Patricia Morris v. Town of Independence , 827 F.3d 396 ( 2016 )


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  •      Case: 15-30986   Document: 00513569786    Page: 1   Date Filed: 06/28/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-30986                            FILED
    June 28, 2016
    PATRICIA A. MORRIS,
    Lyle W. Cayce
    Clerk
    Plaintiff–Appellant,
    v.
    TOWN OF INDEPENDENCE; MICHAEL RAGUSA,
    Defendants–Appellees.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
    PRISCILLA R. OWEN, Circuit Judge:
    Patricia A. Morris appeals a summary judgment in favor of Defendants,
    the Town of Independence and Mayor Michael Ragusa, on her claim alleging
    racial discrimination in employment under 42 U.S.C. § 1981. We affirm.
    I
    Morris, an African-American woman, was a part-time employee of the
    Town of Independence (the Town). According to both parties, Mayor Ragusa
    hired Morris after a mutual acquaintance informed Mayor Ragusa that Morris
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    No. 15-30986
    needed a job. Mayor Ragusa later testified that he extended employment to
    Morris out of the “kindness of [his] heart.”
    Morris’s exact role of employment with the town was seemingly
    undefined. Employment documents indicate, and the parties acknowledge,
    that Morris was hired as an “Assistant Town Clerk.” It is undisputed, however,
    that Morris’s title was one of form and not function. Morris testified that she
    knew, from “[t]he first day of employment,” that she would not be working as
    an Assistant Town Clerk. Morris further testified that she was never given
    duties of an Assistant Town Clerk.              When asked whether her job
    responsibilities were similar to that of Jeanette Patanella—the incumbent
    Assistant Town Clerk when Morris was hired—Morris responded that
    Patanella “had a lot more to do with helping the [Town] [C]lerk.”
    Instead, Morris testified that she was ultimately asked to collect water
    and sewer bills. Mayor Ragusa similarly testified that Morris’s job was to “be
    at the window and collect the water bills, sewer, tickets and things like that.”
    Morris characterizes this position as that of a “water clerk.”            Though
    Defendants argue that there is “no formal Water Clerk position” and Mayor
    Ragusa testified that he was unaware Morris had any title, a discovery
    document submitted by the Town classifies Morris as a “water clerk,” and
    ranks the position as subordinate to that of Assistant Town Clerk.            It is
    undisputed that throughout her employment with the Town, Morris worked in
    a part-time capacity.
    Mayor Ragusa discharged Morris seven months after she was hired.
    According to Morris, Mayor Ragusa stated that the discharge was due to
    budget cuts. During his deposition, Mayor Ragusa explained that the Town
    experienced a 22% reduction in budget across the board, and that the cuts
    could come from “anything,” including, for example, “workers,” “wages,”
    “equipment,” or “fuel.” Mayor Ragusa then provided an additional reason for
    2
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    Morris’s termination—he claimed that Morris’s termination was motivated in
    part by performance concerns and his understanding that Morris was “going
    to get a job somewhere else.” Mayor Ragusa testified that he had received
    verbal complaints of Morris’s performance from other employees, though he
    acknowledged that the complaints were never documented and that he had no
    personal knowledge of Morris’s alleged non-performance.
    Morris filed suit against the Town and Mayor Ragusa (Defendants),
    alleging claims under 42 U.S.C. §§ 1981, 1983, and 1985, and state law. Morris
    alleged, among other things, that she was terminated on the basis of her race.
    Defendants moved for summary judgment on all claims. The district court
    granted the motion, holding in relevant part that Morris had failed to carry
    her burden to demonstrate that Defendants’ proffered reasons for termination
    were pretext for racial discrimination. Morris timely appealed.
    II
    We review a summary judgment de novo, applying the same standard as
    the district court. 1 Summary judgment is appropriate “if the movant shows
    that there is no genuine dispute as to any material fact and the movant is
    entitled to judgment as a matter of law.” 2 In conducting our review, “[w]e view
    the evidence in the light most favorable to the non-moving party and avoid
    credibility determinations and weighing of the evidence.” 3
    1 Jackson v. Cal-Western Packaging Corp., 
    602 F.3d 374
    , 377 (5th Cir. 2010).
    2 FED. R. CIV. P. 56(a).
    3 
    Jackson, 602 F.3d at 377
    .
