IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10668
Summary Calendar
WILLIE J MCKINNEY,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF TRANSPORTATION
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas (99-CV-1009)
December 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Willie McKinney appeals the district court's grant of summary
judgment in favor of the defendant, the Texas Department of
Transportation ("TxDOT"), on his claim of Title VII employment
discrimination. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
McKinney was an at-will employee of TxDOT from 1986 until his
termination (the subject of this lawsuit) in 1998. He worked as a
maintenance technician in TxDOT's Abilene District; and at the time
of his termination he was employed in Jones County. In September,
1998, TxDOT terminated McKinney after an incident in which he
appeared to threaten the Interim District Engineer of the Abilene
District, Lauren Garduno. Prior to this event, McKinney had been
placed on probation following two violations of TxDOT policy.
First, in May, 1998, TxDOT placed McKinney on probation for
one year after McKinney allegedly became aggressive towards a gas
station attendant during a fuel purchase for TxDOT. The attendant,
on his own initiative, wrote TxDOT to complain about McKinney's
unruly behavior. TxDOT conducted an investigation into the events
and determined that McKinney had violated TxDOT policy. McKinney
was thus placed on probation for one year, in part because of a
previous record of insubordination.
In September, 1998, just before his termination, McKinney was
asked to provide a home telephone number to TxDOT, so that he could
be contacted in an emergency. McKinney initially refused to
provide a telephone number, despite a direct request by his
supervisor to do so. This insubordination prompted Garduno to
extend McKinney's probationary period approximately 4 months, so
that it would end in September, 1999.
2 On September 23, 1998, Garduno met with McKinney to inform him
of the extension of his probation. During this meeting, McKinney
uttered something to the effect of "You will not prosper by messing
with me."1 Garduno, and several other employees present at the
meeting concluded that McKinney had threatened Garduno, based upon
both this statement and his body language and prior conduct.
Garduno, pursuant to TxDOT's policies on violence in the workplace,
decided that McKinney should be terminated. McKinney was
terminated on September 28, 2001.
McKinney brought this suit, alleging that he was terminated
because of his race (he is African-American) in violation of Title
VII of the Civil Rights Act of 1964.2 The district court granted
summary judgment to TxDOT on the Title VII claim, and McKinney now
appeals.
II
A
We review the district court's grant of summary judgment de
novo.3 We apply the same standards as the district court, and view
all disputed facts "in the light most favorable to the nonmoving
1 The parties dispute the precise words used by McKinney. McKinney claims that he quoted the Bible by stating "No weapon formed against me shall prosper." Isiah 54:17 (New International Version). 2 42 U.S.C. § 2000e et seq. 3 Starkman v. Evans, 198 F.3d 173, 174 (5th Cir. 1999).
3 party ...."4 We will grant summary judgment where "there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law."5 The nonmoving party,
in order to survive summary judgment, must "go beyond the pleadings
and by [their] own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial."6
In the absence of direct evidence of discriminatory intent,7
we analyze the plaintiff's claim under the burden-shifting
framework established by the Supreme Court in McDonnell-Douglas
Corp. v. Green.8 Under McDonnell-Douglas, a plaintiff must first
establish a prima facie case of discrimination. This shifts the
burden of production to the employer to provide a legitimate, non-
discriminatory reason for its actions.9 "If the plaintiff can show
that the proffered justification is mere pretext, however, that
showing, coupled with the prima facie case, will be sufficient in
4 Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). 5 Fed R. Civ. P. 56(c). 6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation omitted). 7 McKinney does offer what he alleges is direct evidence, but we reject it under our stray remarks jurisprudence. See infra n.15. 8 411 U.S. 792, 802 (1973). 9 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
4 most cases to survive summary judgment."10 "This court has
consistently held that an employee's 'subjective belief of
discrimination' alone is not sufficient to warrant judicial
relief."11
B
In this case, TxDOT has conceded that McKinney established his
prima facie case. TxDOT argues, and the district court agreed,
that McKinney failed to produce substantial evidence that TxDOT's
proffered justification for McKinney's termination: his
disciplinary problems and threatening actions toward Garduno, was
a mere pretext for racial discrimination.
McKinney's response consists of two arguments. First, he
offers differing accounts of all three relevant incidents (the
confrontation with the gas station attendant, the refusal to
provide a home telephone number, and the threat against Garduno).
Second, he complains that racial epithets were employed at the
workplace, which shows that the disciplinary justification offered
by TxDOT is pretext.
With respect to his alternate factual accounts of events,
McKinney has not rebutted the legitimate nondiscriminatory
10 Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000)). 11 Id. at 402-03.
5 justification for his termination by providing these alternate
versions.
