Case: 20-30243 Document: 00515615134 Page: 1 Date Filed: 10/26/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 26, 2020
No. 20-30243
Lyle W. Cayce
Summary Calendar
Clerk
Golden K. Berry,
Plaintiff—Appellant,
versus
Sheriff’s Office Ouachita Parish; Sheriff Jay Russell;
Chief Deputy Marc Mashaw; Colonel James Purvis;
Scott Smith,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:18-CV-1397
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Golden Berry sued the Ouachita Parish Sheriff’s Office (“OPSO”)
and several individual officers, alleging racial discrimination and retaliation
for filing a complaint with the U.S. Equal Employment Opportunity Com-
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
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No. 20-30243
mission (“EEOC”). Berry moved for summary judgment on his retaliation
claim; the defendants moved for summary judgment denying both of Berry’s
claims. The district court denied Berry’s motion and granted the defen-
dants’. We affirm the denial of Berry’s motion for summary judgment on his
retaliation claim. We affirm the summary judgment regarding Berry’s racial
discrimination claim. Finally, we reverse the summary judgment in favor of
defendants on Berry’s retaliation claim.
I.
OPSO hired Berry, who is black, as a correctional officer in 2000. He
attained the rank of Corporal in 2003 and maintained his position for thirteen
years. His job required that he alternate between working day and night
shifts. Seeking to work consistent day shifts, Berry approached Deputy Scott
Smith about the possibility of transferring to a role in the Transitional Work
Release Center. Berry successfully applied for a deputy role at the center—
a demotion from his position as Corporal. He alleges that Smith assured him
that, despite taking a reduced rank, he would retain his current level of pay.
Smith denies making any such representation.
After transferring, Berry saw his pay decrease. He contends that
OPSO allowed white employees to transfer while maintaining both their rank
and their pay.
In November 2017, Berry filed a charge of racial discrimination with
the EEOC. He also filed a corrections statement in March 2018. Leaders
within OPSO learned of Berry’s EEOC complaint in late January or early
February 2018, at which point Captain Bryan Boney, who had replaced Smith
as director of the Transitional Work Release Program, reached out to Berry
and asked why he had filed a complaint.
In January or February 2018, Berry also qualified to run for city coun-
cil. He won his election in March 2018 and was scheduled to be sworn in as
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a councilman on June 29. Boney saw the election results on television and
notified Colonel James Purvis, who had the authority to fire Berry. Four days
later, Boney and Purvis summoned Berry and terminated his employment on
the basis that he could not hold office while working as a deputy sheriff.
OPSO did not offer Berry the opportunity to work until he was sworn in to
office, nor did OPSO give Berry the option to decline his elected position and
retain his employment at the Center.
Berry filed a charge of retaliation with the EEOC in May 2018 and
supplemental charges of retaliation and wrongful termination with the EEOC
in August 2018. In July 2018, the EEOC provided Berry with a right-to-sue
letter for his racial discrimination charge, and in September 2018 Berry
received a right-to-sue letter for his retaliation charge. Berry sued for dis-
crimination based on race and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e. Berry moved for summary judgment on his
retaliation claim, and the defendants moved for summary judgment on both
of Berry’s claims. The district court denied Berry’s motion and granted the
defendants’ motion, dismissing Berry’s claims with prejudice. Berry
appeals.
II.
We review a summary judgment de novo and apply the same legal stan-
dards as did the district court. Brown v. Wal-Mart Stores East, L.P., 969 F.3d
571, 576 (5th Cir. 2020). Per Federal Rule of Civil Procedure 56(a), summary
judgment is proper where the “movant shows that there is no genuine dis-
pute as to any material fact and the movant is entitled to judgment as a matter
of law.” We view all evidence in the light most favorable to Berry, the non-
moving party. Id.
A.
We first review the summary judgment on Berry’s racial discrimin-
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ation claim. To analyze whether a plaintiff has established a prima facie case
of racial discrimination under Title VII based on circumstantial evidence, we
apply the McDonnell Douglas framework. 1 Under that framework, a plaintiff
must show that he “(1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or suffered some adverse employ-
ment action by the employer; and (4) was . . . treated less favorably than other
similarly situated employees outside the protected group.” McCoy, 492 F.3d
at 556.
If the plaintiff establishes a prima facie case, the burden shifts to the
employer to provide a legitimate, nondiscriminatory reason for the action. Id.
at 557. If the employer does so, the burden shifts back to the plaintiff, who
then must establish either that the employer’s reason was pretext for discrim-
ination or that the plaintiff’s protected status was a motivating factor for the
action. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
Berry bases his racial discrimination claim on circumstantial evidence.
