Case: 14-50320 Document: 00512875507 Page: 1 Date Filed: 12/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50320 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
December 18, 2014
FAKIH J. KHALFANI, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
BALFOUR BEATTY COMMUNITIES, L.L.C.,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CV-422
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
In this employment discrimination case, the plaintiff, Fakih J. Khalfani
(“Khalfani”) levies two charges against his former employer, Balfour Beatty
Communities, L.L.C. (“Balfour”): (1) unlawful retaliation, and (2) race and
color discrimination. Balfour moved for summary judgment on both counts,
which the district court granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-50320
Khalfani was an African American employee of Balfour, which owns and
operates military housing at Fort Bliss, Texas. During his tenure at the
company, he raised several complaints about racially discriminatory behavior
with his supervisor. At the time of his termination, Khalfani was a housing
inspector who was responsible for “checking out” rental property after the
previous tenants had left – in essence to determine what, if any, repairs needed
to be conducted when a rental unit was transferred to a new tenant. In August
2011, Balfour received a complaint that, during a check out, Khalfani had
removed and disposed of certain personal items belonging to a former resident.
Khalfani was terminated a few days later.
We analyze this case pursuant to our Title VII jurisprudence. 1 In
general, that analysis follows in three parts: (1) the employee-plaintiff must
make a prima facie case of unlawful retaliation or race/color discrimination, (2)
the burden of production shifts to the employer-defendant, who must articulate
a legitimate, non-discriminatory reason for the challenged action, and (3) if it
does, the plaintiff can show that the defendant’s stated reason is pretextual. 2
The district court concluded – and we agree – that Khalfani had met his burden
of making a prima facie showing of retaliation and race/color discrimination,
and then that Balfour had shown adequate neutral reasons for taking the job
1 Khalfani brought both his race and color discrimination claim and his retaliation
claim pursuant to Chapter 21 of the Texas Labor Code and 42 U.S.C. § 1981. R. 1380. The
legal framework governing claims under both statutes is the same as for claims brought
under Title VII. See, e.g., Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014)
(discrimination claim brought under section 1981 is analyzed pursuant to Title VII
framework); Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (retaliation claim brought
under section 1981 is analyzed pursuant to Title VII framework); Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 219 n.10 (5th Cir. 2001) (claims brought pursuant to Chapter 21 of the
Texas Labor Code are analyzed pursuant to Title VII framework).
2 See, e.g., Haire v. Bd of Sup’rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356,
362-63 (5th Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
2
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actions at issue. The court then held that Khalfani had made an insufficient
showing of pretext in both his race/color and retaliation claims.
While we agree with the district court’s pretext analysis, Khalfani raises
several arguments in his appellate briefing that were not addressed by the
lower court, and which warrant consideration here. 3
I.
Turning first to the unlawful retaliation claim, Khalfani now focuses on
two arguments to show pretext. First, he points to the behavior of his
supervisor, and states that when he complained of mistreatment based on his
race, the supervisor would turn “red in the face” and would get angry with him
after he brought up reports that he had been racially discriminated against. 4
Taking these statements about the supervisor’s emotional reaction as true, as
we must, they are not enough to show pretext. We have held that “[a]n oral
statement exhibiting discriminatory animus may be used to demonstrate
pretext.” 5 Here, there are no explicit oral statements, rather there are
emotional reactions. We have never held that non-verbal evidence alone is
sufficient to show pretext, though there is no logical reason why it could not be
used under certain circumstances. The determining factor is the clarity of the
evidence: we require such statements to clearly “demonstrate discriminatory
3 While these arguments were not discussed in depth in Khalfani’s memorandum in
opposition to summary judgment, they were mentioned in district court papers. As such, we
do not consider them waived, nor does the appellee so argue. See Blackwell v. Laque, 275 F.
App’x 363, 366 n.3 (5th Cir. 2008) (unpublished).
