Robert Ray, Sr. v. GEO Group, Incorporated , 547 F. App'x 443 ( 2013 )

Case: 13-60239 Document: 00512426956 Page: 1 Date Filed: 11/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
13-60239 November 1, 2013
Summary Calendar
Lyle W. Cayce
Clerk
ROBERT J. RAY, SR.,
Plaintiff-Appellant
v.
THE GEO GROUP, INCORPORATED; ALTON DALE CASKEY; RICARDO
GILLISPIE; DOROTHY POPE; KEN MORGAN; DENNIS HUGGINS; KINO
REESE; CHRISTOPHER THRIFT; JAMES ALEXANDER; KATINA
BROOKS,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:11-CV-133
Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Before the Court is the appeal of an order granting summary judgment
with respect to Plaintiff-Appellant’s various claims of employment
discrimination and civil rights violations. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60239 Document: 00512426956 Page: 2 Date Filed: 11/01/2013
No. 13-60239
Robert J. Ray, Sr., (“Ray”) is a former correctional counselor 1 who
threatened a co-worker after the co-worker reported that Ray had violated
workplace computer-use policy. Ray, in fact, concedes that he said, “I’m going
to kill you and I know how to do it.” Shortly after this incident, his employer
held a hearing and dismissed Ray because the threats violated corporate
policy. Ray then filed suit against his former employer and several former co-
workers, alleging that the employer’s explanation for the termination was
mere pretext for a termination prohibited by law. Ray argues that the true
motivation is either his race, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2; or his history of activity protected by the Fair Labor
Standards Act, 29 U.S.C. § 215(a)(3). Ray also alleges that certain former co-
workers violated 42 U.S.C. §§ 1983 and 1985 when they initiated the
termination proceedings and/or facilitated a criminal prosecution arising out
of the incident. 2
The district court granted summary judgment with respect to all of Ray’s
claims. We review summary judgment de novo, applying the same standard
as the district court, and considering all facts in the light most favorable to the
non-moving party. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013).
Summary judgment is appropriate only if there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56.
We first turn to Ray’s claims that his employer impermissibly dismissed
him from his position in violation of either Title VII or the FLSA. It is
undisputed that the employer has offered an ostensibly legitimate reason for
termination. Ray thus bears the burden of producing evidence of pretext.
1 Ray served as a counselor to inmates at a Mississippi penitentiary, but did not work
for the state. He worked for a private entity that provides correctional services.
2 The precise nature of the claim is unclear, as explained infra.
2
Case: 13-60239 Document: 00512426956 Page: 3 Date Filed: 11/01/2013
No. 13-60239
Samford v. Stolle Corp., 181 F.3d 96 n.2 (5th Cir. 1999) (an FLSA case,
applying the McDonnell-Douglas framework as explained in Long v. Eastfield
Coll., 88 F.3d 300, 304–05 (5th Cir. 1996), a Title VII case).
Ray’s primary argument on appeal revolves around a silent surveillance
video of the incident. Ray claims that this blurry, wordless video somehow
shows that his threat was not serious, and that he never intended any physical
harm to his co-worker. 3 He proposes, therefore, that because the threat was
not serious, there must have been some ulterior motive behind his firing. This
argument is not persuasive. Even if we were inclined to determine when
workplace death threats become sufficiently serious to justify termination—
which we are not—the only suggestion that Ray’s language should not be
construed as such a threat is Ray’s own affidavit. Indeed, multiple witnesses
have described the incident, but no one corroborates Ray’s version of the facts.
Yet it is well settled that “a self-serving affidavit, without more evidence, will
not defeat summary judgment.” Sanchez v. Dall./Fort Worth Int’l Airport Bd.,
438 F. App’x 343, 346–7 (5th Cir. 2011) (citing DIRECTV, Inc. v. Budden, 420
F.3d 521, 531 (5th Cir. 2005)).
Moreover, we have emphasized that a plaintiff alleging pretext cannot
survive summary judgment merely by “disputing the truth of the underlying
facts” that led to an employment decision. Haverda, 723 F.3d at 596 n.1.
