IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60551

Summary Calendar

MARTIA MOFFETT,

Plaintiff–Appellant,

v.

MISSISSIPPI DEPARTMENT OF MENTAL HEALTH,

Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:11-CV-262

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Martia Moffett appeals the district court’s grant of summary judgment in

favor of the Mississippi Department of Mental Health (the Department), her

former employer, on her Title VII retaliation and state-law whistleblower claims. 

We agree with the district court that Moffett failed to introduce sufficient

evidence to survive summary judgment and therefore affirm as to both claims. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2013

Lyle W. Cayce

Clerk

 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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I.

Moffett began working for the Department in 1990 as a social worker. In

1998, she was promoted to quality assurance director at Ellisville State School.

Sometime later, Moffett complained that as an African-American employee, she

was paid less than similarly situated Caucasian employees. In 2007, after the

Mississippi State Personnel Board rejected her discrimination claim, Moffett

filed a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC). The EEOC ultimately concluded that the Department had

not violated applicable antidiscrimination laws. Moffett later filed a Title VII

lawsuit against the Department based on the racial discrimination charge; that

lawsuit was dismissed.

Following the 2007 charge of discrimination, Moffett alleges that the

Department retaliated against her by removing her from a number of

committees and by demoting her in February 2009 to a position that paid the

same salary but had a lower status within the Department’s organizational

structure. 

After moving to the new position, Moffett began investigating alleged

billing fraud by the Department. She was placed on administrative leave in

August 2009. During her administrative leave, Moffett reported her billingfraud suspicions to the Mississippi attorney general’s office. Moffett also

received a number of reprimands while on leave for incidents that occurred prior

to the leave and received a pretermination notice, which stated that the

Department was considering terminating her employment and outlined its

reasons for doing so. Due to the reprimands, Moffett received another demotion

when she returned from administrative leave, this time with a pay cut of

approximately $20,000 per year. After the demotion, Moffett filed a second

charge of discrimination with the EEOC, alleging that she was demoted in

retaliation for her 2007 charge of discrimination and subsequent lawsuit. 

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In early December, Moffett was scheduled to meet with her former

supervisor, Cindy Cooley, to complete a performance appraisal for Moffett’s

former position. Moffett brought Althea Fisher, her supervisor at the time, to

act as a witness to the meeting, but Cooley refused to allow Fisher to attend the

meeting. Rinsey McSwain, assistant director of Ellisville State School and one

of Moffett’s supervisors, offered to sit in on the meeting instead, but Moffett

refused to attend the meeting without Fisher present. According to the

Department and to a number of witnesses, McSwain gave Moffett a directive to

attend the meeting. Moffett disputes that McSwain directly ordered her to

attend the meeting. Nevertheless, on December 7, Moffett received a reprimand

issued by Fisher, her supervisor at the time, for failing to follow the directive

from McSwain. She also received a second pretermination notice, again

outlining the Department’s reasons for considering termination. Finally, on

December 22, the Department terminated Moffett’s employment. 

The termination notice indicated that Moffett’s employment was

terminated because her conduct “constitute[d] a breach of agency policy.” It

discussed in detail the December 7 reprimand for failing to follow McSwain’s

directive. It also referenced a number of other written reprimands that Moffett

received while employed at the Department, including an October 21, 2009

reprimand for failing to perform assigned work; three October 6, 2009

reprimands for (1) initiating baseless disciplinary actions against her

subordinates, (2) treating her coworkers in an unprofessional manner, and (3)

insubordination; an August 14, 2009 reprimand for insubordination; a November

27, 2006 reprimand for failing to comply with established written policy; and a

June 22, 1995 reprimand for insubordination.

Following an unsuccessful appeal of her termination to the Mississippi

Employment Security Commission (MESC), Moffett filed suit against the

Department, alleging that the Department terminated her (1) in retaliation for

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her participation in activities protected under Title VII and (2) in violation of the

Mississippi whistleblower statute because she reported the Department’s

allegedly fraudulent billing practices to the Mississippi attorney general. The

district court granted summary judgment in favor of the Department on both

claims, holding (1) that Moffett had not introduced sufficient evidence that the

Department’s proffered nonretaliatory reason for terminating her was pretextual

and (2) that she had not offered evidence that anyone at the Department knew

of her report to the attorney general and thus could not assert a claim under the

Mississippi whistleblower statute. This appeal followed. 

II.

“We review de novo a district court’s ruling on a motion for summary

judgment, applying the same legal standard as the district court in the first

instance.” Summary judgment is appropriate if “there is no genuine dispute as 1

to any material fact and the movant is entitled to judgment as a matter of law.”2

If the movant meets its initial burden by showing that there is no genuine issue

of material fact, “the burden shifts to the nonmoving party to produce evidence

or designate specific facts showing the existence of a genuine issue for trial.”3

“Doubts are to be resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party.”4

III.

