Bellow v. Charbonnet

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 20, 2001
• Docket: 00-30729
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30729

GENEVIEVE BELLOW, ET AL,

Plaintiffs,

LINDA CHERAMIE; ANGELA ESTADE; MONICA LEWIS; WANDA MASON; DARLENE MONJU; WILBERINA RUSSELL,

Plaintiffs-Appellants,

v.

DESIREE CHARBONNET; ET AL,

Defendants,

DESIREE CHARBONNET,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans 98-CV-3121-I - - - - - - - - - - September 18, 2001 Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit Judges.

PER CURIAM:**

Plaintiffs-Appellants (“Plaintiffs”) are six former

employees of the Orleans Parish Recorder of Mortgages Office.

* Circuit Judge of the Third Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Plaintiffs were terminated after their employer, then-Recorder of

Mortgages, Michael McCrossen (“McCrossen”), was defeated by

Defendant-Appellant Desiree Charbonnet (“Charbonnet”).

Plaintiffs filed the instant action against Charbonnet under 42

U.S.C. § 1983, alleging that they were terminated based on their

political activity in violation of the First Amendment. The

district court granted summary judgment in favor of Charbonnet,

holding that Plaintiffs failed to present a genuine issue of

material fact regarding whether they were terminated for

political reasons. For the reasons that follow, we AFFIRM.

I. Facts and Procedural History

The relevant facts are largely undisputed. Charbonnet was

elected as the new Recorder of Mortgages for the Orleans Parish

on February 7, 1998 and assumed office on May 4, 1998. On

February 21, 1998, Charbonnet hired Carol Carter (“Carter”) to

assist her with the transition. Carter was a real estate

abstractor who had worked in various Orleans Parish public

records offices for more than twenty years and was familiar with

the operations and staff of the Recorder of Mortgages office.

She was not an active supporter of Charbonnet’s campaign. In

fact, although she had been friendly with Charbonnet during the

campaign, Carter had provided financial support to McCrossen’s

campaign. Despite Carter’s support of McCrossen, Charbonnet

appointed her as the Chief Deputy Clerk in the Office of Recorder

2 of Mortgages. Among Carter’s duties during the transition was to

provide an assessment of the existing personnel working in the

Office and recommend retaining or terminating them.

It is undisputed that the transition period between the

McCrossen and Charbonnet administrations was marked with

difficulty. McCrossen, who according to Plaintiff Wanda Mason

(“Mason”) was bitter about the campaign, refused to cooperate

with Charbonnet. Although Charbonnet made an effort to contact

McCrossen, he never personally returned her call. On March 11,

1998, Charbonnet wrote McCrossen requesting an office tour and an

opportunity to interview current employees. McCrossen refused

this request. Moreover, he prohibited Charbonnet from

interviewing employees during office hours. This lack of

cooperation delayed the transition process and reportedly angered

Charbonnet. See Ps. Br. 25 (“It is undisputed that . . . bad

feelings on both sides remained following the election.”).

On April 24, 1998, Charbonnet terminated twenty-eight

employees, reappointed twenty employees, and appointed fourteen

new employees.1 Plaintiffs were among the twenty-eight employees

1 All expenses of the Recorder of Mortgages Office are paid from the Judicial Expense Fund for Orleans Parish. The Judges of the Civil District Court for Orleans Parish appropriated funds for forty-four positions in the Office. Previously, under McCrossen, funds had been allocated for fifty-four positions. Thus, due to the budget reduction, Charbonnet was required to eliminate ten positions.

3 terminated by Charbonnet.2 In addition to working for McCrossen

during his term as Recorder of Mortgages, Plaintiffs each

assisted him in his campaign against Charbonnet. Four of the

Plaintiffs engaged in campaign leafleting for McCrossen; one

hosted a political party for McCrossen; and the other frequently

represented McCrossen at political functions, where she was once

featured on camera in a McCrossen television advertisement.