Applying the McDonnell Douglas framework, the district court found that he
failed to satisfy the fourth prong, explaining that he did not show that he was
treated less favorably than similarly situated employees outside his protected
class. The court stated, however, that even if Berry had established a prima
facie case, his claim would still fail because he had not shown that OPSO’s
given reason for his termination was pretext. 2
In providing a nondiscriminatory reason for reducing Berry’s pay,
OPSO contends that it did so because he voluntarily transferred into a posi-
1
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
2
Because the district court was correct in its pretext analysis regarding Berry’s
racial discrimination claim, we need not assess whether it properly found that Berry had
failed to establish a prima facie case of racial discrimination.
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tion with a lower rank in order to maintain a daytime work schedule. Because
defendants provided a nondiscriminatory reason for the adverse action, the
burden shifted back to Berry to show that the reason was pretextual or that
his protected status was a motivating factor in his pay decrease. See Alvarado,
492 F.3d at 611.
Berry failed to make such a showing. The defendants presented evi-
dence that the other transferees applied to open positions with ranks that
permitted them to maintain their pay. It is undisputed that Berry knowingly
and voluntarily transferred to a position with a lower rank. Although there is
a dispute of fact about whether he was promised that his pay would remain
the same despite his reduced rank, Berry did not show that other transferees
were permitted to take a position with a lower rank while maintaining their
pay. He failed, therefore, to provide evidence of disparate treatment, because
the employees whose transfers he pointed to as evidence of such treatment
were not similarly situated. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260
(5th Cir. 2009). Indeed, a plaintiff’s subjective belief that he was the victim
of racial discrimination is insufficient to create an inference of discriminatory
intent. Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004). The
district court properly granted summary judgment on the racial discrimina-
tion claim.
B.
Berry contends that the district court erred in denying his motion for
summary judgment. He also asserts that the district court erred in granting
OPSO’s motion for summary judgment on his retaliation claim.
Berry maintains that OPSO terminated him because he filed a racial
discrimination complaint with the EEOC. Under Title VII, employers may
not retaliate against an employee because the employee opposed a practice
made unlawful by Title VII, registered a complaint under Title VII, or parti-
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cipated in an investigation under the law. Brown, 969 F.3d at 576–77. Where
a retaliation case is based on circumstantial evidence, we apply McDonnell
Douglas. Id. at 577. That framework requires the plaintiff to establish a prima
facie case of retaliation by demonstrating “(1) that he engaged in activity
protected by Title VII; (2) that he suffered an adverse employment action;
and (3) that a causal connection exists between the protected activity and the
adverse employment action.” Byers v. Dall. Morning News, Inc., 209 F.3d
419, 427 (5th Cir. 2000).
As the district court correctly found, Berry established a prima facie
case of retaliation. Lodging his complaint with the EEOC was a protected
activity. OPSO terminated Berry from his job, and “termination is a classic
example of adverse employment action under our caselaw.” Hassen v. Ruston
La. Hosp. Co., 932 F.3d 353, 358 (5th Cir. 2019). Finally, by, inter alia, pro-
ducing evidence that OPSO had knowledge of his EEOC complaint before
his termination, Berry met the “causal connection” element. Thus, he satis-
fied the elements of a prima facie case of retaliation.
If a plaintiff establishes a prima facie case, the burden shifts to the
employer to produce a legitimate, nondiscriminatory reason for taking the
adverse action. Brown, 969 F.3d at 577. If the employer satisfies that burden,
then the burden returns to the plaintiff to show that the employer’s stated
reason is pretextual. Id. OPSO offered a nondiscriminatory reason for firing
Berry: because he violated the OPSO Manual of Rules by running for office
without notifying his superiors.
Because OPSO proffered a nondiscriminatory explanation, the burden
shifts to Berry to show that that reason was pretext for retaliation. Id. To
prevail in a claim that the employer’s reason was pretextual, a plaintiff must
establish “that the adverse action would not have occurred but for the
employer’s retaliatory motive . . . .” Feist v. La., Dep’t of Justice, Office of the
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Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013) (internal quotation marks omit-
ted). Furthermore, to survive a motion for summary judgment, a plaintiff
“must show that there is a ‘conflict in substantial evidence’ on this ultimate
issue.” Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (quoting
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012)). “Evi-
dence is ‘substantial’ if it is of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment might reach different
conclusions.” Hernandez, 670 F.3d at 658 (cleaned up).
In support of his contention that OPSO’s proffered reason for his ter-
mination was pretextual, Berry points to (1) the temporal proximity between
his supervisors’ learning of his EEOC complaint and his termination,
(2) OPSO’s shifting explanations for his termination, and (3) the inconsistent
application of OPSO policies against him compared to similarly situated
white employees.
