Bellow v. Charbonnet ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30729
GENEVIEVE BELLOW, ET AL,
Plaintiffs,
LINDA CHERAMIE; ANGELA ESTADE;
MONICA LEWIS; WANDA MASON;
DARLENE MONJU; WILBERINA RUSSELL,
Plaintiffs-Appellants,
v.
DESIREE CHARBONNET; ET AL,
Defendants,
DESIREE CHARBONNET,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
98-CV-3121-I
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September 18, 2001
Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.
PER CURIAM:**
Plaintiffs-Appellants (“Plaintiffs”) are six former
employees of the Orleans Parish Recorder of Mortgages Office.
*
Circuit Judge of the Third Circuit, sitting by designation.
**
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this opinion should not be published and is not precedent except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.
Plaintiffs were terminated after their employer, then-Recorder of
Mortgages, Michael McCrossen (“McCrossen”), was defeated by
Defendant-Appellant Desiree Charbonnet (“Charbonnet”).
Plaintiffs filed the instant action against Charbonnet under 42
U.S.C. § 1983, alleging that they were terminated based on their
political activity in violation of the First Amendment. The
district court granted summary judgment in favor of Charbonnet,
holding that Plaintiffs failed to present a genuine issue of
material fact regarding whether they were terminated for
political reasons. For the reasons that follow, we AFFIRM.
I. Facts and Procedural History
The relevant facts are largely undisputed. Charbonnet was
elected as the new Recorder of Mortgages for the Orleans Parish
on February 7, 1998 and assumed office on May 4, 1998. On
February 21, 1998, Charbonnet hired Carol Carter (“Carter”) to
assist her with the transition. Carter was a real estate
abstractor who had worked in various Orleans Parish public
records offices for more than twenty years and was familiar with
the operations and staff of the Recorder of Mortgages office.
She was not an active supporter of Charbonnet’s campaign. In
fact, although she had been friendly with Charbonnet during the
campaign, Carter had provided financial support to McCrossen’s
campaign. Despite Carter’s support of McCrossen, Charbonnet
appointed her as the Chief Deputy Clerk in the Office of Recorder
2
of Mortgages. Among Carter’s duties during the transition was to
provide an assessment of the existing personnel working in the
Office and recommend retaining or terminating them.
It is undisputed that the transition period between the
McCrossen and Charbonnet administrations was marked with
difficulty. McCrossen, who according to Plaintiff Wanda Mason
(“Mason”) was bitter about the campaign, refused to cooperate
with Charbonnet. Although Charbonnet made an effort to contact
McCrossen, he never personally returned her call. On March 11,
1998, Charbonnet wrote McCrossen requesting an office tour and an
opportunity to interview current employees. McCrossen refused
this request. Moreover, he prohibited Charbonnet from
interviewing employees during office hours. This lack of
cooperation delayed the transition process and reportedly angered
Charbonnet. See Ps. Br. 25 (“It is undisputed that . . . bad
feelings on both sides remained following the election.”).
On April 24, 1998, Charbonnet terminated twenty-eight
employees, reappointed twenty employees, and appointed fourteen
new employees.1 Plaintiffs were among the twenty-eight employees
1
All expenses of the Recorder of Mortgages Office are paid
from the Judicial Expense Fund for Orleans Parish. The Judges of
the Civil District Court for Orleans Parish appropriated funds for
forty-four positions in the Office. Previously, under McCrossen,
funds had been allocated for fifty-four positions. Thus, due to
the budget reduction, Charbonnet was required to eliminate ten
positions.
3
terminated by Charbonnet.2 In addition to working for McCrossen
during his term as Recorder of Mortgages, Plaintiffs each
assisted him in his campaign against Charbonnet. Four of the
Plaintiffs engaged in campaign leafleting for McCrossen; one
hosted a political party for McCrossen; and the other frequently
represented McCrossen at political functions, where she was once
featured on camera in a McCrossen television advertisement.
