IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-60475
Summary Calendar ____________________
ROBERT WALLACE DISMUKE
Plaintiff-Appellant
v.
CITY OF INDIANOLA; CARVER RANDLE, JR Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Mississippi No. 4:00CV21-P-B _________________________________________________________________ February 11, 2002 Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Robert Wallace Dismuke appeals the
district court’s summary judgment in favor of Defendants-
Appellees City of Indianola and Carver Randle, Jr. on claims
alleging racially discriminatory discharge and retaliatory
discharge. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. FACTUAL AND PROCEDURAL HISTORY
On January 20, 1999, Plaintiff-Appellant Robert Wallace
Dismuke, a Caucasian then employed as an officer of the Indianola
Police Department (“IPD”), pursued a suspect on foot. The
suspect, James Gardner, fled apprehension by IPD officers because
the suspect was informed at the IPD station where Dismuke was
employed that there was an outstanding warrant for the suspect’s
arrest for failure to pay parking fines. In the parking lot of
the station, Gardner attempted to depart in his vehicle, but
another IPD officer, Assistant Chief Marlon Hendon, blocked
Gardner’s path by stepping in front of Gardner’s vehicle. Hendon
ordered Gardner to exit the vehicle. Gardner drove forward
instead, and Hendon placed his hands on the hood of the vehicle
and “bounced off” it to the passenger side. At the time Dismuke
saw Hendon “bounce” off of the vehicle, Dismuke fired his weapon
at Gardner’s vehicle from the passenger side. A bullet entered
the vehicle through the rear passenger window and struck
Gardner’s elbow. Gardner then fled the scene in his vehicle but
was apprehended by Dismuke and another officer and taken into
custody.
Defendant-Appellee Indianola Police Chief Carver Randle,
Jr., an African-American, ordered incident reports from Hendon
and Dismuke, as well as from the Court Clerk Jan Hammett, who
originally informed Gardner of the warrant for the suspect’s
2 arrest. After reviewing the reports and photographs taken of
Gardner’s vehicle and discussing the incident with Hendon, Randle
decided that Dismuke violated an IPD policy against the use of
excessive force by firing his weapon and, thus, that Dismuke
should be discharged. On January 25, 1999, Randle transmitted a
letter to City of Indianola Mayor James Hutcheson (“the Mayor”),
in which Randle recommended Dismuke’s dismissal based on the
officer’s use of excessive force.2 Subsequently, at Hendon’s
suggestion, the IPD requested that three investigators from other
police departments participate in a “shooting review board.”3
2 In his January 25 letter recommending Dismuke’s dismissal, Randle cited Dismuke’s violation of section 11.3 of the IPD Code of Conduct, which reads in relevant part:
Potentially deadly force may be used after an officer has exhausted all other means to apprehend or otherwise prevent the commission of a felonious act or the protection of life .... [A]n officer shall discharge his firearm at a person only under those conditions where he would be justified if he killed the person at whom he was shooting .... [A] weapon may only be removed from the officer’s holster under the following circumstances [, including:] .... [i]f there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm ... [for example, when] an officer approaches a subject on foot or ... in an automobile [and] has reasonable cause to believe the subject presents an immediate danger to the officer.
