John Brooks v. Lubbock County Hospital

Filing 511077459

Case: 09-11222

Document: 00511077459

Page: 1

Date Filed: 04/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 12, 2010 N o . 09-11222 S u m m a r y Calendar Lyle W. Cayce Clerk

J O H N W BROOKS, P l a in t i f f - A p p e l l a n t v. L U B B O C K COUNTY HOSPITAL DISTRICT, doing business as UMC Health S y stem , D e fe n d a n t-A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:08-CV-92

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o h n W. Brooks claims UMC Health System terminated his employment b e c a u s e of his race and in retaliation for filing various discrimination suits a g a in s t UMC. The district court granted the UMC's motion for summary

ju d g m e n t and dismissed the suit, finding Brooks failed to make out a prima facie

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 09-11222 c a s e and that even if he did, Brooks cannot show UMC's rationales were a mere p r e te x t. We agree with the district court and affirm.

I B r o o k s , an African American male, was hired by UMC in 1987. Brooks w o r k e d under Charlotte Carlson for over thirteen years in the Patient A c c o u n t in g department and was considered a good employee. However, in 2000, d u e to corporate restructuring, Brooks began reporting to the Director of A d m it t in g and problems arose. Carlson asked whether Brooks would like to r e tu r n to Patient Accounting and was transferred that year. There he reported t o assistant directors of Patient Accounting, who in turn reported to Carlson. B r o o k s had few problems until August of 2005, when Carlson had a job p e r f o r m a n c e counseling session with Brooks regarding an inappropriate r e la t io n s h i p Brooks had with one of his subordinates.1 During the first quarter o f 2007, after another reorganization, Brooks began to report to Carlson again. C a r ls o n claims that she quickly assessed Brooks's performance as "substandard." M e a n w h ile , in 2001, Brooks brought the first of what has now been three s e p a r a te EEOC discrimination charges against UMC. He subsequently sued in T e x a s court in 2002, which the court eventually dismissed in 2005. In 2006, s h o r t ly after the Supreme Court denied cert in his original claim, Brooks filed a second EEOC charge alleging retaliation for the first suit. He again sued, this

One of Brooks's subordinates claimed sexual harassment, however Carlson's review of emails led her to believe it had been a two-way relationship. The subordinate was assigned to another supervisor and Brooks was informed that he would be terminated if he participated in another inappropriate relationship.

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No. 09-11222 t im e in federal court, and the district court dismissed this suit on May 29, 2007. W e later dismissed Brooks's appeal for lack of prosecution.2 O n October 5th, 2007, Carlson had another job performance counseling s e s s io n with Brooks. Brooks raised a number of issues, including concerns about h is failure to keep up with changes in the commercial area, his ability to perform a s a supervisor, and failure to determine proper payments. Carlson's report s ta te d that she had engaged in several conversations with Brooks regarding his p e r fo r m a n ce and that he claimed a number of personal issues had been holding h im back. She stated that though she had previously given him the benefit of t h e doubt, he had become more of a detriment to her department than an asset. O n October 29th 2007, Carlson received an independent consultants report w h ic h revealed Brooks had failed to catch a $400,000 underpayment of one of his a cc o u n ts . Carlson asked Brooks to resign and he complied. B r o o k s now sues UMC for a third time alleging that his termination was t h e result of race discrimination and retaliation. UMC moved for summary ju d g m e n t contending Brooks was terminated solely on the basis of his p e r fo r m a n c e . The district court granted the motion and Brooks now appeals.

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Brooks v. Lubbock County Hosp., No. 07-10733 (5th Cir. Sep. 11, 2007) (Order dismissing appeal for failure to file briefs).

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No. 09-11222 W e review the grant of a motion of summary judgment de novo.3 A grant o f summary judgment is proper when there is no genuine issue of material fact a n d the movant is entitled to judgment as a matter of law.4 W e consider claims of intentional discrimination, including both race d i s c rim in a t io n and retaliation claims based on Title VII and 42 U.S.C. § 1981 u n d e r the same familiar McDonnell Douglas analysis.5 To sustain a claim under t h is framework, the plaintiff must first establish a prima facie case of d is c r i m i n a t io n . "To establish a prima facie case of racial discrimination in e m p loy m e n t, an employee must demonstrate that (1) he is a member of a p r o t e c t e d class, (2) he was qualified for the position at issue, (3) he was the s u b je c t of an adverse employment action, and (4) he was treated less favorably b e c a u s e of his membership of the protected class than were other similarly s itu a te d employees who were not members of the protected class, under nearly i d e n t ic a l circumstances." 6 To establish a prima facie case of retaliation the e m p l o y e e must demonstrate: "(1) that the plaintiff engaged in activity protected b y Title VII, (2) that an adverse employment action occurred, and (3) that a c a u sa l link existed between the protected activity and the adverse employment a c t io n ." 7 Once a prima facie case has been established the burden of production

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Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). Id.

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Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002); McDonnell Doughlas Corp., v. Green, 411 U.S. 792, 802 & n.13 (1973). Lee v. Kansas City Southern Railway Co., 574 F.3d 253, 259 (5th Cir. 2009); McDonnell Douglas Corp, 411 U.S. at 802.
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Raggs, 278 F.3d at 471; Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001).