    3
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    III
    Morris challenges only the district court’s judgment with respect to her
    claims arising under 42 U.S.C. § 1981. 4 Morris’s chief complaint is that her
    termination was the result of racial discrimination.
    Morris argues that the Town’s proffered reasons for her termination—
    budgetary      cuts    and     performance         concerns—are      pretext     for    racial
    discrimination. She notes that a Caucasian, full-time, Assistant Town Clerk,
    Rhonda Crocker, retained her job while Morris was discharged, despite
    Crocker’s later hiring date. Crocker was hired the day after the prior Assistant
    Town Clerk, Patanella, was discharged due to a conflict of interest, and about
    one month before Morris was discharged. Additionally, Morris claims that
    “very shortly []after” her termination, Mayor Ragusa “hired a white male as a
    superintendent in the Water and Sewer Department,” and “later hired a white
    female in the same position, clerk, that [Morris] previously held.” Morris
    further argues that she received “no reprimands, write ups, or disciplinary
    procedures” during her employment. Morris contends that the Town Clerk
    assured Morris that her job was secure.
    Defendants respond that the decision to retain Crocker and discharge
    Morris is accounted for by grounds other than race. They contend that, unlike
    Crocker, Morris held a part-time and non-essential position, performed tasks
    that “mimicked [those] of other workers in the department,” and was the
    subject of performance concerns. Defendants further claim that the Caucasian
    male hired in the Water and Sewer Department “is irrelevant because its
    budget is separate from that of the Administrative Staff” and that Morris
    lacked necessary certifications for the position.             They additionally provide
    442 U.S.C. § 1981 (providing that “[a]ll persons within the jurisdiction of the United
    States shall have the same right in every State . . . to make and enforce contracts . . . as is
    enjoyed by white citizens”).
    4
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    evidence that the Caucasian, female, “clerk” to whom Morris refers was hired
    as a “Citation Clerk” five-and-a-half months subsequent to Morris’s
    termination and after a change in the structure of the department. Defendants
    finally note that the Town Clerk “was not in charge of hiring and firing
    employees,” and thus, Morris could not reasonably rely on any assurances
    provided by the Town Clerk.
    Claims of racial discrimination based on circumstantial evidence under
    § 1981 are analyzed under the familiar McDonnell Douglas 5 burden-shifting
    analysis. 6 Under this three-part framework, a plaintiff must first set forth a
    prima facie case of discrimination. 7 If the plaintiff makes this showing, a
    presumption of discrimination arises and the burden of production shifts to the
    employer to “articulate a legitimate non-discriminatory reason for the adverse
    employment action.” 8 If the employer carries this burden, the “inference of
    discrimination disappears and the plaintiff must present evidence that the
    employer’s proffered reason was mere pretext for racial discrimination.” 9
    Defendants first argue, as they did below, that Morris has failed to carry
    her burden to establish a prima facie case of discrimination. To establish a
    prima facie case of racial discrimination in employment, an employee must
    demonstrate that she “(1) is a member of a protected group; (2) was qualified
    for the position at issue; (3) was discharged or suffered some adverse
    employment action by the employer; and (4) was replaced by someone outside
    his protected group or was treated less favorably than other similarly situated
    5 See McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802-05 (1973).
    6 Davis v. Dallas Area Rapid Transit, 
    383 F.3d 309
    , 316-17 (5th Cir. 2004).
    7 Burton v. Freescale Semiconductor, Inc., 
    798 F.3d 222
    , 227 (5th Cir. 2015).
    8 
    Id. (quoting E.E.O.C.
    v. Chevron Phillips Chem. Co., 
    570 F.3d 606
    , 615 (5th Cir.
    2009)).
    9   
    Davis, 383 F.3d at 317
    .
    5
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    employees outside the protected group.” 10              With respect to the “similarly
    situated employees” requirement, “a plaintiff must show that he was treated
    less favorably than others ‘under nearly identical circumstances.’” 11
    Defendants do not contest that Morris satisfied the first three elements
    of her prima facie case; they argue only that Morris has “failed to establish that
    ‘similarly situated employees’ were treated more favorably under ‘nearly
    identical circumstances.’” The district court appeared inclined to agree that
    Morris had not satisfied this requirement, but nevertheless “assum[ed],
    without deciding” that she had, and instead held that Morris failed to
    demonstrate that Defendants’ stated reasons for Morris’s termination were
    pretext under step three of McDonnell Douglas. As we are permitted to affirm
    the judgment below on any ground supported by the record, 12 we hold that
    Morris has failed to set forth a prima facie case, and therefore, the district court
    properly granted summary judgment in favor of Defendants.
