### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 favo r o f t h e Mississippi Department of Mental Health (the Department), her former employer, on her Title VI I r e t ali atio n an d s t at e - l aw whistleblower claims. We agree with the distr i c t c o urt that Moffett failed to introduce sufficient evidence to survive summary judgment and therefore affirm as to both claims. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary14 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-60551 Document: 00512112163 Page: 1 Date Filed: 01/14/2013No. 12-60551 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, M o ffett filed a charge of d iscrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC ulti m at ely concluded that the Department had not violated applicab l e a ntidiscrimination 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 a l l eges that the D e p a r tment retaliated against her by removing her from a number o f 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 investig a t i n g alleged billing fraud by the Department. She was placed on administrative leave in Au gust 2009. During her administrative leave, Moffett reported her billingfraud suspicions to the Mississippi attorne y g e n e r al’s office. Moffett also received a number of reprimands while on leave for incidents that occurred prior to the leave and received a pretermination n o t ice, which stated that the Department was considering termina t i n g her employment and outlined its

reasons for doing so. Due to the reprimands, Moffett received another demotion when she returned from administrative leave, th i s time with a pay cut of

a p p roximately $20,000 per year. After the demotion, Moffett filed a s e c o n d ch a r g e o f d iscrimination with the EEOC, alleging that she was demoted in retaliation for her 2007 charge of discrimination and subsequent lawsuit.

2 Case: 12-60551 Document: 00512112163 Page: 2 Date Filed: 01/14/2013No. 12-60551

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 Al t h e a F i s her, 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 ins t e a d, but Moffett refused to attend the meeting without Fisher present. Ac c o r d i n g to the Department and to a number of witnesses, McSwain gave Moffett a directive to attend the meeting. Moffett disputes that M c S w a i n d irectly ordered her to attend the meeting. Nevertheless, on December 7, Moffett received a reprimand is s u e d b y F isher, her supervisor at the time, for failing to follow the directive from M c S w a in. She also received a second pretermination notice, again outlining the Department’s reasons for considering termin a t i o n . Finally, on December 22, the Department terminated Moffett’s employment. The termination notice indicated that Moffett’s e m p l o yment was terminated because her conduct “constitute[d] a bre a c h of agency policy.” It d iscussed in detail the December 7 reprimand for failing to follow McSw a i n ’ s directive. It also referenced a number of other written reprimands that Moffett received while employed at the Departm e n t , including an October 21, 2009 reprimand for f

a i l i n g to perform assigned work; three October 6, 2009 reprimands for (1) initiating baseless disciplinary actions again s t h e r subordinates, (2) treating her coworkers in an unprofessi o n a l manner, and (3) insubordination; an Au gu s t 1 4 , 2 0 0 9 r e p ri m an d f o r in s ub ordination; 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 a g a i nst the Department, alleging that the Department terminated her (1) in retaliation for

3 Case: 12-60551 Document: 00512112163 Page: 3 Date Filed: 01/14/2013No. 12-60551

her participation in activities protected under Title VII and (2) in violation of the Mississip pi whistleblower statute because she reported the Department’s allegedly frau d ulent billing practices to the Mississippi attorney general. The district court granted summary judgme n t i n f av or of the Department on both claims, holding (1) that Moffett had not introduced sufficient evidence that the D e p art m e nt’ s p ro f

f e r e d no nr e t ali at o ry reason for terminating h e r w a s p r e t e xtu al 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 d i s t rict 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 sh o w i n g t he 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

Turn er v. Ba

ylo r Ric har dson Me d. Ctr. , 476 F.3d337 , 343 (5t h Cir

. 2007)

. 1
F E D

. R. C IV

. P. 56(a). 2
Al le n v. Rap ide s Pari sh Sch. Bd. , 204 F.3d 619, 621 (5t h Cir. 2000) (quo ting Tay lor 3
v. Pr inc ip alFi n. Gr

p. , 93 F.3d 155, 161 (5t h Cir. 199 6)) (inte rnal quot atio n m ark s om itt ed)

. Eva ns v. Ci ty of Ho us. , 246 F.3d344 , 348 (5t h Cir

. 2001)

. 4
4 Case: 12-60551 Document: 00512112163 Page: 4 Date Filed: 01/14/2013No. 12-60551