After the start of the Charbonnet administration,
Plaintiffs brought suit against Charbonnet, alleging that
Charbonnet discharged them because of their political beliefs,
political association, and/or political activities with
McCrossen. Charbonnet moved for summary judgment. After the
deadline for filing their response to Charbonnet’s motion, the
Plaintiffs moved for leave to file a supplemental opposition
memorandum and exhibits. The district court initially granted
Plaintiffs’ motion on May 2, 2000; however, on May 3, Charbonnet
filed a motion to strike certain exhibits included in the
supplemental filing. The district court granted Charbonnet’s
motion to strike. On May 11, 2000, the district court granted
Charbonnet’s motion for summary judgment, finding that the
Plaintiffs had failed to create a genuine issue of material fact
regarding whether they were terminated for their political
2
The suit was originally brought by fourteen employees
whose employment was terminated during the administrative
transition. Eight employees have since voluntarily dismissed their
claims.
4
activities, and thus, they failed to establish a prima facie case
of political discrimination. Plaintiffs have timely appealed and
complain of the district court’s summary judgment ruling and its
evidentiary rulings striking certain exhibits attached to
Plaintiffs’ supplemental opposition to Charbonnet’s summary
judgment motion. We write essentially to address Plaintiff’s
complaint with respect to the district court’s summary judgment
ruling.3
II. Discussion
Generally, “the termination of employees for political
reasons is presumptively violative of the First Amendment.”
Correa v. Fischer, 982 F.2d 931, 933 (5th Cir. 1993). When a
plaintiff provides direct evidence of retaliation, this circuit
applies the test articulated in Mt. Healthy City Sch. Dist. Bd.
Of Educ. v. Doyle, 429 U.S. 274 (1977). See Brady v. Fort Bend
County, 145 F.3d 691, 711-712 (5th Cir. 1998) (stating that Mt.
Healthy test is most appropriate standard for deciding First
Amendment retaliation case involving direct evidence of
retaliation). Direct evidence is evidence that “if believed,
proves the fact without inference or presumption.” Brown v. East
3
Regarding, Plaintiffs’ attack on the district court’s
evidentiary rulings, our review of the record convinces us that the
district court did not abuse its discretion in granting
Charbonnet’s motion to strike certain exhibits contained in its
supplemental memorandum in opposition to Charbonnet’s motion for
summary judgment. Accordingly, we reject Plaintiffs’ attack on the
evidentiary rulings.
5
Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir. 1993).
Plaintiffs contend that they have adduced direct evidence in the
form of (1) evidence that Plaintiffs were qualified for their
jobs and in good standing; (2) there was considerable animosity
between McCrossen and Charbonnet; (3) Carter told Mason that she
and Camille Bourgeois (“Bourgeois”) “have Mike [McCrossen] to
thank for not having your job because Desiree [Charbonnet] is
‘fed up with Mike’”; (4) shortly thereafter 28 of McCrossen’s
former employees and supporters including Mason and Bourgeois
were terminated; and (5) the notices of termination indicated the
reason as “change in administration.” Even if believed by a
trier of fact, none of this evidence constitutes direct evidence.
At best, this is evidence that, combined with other indirect
evidence, might provide the basis for an inference of
discrimination. Accordingly, we reject Plaintiffs’ suggestion
that they have presented direct evidence of retaliation.
Plaintiffs contend that the proper framework for analyzing a
case featuring indirect evidence of retaliation is the burden-
shifting test familiar to employment discrimination cases. See
McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973).
Assuming, arguendo, that McDonnell Douglas applies to cases such
as this one,4 Plaintiffs must establish a prima facie case by
4
Because Plaintiffs would fare no better under the Mt.
Healthy framework, we need not decide which test is most
appropriate for analyzing indirect evidence of retaliation in the
First Amendment context. Cf. Gonzales v. Dallas County, Tex., 249
6
showing that they participated in a protected activity, that an
adverse employment action was taken against them, and that there
was a causal connection between the protected activity and the
adverse employment action. See Graning v. Sherburne County, 172
F.3d 611, 615 (8th Cir. 1999) (applying burden-shifting framework
to First Amendment retaliation case); Mota v. Univ. of Tex.