3 Dismuke alleges that no “shooting review board” had ever been convened by the IPD before and that its use, therefore, offers evidence of Randle’s animus toward him. Dismuke further claims that the fact that the outside investigators never interviewed him is further evidence of Randle’s animus. However, the uncontroverted testimony of both Hendon and Randle indicates that it was Hendon’s suggestion to call the outside
3 After discussing the incident with Hendon, viewing the scene, and
reviewing the incident reports, including Dismuke’s written
report, all three investigators indicated to Randle and Herndon
that if the incident occurred in their own departments, dismissal
would be appropriate. In written reports, dated September 13,
2000, all three investigators indicated that the fact that the
shot was taken near a “busy” intersection and in the direction of
a convenience store was a significant factor in their
conclusions.4
On February 4, 1999, the City held a hearing in front of its
City Administrative Personnel Commission (“the Commission”) at
which Randle, Hendon, and Dismuke testified to their version of
events. The four Commission members also reviewed, inter alia,
Hendon’s and Dismuke’s incident reports, a letter from Hendon
discussing the findings of the “shooting review board,” section
11.3 of the IPD Code of Conduct, and an additional IPD policy
governing the use of firearms, General Order Number: 95-14.5 The
investigators, that Hendon in fact called them, and that Dismuke’s shooting was the first such incident during Randle’s tenure as IPD Chief. Moreover, it is uncontroverted that the investigators reviewed Hendon’s official written police incident report that he filled out at the time of the shooting. 4 Hendon and Randle testified that, at the time of the original review of the shooting, in early 1999, the three outside investigators communicated their findings to Hendon and Randle informally. The three investigators’ written reports in evidence were prepared approximately eighteen months later. 5 General Order Number: 95-14 reads in relevant part:
4 four members voted unanimously to support Randle’s recommendation
to discharge Dismuke. On February 18, 1999, the City of
Indianola Board of Aldermen (“the Board”) reviewed the
Commission’s report on the hearing and its recommendation. After
hearing argument by Dismuke’s attorney, the four Board members
likewise voted unanimously to discharge Dismuke, effective
immediately.
On February 3, 2000, Dismuke filed claims against Defendant-
Appellee City of Indianola (“the City”) and Randle in his
individual capacity, alleging, pursuant to 42 U.S.C. § 1981
(1999), racially discriminatory discharge and, pursuant to
Mississippi state law, retaliatory discharge. The district court
granted summary judgment in favor of the defendants on both
claims. Dismuke now timely appeals summary judgment on both
claims.
II. STANDARD OF REVIEW
We review summary judgment de novo, applying the same
standard as the district court. Chaney v. New Orleans Pub.
Police officers shall not discharge their firearms when doing so may endanger innocent persons, unless, the use of deadly force is needed to protect the life of the officer or another individual .... Police officers shall not discharge their firearms to subdue an escaping suspect who presents no immediate threat of death or serious bodily injury .... Police officers shall not discharge their weapons at a moving vehicle unless it is absolutely necessary to do so to protect the life of the officer or others.
5 Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Summary
judgment is appropriate when there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). We view the evidence in
the light most favorable to the non-movant. Coleman v. Houston
Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). However,
the non-movant must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). “‘If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.’” Britt v. Grocers Supply Co., Inc.,
978 F.2d 1441, 1449 (5th Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986)).
III. § 1981 DISCRIMINATORY DISCHARGE CLAIM
Dismuke claims that the district court erred in finding that
he failed to sustain a claim of racially discriminatory discharge
under 42 U.S.C. § 1981. This court analyzes a § 1981 claim
alleging discriminatory discharge using the same burden shifting
framework established for Title VII claims in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). E.g., Raggs v. Miss. Power
& Light Co., No. 00-60874, 2002 WL 13632, at *3 (5th Cir. Jan. 3,
2002) (slip opinion) (citations omitted). Under this framework,
Dismuke must establish a prima facie case of discriminatory
discharge, then the burden shifts to the defendants to furnish a
6 legitimate nondiscriminatory reason for the discharge. If the
defendants provide such a reason, Dismuke must show by a
preponderance of the evidence that the proffered reason for
discharging him was mere pretext for racial discrimination. Id.
(internal citations omitted). The ultimate burden of persuasion
that the defendants intentionally discriminated against Dismuke
remains at all times with Dismuke. Id. (citations and quotation
omitted).
In a case involving discharge for violation of work rules or
policy, a plaintiff may establish a prima facie case by
demonstrating either that the plaintiff did not violate the rule
in question or that other employees who engaged in similar
violations were not punished similarly. Green v. Armstrong
Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (citing Turner v.
