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

                                                 FILED
                                                                          October 26, 2009

                                     No. 09-20128                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



PAT RABORN,

                                                   Plaintiff - Appellant
v.

INPATIENT MANAGEMENT PARTNERS INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-3950


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Pat Raborn appeals from the district court’s grant of
summary judgment to Defendant-Appellee Inpatient Partners, Inc.                            We
AFFIRM.
                   I. FACTS AND PROCEDURAL HISTORY
       Pat Raborn was hired as a receptionist at Inpatient Management
Partners, Inc. (“Inpatient”) in 1996. After she was hired, she was promoted


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-20128

twice and became Inpatient’s Network Operations Manager. In her role as a
manager, Raborn supervised several workers at Inpatient, including Sophie
Martinez and Sandra Williams. In February 2003, Martinez and Williams sued
Inpatient for race discrimination.        The Equal Employment Opportunity
Commission (“EEOC”) investigated their charges by interviewing thirteen of
Inpatient’s employees. Raborn was one of the thirteen employees interviewed,
and she submitted an affidavit supporting Martinez and Williams’s claims of
discrimination at that time.
      In April 2003, Raborn’s supervisor, informed Raborn that her management
position at Inpatient was being eliminated. Despite the elimination of her
position, the company found another position for her, and Raborn remained
employed at Inpatient after April 2003.          She was then promoted twice,
ultimately to the position of Director of Credentialing.
      In 2004, Inpatient hired consultants to review their business.            The
consultants found that Inpatient was overstaffed and financially strained. To
alleviate Inpatient’s problems, the consultants, Amy Kaszak and Dr. Norm
Jacobson, together with the Chief Operating Officer, Les Williams, recommended
that Inpatient outsource a variety of in-house positions, including those in the
credentialing and billing departments.       Inpatient accepted the consultants’
recommendation and entered into an outsourcing agreement with Houston
Medical Records (the “Agreement”). The Agreement was signed on October 1,
2004. Houston Medical Records took over Inpatient’s credentialing and billing
duties in December 2004. Raborn and a number of other employees were then
discharged on December 2, 2004.1 On December 2, Raborn was called into a
meeting with Dr. Phil Sanger, one of Inpatient’s owners, where he personally




      1
          After problems with Houston Medical Records, the credentialing function was
returned in-house in August of 2005.

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                                  No. 09-20128

informed her that she was being terminated as a result of her position being
outsourced.
      During this same time frame, Sandra Williams’s discrimination claim was
still proceeding against Inpatient. She filed a lawsuit against Inpatient in
March 2004. Inpatient sent a set of interrogatories to Ms. Williams in August
2004. In November 2004, Ms. Williams responded to Inpatient’s interrogatories,
and, in one of her answers, she identified Raborn as a person with knowledge of
relevant facts. Anthony Tran, the Director of Human Resources for Inpatient,
was the individual who received the response.
      In December 2006, Raborn filed a lawsuit against Inpatient under Title
VII, claiming that Inpatient unlawfully retaliated against her for participating
in a protected employment activity. Raborn’s lawsuit alleges that she was fired
in retaliation for her designation as a potential witness for Sandra Williams.
Inpatient denied Raborn’s claims, asserting that they discharged her for a
legitimate, non-retaliatory reason, namely outsourcing. Alternatively, Inpatient
claimed that Raborn failed to establish a prima facie case of retaliation, because
she could not demonstrate that her designation as a witness in Sandra
Williams’s interrogatory response caused her termination. Inpatient moved for
summary judgment on both grounds, and the district court granted Inpatient’s
motion. This appeal followed.
                               II. DISCUSSION
      Raborn addresses three rulings of the district court in her appeal: (1) its
denial of her motion to recuse; (2) its denial of her Rule 56(f) motion for
additional discovery; and (3) its grant of summary judgment.
1. Recusal
      Raborn argues that Judge Hughes, instead of granting Inpatient’s motion
for summary judgment, should have recused himself under 28 U.S.C. § 455(a).
Judge Hughes denied Raborn’s motion to recuse, and we review a judge’s denial