After the start of the Charbonnet administration,

Plaintiffs brought suit against Charbonnet, alleging that

Charbonnet discharged them because of their political beliefs,

political association, and/or political activities with

McCrossen. Charbonnet moved for summary judgment. After the

deadline for filing their response to Charbonnet’s motion, the

Plaintiffs moved for leave to file a supplemental opposition

memorandum and exhibits. The district court initially granted

Plaintiffs’ motion on May 2, 2000; however, on May 3, Charbonnet

filed a motion to strike certain exhibits included in the

supplemental filing. The district court granted Charbonnet’s

motion to strike. On May 11, 2000, the district court granted

Charbonnet’s motion for summary judgment, finding that the

Plaintiffs had failed to create a genuine issue of material fact

regarding whether they were terminated for their political

2 The suit was originally brought by fourteen employees whose employment was terminated during the administrative transition. Eight employees have since voluntarily dismissed their claims.

4 activities, and thus, they failed to establish a prima facie case

of political discrimination. Plaintiffs have timely appealed and

complain of the district court’s summary judgment ruling and its

evidentiary rulings striking certain exhibits attached to

Plaintiffs’ supplemental opposition to Charbonnet’s summary

judgment motion. We write essentially to address Plaintiff’s

complaint with respect to the district court’s summary judgment

ruling.3

II. Discussion

Generally, “the termination of employees for political

reasons is presumptively violative of the First Amendment.”

Correa v. Fischer, 982 F.2d 931, 933 (5th Cir. 1993). When a

plaintiff provides direct evidence of retaliation, this circuit

applies the test articulated in Mt. Healthy City Sch. Dist. Bd.

Of Educ. v. Doyle, 429 U.S. 274 (1977). See Brady v. Fort Bend

County, 145 F.3d 691, 711-712 (5th Cir. 1998) (stating that Mt.

Healthy test is most appropriate standard for deciding First

Amendment retaliation case involving direct evidence of

retaliation). Direct evidence is evidence that “if believed,

proves the fact without inference or presumption.” Brown v. East

3 Regarding, Plaintiffs’ attack on the district court’s evidentiary rulings, our review of the record convinces us that the district court did not abuse its discretion in granting Charbonnet’s motion to strike certain exhibits contained in its supplemental memorandum in opposition to Charbonnet’s motion for summary judgment. Accordingly, we reject Plaintiffs’ attack on the evidentiary rulings.

5 Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir. 1993).

Plaintiffs contend that they have adduced direct evidence in the

form of (1) evidence that Plaintiffs were qualified for their

jobs and in good standing; (2) there was considerable animosity

between McCrossen and Charbonnet; (3) Carter told Mason that she

and Camille Bourgeois (“Bourgeois”) “have Mike [McCrossen] to

thank for not having your job because Desiree [Charbonnet] is

‘fed up with Mike’”; (4) shortly thereafter 28 of McCrossen’s

former employees and supporters including Mason and Bourgeois

were terminated; and (5) the notices of termination indicated the

reason as “change in administration.” Even if believed by a

trier of fact, none of this evidence constitutes direct evidence.

At best, this is evidence that, combined with other indirect

evidence, might provide the basis for an inference of

discrimination. Accordingly, we reject Plaintiffs’ suggestion

that they have presented direct evidence of retaliation.

Plaintiffs contend that the proper framework for analyzing a

case featuring indirect evidence of retaliation is the burden-

shifting test familiar to employment discrimination cases. See

McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973).

Assuming, arguendo, that McDonnell Douglas applies to cases such

as this one,4 Plaintiffs must establish a prima facie case by

4 Because Plaintiffs would fare no better under the Mt. Healthy framework, we need not decide which test is most appropriate for analyzing indirect evidence of retaliation in the First Amendment context. Cf. Gonzales v. Dallas County, Tex., 249

6 showing that they participated in a protected activity, that an

adverse employment action was taken against them, and that there

was a causal connection between the protected activity and the

adverse employment action. See Graning v. Sherburne County, 172

F.3d 611, 615 (8th Cir. 1999) (applying burden-shifting framework

to First Amendment retaliation case); Mota v. Univ. of Tex.

