally, Manaway argues that several comments made by Smith prior to
Manaway’s termination create a genuine dispute over the reason for her
termination.3 First, Manaway claims that Smith threatened to send the Ku
Klux Klan to an African-American co-worker’s house. Assuming Smith actually
made this statement, it was made one year prior to Manaway’s termination and
was not made in the context of Smith’s decision to terminate Manaway.
Therefore, it does not demonstrate that Manaway’s termination was the result
of racial discrimination. See Jackson, 602 F.3d at 380 (stating that a comment

       3
         Because Manaway’s evidence of pretext is weak or non-existent, we apply this court’s
“stray remarks” doctrine to Smith’s alleged comments. See, e.g., Auguster v. Vermilion Parish
Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (applying the stray remarks doctrine where “the
plaintiff has failed to produce substantial evidence of pretext”). Stray remarks are evidence
of discrimination when they are (1) “related to the protected class of persons of which the
plaintiff is a member”; (2) “proximate in time to the complained-of adverse employment
decision”; (3) “made by an individual with authority over the employment decision at issue”;
and (4) “related to the employment decision at issue.” Jackson, 602 F.3d at 380 (citation and
internal quotation marks omitted).

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made one year before adverse employment action and unrelated to employment
action does not establish a genuine issue of material fact regarding pretext).
        Next, Manaway claims that Smith made two age-related comments that
create a fact issue over whether Manaway’s termination was motivated by age
discrimination. Manaway alleges that, shortly before rotating the charge nurse
position, Smith stated that she had heard that Manaway was retiring.
Manaway also alleges that Smith stated, at a staff meeting, that “she want[ed]
some younger people, new ideas, and she’s just a person that like[s] new ideas.”
Smith explained that she made this comment because she enjoyed “hiring new
nurses who come in with a fresh concept and a new idea.” There is no evidence
in the record from which to conclude that either of Smith’s comments were made
in connection with Smith’s decision to recommend Manaway for termination.
See Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002)
(stating that comments were “stray remarks,” in part because they did not relate
to the adverse employment action).       Furthermore, Smith’s comment about
Manaway’s retirement was made in June 2007, almost eight months before her
termination, and Manaway cannot remember when Smith stated that she liked
hiring younger employees with new ideas. Therefore, these comments do not
satisfy Manaway’s burden of proving a conflict in substantial evidence regarding
the Medical Center’s decision for her termination, and the magistrate judge
properly granted summary judgment on Manaway’s Title VII and ADEA claims.
See Wallace, 271 F.3d at 222 (“Where comments are vague and remote in time
they are insufficient to establish discrimination.” (citation, internal alteration,
and internal quotation marks omitted)).
B.      Manaway’s Retaliation Claim
        A plaintiff may prove retaliation under Title VII by direct or
circumstantial evidence. Direct evidence of retaliation “is evidence which, if
believed, proves the fact of intentional retaliation without inference or

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presumption.” Fieros v. Tex. Dep’t of Health, 274 F.3d 187, 195 (5th Cir. 2001)
(citation, internal alteration, and internal quotation marks omitted), overruled
on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003). In the
absence of direct evidence of retaliation, the plaintiff must make a prima
facie case of retaliation, which is governed by the McDonnell Douglas burden-
shifting framework. See id.
      1.    Direct Evidence of Retaliation
      Manaway claims that the magistrate judge erred by requiring her to make
a prima facie showing of retaliation under Title VII because she had direct
evidence that she was fired in retaliation for her complaints. Manaway’s direct
evidence is a statement at the end of Wolf’s termination memorandum:
      Sue has made several other allegations of discrimination over the
      past few months, all of which have been investigated either at the
      hospital level or the corporate level and were found to be
      unsubstantiated. Although every employee is highly valued to me
      and The Medical Center of Southeast Texas, it is becoming more
      evident that we may not be able to reach a resolution which is
      amicable to all of the parties involved. As such, I have decided to
      separate the employment relationship at this time. I will allow Sue
      to submit a resignation if she requests to do so.
      If Wolf’s memorandum discussed only Manaway’s complaints, some of
which undisputedly are protected by Title VII, 42 U.S.C. § 2000e-3(a), then this
excerpt could be read as direct evidence that Wolf recommended Manaway’s
termination because of her “several other allegations of discrimination over the
past few months.” However, the memorandum is nearly three pages in length,
and it details Manaway’s repeated counseling regarding her insubordination,
refusal to accept patient assignments, and inability to have a proper working
relationship with Smith. Given the significance of this other content, the excerpt
Manaway cites from Wolf’s memo is not direct evidence of retaliation, and she
must establish a prima facie case. See Sandstad v. CB Richard Ellis, Inc., 309