First, McKinney's assertion that the gas station attendant
"became ugly" with him, as opposed to the confrontation's being
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10668
Summary Calendar
WILLIE J MCKINNEY,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF TRANSPORTATION
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas (99-CV-1009)
December 6, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Willie McKinney appeals the district court's grant of summary
judgment in favor of the defendant, the Texas Department of
Transportation ("TxDOT"), on his claim of Title VII employment
discrimination. 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
McKinney was an at-will employee of TxDOT from 1986 until his
termination (the subject of this lawsuit) in 1998. He worked as a
maintenance technician in TxDOT's Abilene District; and at the time
of his termination he was employed in Jones County. In September,
1998, TxDOT terminated McKinney after an incident in which he
appeared to threaten the Interim District Engineer of the Abilene
District, Lauren Garduno. Prior to this event, McKinney had been
placed on probation following two violations of TxDOT policy.
First, in May, 1998, TxDOT placed McKinney on probation for
one year after McKinney allegedly became aggressive towards a gas
station attendant during a fuel purchase for TxDOT. The attendant,
on his own initiative, wrote TxDOT to complain about McKinney's
unruly behavior. TxDOT conducted an investigation into the events
and determined that McKinney had violated TxDOT policy. McKinney
was thus placed on probation for one year, in part because of a
previous record of insubordination.
In September, 1998, just before his termination, McKinney was
asked to provide a home telephone number to TxDOT, so that he could
be contacted in an emergency. McKinney initially refused to
provide a telephone number, despite a direct request by his
supervisor to do so. This insubordination prompted Garduno to
extend McKinney's probationary period approximately 4 months, so
that it would end in September, 1999.
2 On September 23, 1998, Garduno met with McKinney to inform him
of the extension of his probation. During this meeting, McKinney
uttered something to the effect of "You will not prosper by messing
with me."1 Garduno, and several other employees present at the
meeting concluded that McKinney had threatened Garduno, based upon
both this statement and his body language and prior conduct.
Garduno, pursuant to TxDOT's policies on violence in the workplace,
decided that McKinney should be terminated. McKinney was
terminated on September 28, 2001.
McKinney brought this suit, alleging that he was terminated
because of his race (he is African-American) in violation of Title
VII of the Civil Rights Act of 1964.2 The district court granted
summary judgment to TxDOT on the Title VII claim, and McKinney now
appeals.
II
A
We review the district court's grant of summary judgment de
novo.3 We apply the same standards as the district court, and view
all disputed facts "in the light most favorable to the nonmoving
1 The parties dispute the precise words used by McKinney. McKinney claims that he quoted the Bible by stating "No weapon formed against me shall prosper." Isiah 54:17 (New International Version). 2 42 U.S.C. § 2000e et seq. 3 Starkman v. Evans, 198 F.3d 173, 174 (5th Cir. 1999).
3 party ...."4 We will grant summary judgment where "there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law."5 The nonmoving party,
in order to survive summary judgment, must "go beyond the pleadings
and by [their] own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial."6
In the absence of direct evidence of discriminatory intent,7
we analyze the plaintiff's claim under the burden-shifting
framework established by the Supreme Court in McDonnell-Douglas
Corp. v. Green.8 Under McDonnell-Douglas, a plaintiff must first
establish a prima facie case of discrimination. This shifts the
burden of production to the employer to provide a legitimate, non-
discriminatory reason for its actions.9 "If the plaintiff can show
that the proffered justification is mere pretext, however, that
showing, coupled with the prima facie case, will be sufficient in
4 Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). 5 Fed R. Civ. P. 56(c). 6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation omitted). 7 McKinney does offer what he alleges is direct evidence, but we reject it under our stray remarks jurisprudence. See infra n.15. 8 411 U.S. 792, 802 (1973). 9 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
4 most cases to survive summary judgment."10 "This court has
consistently held that an employee's 'subjective belief of
discrimination' alone is not sufficient to warrant judicial
relief."11
B
In this case, TxDOT has conceded that McKinney established his
prima facie case. TxDOT argues, and the district court agreed,
that McKinney failed to produce substantial evidence that TxDOT's
proffered justification for McKinney's termination: his
disciplinary problems and threatening actions toward Garduno, was
a mere pretext for racial discrimination.
McKinney's response consists of two arguments. First, he
offers differing accounts of all three relevant incidents (the
confrontation with the gas station attendant, the refusal to
provide a home telephone number, and the threat against Garduno).
Second, he complains that racial epithets were employed at the
workplace, which shows that the disciplinary justification offered
by TxDOT is pretext.
With respect to his alternate factual accounts of events,
McKinney has not rebutted the legitimate nondiscriminatory
10 Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000)). 11 Id. at 402-03.