Houston Health Science Center, --F.3d–, 2001WL897191, at *5 (5th

Cir. August 9, 2001) (describing prima facie case of Title VII

retaliation). Plaintiffs’ prima facie showing is exceedingly

weak. Essentially, they rely on evidence that Charbonnet

admitted that she assumed they all supported McCrossen during the

campaign and that she terminated their employment shortly before

she took office. We note, however, that the district court

found, based on undisputed evidence, that several of McCrossen’s

employees whom Charbonnet did retain also supported McCrossen

during the campaign, often to the same extent as those whom

Charbonnet fired. Nevertheless, assuming that this minimal

showing suffices to establish a prima facie case of retaliation,

Charbonnet must produce evidence of a nondiscriminatory reason

for the adverse employment action. Graning, 172 F.3d at 615.

F.3d 406, 412 n.6 (5th Cir. 2001) (stating that Mt. Healthy framework applies to First Amendment retaliation claims while addressing narrow issue of whether defendant would have taken the same action in the absence of protected conduct). See McMillian v. Svetanoff, 878 F.2d 186, 190 n.3 (7th Cir. 1989) (declining to decide whether Mt. Healthy or McDonnell Douglas test applies to First Amendment discrimination claim because plaintiff would not succeed under either standard).

7 Charbonnet can easily satisfy this burden, as she has produced

evidence that she relied upon Carter’s recommendations, which

were critical of Plaintiffs for various reasons, including poor

work quality and unprofessional conduct.

The crucial issue, therefore, is whether Plaintiffs have

established a genuine issue of material fact regarding whether

Charbonnet’s asserted grounds for their termination is merely

pretextual. A genuine issue of material fact exists “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). We must view all the evidence in the light

most favorable to the party opposing the motion and draw all

reasonable inferences in that party’s favor. Id. at 255. “A

mere scintilla of evidence of pretext does not create an issue of

material fact in all cases. Crawford v. Formosa Plastics Corp.,

La., 234 F.3d 899, 903 (5th Cir. 2000). Rather, the court must

consider a number of factors, including the strength of

Plaintiffs’ prima facie case. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148-49 (2000) Because Plaintiffs must

present sufficient evidence of the falsity of an employer’s

proffered justification, see id. at 148, it is “possible for a

plaintiff’s evidence to permit a tenuous inference of pretext and

yet be insufficient to support a reasonable inference of

discrimination.” Crawford, 234 F.3d at 903.

This is such a case. Placed in the proper context,

8 Plaintiffs’ evidence, either standing alone or considered in

toto, is insufficient to sustain a reasonable inference of

pretext. Plaintiffs rely primarily on two statements. First,

they point to Carter’s explanation to Mason and Bourgeois: “You

have Mike to thank for not having your job because Desiree is

‘fed up with Mike.’” This statement, Plaintiffs contend, is proof

that Charbonnet “held McCrossen’s refusal to cooperate against

plaintiffs.” P. Br. at 8. Plaintiffs’ argument, however,

confuses personal enmity with political rivalry. “To violate the

First Amendment, the termination must involve a political,

motivation. A termination arising from a personal feud . . . may

be baleful, but it is not a patronage dismissal in violation of

the First Amendment.” Correa v. Fischer, 982 F.2d 931, 935 (5th

Cir. 1993). A reasonable trier of fact could not, by virtue of

this statement, infer a retaliatory motive on the part of

Charbonnet. Rather, even at its most sinister, the statement

suggests that Charbonnet was responding to the animosity and

delay that characterized the transition and was the result of

McCrossen’s post-election hostility to the Charbonnet transition

efforts.5

5 Plaintiffs suggest that the district court erroneously weighed the evidence when it examined the context in which the statement was made. Although Reeves directs us to “draw all reasonable inferences in favor of the nonmoving party, and . . . not make credibility determinations or weigh the evidence[,]” 530 U.S. at 150, we also must consider the factual context of the claim at summary judgment. See id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

9 Plaintiffs also rely heavily on a statement contained in the

termination notice that listed the reason for the discharge as

“change in administration.” They assert that this explanation is

evidence of patronage dismissals, as it suggests that the

election of Charbonnet, not Plaintiffs’ job performance, was the

reason behind the firings. Even considered in the light most

favorable to the Plaintiffs, however, this statement is

insufficient to justify an inference of retaliation. First, the

notice was sent by the Judicial Fund, not Charbonnet, and

Plaintiffs have adduced no evidence that Charbonnet had anything

to do with the listing of “change in administration” on the form.