                                        3
                                   No. 09-20128

of a motion to recuse for abuse of discretion. Patterson v. Mobil Oil Corp., 335
F.3d 476, 483 (5th Cir. 2003).
      Under 28 U.S.C. § 455(a), a judge must “disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” When
considering a claim under § 455(a), we must consider whether a reasonable and
objective person, rather than the hypersensitive, cynical, and suspicious person,
knowing all of the facts, would harbor doubts concerning the judge’s
impartiality. Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004); Patterson,
335 F.3d at 484. Moreover, “‘an appellate court, in passing on questions of
disqualification . . . should determine the disqualification on the basis of conduct
which shows bias or prejudice or lack of impartiality by focusing on a party
rather than counsel.’” Trevino v. Johnson, 168 F.3d 173, 179 (5th Cir. 1999)
(quoting Davis v. Bd. of Sch. Comm’rs, 517 F.2d 1044, 1052 (5th Cir. 1975)). A
“showing of potential bias by a judge against a party’s attorney does not
generally suffice to require a judge to disqualify himself or herself under §
455(a).” Trevino, 168 F.3d at 179. Bias against a party’s attorney will only
require disqualification when “‘it can also be shown that such [attorney-bias]
would demonstrate a bias for or against the party itself.’” Trevino, 168 F.3d at
179 (quoting Henderson v. Dep’t of Pub. Safety & Corrs., 901 F.2d 1288, 1296
(5th Cir. 1990)).
      Raborn’s argument for recusal focuses on Judge Hughes’s alleged bias
against her attorney, Larry Watts, which she claims resulted in bias against
herself. Raborn bases her concerns on certain comments by the judge and his
ruling on her discovery motions.
      The question of whether Judge Hughes’s comments regarding Raborn’s
case require recusal is governed by the Supreme Court’s decision in Liteky v.
United States, 510 U.S. 540, 555 (1994). In Liteky, the Supreme Court stated
that “opinions formed by the judge on the basis of facts introduced or events

                                         4
                                  No. 09-20128

occurring in the course of the current proceedings . . . do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.”          510 U.S. at 555.
Moreover, this court has held that a judge does not show bias merely because he
has formed and expressed an opinion, in light of the evidence before him,
regarding a plaintiff’s ability to prove her case. See Garcia v. Woman’s Hosp. of
Texas, 143 F.3d 227, 230 (5th Cir. 1998).
      Both of Judge Hughes’s comments which Raborn points to as evidence of
bias were based on facts introduced and events that occurred during the current
proceedings. Judge Hughes’s expressed belief that this court’s prior remand was
incorrect was based on Watts’s failure to obey two court orders and his failure
to “show up” for a hearing. His opinion about the difficulty of proving her case
was based on a review of the file.     His expression of these opinions, while
perhaps better left unsaid, does not mandate his recusal. See Garcia, 143 F.3d
at 230. The judge’s comments do not show any deep-seated antagonism toward
Raborn or her case that would require recusal.
      Although the judge did grant Raborn three discovery orders, the judge did
not grant Raborn all the discovery she sought, and because of this fact, Raborn
asserts that the judge’s discovery orders show that he was biased against her.
An adverse ruling, by itself, is not evidence of bias. Liteky, 510 U.S. at 555
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.”). From the perspective of a reasonable and objective person,
Judge Hughes’s actions in no way reveal that his animosity towards Watts, if
any, resulted in any bias towards Raborn. Because the evidence does not show
that Judge Hughes had any bias against Raborn herself, the judge did not abuse
his discretion in denying her motion for recusal under § 455(a).




