     Case: 12-60623       Document: 00512371899         Page: 1     Date Filed: 09/12/2013




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

                                                                            FILED
                                                                        September 12, 2013
                                      No. 12-60623
                                    c/w No. 12-60686                       Lyle W. Cayce
                                   Summary Calendar                             Clerk



CRYSTAL N. FINNIE,

                                                  Plaintiff–Appellant,

v.

LEE COUNTY, MISSISSIPPI and JIM H. JOHNSON, Sheriff of Lee County,
Mississippi, in his Official Capacity,

                                                  Defendants–Appellees.


                   Appeals from the United States District Court
                      for the Northern District of Mississippi
                               USDC No. 1:10-CV-64


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Crystal N. Finnie (Finnie) appeals the district court’s grant of
judgment as a matter of law in favor of her former employer, Lee County,
Mississippi, and Sheriff Jim Johnson (collectively, Defendants) on her Title VII
retaliation claim. Defendants cross-appeal the district court’s grant of Finnie’s
Batson challenge to Defendants’ use of a peremptory strike. Because Finnie


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60623

failed to introduce sufficient evidence at trial to allow a reasonable juror to
conclude that a retaliatory motive was the “but-for” cause of her termination, we
affirm the district court’s grant of judgment as a matter of law and dismiss
Defendants’ cross-appeal as moot.
      After working as a correctional officer at the Lee County Detention Center
for nearly four years, Finnie became an adherent of the Pentecostal Church,
which teaches that women may not wear “clothing pertaining to a man’s
garments,” such as pants. Finnie had previously worn the shirt and pants
issued by the county as the Sheriff’s Department’s policies require. Following
her conversion, Finnie inquired whether she would be able to wear a skirt in lieu
of pants. Sheriff Johnson had on prior occasions waived other Department
policies, such as the requirement that employees be 21 years of age. After a
series of discussions, however, Sheriff Johnson informed Finnie on March 16,
2008, that she would have to wear pants or resign. Finnie thereafter took
accrued vacation leave, contacted an attorney, and filed a charge with the Equal
Employment Opportunity Commission (EEOC). That April, as Finnie neared
the end of her accrued vacation days, she met with Sheriff Johnson to “see where
everything st[ood].” During the course of this meeting, the following exchange
took place:
              Johnson:    Well, you have completely failed to follow one of the
                          policies that we have set forth here. You don’t work
                          here anymore.

              Finnie:     How have I failed to meet the policies?

              Johnson:    You are not following the policy on my dress code. It is
                          your choice that you chose not to follow it. So I have
                          tried to work with you every way I could, to give you an
                          opportunity to follow that policy and come back [to]
                          work and you, for whatever reason, have chose [sic] not
                          to do that.




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                                        No. 12-60623

                Finnie:       Whatever reason? Because it’s my religion?1
                Johnson:      And you have filed an EEOC grievance against us.
                              You’ve got it in the court process and we’ll let it run its
                              course.

       Thereafter, Finnie filed suit, alleging that her termination violated her
First Amendment rights, constituted unlawful gender and religious
discrimination under Title VII of the Civil Rights Act of 1964, and amounted to
unlawful retaliation under Title VII. The district court granted summary
judgment in favor of Defendants on the First Amendment claims as well as the
gender and religious discrimination claims. Those decisions are not before us on
appeal.
       Although the district court initially denied Defendants’ motion for
summary judgment on the retaliation claim, at trial, it granted Defendants’
motion for judgment as a matter of law after Finnie rested. In its oral opinion,
the district court relied upon Smith v. Xerox Corp.,2 in which this court held that
a plaintiff may prove a violation of Title VII by showing that her taking of a
protected action, such as the filing of a claim with the EEOC, was “a motivating
or substantial factor in the employer’s decision” to take adverse action against
her.3 Applying this framework, the district court held that Finnie failed to carry
her burden of showing that “a reasonable juror could find that the EEOC charge
. . . could have been the motivating factor or even a motivating factor” in the
decision to terminate her employment. The district court acknowledged that
Sheriff Johnson mentioned Finnie’s EEOC charge at the meeting at which he

       1
         The parties dispute whether Finnie was responding by means of a question or instead
proffering the reason why she refused to wear pants. Because this court must “draw all
reasonable inferences in favor of the nonmoving party,” Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 150 (2000), we assume that Finnie’s response was in the form of a question.
       2
       602 F.3d 320 (5th Cir. 2010), abrogated by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S.—, 133 S. Ct. 2517 (2013).
       3
           Smith, 602 F.3d at 326, 330 (internal quotation marks omitted).