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No. 09-11222 s h i ft s to the employer who must furnish a legitimate nondiscriminatory e x p la n a t io n .8 If the employer provides such an explanation, the inference of d is c r i m in a t io n falls away and the burden shifts back to the employee to d e m o n s t r a te the explanation is a mere pretext for discrimination or retaliation.9 W e turn first to the claim of race discrimination and then to the retaliation c la im . T h e district court found Brooks failed to establish the fourth prong of his p r im a facie case: that he was treated less favorably because he was African A m e r ic a n than similarly situated employees of a different race. In support of his p r im a facie case, Brooks claims two Anglo American employees did not suffer the s a m e disciplinary consequences, job performance counseling and termination, e v e n after they allegedly also lost as much as $600,000. I n order to establish a prima facie case, Brooks must establish that the A n g lo American employees were "similarly situated to him." We "require that a n employee who proffers a fellow employee as a comparator demonstrate that t h e employment actions at issue were taken `under nearly identical c ir c u m s ta n c e s .'" 1 0 The employee being compared must have "held the same job o r responsibilities, shared the same supervisor or had their employment status d e t e r m in e d by the same person, and have essentially comparable violation h is t o r ie s . And, critically, the plaintiff's conduct that drew the adverse

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Lee, 574 F.3d at 259; Evans, 246 F.3d at 354-55. Lee, 574 F.3d at 259; Evans, 246 F.3d at 354-55. Lee, 574 F.3d at 260.

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No. 09-11222 e m p l o y m e n t decision must have been `nearly identical' to that of the proffered c o m p a r a to r who allegedly drew dissimilar employment decisions."1 1 T o demonstrate Brooks offers a series of emails purporting to show two A n g lo American employees also lost significant amounts of money through the m is m a n a g e m e n t of accounts. It is difficult from the record to determine what, if anything, the evidence Brooks offers demonstrates. However, even assuming t h e evidence demonstrates the other employees lost money as well, he has not s h o w the other employees were similarly situated. Brooks makes no showing t h a t he and the other employees had essentially comparable violation histories.1 2 W h e n the mismanagement of the account was discovered, Brooks had recently u n d e r g o n e a job performance counseling session in which Carlson detailed a lit a n y of complaints and concerns regarding Brooks's job performance. Carlson's r e p o r t stated Brooks failed to follow through on instructions, received no respect f r o m the employees he supervised, could not identify problems, failed to d e te r m in e correct payments, failed to respond to emails such that Carlson had t o be cc'ed on all of his emails, and many other problems. Nor was that his first jo b performance counseling session. Brooks disputes none of this but offers no e v id e n c e the other employees' performances were similarly deficient. Brooks c a n n o t establish a prima facie case of race discrimination. T h e district court also found Brooks failed to establish a prima facie case o f retaliation as he failed to prove that his termination was causally connected t o his EEOC complaints and lawsuits. Brooks offers three incidents which he
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Id.

See Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001) (finding other employees with disciplinary infractions to be sufficiently dissimilar as they had less severe disciplinary histories).

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Date Filed: 04/12/2010

No. 09-11222 c la im s supports a finding of a causal connection. He claims another supervisor t h r e a te n e d to terminate him in July of 2006, that on May 17, 2007 Carlson made a direct threat to terminate Brooks for filing the EEOC charges, and that C a r ls o n demanded Brooks apologize to the CFO of UMC and another manager fo r filing the EEOC charges. Importantly, the comments were made while B r o o k s 's second suit was ongoing and before it was dismissed by the district c o u r t . Brooks did not bring any additional claims between when the comments w e r e made and his eventual termination. The causal link between his

te r m in a tio n and the EEOC charges and lawsuits is weak at best. However, even assuming Brooks made out a prima facie case, Brooks does n o t provide evidence demonstrating UMC's legitimate reason for firing him was m e r e ly a pretext. "Our job as a reviewing court conducting a pretext analysis is n o t to engage in second-guessing of an employer's business decisions." 1 3 As the d i s tr ic t court found, UMC presents a legitimate reason for terminating Brooks, h is progressively worsening job performance culminating in his failure to catch a $400,000 underpayment in one of his accounts. Brooks admits the error and d o e s not dispute the other allegations regarding his poor performance. Rather h e claims that his performance was due to stressful working conditions caused b y Carlson's counseling sessions and emails berating him for mistakes. It is u n c le a r how, even if this is true, it would demonstrate UMC's rationale was p r e t e x t as opposed to Brooks's increasing inability to perform his job. Brooks o f fe r s no evidence suggesting that the counseling sessions were initiated with u n la w fu l motive as opposed to an honest effort to get Brooks's performance back t o the levels it had been previously. Carlson had previously given Brooks good

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LeMaire v. Louisiana Dep't of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007).

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Date Filed: 04/12/2010

No. 09-11222 r e v ie w s -- e v e n while his first suit was ongoing 1 4 -- a n d she claims to have c o n s id e r e d Brooks a friend up until his performance began to decline. Nor does B r o o k s 's allegation that Carlson threatened him demonstrate UMC's rationale w a s a pretext. The comment was made five months before the job performance c o u n s e lin g session and auditor's report. It does not suggest, and Brooks does not c la im , that the allegations of poor performance or the report's findings were u n tr u e . As Brooks offers little to no evidence suggesting UMC's claim that it te r m in a te d Brooks for performance reasons is false, he cannot demonstrate it w a s merely a pretext for retaliation. B r o o k s has not demonstrated a genuine issue of material fact evidencing u n la w fu l discrimination or retaliation by UMC in it's termination of Brooks. T h e district court's grant of summary judgment is AFFIRMED.

This court has recognized that when the same actor who fired the employee also hired him gives an inference against discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). The same logic applies here: Carlson recruited Brooks in 2000 to come back to work for her department and did not find problems until another employee complained of an inappropriate relationship in 2005, even after Brooks's first suit was filed in 2002.

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