Moffett first contends that the district court erred in granting summary

judgment in favor of the Department as to her Title VII retaliation claim. Title

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). 

1

 FED. R. CIV. P. 56(a). 2

Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (quoting Taylor 3

v. Principal Fin. Grp., 93 F.3d 155, 161 (5th Cir. 1996)) (internal quotation marks omitted). 

Evans v. City of Hous., 246 F.3d 344, 348 (5th Cir. 2001). 

4

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VII prohibits employment discrimination against“any individual” because of the

individual’s “race, color, religion, sex, or national origin.” Title VII also

5

prohibits retaliation against employees who seek its protection, forbidding

employer actions that discriminate against an employee because she “has

opposed any practice made an unlawful employment practice” by Title VII or

because she “has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” under Title VII. 

6

“[T]he allocation of the burden of proof in Title VII retaliation cases

depends on the nature of the plaintiff’s evidence.” If the plaintiff relies on 7

circumstantial evidence to prove causation, as Moffett does here, we use the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

8

under which the plaintiff carries the initial burden of establishing a prima facie

case of retaliation. To meet this burden, the plaintiff must show that (1) she 9

participated in an activity protected by Title VII, (2) the employer took an

adverse employment action against her, and (3) there is a causal connection

between the protected activity and the adverse employment action. If the 10

plaintiff succeeds in making this prima facie showing, “the burden then shifts

to the employer to articulate a legitimate, nondiscriminatory or nonretaliatory

reason for its employment action.” The employer’s burden is simply a burden 11

 42 U.S.C. § 2000e-2(a). 

5

Id. § 2000e-3(a). 

6

Smith v. Xerox Corp., 602 F.3d 320, 327 (5th Cir. 2010) (citing Fierros v. Tex. Dep’t of 7

Health, 247 F.3d 187, 191 (5th Cir. 2001)).

 411 U.S. 792 (1973). 8

Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003). 

9

McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (citing Banks v. E. 10

Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).

Id. at 557 (citing Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)). 11

5

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of production, and it does not involve a credibility assessment. “If the employer 12

meets its burden of production, the plaintiff then bears the ultimate burden of

proving that the employer’s proffered reason . . . is a pretext for the real . . .

retaliatory purpose. To carry this burden, the plaintiff must rebut each . . . 

nonretaliatory reason articulated by the employer.”13

In the district court, the Department did not dispute that Moffett

participated in Title VII activities or that it took adverse employment actions

against her; rather, it disputed that she had established causation. The district

court assumed that Moffett had established causation but held that even under

that assumption,Moffettfailed to offer sufficient evidence that the Department’s

legitimate nonretaliatory reasons for her demotion and discharge were

pretextual. 

Like the district court, we need not reach the causation issue because even

assuming that Moffett has shown a causal link sufficient to establish a prima

facie case of retaliation, she has not offered sufficient evidence of pretext to

survive summary judgment. We thus assume, without deciding, that Moffett

has made a prima facie case of retaliation. The Department, in turn, has met its

burden of production by offering a legitimate, nonretaliatory reason for Moffett’s 

termination, specifically that Moffett received numerous reprimands for various

workplace offenses, culminating in her “staunch refusal to comply with a

directive” from McSwain, her supervisor.

Moffett, therefore, “must offer some evidence from which the jury may

infer that retaliation was the real motive.” Moffett argues that her own 14

deposition testimony, in which she denies that McSwain ever gave her a

Id. (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)). 12

Id. (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). 13

Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).

14

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directive to attend the meeting in question, establishes a genuine dispute as to

an issue of material fact. However, Moffett’s own evidence on this point is

inconsistent at best. In a transcript of the hearing before the MESC, submitted

by Moffett in support of her opposition to summary judgment, Moffett admits in

sworn testimony that McSwain asked her to come into her office and meet with

her. Additionally, in an earlier affidavit and in her briefing to the district court,

Moffett initially argued that McSwain was not her supervisor at the time of the

meeting, so there was “no possibility” that she failed to follow a supervisor’s

directive. It was only after the Department pointed out that McSwain was “at

the top of the chain of command for all employees,” including Moffett, that

Moffett attempted to correct this error by submitting a second affidavit. 

Moffett’s last-minute effort to create a dispute of material fact is not enough to

prevent summary judgment. 