Houston Health Science Center, --F.3d–, 2001WL897191, at *5 (5th
Cir. August 9, 2001) (describing prima facie case of Title VII
retaliation). Plaintiffs’ prima facie showing is exceedingly
weak. Essentially, they rely on evidence that Charbonnet
admitted that she assumed they all supported McCrossen during the
campaign and that she terminated their employment shortly before
she took office. We note, however, that the district court
found, based on undisputed evidence, that several of McCrossen’s
employees whom Charbonnet did retain also supported McCrossen
during the campaign, often to the same extent as those whom
Charbonnet fired. Nevertheless, assuming that this minimal
showing suffices to establish a prima facie case of retaliation,
Charbonnet must produce evidence of a nondiscriminatory reason
for the adverse employment action. Graning, 172 F.3d at 615.
F.3d 406, 412 n.6 (5th Cir. 2001) (stating that Mt. Healthy
framework applies to First Amendment retaliation claims while
addressing narrow issue of whether defendant would have taken the
same action in the absence of protected conduct). See McMillian v.
Svetanoff, 878 F.2d 186, 190 n.3 (7th Cir. 1989) (declining to
decide whether Mt. Healthy or McDonnell Douglas test applies to
First Amendment discrimination claim because plaintiff would not
succeed under either standard).
7
Charbonnet can easily satisfy this burden, as she has produced
evidence that she relied upon Carter’s recommendations, which
were critical of Plaintiffs for various reasons, including poor
work quality and unprofessional conduct.
The crucial issue, therefore, is whether Plaintiffs have
established a genuine issue of material fact regarding whether
Charbonnet’s asserted grounds for their termination is merely
pretextual. A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). We must view all the evidence in the light
most favorable to the party opposing the motion and draw all
reasonable inferences in that party’s favor. Id. at 255. “A
mere scintilla of evidence of pretext does not create an issue of
material fact in all cases. Crawford v. Formosa Plastics Corp.,
La., 234 F.3d 899, 903 (5th Cir. 2000). Rather, the court must
consider a number of factors, including the strength of
Plaintiffs’ prima facie case. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148-49 (2000) Because Plaintiffs must
present sufficient evidence of the falsity of an employer’s
proffered justification, see id. at 148, it is “possible for a
plaintiff’s evidence to permit a tenuous inference of pretext and
yet be insufficient to support a reasonable inference of
discrimination.” Crawford, 234 F.3d at 903.
This is such a case. Placed in the proper context,
8
Plaintiffs’ evidence, either standing alone or considered in
toto, is insufficient to sustain a reasonable inference of
pretext. Plaintiffs rely primarily on two statements. First,
they point to Carter’s explanation to Mason and Bourgeois: “You
have Mike to thank for not having your job because Desiree is
‘fed up with Mike.’” This statement, Plaintiffs contend, is proof
that Charbonnet “held McCrossen’s refusal to cooperate against
plaintiffs.” P. Br. at 8. Plaintiffs’ argument, however,
confuses personal enmity with political rivalry. “To violate the
First Amendment, the termination must involve a political,
motivation. A termination arising from a personal feud . . . may
be baleful, but it is not a patronage dismissal in violation of
the First Amendment.” Correa v. Fischer, 982 F.2d 931, 935 (5th
Cir. 1993). A reasonable trier of fact could not, by virtue of
this statement, infer a retaliatory motive on the part of
Charbonnet. Rather, even at its most sinister, the statement
suggests that Charbonnet was responding to the animosity and
delay that characterized the transition and was the result of
McCrossen’s post-election hostility to the Charbonnet transition
efforts.5
5
Plaintiffs suggest that the district court erroneously
weighed the evidence when it examined the context in which the
statement was made. Although Reeves directs us to “draw all
reasonable inferences in favor of the nonmoving party, and . . .
not make credibility determinations or weigh the evidence[,]” 530
U.S. at 150, we also must consider the factual context of the claim
at summary judgment. See id. (citing Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
9
Plaintiffs also rely heavily on a statement contained in the
termination notice that listed the reason for the discharge as
“change in administration.” They assert that this explanation is
evidence of patronage dismissals, as it suggests that the
election of Charbonnet, not Plaintiffs’ job performance, was the
reason behind the firings. Even considered in the light most
favorable to the Plaintiffs, however, this statement is
insufficient to justify an inference of retaliation. First, the
notice was sent by the Judicial Fund, not Charbonnet, and
Plaintiffs have adduced no evidence that Charbonnet had anything
to do with the listing of “change in administration” on the form.