Berry notes that OPSO learned of his complaint in late January or early
February 2018. He further points out that he was fired less than two months
later, within days of OPSO’s learning of his running for office. A two-month
gap between a protected activity and an adverse action is close enough to
serve as evidence of pretext—indeed, “‘a time lapse of up to four months’
may be sufficiently close” to provide such evidence. Feist, 730 F.3d at 454
(quoting Evans v. City of Hous., 246 F.3d 344, 354 (5th Cir. 2001)). Temporal
proximity “is relevant to, but not alone sufficient to demonstrate, pretext,”
so we proceed to examine Berry’s additional evidence. Brown, 969 F.3d
at 579.
Berry alleges that OPSO provided shifting explanations for his ter-
mination and that that inconsistency is evidence of pretext. “[A]n employ-
er’s inconsistent explanations for its employment decisions at different times
permits [sic] a jury to infer that the employer’s proffered reasons are pre-
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textual.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., L.P., 482 F.3d 408,
412 n.11 (5th Cir. 2007) (cleaned up).
OPSO provided shifting rationales for Berry’s termination. As the
district court noted, Colonel Purvis, Chief Mashaw, and Captain Boney ini-
tially testified that OPSO terminated Berry because he allegedly violated the
Louisiana law against dual officeholding. Similarly, Berry’s separation notice
states that his reason for termination was “Violation of Louisiana Law.”
Berry, however, cited caselaw to show that his employment with OPSO after
his election but months before assuming office did not violate Louisiana law.
Moreover, he established that at least one white employee worked for OPSO
between his election to office and his swearing-in. In response, OPSO offered
a different explanation for Berry’s termination, stating that he was fired for
violating policies in the OPSO manual. OPSO’s shifting reasons provide
some evidence of pretext.
Relatedly, Berry asserts that OPSO inconsistently applied its policies,
enforcing rules against him that it did not enforce against similarly situated
white employees. The “inconsistent treatment of [a plaintiff] raises disputed
issues of material fact as to whether[] but for exercising her rights she would
have been discharged.” Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d
702, 711 (5th Cir. 2016). Moreover, a “plaintiff may establish pretext by
showing that a discriminatory motive more likely motivated her employer’s
decision, such as through evidence of disparate treatment, or that her em-
ployer’s explanation is unworthy of credence.” Haire v. Bd. of Supervisors of
La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
OPSO contends that Berry violated the manual (1) by running for
office and, thereby, engaging in political activity and (2) by failing to request
permission from his supervisor before attaining outside employment. Berry,
however, points out that multiple OPSO employees have run for elected
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office. Indeed, one of them wore his OPSO uniform in a political advertise-
ment, contravening the manual’s ban on campaigning in uniform.
OPSO asserts that Berry is not similarly situated to the other employ-
ees who ran for office because they informed their supervisors that they were
running for office and took leaves of absence during their campaigns. Berry,
however, casts doubt on whether the other employees actually made formal
requests or took leaves of absence. Indeed, he points out that Sheriff Jay Rus-
sell testified that the policy requires employees to submit a letter before run-
ning for office. During discovery, Berry requested any documentation per-
taining to four other employees’ requests for leaves of absence. OPSO
answered that there were no responsive documents because leave was ver-
bally given. The absence of such documentation shows that, at the very least,
OPSO was not adhering to its own purported policy of requiring “a written
summary of proposed duties” before entering outside employment.
Moreover, Berry notes that his discovery requests included inquiries
for additional documentation of the other employees’ alleged leaves of
absence, such as payroll sheets. OPSO provided no such documents to show
that the alleged leaves of absence even occurred. The district court took
OPSO at its word that other employees had informed OPSO of their cam-
paigns and had taken leaves of absence when running for office; thus, the
district court concluded that OPSO’s reasons for terminating Berry were not
pretextual.
Berry, however, requested evidence that the other employees actually
requested and took leaves of absence, and OPSO did not provide any sup-
porting documentation. The absence of such evidence—which should be
readily available—raises an issue of material fact on the basis of which a rea-
sonable jury could find that OPSO’s purported reasons for terminating Berry
were pretextual. See, e.g., Garcia v. Prof'l Contract Servs., Inc., 938 F.3d 236,
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245 (5th Cir. 2019).
Considering the timing of his firing, OPSO’s shifting explanations for
his termination, and the possibility that OPSO applied its policy against Berry
but not against other employees who ran for office, we conclude that “taking
[the] evidence in its totality and in the light most favorable” to Berry “creates
a genuine issue of material fact.” Id. at 244. This does not mean that Berry
will necessarily prevail at trial or that his termination was definitively retalia-
tory. See id. at 246. But he has produced enough evidence to survive sum-
mary judgment on his retaliation claim.
We therefore AFFIRM the summary judgment dismissing Berry’s
racial discrimination claim. We AFFIRM the denial of Berry’s motion for
summary judgment on his retaliation claim. We REVERSE the summary
judgment for defendants on the retaliation claim and REMAND for further
proceedings as appropriate.
10