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ultimately informed her of her termination. Nonetheless, the district court
reasoned that this was insufficient to allow a reasonable juror to conclude that
the charge was a motivating factor because Sheriff Johnson had definitively and
conclusively determined on March 16, 2009, before the EEOC charge was filed,
that Finnie could only remain employed if she agreed to wear pants.
      Following Finnie’s timely appeal, this case was held in abeyance pending
the Supreme Court’s resolution of University of Texas Southwestern Medical
Center v. Nassar.4 In resolving that case, the Supreme Court abrogated the
Xerox framework on which the district court had based its decision, holding that
“Title VII retaliation claims must be proved according to traditional principles
of but-for causation . . . . This requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the
employer.”5 Based on this framework, we review the district court’s holding.
      This court reviews “de novo a trial court’s decision on a Rule 50(a) motion
for judgment as a matter of law, viewing all of the evidence ‘in the light and with
all reasonable inferences most favorable to the party opposed to the motion.’”6
Judgment as a matter of law is properly granted “if the facts and inferences
point so strongly and overwhelmingly in favor of the moving party that
reasonable jurors could not have arrived at a contrary verdict.”7
      To establish a prima facie case for retaliation, a plaintiff must present
sufficient evidence to show that: “(i) [s]he engaged in a protected activity, (ii) an
adverse employment action occurred, and (iii) there was a causal link between




      4
          570 U.S.—, 133 S. Ct. 2517 (2013).
      5
          Nassar, 133 S. Ct. at 2533.
      6
        MGE UPS Sys., Inc. v. GE Consumer and Indus., Inc., 622 F.3d 361, 365 (5th Cir.
2010) (quoting Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993)).
      7
          Homoki v. Conversion Serv., Inc., 717 F.3d 388, 395 (5th Cir. 2013).

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the protected activity and the adverse employment action.”8 Defendants concede
that Finnie engaged in a protected activity by filing a charge with the EEOC and
that the termination of her employment was an adverse employment action. To
meet the third prong, Nassar requires that Finnie provide sufficient evidence to
allow a reasonable juror to conclude that her filing of an EEOC claim was the
“but-for” cause of her termination, that, had she not filed the claim, she would
have remained in her position at the Lee County Detention Center.9
      The evidence Finnie introduced at trial is insufficient to meet this burden.
Even assuming, as we must, that Finnie had yet to be terminated when she went
into the April meeting with Sheriff Johnson, that Johnson’s demeanor at that
meeting indicated he was angered by the EEOC charge, and that Johnson
referenced the EEOC charge as one of the reasons for her termination, Finnie
has failed to provide any evidence that she would not have been terminated in
any event. The record contains uncontroverted evidence that on March 16, 2008,
before Finnie even consulted an attorney and before she filed a charge with the
EEOC, Sheriff Johnson definitively and conclusively informed Finnie that her
employment would be terminated if she failed to wear pants to work.
      Finnie argues that a reasonable juror could conclude that Sheriff Johnson
could have changed his mind in the absence of the EEOC charge since he had
previously waived other requirements. But she has introduced no evidence to
allow a reasonable juror to conclude that Sheriff Johnson was considering
changing his position or that he had previously changed positions on other
matters after making similarly definitive determinations. The uncontroverted
evidence indicates instead that Sheriff Johnson initially deliberated over the
course of a number of months and that, after receiving a final confirmatory
phone call, he reached a conclusive determination. Thus, a reasonable juror


      8
          Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
      9
          Nassar, 133 S. Ct. at 2533.

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could not conclude that Finnie would have remained employed had she not filed
a claim with the EEOC.
      In light of this determination, Defendants’ cross-appeal, asking this court
to review the district court’s grant of Finnie’s Batson challenge, is moot and thus
outside the jurisdiction of this court. “A case becomes moot—and therefore no
longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.’”10 Since our decision to affirm the trial court’s directed verdict
disposes of plaintiff’s lawsuit, the issue of whether the district court erred in
disallowing Defendants’ peremptory challenge is no longer live and Defendants
lack a legally cognizable interest in it. Furthermore, in contrast to Defendants’
assertions, this issue does not fall into the “capable of repetition, but evading
review” exception because Defendants have not demonstrated that there is a
“reasonable expectation that the same complaining party would be subjected to
the same action again.”11


                                      *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court
and DISMISS Defendants’ cross-appeal as moot.




      10
         Already, LLC v. Nike, Inc., 568 U.S.—, 133 S. Ct. 721, 726 (2013) (quoting Murphy
v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).
      11
           Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

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