Tex. Instruments, Inc., 555 F.2d 1251, 1254-55 (5th Cir. 1977)).6
6 Dismuke appears to argue on appeal that the district court erred in finding that he failed to point to a fact issue regarding whether he established a prima facie case on the ground that African-American employees that violated similar rules were disciplined less severely. Because the district court found that Dismuke raised a material issue of fact regarding his prima facie case on the alternative ground that he did not actually violate the IPD policy, it is unnecessary to address this argument. We note, however, that the district court was correct in holding that in order to establish a prima facie case based on disparate discipline, a plaintiff must point to evidence of employees disciplined less harshly “under circumstances ‘nearly identical’” to that of Dismuke. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)) (emphasis added). Our review of the record indicates that the district court also was correct in finding that Dismuke points to incidents of less harshly disciplined African-American IPD employees in circumstances too
7 The district court found that Dismuke raised a material
issue of fact as to whether he actually violated the IPD’s policy
against use of excessive force and, thus, whether he established
a prima facie case of discriminatory discharge. The court based
this finding on affidavit testimony from two officers present at
the station just after the shooting, Elise Miller and Dean
Miller. Both officers testified that, just after the shooting,
they heard Hendon express the view that Dismuke’s actions were
appropriate under the circumstances and that Dismuke made a “good
shot.” Such testimony controverts Hendon’s deposition and
affidavit testimony, as well as Randle’s deposition testimony,
indicating that Hendon originally told Randle at the scene that
Hendon believed that Dismuke’s action constituted excessive use
of force because Hendon was “out of harm’s way” by the time
Dismuke fired his weapon. We agree with the district court,
therefore, that Dismuke created an issue of fact regarding
attenuated to that of Dismuke to establish a prima facie case. Dismuke pointed to evidence of only one prior shooting, for which a prior chief of police, not Randle, declined to discipline an African-American officer. In that circumstance, the officer had ordered a suspect to get on the ground, and the suspect instead reached into his pocket so that the officer believed the suspect was reaching for a weapon to shoot the officer. The chief in that case testified that he took note of the fact that the incident occurred at night when deciding not to discipline the officer. Other incidents alleged by Dismuke did not involve shootings, but rather infractions such as inappropriate comments and uniform violations. Thus, no incidents pointed to by Dismuke satisfy the requirement under Mayberry that a plaintiff point to nearly “identical” circumstances in order to establish a prima facie case based on inequitable discipline of officers under similar circumstance.
8 whether he violated an IPD policy and, thus, whether he
established a prima facie case.7 We also agree with the district
court that the City and Randle then discharged their burden by
asserting a legitimate nondiscriminatory reason for Dismuke’s
discharge -- namely, Randle’s belief that Dismuke violated the
IPD policy against use of excessive force. We further agree with
the district court, however, that Dismuke fails to adduce
sufficient evidence in the record creating a material issue of
fact regarding whether Randle’s proffered reason was pretext for
discrimination.
The district court correctly noted that we have held that,
even where an employer objectively errs in concluding that an
employee violated a work rule or policy, absent evidence of
discriminatory motive for the employer’s discipline of the
employee, such error alone is insufficient to establish that the
employer’s proffered justification is pretext. See Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“The
7 Dismuke testified that he fired his weapon before Hendon was out of harm’s way but admits that he saw Hendon bounce off the vehicle before he fired. Dismuke further testified that he was unaware of Hendon’s location on the ground when he fired so that he believed that Hendon was still in danger. Dismuke thus controverts Hendon’s testimony that the shot was fired when Hendon was already out of danger because Hendon was out of the vehicle’s path and thus that Hendon believed Dismuke acted against IPD policy. This dispute in the testimony further supports the district court’s finding that Dismuke created a material issue of fact regarding his prima facie case, but fails to disturb our agreement with that court’s finding that Dismuke failed to offer evidence establishing pretext.