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F.3d 893, 898 (5th Cir. 2002) (stating that a remark was not direct evidence of
age-based animus, in part because of the “ambiguity of the remark”).
       2.      Circumstantial Evidence of Retaliation
       A prima facie case of retaliation requires the plaintiff to prove that:
(1) “she participated in an activity protected by Title VII”; (2) “her employer took
an adverse employment action against her”; and (3) “a causal connection exists
between the protected activity and the materially adverse action.” Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). Once the plaintiff
makes a prima facie case of retaliation, the burden shifts to the employer to
“provide a legitimate, non-retaliatory reason for the adverse employment action.”
Hernandez v. Yellow Transp., Inc., — F.3d —, 2011 WL 1796366, at *8 (5th Cir.
May 12, 2011) (citation and internal quotation marks omitted). The burden then
shifts back to the employee to “prove that the protected conduct was a ‘but for’
cause of the adverse employment decision.”4 Id. (citation and internal quotation
marks omitted).
       The parties do not dispute that Manaway met the first two prongs of a
prima facie case of retaliation:           she made complaints about pay disparity
between white and black employees at the Medical Center, she reported an
allegedly racist comment made by Smith to another employee, she claimed she
was replaced by a white employee from her position as temporary charge nurse,
and she was terminated. With respect to the third prong, Manaway argues that
Wolf’s memorandum establishes a causal link between her protected complaint
and her termination.


       4
         Manaway argues that she may also meet her burden by proving that retaliation was
a “motivating factor” in the decision to terminate her. Because this argument has been raised
for the first time in Manaway’s reply brief, it has been waived. See United States v. Brown,
305 F.3d 304, 307 n.4 (5th Cir. 2002) (stating that “[t]his Court will not consider a claim raised
for the first time in a reply brief”); see also Nasti v. CIBA Specialty Chems. Corp., 492 F.3d
589, 595 (5th Cir. 2007) (treating mixed motive theory asserted for the first time on appeal as
waived).

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      Assuming, without deciding, that Wolf’s memorandum is sufficient to
establish a causal link between Manaway’s complaints and her termination, the
magistrate judge’s grant of summary judgment on this claim was still
appropriate because Wolf’s memorandum does not create a genuine dispute of
material fact that, but for Manaway’s complaints over conduct prohibited by
Title VII, she would not have been terminated. See Hernandez, — F.3d —, 2011
WL 1796366, at *9. The temporal proximity between Manaway’s complaints
alone is 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, 808 (5th
Cir. 2007).   It is undisputed that, in at least two instances, Manaway’s
supervisors asked her to perform assignments, and that those assignments went
unperformed. This led to a final warning from the Medical Center, after which
the charge nurse reported that Manaway had refused another assignment. The
record shows that this conduct, and Manaway’s well-documented inability to
work in a professional manner with Smith and other Medical Center staff, are
what precipitated her termination. Therefore, we conclude that there is no
genuine dispute on the issue of but-for causation, and the magistrate judge
properly granted summary judgment on Manaway’s retaliation claim.
                              IV. CONCLUSION
      For the foregoing reasons, the judgment of the magistrate judge is
AFFIRMED.




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