    This court considers a number of factors in determining whether
    employees are similarly situated.
    Employees with different supervisors, who work for different
    divisions of a company or who were the subject of adverse
    employment actions too remote in time from that taken against the
    plaintiff generally will not be deemed similarly situated. Likewise,
    employees who have different work responsibilities or who are
    10 Willis v. Cleco Corp., 
    749 F.3d 314
    , 319-20 (5th Cir. 2014) (quoting McCoy v. City of
    Shreveport, 
    492 F.3d 551
    , 556 (5th Cir. 2007) (per curiam)) (setting forth the elements of a
    prima facie case in the context of a race-discrimination claim under Title VII of the Civil
    Rights Act of 1964); see also Raggs v. Miss. Power & Light Co., 
    278 F.3d 463
    , 468 (5th Cir.
    2002) (“This Court considers claims of intentional discrimination, which include racial
    discrimination and retaliation claims based on Title VII and 42 U.S.C. § 1981, under the
    same rubric of analysis.”).
    11 
    Willis, 749 F.3d at 320
    (quoting Lee v. Kan. City S. Ry., 
    574 F.3d 253
    , 259-60 (5th
    Cir. 2009)).
    12 Gilbert v. Donahoe, 
    751 F.3d 303
    , 311 (5th Cir. 2014).
    6
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    subjected to adverse employment action for dissimilar violations
    are not similarly situated. 13
    The similarly situated analysis is intended to ensure that the challenged action
    was “taken under nearly identical circumstances.” 14 Such circumstances exist
    when “the employees being compared held the same job or responsibilities,
    shared the same supervisor or had their employment status determined by the
    same person, and have essentially comparable violation histories.” 15 We have
    noted, however, that “nearly identical” is not synonymous with “identical.” 16
    Here, Morris offers as a comparator Rhonda Crocker, the full-time,
    Assistant Town Clerk who retained her job while Morris was discharged.
    Crocker is not similarly situated to Morris. By her own admission, Morris did
    not perform the traditional job responsibilities of an Assistant Town Clerk.
    Morris does not dispute that Crocker replaced Patanella, the full-time
    employee who, according to Morris, held the true title and performed the actual
    job responsibilities of Assistant Town Clerk. Further, Morris at all times
    worked in a part-time capacity, while Crocker is a full-time employee. 17
    Finally, though Morris claims she was never reprimanded or the subject of a
    documented complaint, she has not disputed Mayor Ragusa’s claim that he
    received verbal complaints from Town employees regarding Morris’s
    performance.      Morris has offered no evidence that Crocker, or any other
    employee, was retained despite performance concerns.
    13 
    Lee, 574 F.3d at 259-60
    .
    14 
    Id. at 260.
           15 
    Id. 16 Id.
           17 See Johnson v. Univ. of Iowa, 
    431 F.3d 325
    , 330 (8th Cir. 2005) (“Generally,
    part-time employees are not similarly situated to full-time employees.”); Ilhardt v. Sara Lee
    Corp., 
    118 F.3d 1151
    , 1155 (7th Cir. 1997) (“[F]ull-time employees are simply not similarly
    situated to part-time employees.”); see also Lowery v. Hazelwood Sch. Dist., 
    244 F.3d 654
    , 660
    (8th Cir. 2001).
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    Morris does not contest these differences on appeal. Rather, relying on
    Seventh Circuit precedent, Morris first argues that whether employees are
    similarly situated is a factual inquiry that is “usually a question for the
    fact-finder.” 18   It may be true that the inquiry is often reserved for the
    fact-finder. But that is only the case when the plaintiff has produced sufficient
    evidence that would permit a reasonable fact-finder to conclude that the
    plaintiff and other employees are similarly situated. When the plaintiff does
    not do so, summary judgment is appropriate. 19 This is such a case.