9 question is not whether an employer made an erroneous decision;
it is whether the decision was made with discriminatory
motive.”); Little, 924 F.2d at 97 (“We do not try in court the
validity of good faith beliefs as to an employee’s competence.
Motive is the issue.”) (citation omitted). Moreover, in
Mayberry, we rejected a plaintiff’s attempt to establish pretext
by merely reasserting prima facie evidence that he did not
violate a work rule. 55 F.3d at 1091-92.
Like the plaintiff in Mayberry, Dismuke does little more to
point to evidence of pretext than reassert his arguments made
toward establishing his prima facie case. He claims, without
supplying any evidence of specific incidents, that there is
conclusive evidence in the record that Randle disciplined
African-American employees less harshly than Caucasian employees.
Additionally, Dismuke reasserts his argument that conflicting
testimony indicating that Hendon changed his opinion regarding
whether Dismuke made an appropriate decision to fire at Gardner
indicates that Randle erred in deciding that Dismuke used
excessive force and thus suggests that Randle’s pursuit of
Dismuke’s dismissal is evidence of animus. Dismuke further
asserts, without pointing to any evidence in the record, that
Randle must have forced Hendon to change his testimony in pursuit
of Randle’s alleged discriminatory purpose. Dismuke fails to
supplement the scant evidence in the record supporting his prima
facie case with more than conclusory allegations that the reason
10 for his discharge was pretextual. Thus, even viewing the
evidence in the light most favorable to Dismuke, Dismuke fails to
point to sufficient evidence in dispute upon which a reasonable
trier of fact could conclude that Randle’s decision to discharge
Dismuke, even if objectively in error, was pretext for
discrimination based on race. Consequently, the district court
did not err in finding that the defendants are entitled to
judgement as a matter of law on Dismuke’s § 1981 claim.
IV. STATE LAW RETALIATORY DISCHARGE CLAIM
he failed to sustain a claim of retaliatory discharge under
Mississippi law. Dismuke alleges that he was wrongfully
discharged by Randle in retaliation for a report he made on
January 5, 1999 to the Mayor and to the Mississippi Highway
Patrol (“MHP”), alleging “illegal” acts by Randle.8 Dismuke is
correct that Mississippi recognizes a tort cause of action when
an employer discharges an employee in retaliation for the
employee reporting illegal acts of the employer. McArn v. Allied
Bruce-Terminix Co., Inc., 626 So.2d 603, 607 (Miss. 1993). The
8 On January 5, 1999, Dismuke filed a report to the Mayor, with a copy sent to the MHP, alleging that Randle committed various violations of the IPD Code of Conduct, including, inter alia, that Randle “cover[ed] up ... missing money from the evidence room ....” and removed “drugs” from the evidence room. Assuming arguendo that Dismuke’s allegations satisfy the Mississippi Supreme Court’s interpretation of what conduct constitutes “illegal” acts sufficient to afford an employee state law protection from retaliatory discharge, Dismuke’s claim nevertheless fails for lack of evidence of causation.
11 district court found that the City and Randle were entitled to
summary judgment, however, because Dismuke failed to point to any
evidence in dispute that could establish retaliation. The court
based this determination on its finding that Randle’s testimony
was uncontroverted that he was never aware of any report of
wrongdoing made by Dismuke until after Dismuke’s “termination.”
The district court thus found that Dismuke failed to adduce
evidence of a causal link between his report and his termination.