In fact, an April 24, 1998 letter from Charbonnet to the
terminated employees explains that the terminations were the
result of her assessment of the office. As such, there is no
indication that the form accurately represents Charbonnet’s
reasons for the discharge. Moreover, as the district court
noted, the phrase is subject to several interpretations. Indeed,
a reasonable fact finder might find it difficult to escape the
conclusion that the phrase reflected the Judicial Fund’s view of
the terminations, i.e, a new administration made personnel
changes to ensure that it had the most capable employees and
would avoid the problems that had hampered the transition. See
Crawford, 234 F.3d at 903 (noting that it is not unreasonable for
an employer to “seek a fresh start” in a troubled office).
Even when considered with Plaintiffs’ other evidence, these
10
statements do not create a sufficient fact issue to avoid summary
judgment. The remainder of Plaintiffs’ case amounts to
supposition and conjecture regarding the timing of the
dismissals, the extent to which Charbonnet and Carter actually
reviewed Plaintiffs’ job performance, and the large number of
discharged employees. Specifically, Plaintiffs note that they
were terminated prior to Charbonnet’s first day on the job. They
argue that this timing indicates that Charbonnet fired them
before having any opportunity to evaluate their job performance.
Charbonnet contends, and Plaintiffs do not offer any
contradictory evidence, that she relied heavily on Carter’s
recommendations. Plaintiffs also do not dispute that Carter had
extensive experience with the Recorder’s office. As part of the
evaluation process, Carter met with employees and reviewed
resumes. She specifically concluded that the discharged
Plaintiffs had either engaged in unprofessional conduct or
performed below acceptable standards.6
Plaintiffs contend that Carter’s conclusions from this
evaluation process are so shallow and unsupported that they
suggest pretext. Moreover, they point to evidence in the form of
Plaintiffs’ affidavits disputing the conclusions reached by
Carter. They have not produced any evidence, though, that
6
This undisputed evidence distinguishes the present case
from the facts presented by Vojvodich v. Lopez, 48 F.3d 879, 886
(5th Cir. 1995), in which the plaintiff’s performance evaluations
were satisfactory and the decisionmaker had expressed no
dissatisfaction with his performance.
11
Charbonnet similarly discounted the evaluations or did not rely
on them in good faith. Their opinion regarding the sufficiency
of the evaluations or their conjecture on the role they played in
the decisionmaking process cannot create a sufficient fact issue
to survive summary judgment. See Odom v. Frank, 3 F.3d 839, 849
(5th Cir. 1993) (rejecting otherwise unsupported opinion and
speculation).
Furthermore, the number of firings–twenty-eight of
McCrossen’s employees–does not support a conclusion that
Charbonnet was conducting a wholesale patronage dismissal. Of
the thirty-four staff positions that Charbonnet filled, she hired
twenty former McCrossen employees. Nine of the fourteen new
employees either supported Charbonnet or were recommended by her
political allies. Plaintiffs argue that the only reason why
Charbonnet did not terminate all of McCrossen’s employees is that
the office would not have been manageable with an entirely new
workforce. Charbonnet contends that her retention of so many
McCrossen employees demonstrates that political retaliation was
not a factor in employment decisions. Given these competing
interpretations, a reasonable jury could not find that the
magnitude of the discharge gives rise to an inference of
retaliation.
In sum, Plaintiffs’ evidence at best creates a weak fact
issue on the question of retaliation. The statements made by
Carter and contained in the termination notice, even when viewed
12
in the light most favorable to Plaintiffs and considered in
combination with the circumstantial evidence regarding the timing
of the decision, the review process, and the number of
dismissals, at most give rise to a tenuous issue of fact. Having
placed Plaintiffs’ pretext evidence in its proper context with
Charbonnet’s undisputed evidence and considered Plaintiffs’ own
extremely weak prima facie showing, we conclude that no
reasonable trier of fact could infer retaliation.
III. Conclusion
Plaintiffs have failed to present sufficient evidence from
which a reasonable fact finder could conclude that Charbonnet’s
decision to terminate Plaintiffs was substantially motivated by
retaliation for their political participation. Accordingly, we
AFFIRM the holding of the district court.
13