Chaney v. NO Pub Facility Mgt ( 1999 )

REVISED - July 6, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-30063
FERMAN CHANEY,
Plaintiff - Appellant-Cross-Appellee,
VERSUS
NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INCORPORATED,
Defendant - Appellee-Cross-Appellant.
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No. 98-30201
FERMAN CHANEY,
Plaintiff - Appellant,
VERSUS
NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INCORPORATED,
Defendant - Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
June 17, 1999
BEFORE GARWOOD, DAVIS, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Ferman Chaney sued New Orleans Public Facility Management,
Inc. for unlawful retaliatory discharge, and succeeded in obtaining
damages and reinstatement to his former position. We find that the
evidence adduced at trial by Chaney is insufficient to support the
jury’s finding of liability, and accordingly we reverse the
judgment below.
I.
Ferman Chaney is an employee of New Orleans Public Facility
Management, Inc. (NOPFMI), who was discharged, filed this
employment discrimination lawsuit, and then was reinstated as a
result of his victory in the district court. Chaney was originally
hired by NOPFMI in conjunction with the opening of the Ernest N.
Morial Convention Center in 1984. Chaney worked at the Convention
Center continuously for twelve years until he was discharged.
During this time, Chaney established a reputation as the primary
problem-solver for roof leaks.
In October 1994, NOPFMI hired its first human resources
director, Lawrence Robinson. In the course of his duties Robinson
revised NOPFMI’s policy and procedure manual, resulting in a much
stricter work environment than that to which the Convention Center
employees had become accustomed. The changes prompted by Robinson
affected management as well, and supervisors were required to
maintain logs of employees’ job performance and give employees
periodic formal evaluations. The new policies were promulgated in
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March 1995. Robinson reviewed these new policies with each
employee, including Chaney.
At the same time as the new policies were being implemented,
Chaney’s supervisor, Richard Lyons, was replaced as foreman by
Gerard Johnston. Lyons subsequently filed a racial discrimination
lawsuit against NOPFMI. The factual underpinnings of the Lyons
litigation are important to the background of this case. Lyons, a
white man, had been a foreman at the Convention Center, and his
direct supervisor was Vincent Ducré, a black man. Lyons alleged
that Ducré undermined his authority in favor of Johnston, who is
black and who was one of Lyons’ subordinates. When Lyons was
demoted and Johnston was promoted to foreman (Lyons’ former
position), Lyons filed his lawsuit against NOPFMI, alleging racial
discrimination.
Johnston was Chaney’s supervisor during the period of time at
issue in this appeal. Some Convention Center employees, including
Chaney, were subpoenaed by counsel for Lyons for the purpose of
providing testimony. On July 13, 1994, Chaney was required to
leave work to meet the lawyers, and he provided them with a
handwritten affidavit which supported Lyons’ claims. Chaney claims
that when he returned to work, he was confronted by Johnston, who
accused: “Yeah, you tried to nail your boy, huh?”
Five days later, Chaney received a negative evaluation from
his supervisors for the first time in his ten years of employment
at the Convention Center. (Notably, Chaney had not received any
formal evaluation whatsoever in the preceding four years.) This
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event was followed by what Chaney describes as an “intense barrage
of negative formal assessments and less formal ‘write-ups’” by
Johnston from July 1994 to August 1996.
The final event, which resulted in Chaney’s termination,
occurred on August 8, 1996. Chaney entered the carpenter shop to
eat his lunch, and there he met Johnston, who told him to go repair
a leak in the roof. Chaney responded that he was waiting for a
phone call, and would complete the task after lunch. Johnston
twice more ordered Chaney to attend to the repair immediately, and
then he sent another employee. Chaney was suspended without pay,
and on August 22 was informed by Robison that he had been
terminated for “improper behavior towards supervisor” in the August
8 incident.
Subsequently, Chaney filed this lawsuit against his employer,
alleging inter alia that he had been terminated in retaliation for
providing the affidavit in the Lyons litigation, in violation of 42
U.S.C. § 2000e-3(a). The case was tried to a jury, which rendered
a verdict in his favor. Chaney recovered damages and reinstatement
to his former position. The district judge declined to enter
judgment on the damages which the jury had awarded to Chaney for
mental anguish. Both Chaney and NOPFMI appeal.