VII prohibits employment discrimination again s t “ any in dividual” because of the i n d ividual’s “race, color, religion, sex, or national origin.” Title VII als o 5 prohibits retaliation against employees who s e e k its protection, forbidding employer actions that discriminate agains t an employee because she “has opposed a n y p r actice made an unlawful employment practice” by Title VII or because she “has made a c h a r g e , t estified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 6 “[T]he allocation of the burden of p roof in Title VII retaliation cases depends on the nature of the plaintiff’s evidence.” I f t h e plaintiff relies on 7 circumst a ntial evidence to prove causation, as Moffett does here, we use the burden-shifting framework set f o r t h 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 t h i s burden, the plaintiff must show that (1) she 9 participated in an activi t y protected by Title VII, (2) the employer took an adverse employment action against her, and ( 3 ) t h ere is a causal connection between the p r o t e c t ed activity and the adverse employment action. If the 1 0 plaintiff succeeds in making this pr i ma 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 1 1

42 U. S. C. § 2 000e- 2(a)

. 5
Id. § 2000e- 3(a)

. 6
Smi th v. Xe rox Corp

. , 602 F.3d 320, 327 (5t h Cir. 2010) (c itin g Fie rro s v. Tex

. De p’t of 7 He al th , 247 F.3d187 , 191 (5t h Cir

. 2001) ).
411 U .S

. 792 (197 3). 8
Ac kelv . Na t’l Com mc ’ns, Inc. , 339 F.3d376 , 385 (5t h Cir

. 2003)

. 9
Mc Coy v. City of Shrev ep ort , 492 F.3d 551, 556- 57 (5t h Cir. 2007) (c itin g Banks v. E. 1 0 Baton Rouge Pari sh Sch. Bd. , 320 F.3d570 , 575 (5t h Cir

. 2003) ).

Id. at557 (cit ing Ge e v. Pr inc ip i , 289 F.3d342 , 345 (5t h Cir

. 2002) ). 1 1 5 Case: 12-60551 Document: 00512112163 Page: 5 Date Filed: 01/14/2013No. 12-60551

of production, and it does not involve a credibility assessment. “If the employer 1 2 meets its burden of production, the plaintiff then bears the ultimate burden of proving that the employer’s proffered reason . . . is a p retext for the real

. . . retaliatory purpose. To carry this burden, the plaintiff must rebut e a c h

. . . nonretaliatory reason articulated by the employer.” 1 3 In the district court, the Dep a r t ment did not dispute that Moffett participated in Tit l e 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 assumptio n , M o f

f e tt f ail e d t o offer sufficient evidence that the Department’s l e gi t imate nonretaliatory reasons for her demotion and discharge wer e pretextual. Like the district court, we need not reach the causation issue because even assuming that Moffett has shown a causal link suf f i c ient to establish a prima facie case of re t a l i a t i o n , 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 offen s e s , c u lminating in her “staunch refusal to comply with a directive” from McSwain, her supervisor. Moffett, therefore, “must offer some evidence from which t h e j u r y may infer that ret a l i a t ion was the real motive.” Moffett argues that her own 1 4 deposition testim o n y, in which she denies that McSwain ever gave her a

Id. (cit ing Russ el l v. M cKi nney Ho sp . Ve nture , 235 F.3d219 , 222 (5t h Cir

. 2000) ). 1 2
Id. (cit ing Laxtonv . Ga p Inc. , 333 F.3d572 , 578 (5t h Cir

. 2003) ). 1 3
Swa nson v. G en. Se rv s. A dmi n. , 110 F.3d118 0, 1188 (5t h Cir

. 1997)

. 1 4 6 Case: 12-60551 Document: 00512112163 Page: 6 Date Filed: 01/14/2013No. 12-60551

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

an issue of material fact. However, Moffett’s own evide n c e 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 employee s ,” including Moffett, that Moffett attempted to correct t h i s e rror by submitting a second affidavit. Moffett’s last-minute effort to create a dispute of material fact is not enough to prevent summary judgment. 1 5 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 assessm e nt of the events leading up to her termination was accurate. Rather, “the i s s u e is whether [the Department’s] perception of [Moffett’s] performance, accurate or not, wa s t he 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

