Payne v. University of Southern Mississippi , 643 F. App'x 409 ( 2016 )


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  •      Case: 15-60291      Document: 00513462331         Page: 1    Date Filed: 04/12/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-60291
    Fifth Circuit
    FILED
    April 12, 2016
    THOMAS PAYNE, Doctor,                                                      Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    UNIVERSITY OF SOUTHERN MISSISSIPPI; MARTHA SAUNDERS,
    Doctor, Individually and Officially; LISA NORED, Doctor, Individually and
    Officially; ROBERT LYMAN, Doctor, Individually and Officially; JOE
    WHITEHEAD, Doctor, Individually and Officially; DALE LEDFORD, Doctor,
    Individually and Officially; REX GANDY, Doctor, Individually and Officially,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 1:12-CV-41
    Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-60291      Document: 00513462331        Page: 2     Date Filed: 04/12/2016
    Plaintiff-Appellant Thomas Payne was a tenured Associate Professor of
    Criminal Justice at the University of Southern Mississippi (the “University”).
    Payne alleges that the University and several of its employees 1
    (1) Violated Title VII by retaliating against him for filing several
    EEOC charges and internal grievances;
    (2) Violated his First Amendment right to preach his Christian
    faith to his students;
    (3) Violated his substantive and procedural due process rights in
    numerous respects;
    (4) Breached his employment contract;
    (5) Violated the Equal Protection Clause by treating him
    differently from other professors because of his religious beliefs;
    (6) Intentionally or negligently inflicted emotional distress upon
    him; and
    (7) Intentionally misrepresented to him that he could engage in an
    unlimited amount of outside employment.
    The district court granted judgment in Defendants’ favor on all of Payne’s
    claims. We affirm in part and dismiss the appeal in part.
    I.
    We first address Payne’s Title VII retaliation claims. Payne asserts that
    the University 2 subjected him to a series of retaliatory actions after he filed
    multiple internal grievances and EEOC charges. Among other adverse actions,
    he claims that the University unlawfully limited his ability to engage in
    1  As the district court observed, Payne’s complaint does not specify which causes of
    action he asserts against which Defendants.
    2 Payne concedes on appeal that only the University, and not the individual
    defendants, may be held liable under Title VII.
    Case: 15-60291         Document: 00513462331           Page: 3     Date Filed: 04/12/2016
    No. 15-60291
    outside employment and gave him an unfavorable and inaccurate performance
    evaluation.
    A.
    Under this Court’s burden-shifting framework, if the plaintiff
    establishes a prima facie case of retaliation, the employer must provide a
    legitimate, nonretaliatory reason for the adverse action. 3 “After the employer
    states its reason, the burden shifts back to the employee to demonstrate that
    the employer’s reason is actually a pretext for retaliation[.]” 4
    To establish pretext in the Title VII retaliation context, the employee
    must show “that the adverse action would not have occurred ‘but for’ the
    employer’s retaliatory motive.” 5 A court may grant judgment in the employer’s
    favor if the employee creates only a “weak issue of fact” as to whether the
    employer’s reason for the challenged employment action is untrue, and there
    is “abundant and uncontroverted independent evidence” that no retaliation
    occurred. 6
    For the following reasons, the district court correctly concluded that
    Payne failed to introduce sufficient evidence of pretext.
    3 Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 
    730 F.3d 450
    , 454 (5th Cir. 2013).
    4 
    Id.
    5 
    Id.
     (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 
    133 S. Ct. 2517
    , 2533 (2013)).
    6 Reeves v. Sanderson Plumbing Prods., 
    530 U.S. 133
    , 148 (2000).
    Payne argues that Reeves’s “weak issue of fact” standard applies only in
    discrimination cases, not retaliation cases. That is incorrect. This Court has repeatedly
    applied the “weak issue of fact” standard in retaliation cases and discrimination cases alike.
    See Harrelson v. Lufkin Indus., Inc., 614 F. App’x 761, 765 (5th Cir. 2015); Ellerbrook v. City
    of Lubbock, Tex., 465 F. App’x 324, 331 (5th Cir. 2012); Leal v. BFT, Ltd. P’ship, 423 F. App’x
    476, 481 (5th Cir. 2011); Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 
    446 F.3d 574
    ,
    583-84 (5th Cir. 2006); Montemayor v. City of San Antonio, 
    276 F.3d 687
    , 694 (5th Cir. 2001).
    3
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    No. 15-60291
    B.
    There is no evidence that the University’s reasons for restricting Payne’s
    outside employment were pretextual. The record unequivocally establishes
    that the University sought to restrict Payne’s outside employment several
    months before he engaged in any protected activity. As a result, no reasonable
    juror could conclude “that the adverse action would not have occurred ‘but for’
    the employer’s retaliatory motive.” 7
    C.
    We also conclude that Payne has not shown that the University’s reasons
    for his unfavorable performance review were pretextual. The University gave
    Payne an unfavorable performance review in 2009, citing perceived deficits in
    the areas of “Service & Advising,” “Scholarship,” and “Instruction.” Payne
    claims that the University gave him this unfavorable evaluation as retaliation
    for filing multiple grievances against the University.
    “Merely disputing” an employer’s assessment of the plaintiff’s work
    performance “will not necessarily support an inference of pretext.” 8 The
    question is whether the employer’s perception of the plaintiff’s performance,
    accurate or not, was the real reason for the challenged adverse employment
    action. 9
    After reviewing the record, we conclude that no reasonable juror would
    find that the University based the unfavorable evaluation on anything other
    than its perception that Payne had performed poorly. The record establishes
    that the University was dissatisfied with Payne’s engagement with students
    7See Feist, 730 F.3d at 454 (citing Nassar, 
    133 S. Ct. at 2533
    ).
    8Shackelford v. Deloitte & Touche, LLP, 
    190 F.3d 398
    , 408 (5th Cir. 1999) (citations
    omitted).
    9 
    Id. at 408-09
    .
    4
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    No. 15-60291
    and lack of publications in peer-reviewed journals as early as 2005, several
    years before Payne filed his first grievance in 2009. Thus, once again, no
    reasonable juror could conclude “that the adverse action would not have
    occurred ‘but for’ the employer’s retaliatory motive.” 10
    D.
    Payne raised other Title VII retaliation claims in addition to the two
    claims discussed above. We affirm the judgment in the University’s favor on
    those claims essentially for the reasons given by the district court.
    II.
    Payne also raised numerous constitutional and state law claims against
    Defendants. The district court entered judgment in Defendants’ favor on all of
    them. After reviewing the record, the district court’s order, the parties’
    arguments, and the relevant case law, we conclude that the district court
    committed no error. We therefore affirm the judgment in its entirety.
    III.
    The district court also awarded Defendants attorneys’ fees because it
    concluded    that    Payne     unreasonably        and    vexatiously      multiplied   the
    proceedings. Payne attempts to challenge the fee award on appeal.
    We lack jurisdiction to review the fee award. 11 If Payne wishes to
    challenge the district court’s order awarding attorney’s fees, he must file a
    separate notice of appeal. 12
    10 See Feist, 730 F.3d at 454 (citing Nassar, 
    133 S. Ct. at 2533
    ).
    11 See Armour v. Knowles, 
    512 F.3d 147
    , 156 (5th Cir. 2007).
    12 See 
    id.
    5
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    No. 15-60291
    IV.
    The judgment is AFFIRMED. The appeal is DISMISSED to the extent
    Payne attempts to challenge the district court’s award of attorneys’ fees.
    6