II.
Both Chaney and NOPFMI appeal from adverse sufficiency-based
rulings on NOPFMI’s motion for judgment as a matter of law, see
Fed. R. Civ. P. 50(a)(1). NOPFMI appeals the district court’s
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failure to grant judgment as a matter of law on Chaney’s
retaliation claim.
This Court reviews the decision below de novo, applying the
same standards as does the district court. See, e.g., Fields v.
J.C. Penney Co., 968 F.2d 533, 536 (5th Cir. 1992). The standard
for granting judgment as a matter of law in employment
discrimination is well settled. See Rhodes v. Guiberson Oil Tools,
75 F.3d 989, 992 (5th Cir. 1996) (en banc). We test the
sufficiency of evidence supporting jury verdicts and summary
judgments under the standard of Boeing Co. v. Shipman, 411 F.2d 365(5th Cir. 1969) (en banc). In order to create a jury question,
there must be a dispute in the substantial evidence, that is,
evidence which is of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment might reach
different conclusions. Consequently, a mere scintilla of evidence
is insufficient to present a question for the jury. See Boeing,
411 F.2d at 374-75. Even if the evidence is more than a scintilla,
Boeing assumes that some evidence may exist to support a position
which is yet so overwhelmed by contrary proof as to yield to a
directed verdict. See Rhodes, 75 F.3d at 992; Neely v. Delta Brick
& Tile Co., Inc., 817 F.2d 1224, 1226 (5th Cir. 1987).
III.
Chaney’s retaliation claim is based solely on the contention
that his dismissal stemmed from his submission of an affidavit in
the Lyons case. The governing statute provides: “It shall be an
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unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). A prima facie case of retaliatory discharge
under 42 U.S.C. § 2000e-3(a) thus consists of proof that the
employee engaged in protected conduct, that the employee was
thereafter subjected to an adverse employment action, and that such
adverse employment action was motivated by animus inspired by the
protected conduct. If the plaintiff makes a prima facie case, the
burden shifts to the employer to provide a legitimate,
nonretaliatory reason for the adverse employment action. Should
the employer provide a permissible rationale, the plaintiff then
shoulders the ultimate burden of proving that the employer’s
proffered rationale was pretextual and that engaging in the
protected activity was the but-for cause of the adverse employment
action (i.e., the employer actually retaliated against the
employee). See Anderson v. Douglas & Lomason Co., Inc., 26 F.3d
1277, 1300 (5th Cir. 1994); McMillan v. Rust College, Inc., 710
F.2d 1112, 1116 (5th Cir. 1983); see also St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2748-49 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-58, 101 S.
Ct. 1089, 1093-96 (1981); McDonnell-Douglas Corp. v. Green, 411
U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973). Chaney failed to
satisfy his ultimate burden in this case because the evidence fails
to demonstrate that NOPFMI’s justification for his discharge --
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Chaney’s insubordination -- was a pretext and that retaliation was
the real motive for his discharge.
A.
As an initial matter, there is no evidence in the record that
casts any shadow of possible pretext. Chaney concedes that he
failed to comply with Johnston’s orders on August 8, 1996. The
policy and procedure manual governing employment at the Convention
Center warns that disrespect for a supervisor and failure to follow
a direct order are grounds for suspension or discharge. NOPFMI
told Chaney that his refusal to follow a direct order was the
reason for his discharge. The failure of a subordinate to follow
the direct order of a supervisor is a legitimate nondiscriminatory
reason for discharging that employee. In a case in which the
employer has articulated a rational justification for terminating
an employee, and the facts supporting that justification are not
seriously disputed, the task of proving pretext becomes quite
difficult. See Elliott v. Group Med. & Surgical Serv., 714 F.2d
556, 567 (5th Cir. 1983).
That difficulty is compounded in this case, in which there is
no evidence that NOPFMI’s employment policies were enforced
strictly against employees who helped Lyons, but not against other
employees. Chaney himself testified that the work environment
changed significantly for all employees after Robinson was hired as
a human resources director. It is true that a record of Chaney’s
workplace infractions was developed in the months following his
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affidavit, and that there was no such record beforehand, but,
again, this is explained by NOPFMI’s renewed enforcement of
employment policies under Robinson’s leadership, which required
supervisors to keep logs of employees’ workplace performance.