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

See Turn er v. Ba

y lo r R i cha rds on Me d. Ctr. , 476 F.3d 337, 346- 47 (5t h Cir. 2007) 1 5 (ho ldi ng t hat a Ti tleVII p laint iff w ho sub mit tedan aff idavitt hat wa s inco nsi st ent wi th her dep os itio n tes tim ony did not off er suf f i c i e n t evide nce to rebu t the def enda nt’ s pr off

ere d nond isc rim inato ry expla natio n for the plai ntif f’ s dis mi ss al) ; Al ber tson v. T. J. Steve nson & Co. , 749 F.2d223 , 228 (5t h Cir. 198 4) (“Altho ugh t he cour t mus t res olve all fac tual infe renc es in favorof t he nonm ovant, t he nonm ovant canno t man ufac tur e adis put ed m ater ial fac t wh ere none exis ts

. Thus, t h e n o nmo vant canno t def eat a mo tio n for sum mar y judgm ent by s ub m i t t i ng an aff

idavit wh ich dir ect ly cont rad ict s, wi thou t expla natio n, his pr evious tes tim ony.” (cit atio n o mi tte d) ).

Shac kel for d v

. De loi tte & Touc he, LLP, 190 F.3d398 , 408- 09 ( 5th Cir. 199 9). 1 6 7 Case: 12-60551 Document: 00512112163 Page: 7 Date Filed: 01/14/2013No. 12-60551

Moffett a directive and that Moffett, in turn, refused to follow that directive. In the MESC transcript offered by Moffett, Fisher testified u n d e r 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 D e c e m ber 7 reprimand in bad faith, nor has she offered evidence that the Dep a rtment 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 re a son articulated by the employer” in order to survive summary judgment, Moffett does not argue that the 1 7 Department’s reliance on these reprimands was p r e textual. 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 i s s i m ply 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 adverse l y affect the compensation or employment status of any public employee beca u s e t he public employee testified or provided information to a stat e inve s ti gative body.” 1 8 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,

Mc Coy , 492 F.3dat557

. 1 7
M ISS

. C ODE ANN

. § 2 5-9- 173( 1) (201 2). 1 8 8 Case: 12-60551 Document: 00512112163 Page: 8 Date Filed: 01/14/2013No. 12-60551

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

a c t i o n to a state investigative body or to have provided information to a stat e 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 1 9 she suffered was the “direct r e s u l t” of her report, she may be reinstated, 2 0 recover back pay, or, in some cases, receive damages. 2 1 The district court held that Moffett did not offer sufficient eviden c e 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 tha t the Department’s knowledge of her report to the attorney general c a n b e inferred through circumstantial evidence. In support of this contention, Moffett cites her own affidavit, in which she

s t a t e s t h at she told McSwain that she would report the alleged fraud to t h e attorney general if the Department did not address it. In her e a r l i er 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)

. 1 9
Id. § 25-9 -173 (3)

. 2 0
Id. § 25-9 -175

. 2 1 9 Case: 12-60551 Document: 00512112163 Page: 9 Date Filed: 01/14/2013No. 12-60551

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

s trick e n b e c au s e it w a s inconsistent with Moffett’s deposition testimony. Moffett

ar gu e d t h at the deposition testimony referenced a different conversation with McSwain than the affidavit and t h u s 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 th e a f f idavit 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. W e do not reach the question of whether actual kn o wledge 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 2 2 inconsistency between her affidavit and her deposition testimony, and, eve n if she had, her expl a n a t i o n before the district court was inadequate. Moffett 2 3 “cannot manufacture a dispu t e d m aterial fact where none exists,” and the 2 4 district court correctly granted summary judgment in favor of the Department as to her whistleblower claim.

S.W. S. Erec tors, Inc. v. Infax, Inc. , 72 F.3d 489, 495 (5t h Cir. 1996) (c itin g Thur ma n 2 2
v. Se ars, Ro ebuc k & Co. , 952 F.2d128 , 136 n.23 ( 5th Cir. 199 2))

.

See id. at495 -96; Thur ma n , 952 F.2dat136n. 23. 2 3
Al ber tson v. T

.J. Stev ens on & Co. , 749 F.2d223 , 228 (5t h Cir

. 1984)

. 2 4

10 Case: 12-60551 Document: 00512112163 Page: 10 Date Filed: 01/14/2013No. 12-60551 * * * For the foregoing reasons, t h e j u d g ment of the district court is AFFIRMED.

11 Case: 12-60551 Document: 00512112163 Page: 11 Date Filed: 01/14/2013