    Morris next argues that her “unique” job role should not bar her ability
    to present a prima facie case. She contends that differences between her and
    Crocker’s “duties or responsibilities [are] not dispositive.”                   Morris cites
    Ercegovich v. Goodyear Tire & Rubber Co., in which the Sixth Circuit rejected
    a narrow reading of prior precedent that would require “[a] plaintiff to
    demonstrate that he or she was similarly-situated in every aspect to an
    employee outside the protected class.” 20 The Ercegovich court noted that under
    such a rule, “a plaintiff whose job responsibilities are unique to his or her
    position w[ould] never successfully establish a prima facie case (absent direct
    evidence of discrimination),” and that result would “undermine the remedial
    purpose of the anti-discrimination statutes.” 21 Accordingly, the Sixth Circuit
    clarified that a plaintiff need only “demonstrate that he or she is
    similarly-situated to the non-protected employee in all relevant respects.” 22
    The Sixth Circuit held that differences in particular job functions “d[id] not
    18  See Coleman v. Donahue, 
    667 F.3d 835
    , 846-47 (7th Cir. 2012) (quoting Srail v. Vill.
    of Lisle, 
    588 F.3d 940
    , 945 (7th Cir. 2009)).
    19 See, e.g., Thomas v. Johnson, 
    788 F.3d 177
    , 180-81 (5th Cir. 2015); Keelan v. Majesco
    Software, Inc., 
    407 F.3d 332
    , 345 (5th Cir. 2005).
    20 
    154 F.3d 344
    , 353 (6th Cir. 1998) (emphasis added).
    21 
    Id. (emphasis in
    original).
    22 
    Id. (emphasis in
    original).
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    automatically constitute a meaningful distinction” between an older plaintiff
    that was not provided an offer to transfer to other available positions and the
    younger comparators that were provided the transfer opportunity after the
    company initiated a reduction-in-force and general reorganization. 23
    To the extent that the Sixth Circuit’s requirement that the differences
    between a plaintiff and proffered comparators be relevant to the challenged
    employment action differs from the law in this circuit, about which we express
    no opinion, Morris has not made the requisite showing. 24 Morris’s part-time
    employment and differing job functions, coupled with the sui generis nature of
    her employment, distinguish her position from that of the proffered
    comparator. That Mayor Ragusa had received verbal complaints about
    Morris’s performance is yet another relevant, distinguishing factor.
    We note that in Ercegovich, the plaintiff alleged that he was qualified for
    open positions in the company but not offered a transfer due to his age. 25 That
    claim provides a separate palette of relevant factors, which could reasonably
    exclude particular differences in job functions among related roles.                    For
    example, the Ercegovich court found relevant that the plaintiff’s and
    comparators’ positions were “all related human resources positions that were
    all eliminated pursuant to a general reorganization” of the human resources
    department at a particular location. 26 Here, in contrast, job responsibilities,
    part-time versus full-time employment, and performance are all relevant
    factors that may be considered when determining whether employees are
    similarly situated in the context of budget-based terminations.
    23  
    Id. 24 Cf.
    id. (“The district 
    court did not address the relevancy of these factors to the
    plaintiff’s claim that Goodyear denied him the opportunity to transfer to open positions
    within the company on the basis of age.”).
    25 See 
    id. at 351-52.
            26 
    Id. at 353.
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    Because we hold that Morris has not met her burden to set forth a prima
    facie case of racial discrimination, we need not discuss the parties’ remaining
    arguments regarding pretext. Morris briefly argues that she “did not receive
    any training for her position, despite inquiring several times to defendants
    about receiving proper training” and that she “was never given full-time hours
    or benefits, despite inquiring several times about why she was only allowed to
    work for three days a week instead of full-time.” To the extent these claims
    are intended to support a failure-to-train or failure-to-promote cause of action,
    we deem them abandoned. 27 Morris has only offered conclusory statements
    and has provided no legal argument to support such legal theories.
    Specifically, Morris has failed to identify any Town of Independence employees
    that received training or promotions while Morris did not.
    *       *        *
    The judgment of the district court is AFFIRMED.
    27 See Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 
    158 F.3d 205
    , 210
    n.4 (5th Cir. 1998) (per curiam) (“Failure to provide any legal or factual analysis of an issue
    on appeal waives that issue.”).
    10