                                        5
                                        No. 09-20128

2. Rule 56(f) Motion for Continuance
       Raborn argues that the district court’s decision should be reversed because
she was entitled to further discovery before the court could grant Inpatient’s
motion for summary judgment. Raborn made this argument to the district court,
and the district court rejected Raborn’s contention and precluded any additional
discovery. “We review the district court’s decision to preclude further discovery
prior to granting summary judgment for abuse of discretion.” Krim v. Banctexas
Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993).
       If a party needs more discovery to defeat a motion for summary judgment,
they must seek a continuance by bringing a motion under Federal Rule of Civil
Procedure 56(f). Potter v. Delta Airlines, Inc., 98 F.3d 881, 887 (5th Cir. 1996).
“Rule 56(f) allows for further discovery to safeguard non-moving parties from
summary judgment that they cannot adequately oppose” due to inadequate
discovery. Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).
Before the district court granted Inpatient’s motion for summary judgment,
Raborn moved for a continuance under Rule 56(f), asserting that a continuance
was necessary because she needed to depose Kasczak, Miers (her supervisor),
and Tran, in order to adequately oppose Inpatient’s motion.2 Although on appeal
Raborn asserts other reasons for a continuance, we can only consider the reasons
she specifically presented to the district court in her Rule 56(f) motion.3 See Solo
Serve Corp. v. Westowne Assocs., 929 F.2d 160, 167 (5th Cir. 1991) (“Because a
party must present certain specific facts in order to obtain a Rule 56(f)




       2
           The motion at issue was Raborn’s second Rule 56(f) motion.
       3
         Raborn’s motion did not include the following reasons that she now raises on appeal:
(1) her inability to discover financial information regarding Inpatient’s financial distress; (2)
her inability to discover evidence that Houston Medical Records took on Inpatient’s
credentialing free of charge; (3) her need to depose Leslie Barker; and (4) her need to depose
Inpatient’s COO.

                                               6
                                       No. 09-20128

continuance, we will not consider on appeal reasons for such a continuance that
a party failed to present to the district court.”).
       In a Rule 56(f) motion, a party must show “(1) why additional discovery is
needed and (2) how the additional discovery will likely create a genuine issue of
material fact.” Brown v. Miss. Valley State Univ., 311 F.3d 328, 333 n.5 (5th Cir.
2002). Raborn asserted in her motion that the additional depositions of Kasczak,
Miers, and Tran would allow her to present evidence that would create a
genuine dispute (1) as to whether her designation as a witness played a role in
her discharge and (2) as to whether her position at the company was actually
outsourced.     The district court rejected Raborn’s assertion, stating at oral
argument that further discovery would not produce evidence that would create
a genuine dispute of material fact.
       The evidence in the record does not show that the district court abused its
discretion in concluding that the additional depositions of Tran, Miers, and
Kaszak would not allow Raborn to produce sufficient evidence to create a
genuine dispute of material fact as to the reason for her termination or as to
whether her position was ever outsourced.               See Krim, 989 F.2d at 1442.4
Accordingly, we decline to reverse on this ground.
3. Inpatient’s Summary Judgment
       Since we have determined that the district court did not abuse its
discretion in denying Raborn’s Rule 56(f) motion or her motion to recuse, we can
now determine whether summary judgment was proper based on the evidence
before the district court. We review a grant of summary judgment de novo. N.




       4
        We also note that Raborn makes much of the fact that she had only a limited time for
discovery after the case was remanded to the district court following the first appeal.
However, the case was pending for ten months in the district court before it was dismissed for
want of prosecution. Raborn does not address why she did not take advantage of that time
period to obtain discovery.

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                                      No. 09-20128

Am. Specialty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th
Cir. 2008).
       Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show 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). A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
reviewing a grant of summary judgment, we view all facts and evidence in the
light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros., 453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment,
the non-movant must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment
on any grounds supported by the record and presented to the court below.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
       The district court granted Inpatient summary judgment on two grounds.
First, it held that Raborn failed to establish a prima facie case of retaliation.
Alternatively, the court held that Raborn failed to present sufficient evidence to
create a genuine dispute over whether Inpatient’s articulated reason for her
termination was pretextual. We need not decide whether Raborn established a
prima facie case, because we agree with the district court that Raborn failed to
create a genuine dispute over Inpatient’s articulated reason for her termination.
       Under the McDonnell-Douglas burden-shifting framework that governs
Raborn’s claim,5 Raborn had the burden of producing sufficient evidence to


       5
         Raborn’s brief raises for the first time on appeal a “mixed-motive” theory for her
termination. We will not consider theories raised for the first time on appeal. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