In fact, an April 24, 1998 letter from Charbonnet to the

terminated employees explains that the terminations were the

result of her assessment of the office. As such, there is no

indication that the form accurately represents Charbonnet’s

reasons for the discharge. Moreover, as the district court

noted, the phrase is subject to several interpretations. Indeed,

a reasonable fact finder might find it difficult to escape the

conclusion that the phrase reflected the Judicial Fund’s view of

the terminations, i.e, a new administration made personnel

changes to ensure that it had the most capable employees and

would avoid the problems that had hampered the transition. See

Crawford, 234 F.3d at 903 (noting that it is not unreasonable for

an employer to “seek a fresh start” in a troubled office).

Even when considered with Plaintiffs’ other evidence, these

10 statements do not create a sufficient fact issue to avoid summary

judgment. The remainder of Plaintiffs’ case amounts to

supposition and conjecture regarding the timing of the

dismissals, the extent to which Charbonnet and Carter actually

reviewed Plaintiffs’ job performance, and the large number of

discharged employees. Specifically, Plaintiffs note that they

were terminated prior to Charbonnet’s first day on the job. They

argue that this timing indicates that Charbonnet fired them

before having any opportunity to evaluate their job performance.

Charbonnet contends, and Plaintiffs do not offer any

contradictory evidence, that she relied heavily on Carter’s

recommendations. Plaintiffs also do not dispute that Carter had

extensive experience with the Recorder’s office. As part of the

evaluation process, Carter met with employees and reviewed

resumes. She specifically concluded that the discharged

Plaintiffs had either engaged in unprofessional conduct or

performed below acceptable standards.6

Plaintiffs contend that Carter’s conclusions from this

evaluation process are so shallow and unsupported that they

suggest pretext. Moreover, they point to evidence in the form of

Plaintiffs’ affidavits disputing the conclusions reached by

Carter. They have not produced any evidence, though, that

6 This undisputed evidence distinguishes the present case from the facts presented by Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir. 1995), in which the plaintiff’s performance evaluations were satisfactory and the decisionmaker had expressed no dissatisfaction with his performance.

11 Charbonnet similarly discounted the evaluations or did not rely

on them in good faith. Their opinion regarding the sufficiency

of the evaluations or their conjecture on the role they played in

the decisionmaking process cannot create a sufficient fact issue

to survive summary judgment. See Odom v. Frank, 3 F.3d 839, 849

(5th Cir. 1993) (rejecting otherwise unsupported opinion and

speculation).

Furthermore, the number of firings–twenty-eight of

McCrossen’s employees–does not support a conclusion that

Charbonnet was conducting a wholesale patronage dismissal. Of

the thirty-four staff positions that Charbonnet filled, she hired

twenty former McCrossen employees. Nine of the fourteen new

employees either supported Charbonnet or were recommended by her

political allies. Plaintiffs argue that the only reason why

Charbonnet did not terminate all of McCrossen’s employees is that

the office would not have been manageable with an entirely new

workforce. Charbonnet contends that her retention of so many

McCrossen employees demonstrates that political retaliation was

not a factor in employment decisions. Given these competing

interpretations, a reasonable jury could not find that the

magnitude of the discharge gives rise to an inference of

retaliation.

In sum, Plaintiffs’ evidence at best creates a weak fact

issue on the question of retaliation. The statements made by

Carter and contained in the termination notice, even when viewed

12 in the light most favorable to Plaintiffs and considered in

combination with the circumstantial evidence regarding the timing

of the decision, the review process, and the number of

dismissals, at most give rise to a tenuous issue of fact. Having

placed Plaintiffs’ pretext evidence in its proper context with

Charbonnet’s undisputed evidence and considered Plaintiffs’ own

extremely weak prima facie showing, we conclude that no

reasonable trier of fact could infer retaliation.

III. Conclusion

Plaintiffs have failed to present sufficient evidence from

which a reasonable fact finder could conclude that Charbonnet’s

decision to terminate Plaintiffs was substantially motivated by

retaliation for their political participation. Accordingly, we

AFFIRM the holding of the district court.