4 Khalfani cites to a deposition where he acknowledged that his supervisor “never said
anything derogatory to [him] about [his] race,” but stated that when he complained about
discrimination, the supervisor “just turned really red in the face.” R. 863. In an affidavit,
Khalfani averred that “[t]he more I brought this up to him [the alleged differential treatment
based on race], the angrier he got with me.” R. 975.
5 Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003); see also Kanida v. Gulf Coast
Medical Personnel LP, 363 F.3d 568, 581 (5th Cir. 2004) (“comments are admissible to show
pretext if they 1) show retaliatory animus and 2) were made by the individual primarily
responsible for the retaliatory conduct.”).
3
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animus,” 6 and here, it is not clear, without more, that animus motivated the
supervisor’s emotional reaction.
Second, Khalfani argues that the district court should have looked at the
“course of conduct [against him],” including changes in his job responsibilities,
increased scrutiny of his activities, and false discipline. 7 We have
acknowledged that course of employer conduct can be relevant, and have held
that “the combination of suspicious timing with other significant evidence of
pretext” can warrant denial of a summary judgment motion. 8 This standard
can be met when, for example, the plaintiff had highly positive performance
reviews up until the complaint was leveled against the company, and then
suffered a sharp decline in treatment immediately after the protected conduct
occurred. 9 It is not met here. Rather, as the district court concluded, there
was a lack of clear temporal proximity between the complaints and the
negative job consequences, making it difficult to find the sharp decline in
treatment we have previously used to infer causality, and with it, pretext. 10
Given the Supreme Court’s recent clarification that a plaintiff making a
retaliation claim “must establish that his or her protected activity was a but-
for cause of the alleged adverse action by the employer,” 11 we cannot conclude
that Khalfani has adequately shown pretext.
II.
Khalfani’s second claim was for race and color discrimination. In his
briefing, Khalfani focuses on two arguments: (1) that he did not violate
6 Laxton, 333 F.3d at 583.
7 Appellant Br. 49.
8 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999).
9 Id. at 409-10 (collecting cases).
10 See R. 1399-1400.
11 Univ. of Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2534 (2013).
4
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Balfour’s policy when he threw out the tenant property, and (2) even if he did
violate the policy, the policy was inconsistently applied.
Turning to the first issue, there is evidence in the summary judgment
record that there was no written documentation of a policy about not disposing
of material left by tenants. 12 Even assuming this is true, as we do, it is of no
moment. We have held that a good faith termination based on neutral reasons
– even mistaken reasons – does not violate antidiscrimination law. 13 The key
inquiry is thus whether Khalfani’s supervisor believed that Khalfani’s actions
violated procedure, not whether those actions actually violated such a policy.
And as the district court noted, there is no evidence in the record in support of
that proposition. 14
Next, Khalfani argues that the tenant property policy was inconsistently
applied, and puts forth testimony from his deposition that other inspectors had
thrown out resident property and had not been terminated. 15 This is not
enough. Though we have held that differential treatment of similarly-situated
employees can show pretext, we require that the contexts be “nearly
identical,” 16 and here there is no evidence in the record about the relative
contexts of employees who were responsible for the disposal of tenant property.
As a consequence, Khalfani’s second pretext argument falls short.
12 See R. 943-43. The Balfour official who testified at a deposition that there was no
written policy did, however, state that there was a “standard operating procedure” forbidding
employees from throwing out tenant property without permission. See id. Moreover, there
does appear to be a written code of conduct which prohibits this behavior. See id. at 1412.
13 See, e.g., Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 477 (5th Cir. 2005).
14 See R. 1412-13.
15 See id. at 854 (“Q: Are you aware of any other employees that were Turnkey
Inspectors that did a turn ultimately resulting in some valuable property being disposed of,
that weren’t terminated? A [Khalfani]: I can remember an incident happening at Biggs
Airfield, the Sergeant Major Academy….[s]omebody went and took everything out of that
unit. The Inspector was not terminated.”).
16 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 659 (5th Cir. 2012).
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III.
For the aforementioned reasons, as well as the reasons expressed in the
district court opinion, we AFFIRM the district court decision granting
summary judgment in favor of the defendant.
6