Under Mississippi law, in order to sustain a claim of
retaliatory discharge for reporting the illegal acts of an
employer, a plaintiff must establish some causation between the
reporting of the alleged misconduct and the decision process
resulting in the discharge. See Hust v. Forrest Gen. Hosp., 762
So.2d 298, 301-02 (Miss. 2000) (affirming summary judgment in
favor of an employer on a claim of retaliatory discharge because,
although evidence indicated that the plaintiff employee reported
wrongdoing to a co-employee, there was “no evidence” in the
record that either the co-employee or the plaintiff “ever
reported [the plaintiff’s] concerns to anyone in a position to
discharge or cause the discharge” of the plaintiff).9 Moreover,
9 It is unclear why the district court chose to adopt a Title VII approach in analyzing Dismuke’s state law claim of retaliatory discharge and thus imported the causation requirement from the prima facie elements required to sustain a retaliatory discharge claim under Title VII. The case law fails to indicate that Mississippi courts have applied a Title VII analysis to state tort claims of retaliatory discharge; rather, the state tort claim is recognized as a narrow public policy exception to
12 our review of the record supports the district court’s finding
that Dismuke failed to adduce evidence that Randle was aware of
the report prior to Dismuke’s termination. The following
question regarding Randle’s awareness of Dismuke’s January 5
report was posed to Randle during his deposition: “[Y]our
testimony is that you did not see this document or know of the
existence of this document prior to the shooting incident
involving Mr. Dismuke?” Randle responded, “No.” Dismuke points
to no evidence in the record controverting this testimony or
otherwise indicating that Randle was made aware of the January 5
report at any other time up to and including Dismuke’s final
termination by the Board.10 Dismuke thus fails to adduce any
evidence establishing a causal link between his report of
Mississippi’s at-will employment doctrine. E.g., Hust, 762 So.2d at 301. Regardless, the district court was correct in additionally citing Hust for the proposition that, to sustain a claim of retaliation, the Mississippi Supreme Court requires that a plaintiff establish some causal link between a report of wrongdoing made by the employee and the decisionmaker’s discharge of that employee. Id. at 301-02. 10 We disagree with the district court’s characterization that Randle’s testimony indicated that he was never aware of the report until after Dismuke’s “termination.” The deposition testimony supplied to the district court in support and defense of the motion for summary judgment only indicates that Randle testified that he was not aware of the January 5 report at any time prior to the shooting incident. However, because no evidence in the record indicates that Randle was made aware of the report at any time prior to Randle’s decision to terminate Dismuke or prior to Dismuke’s termination by the Board, we agree with the district court’s ultimate conclusion that Dismuke fails to point to any evidence indicating causation between the report and Dismuke’s discharge.
13 Randle’s alleged misconduct and his discharge. Dismuke thus
offers no evidence upon which a reasonable trier of fact could
conclude that he was discharged in retaliation for making that
report.11 The district court did not err, therefore, in finding
that the defendants are entitled to judgment as a matter of law
on Dismuke’s state law claim.
V. CONCLUSION
For the foregoing reasons, the district court’s summary
judgment in favor of the City and Randle on Dismuke’s § 1981
claim of racially discriminatory discharge is AFFIRMED. The
district court’s summary judgment in favor of the City and Randle
on Dismuke’s state law claim of retaliatory discharge is likewise
AFFIRMED.
11 Dismuke testified that on January 12, 1999, he had a confrontation with an IPD employee, Andrea Pat Coleman, during which Dismuke alleges that he made comments regarding an alleged intimate relationship between Coleman and Randle. Dismuke testified that subsequent to the confrontation, Randle reprimanded Dismuke for those comments. Affidavit testimony of Officer Charles Smith confirms that Dismuke had some form of verbal confrontation with Coleman that was discussed between Dismuke, Randle and Smith. Dismuke claims that this incident creates a material issue of fact regarding whether Randle was aware of any report of Randle’s wrongdoing made to the Mayor and the MHP when deciding to discharge Dismuke. The defendants are correct in pointing out, however, that the record fails to indicate any evidence that Dismuke’s report of alleged wrongdoing by Randle was mentioned to either Randle or Coleman during this confrontation or at any other time prior to Dismuke’s termination. This allegation without more, therefore, is insufficient to create a fact issue material to Dismuke’s claim of retaliatory discharge.
14 15