5 justification for his termination by providing these alternate
versions.
First, McKinney's assertion that the gas station attendant
"became ugly" with him, as opposed to the confrontation's being
initiated by McKinney, does not speak to the motive of Garduno in
imposing probation upon McKinney for the incident. McKinney cannot
show pretext by claiming "innocence" without offering evidence that
TxDOT knew or had reason to know that he did not merit punishment
for the gas station incident but punished him anyway---for only
this would provide evidence that the stated reason for his
probation, and his ultimate termination, was pretextual. McKinney
has offered no such evidence, and the facts of the incident
(involving an unsolicited complaint from a private citizen), do not
lend itself to any invidious motive on the part of TxDOT in
imposing probation.
Second, McKinney does not attempt to rebut evidence that he
directly refused to obey a supervisor when he was asked to provide
a telephone number. Instead, McKinney notes that he did eventually
provide such a number. However, the disciplinary action in this
case (an extension of probation) was imposed for insubordination,
not for failing to provide the telephone number.12
12 See Chaney v. New Orleans Public 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.").
6 Finally, McKinney claims that he did not threaten Garduno, but
instead prayed by quoting the Bible. As with the other alternate
versions of the facts, McKinney has not provided substantial
evidence that the legitimate non-discriminatory justification (that
Garduno and three eyewitnesses interpreted McKinney's actions as
threatening) offered by TxDOT lacks credibility.
"In determining whether summary judgment was appropriate, we
consider 'the strength of the plaintiff's prima facie case, the
probative value of the proof that the employer's explanation is
false, and any evidence that supports the employer's case and that
properly may be considered on a motion for judgment as a matter of
law.'"13 "[McKinney's] evidence to rebut the non-discriminatory
reasons offered by [TxDOT] is not so persuasive so as to support an
inference that the real reason was discrimination."14 As a result,
summary judgment is appropriate unless McKinney's evidence that
racially derogatory remarks were used at the workplace provides
either sufficient evidence of pretext or direct evidence of
discriminatory intent. We now turn to those questions.
13 Rios v. Rossotti, 252 F.3d 375, 379 (5th Cir. 2001) (quoting Reeves, 530 U.S. at 147).
14 Crawford v. Formosa Plastics Corp., 234 F.3d 899, 904 (5th Cir. 2000) (quoting Rubinstein v. Administrators of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000)).
7 C
McKinney also alleges that the general use of racial epithets
in the workplace and the inaction of a supervisor in light of such
activity provide evidence of pretext. However, McKinney has
adduced no evidence that anyone even remotely connected with the
decision to terminate or discipline him ever made such remarks.
Even after Reeves we have held that such remarks do not create a
jury issue as to pretext unless the speaker is someone "principally
responsible" for the employee's termination or has leverage over
someone responsible for that decision.15
McKinney argues that since Gary Teichelman was present when
some of these remarks were allegedly made, and he was involved in
the decision to terminate McKinney, that this is sufficient to
impute those remarks to Teichelman and provide evidence of pretext.
McKinney has presented no evidence that Teichelman had supervisory
authority over the individuals making the racially-derogatory
remarks and therefore the authority to take action.
Consequentially, Tiechelman's inaction in the face of these remarks
cannot provide evidence of pretext.
15 Id. at 379-80. McKinney also apparently uses these remarks as evidence of direct discrimination. Where, as here, there is not substantial evidence of pretext, we have held that it is appropriate to analyze such stray remarks as direct evidence of discrimination under Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996). Under Brown such remarks, in order to provide direct evidence, must (among other things) be "made by an individual with authority over the employment decision at issue ...." Id. at 655; Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999). Again, McKinney does not allege that the remarks were made by decision-makers. Therefore they cannot provide direct evidence of discrimination sufficient to withstand summary judgment.
8 Finally, McKinney's reliance on Evans v. Bishop16 is misplaced,
because in that case the individual who uttered the derogatory
remark was, in fact, an actual decision-maker.17
III
McKinney, for the first time on appeal, raises claims of
retaliation and hostile work environment. Since these claims were
not raised in the district court, they cannot be entertained now.18
McKinney has conflated our standard for determining whether a Title
VII plaintiff's claims, properly raised in the district court, were
within the scope of the EEOC charge, such that the district court
had jurisdiction to hear them.19 This rule is not implicated when
there has been a complete failure to raise such a claim in the
district court in the first instance.
AFFIRMED.
16 238 F.3d 586 (5th Cir. 2000)
17 Id. at 588. 18 Jenkins v. State of La., Through Dep't of Corrections, 874 F.2d 992, 996 (5th Cir. 1989). 19 See, e.g., Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000) ("The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.").