Harvey v. Stringer , 113 F. App'x 629 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 5, 2004
Charles R. Fulbruge III
Clerk
No. 04-60413
Summary Calendar
JAMES HARVEY, JR.,
Plaintiff-Appellant,
versus
RICHARD STRINGER, in His Official Capacity as Sheriff of Marion
County, Mississippi,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 02-CV-121
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, James Harvey, Jr. (“Harvey”), appeals
the district court’s grant of Defendant-Appellee’s motion for
summary judgment on Harvey’s 42 U.S.C. § 2000e-5 retaliation
claim. Harvey claims that he was terminated by Sheriff Stringer
(“Stringer”) in retaliation for his filing of an EEOC charge
*
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that this opinion should not be published and is not precedent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.
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against Stringer.1 Because we agree with the district court that
Appellant has raised no genuine issue of material fact, we
affirm.
We review a district court’s grant of summary judgment de
novo. Price v. Fed. Express Corp., 283 F.3d 715, 719 (5th Cir.
2002). Summary judgment is appropriate if the evidence, viewed
in the light most favorable to the non-movant, shows that there
are no genuine issues of material fact and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); Price, 283 F.3d at 719.
In order for a plaintiff-employee to prove a prima facie
case of retaliation, he must show: (1) that the employee engaged
in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal
connection exists between the protected activity and the adverse
employment action. Haynes v. Pennzoil Company, 207 F.3d 296, 299
(5th Cir. 2000).
Harvey and Stringer agree that Harvey satisfied the first
two elements of a prima facie case. Harvey engaged in an
activity protected by Title VII when he filed his EEOC charge in
January 2001. Sheriff Stringer took adverse employment action
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Harvey worked as deputy warden at the Marion Walthall
Correctional Facility in Marion County, Mississippi. Sheriff
Stringer, the sheriff of Marion County, is responsible for the
management and control of the facility. Harvey worked as deputy
warden from February 2000 until October 2001.
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against Harvey when he terminated Harvey in October 2001.
The district court found that Harvey did not prove the third
element of a prima facie case for retaliation. Harvey asserts
that he presented sufficient evidence for a reasonable jury to
find that there was a causal connection. Having reviewed the
record and the briefs on appeal, we find that Harvey has not
presented sufficient evidence to raise a genuine issue of
material fact on causation.
Harvey did not present any probative evidence to demonstrate
a causal connection between his filing of an EEOC complaint and
his termination. He submitted four largely irrelevant and/or
inadmissible affidavits to support his contention. These
affidavits fail to establish a fact issue with respect to
causation. A reasonable factfinder could not infer causation
from Harvey’s evidence. Harvey also relies on the close timing
between the filing of his EEOC charge and his termination. This
Court has recognized that close timing between an employee’s
protected activity and an adverse action against him may provide
the causal connection required to make out a prima facie case.
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.
1997). However, a period of 10 months elapsed between Harvey’s
EEOC charge in January 2001 and his termination in October 2001.
This Court has never held that a 10-month time lapse, on its own,
is sufficient to satisfy the causal connection for summary
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judgment purposes. See, e.g., Evans v. City of Houston, 246 F.3d
344, 354 (5th Cir. 2001)(“We note that a time lapse of up to four
months has been found sufficient to satisfy the causal connection
for summary judgment purposes.”)(internal quotation and citation
omitted).
Even if, however, we were to find that Harvey established a
prima facie case of retaliation, Stringer has presented
uncontroverted evidence demonstrating that he had legitimate,
nondiscriminatory reasons for Harvey’s termination. In a Title
VII retaliation claim, “[a]ssuming the plaintiff is able to
establish his prima facie case, the burden then shifts to the
defendant to demonstrate a legitimate nondiscriminatory purpose
for the employment action. If the defendant makes the required
showing, the burden returns to the plaintiff to demonstrate that
the employer’s articulated reason for the employment action was a
pretext for the real, discriminatory reason.” Aldrup v. Caldera,
274 F.3d 282, 286 (5th Cir. 2001).
Stringer presented evidence of multiple, legitimate reasons
for Harvey’s termination, including the use of inmate labor on
personal property; permitting illegal activities of certain
inmates; permitting physical abuse of prisoners; and failure to
follow proper procedure with regard to narcotics seized from
prisoners. Such evidence satisfies Stringer’s burden of
articulating a legitimate, nondiscriminatory reason for
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terminating Harvey’s employment.
Harvey, in response, has failed to even attempt to provide
evidence to counter most of Stringer’s proffered reasons for his
termination of Harvey. Accordingly, even if we were to find that
Harvey established a prima facie case of retaliation, we would
find that Harvey did not present sufficient evidence to create a
fact issue regarding the falsity of the reasons provided by
Stringer.
For the foregoing reasons, the opinion of the district court
is in all ways AFFIRMED.
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