Instead, he must submit sufficient evidence to “support an inference” that the
employer had an impermissible motive. Id. Here, even taking Ray’s affidavit
as true, he has provided no evidence of such a motive. There is nothing in the
record to link his two-year-old FLSA claim to the termination, such that there
3 Ray claims that he only intended to expose the co-worker’s fraudulent credentials
and try to get him fired. Ray wants to recharacterize the death threat so he can argue that
his misconduct was indistinguishable from behavior for which other employees were not
fired. However, as explained, Ray has no support for the claim that his threats should not
have been taken seriously.
3
Case: 13-60239 Document: 00512426956 Page: 4 Date Filed: 11/01/2013
No. 13-60239
might be a violation of 29 U.S.C. § 215. See Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273–274 (2001) (finding a lapse of twenty months inadequate to
allow such an inference). Nor is there any indication that his termination was
motivated by race in violation of Title VII. And the fact that he was replaced
by a man of the same race only further undermines this claim. Goree v.
Comm’n Lincoln Parish Detention Ctr., 437 F. App’x 329, 331 (5th Cir. 2001);
Newman v. First Baptist Church of W. Monroe, 983 F.2d 232 (5th Cir. 1993)
(unpublished). Consequently, Ray has provided no evidence of pretext, and we
affirm summary judgment with respect to these claims.
Ray’s § 1983 claim also fails. Section 1983 prohibits the deprivation of
“any rights, privileges, or immunities secured by the Constitution and laws” by
a person acting under color of law. 42 U.S.C. § 1983. Ray argues that his
former employer and several co-workers filed false criminal charges and then
committed perjury at the subsequent trial for assault. It is unclear exactly
which right has allegedly been breached. Regardless, Ray has not explained
how his co-workers or former employer acted under “color of law.” The
Supreme Court has long emphasized that actionable deprivations must be
based on “[m]isuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” United
States v. Classic, 313 U.S. 299, 326 (1941). Here, the misconduct Ray alleges—
perjury and the false filing of criminal charges—are not made possible by state
authority, but could readily be committed by any private individual. Nor has
Ray presented any evidence that the state “exerted coercive power [over] or
provided significant encouragement” to the actors. Cornish v. Corr. Servs.
Corp., 402 F.3d 545, 549 (5th Cir. 2005) (citations omitted). In addition, it
appears that Ray is indirectly challenging the validity of his criminal
proceeding and conviction, which is not a permissible use of § 1983. See
4
Case: 13-60239 Document: 00512426956 Page: 5 Date Filed: 11/01/2013
No. 13-60239
Cormier v. Lafayette City-Parish Consol. Gov’t, 493 F. App’x 578, 583 (5th Cir.
2012) (collecting cases).
Finally, we likewise affirm the court’s decision with respect to Ray’s
claim under 42 U.S.C. § 1985. Section 1985 prohibits, inter alia, conspiracy to
deprive “any person or class of persons the equal protection of the laws.”
Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010).
Despite a careful review of Ray’s filings, the factual and legal foundation of his
§ 1985 claim remains unclear. Before the district court, Ray argued that the
claim is rooted in alleged perjury at his workplace hearing and criminal trial;
yet now he abandons that argument and insists that the claim is rooted in a
longstanding practice of racial discrimination by his former employer. His
briefs cite no legal authority to support either argument, and his allegations of
conspiracy are wholly conclusory. Where, as here, an appellant fails to state
his “contentions and the reasons for them, with citations to the authorities . . .
on which [he] relies,” the appellant’s argument is waived. Raj v. La. State
Univ., 714 F.3d 322, 327 (5th Cir. 2013) (quoting FED. R. APP. P. 28); see also
Offord v. Parker, 456 F. App’x 472, 475 (5th Cir. 2012) (noting that plaintiff-
appellant’s allegations of conspiracy were conclusory).
Consequently, for the reasons stated herein, summary judgment is
AFFIRMED.
5