15

Further, even if Moffett had established a genuine dispute as to whether

McSwain in fact ordered her to attend the meeting, the issue is not whether the

Department’s assessment of the events leading up to her termination was

accurate. Rather, “the issue is whether [the Department’s] perception of

[Moffett’s] performance, accurate or not, was the real reason for her

termination.” As the district court correctly noted, Moffett’s then-supervisor 16

Fisher issued the December 7 reprimand, and Moffett offered “no evidence that

would tend to show that Fisher did not, in fact, believe” that McSwain gave

See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346-47 (5th Cir. 2007) 15

(holding that a Title VII plaintiff who submitted an affidavit that was inconsistent with her

deposition testimony did not offer sufficient evidence to rebut the defendant’s proffered

nondiscriminatory explanation for the plaintiff’s dismissal); Albertson v. T.J. Stevenson & Co.,

749 F.2d 223, 228 (5th Cir. 1984) (“Although the court must resolve all factual inferences in

favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where

none exists. Thus, the nonmovant cannot defeat a motion for summary judgment by

submitting an affidavit which directly contradicts, without explanation, his previous

testimony.” (citation omitted)).

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999). 16

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Moffett a directive and that Moffett, in turn, refused to follow that directive. In

the MESC transcript offered by Moffett, Fisher testified under oath that she

witnessed McSwain directing Moffett to meet with her and Moffett refusing to

do so. Moffett has offered no evidence that Fisher issued the December 7

reprimand in bad faith, nor has she offered evidence that the Department

officials who relied on the reprimand did so as a pretext.

Additionally, Moffett’s termination notice cites six other reprimands that

Moffett received during her employment. Although Moffett is required to “rebut

each nondiscriminatory or nonretaliatory reason articulated by the employer”

in order to survive summary judgment, Moffett does not argue that the 17

Department’s reliance on these reprimands was pretextual. Instead, she

contends that “[w]hile the prior reprimands were referenced in the notice of pretermination, they were not the reason given for termination.” That statement

is simply not supported by the record. The district court thus did not err in

granting summary judgment in favor of the Department as to Moffett’s Title VII

retaliation claim. 

IV. 

Second, Moffett argues that the district court erred in granting summary

judgment in favor of the Department as to her whistleblower claim. Under

Mississippi law, state agencies may not “dismiss or otherwise adversely affect

the compensation or employment status of any public employee because the

public employee testified or provided information to a state investigative body.”18

The statute defines a whistleblower as “an employee who in good faith reports

an alleged improper governmental action to a state investigative body[,] . . . an

employee who in good faith provides information to a state investigative body,

McCoy, 492 F.3d at 557. 

17

 MISS. CODE ANN. § 25-9-173(1) (2012). 18

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or an employee who is believed to have reported alleged improper governmental

action to a state investigative body or to have provided information to a state

investigative body but who, in fact, has not reported such action or provided such

information.” So long as a qualifying employee proves that the adverse action 19

she suffered was the “direct result” of her report, she may be reinstated, 20

recover back pay, or, in some cases, receive damages.21

The district court held that Moffett did not offer sufficient evidence that

anyone at the Department was aware of her report to the attorney general and

thus that she could not prove that her termination was the direct result of her

report, as required by the statute. Moffett argues that the Department’s

knowledge of her report to the attorney general can be inferred through

circumstantial evidence.

In support of this contention, Moffett cites her own affidavit, in which she

states that she told McSwain that she would report the alleged fraud to the

attorney general if the Department did not address it. In her earlier sworn

deposition testimony, however, Moffett was questioned about her conversation

with McSwain and did not mention her threat to make a report to the attorney

general’s office:

Q: And what did you report to Ms. McSwain and Mr. Hendrix?

A: That according to the information and what I had perceived, it

appeared there had been some falsifying documentation. . . . 

. . . .

Q: Did you tell them anything else?

A: That was it.

Id. § 25-9-171(j). 

19

Id. § 25-9-173(3).

20

Id. § 25-9-175.

21

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During the deposition, Moffett also admitted that she had not informed anyone

at the Department that she actually made the report.

In the district court, the Department argued that the affidavit should be

stricken because it was inconsistent with Moffett’s deposition testimony. Moffett

argued that the deposition testimony referenced a different conversation with

McSwain than the affidavit and thus that the two statements were not

inconsistent. The district court did not reach the issue of whether to strike the

affidavit because it held that the affidavit at best established that the

Department knew that Moffett threatened to make a report, not that the

Department knew that she followed through with her threat. This, the district

court reasoned, was insufficient because the statute requires that the employer

had actual knowledge of a report. We do not reach the question of whether

actual knowledge is required under the statute because we hold that the

contradictory affidavit should not be considered. 

“It is well settled that this court does not allow a party to defeat a motion

for summary judgment using an affidavit that impeaches, without explanation,

sworn testimony.” On appeal, Moffett has not offered any explanation for the 22

inconsistency between her affidavit and her deposition testimony, and, even if

she had, her explanation before the district court was inadequate. Moffett 23

“cannot manufacture a disputed material fact where none exists,” and the 24

district court correctly granted summary judgment in favor of the Department

as to her whistleblower claim. 

S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing Thurman

22

v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir. 1992)). 

See id. at 495-96; Thurman, 952 F.2d at 136 n.23. 23

Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984). 

24

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* * *

For the foregoing reasons, the judgment of the district court is

AFFIRMED. 

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