                                             8
                                      No. 09-20128

create a genuine dispute over Inpatient’s stated reason for her termination.
McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). To create a
genuine dispute, Raborn had to present evidence showing that Inpatient’s reason
was false and that her designation as a witness in the interrogatory response 6
was the real reason for her discharge. See Nichols v. Grocer, 138 F.3d 563, 566
(5th Cir. 1998) (“An employer’s reason cannot be shown to be a ‘pretext for
discrimination’ unless the plaintiff introduces some evidence, whether
circumstantial or direct, that permits the jury to believe that the reason was
false and that illegal discrimination was the actual reason.”). Raborn, however,
failed to present such evidence.
       The summary judgment record does not show that Inpatient’s reason was
false; in fact, the record shows that Raborn’s credentialing duties were in fact
outsourced. Inpatient and Houston Medical Records signed an agreement to
outsource Raborn’s position, as well as a number of other positions, on October
1, 2004. Although the agreement was signed on October 1, 2004, the actual
outsourcing occurred in December 2004, and, on December 2, 2004, Raborn and
a number of other employees were told that their positions had been outsourced
and that they were discharged.
       The record also does not show that Raborn’s designation as a witness
played any role in her discharge. The evidence shows that the decision to
eliminate Raborn’s position was made on October 1, 2004, at least one month
before the interrogatory response was produced to Inpatient. Furthermore, Tran
stated in his affidavit that he was the one at Inpatient who received the



       6
          The “interrogatory response as a basis for retaliation” argument is somewhat
puzzling. The interrogatory response simply lists Raborn, along with a dozen other people, as
a “person with knowledge of relevant facts.” It does not, as Raborn implies, suggest that
Raborn is “supporting” the plaintiff in that case. Nor does Raborn explain the reason that –
if listing was enough to show alignment against the company – the other “persons with
knowledge of relevant facts” were not also discharged.

                                             9
                                      No. 09-20128

interrogatory response and that he did not show the response to any of the
decisionmakers involved with Raborn’s discharge. Raborn states that her entire
claim stems from Inpatient’s knowledge of her designation as a witness in the
interrogatory response, but there is no evidence that the response played any
role in her termination.7
       The only evidence that Raborn raises to show that Inpatient’s reason was
pretextual is the close temporal proximity between the interrogatory response
and her discharge, her continued employment after the Agreement was signed,
and an alleged conversation she had with receptionist Leslie Barker.8 While the
temporal proximity between a protected action and an adverse employment
decision may be sufficient to prove a prima facie case of retaliation, temporal
proximity alone is insufficient to rebut an employer’s legitimate, non-retaliatory
reason. See Roberson v. Alltel Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004)
(“Without more than timing allegations, and based on Alltel’s legitimate,
nondiscriminatory reason in this case, summary judgment in favor of Alltel was
proper.”). However, even considering the temporal proximity with her continued
employment and her alleged conversation with Barker, a reasonable jury could
not find in Raborn’s favor on the issue of pretext, because the evidence
indisputably shows that her position had, in fact, been outsourced.




       7
         The summary judgment record shows that four individuals were involved with
Raborn’s termination: Kaszak, Jacobson, and Williams, who recommended the outsourcing of
her position, and Dr. Sanger, who actually discharged her. There is no evidence that any of
these people knew about or took into account the interrogatory response in their decision to
eliminate Raborn’s position and discharge her from the company. Raborn asserts in her reply
brief that another doctor, Dr. Cunningham, was also involved in her termination. Raborn,
however, did not depose Dr. Cunningham or even seek to depose him in her Rule 56(f) motion,
so there is no evidence regarding his motivation, if any, behind Raborn’s discharge.
       8
        Barker allegedly told Raborn that Raborn’s position was not being outsourced.
However, the record does not show any basis for Barker to have such knowledge. The
undisputed evidence shows that the entire department where Raborn worked was outsourced.

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                                No. 09-20128

      Based on the summary judgment evidence before the district court, no
reasonable jury could find that the “real” reason behind Raborn’s discharge was
the interrogatory response or that Inpatient’s proffered reason was pretextual.
Therefore, the district court properly granted Inpatient summary judgment.
                              III. CONCLUSION
      For the foregoing reasons, the district court’s grant of summary judgment
is AFFIRMED.




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