Without evidence of disparate treatment, it is difficult to
maintain that a straightforward application of workplace policies
and procedures was pretextual. See Swanson v. General Servs.
Admin., 110 F.3d 1180, 1186 (5th Cir.) (citing Odom v. Frank, 3
F.3d 839, 849 (5th Cir. 1993)), cert. denied, 118 S. Ct. 366(1997).
B.
Second, the evidence does not establish that any of the
supervisors responsible for Chaney’s discharge knew about Chaney’s
affidavit or its contents at the time Chaney was discharged.
Chaney testified that he did not tell anybody at the Convention
Center that he had given an affidavit for Lyons and that he never
revealed the contents of the affidavit to anyone. Robinson, the
human resources director, testified that he did not know about the
affidavit at the time of Chaney’s discharge, and that he did not
learn about the affidavit until Chaney filed this lawsuit. Ducré,
the foreman at the time the affidavit was submitted, testified that
he was aware that some Convention Center employees had received
subpoenas in the Lyons case, but that he had no specific knowledge
that Chaney was one of them. Likewise, Johnston, Chaney’s direct
supervisor, testified that he did not know and nobody had told him
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about Chaney’s affidavit or its contents at the time of Chaney’s
termination. If an employer is unaware of an employee’s protected
conduct at the time of the adverse employment action, the employer
plainly could not have retaliated against the employee based on
that conduct. See Grizzle v. Travelers Health Network, Inc., 14
F.3d 261, 267 (5th Cir. 1994); cf. McKennon v. Nashville Banner
Publ’g Co., 513 U.S. 352, 359-60, 115 S. Ct. 879, 885 (1995) (an
employer could not defend itself from an allegation of employment
discrimination by offering a nondiscriminatory justification for
discharge which was discovered after the actual discharge).
The best piece of circumstantial evidence of the employer’s
knowledge adduced by Chaney is the alleged confrontation in which
Johnston purportedly stated: “Yeah, you tried to nail your boy,
huh?” Additionally, several witnesses stated a subjective belief,
unsupported by personal knowledge, that Convention Center
supervisors knew which employees were providing testimony to Lyons,
and Chaney testified that in discussions about his negative work
evaluations he told Ducré and Johnston, without elaboration, that
he was “testifying against” Johnston. But there is no direct
evidence to contradict the managers’ testimony that they were
unaware of Chaney’s affidavit. The testimony of Chaney’s
colleagues was speculative at best. Each of Chaney’s witnesses had
a lawsuit against NOPFMI, so all of the circumstantial evidence was
entirely self-serving. In a case such as this, in which the
employer has provided a legitimate nonretaliatory reason for the
employment action based on essentially uncontested facts, such
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generalized evidence is of negligible probative value to prove
intentional discrimination. See Elliott, 714 F.2d at 564.
C.
Finally, we note that fully two years passed between Chaney’s
submission of the affidavit and the allegedly retaliatory
discharge. While not entirely dispositive, this circumstance
renders a theory of retaliation quite doubtful. See, e.g.,
Grizzle, 14 F.3d at 268.
IV.
In sum, we are convinced that Chaney failed to prove causation
in light of the overwhelming factual evidence supporting NOPFMI’s
claim that it discharged Chaney for nonretaliatory reasons. The
speculations of a few co-workers provided a very slight amount of
circumstantial evidence to support Chaney’s retaliation theory.
This evidence is simply insufficient in light of NOPFMI’s perfectly
rational justification for discharging Chaney, based on a workplace
infraction which is not seriously disputed. Our conclusion is
bolstered by the absence of any evidence that Chaney’s supervisors
knew about his affidavit or its contents, the lack of evidence of
selective enforcement of polices, and the lapse of two years
between the protected action and the discharge. We conclude that
no reasonable juror could conclude that retaliation for the
affidavit actually motivated Chaney’s discharge.
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For the aforementioned reasons, we REVERSE the judgment below
based on the insufficiency of the evidence to prove retaliation.
Our disposition on this point renders moot Chaney’s appeal and all
other arguments raised by the parties.
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