FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 10, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15764 

Non-Argument Calendar

________________________

D.C. Docket No. 02-02863-CV-NW 

RILOUS PERKINS,

Plaintiff-Appellant,

versus

RIVERBEND CENTER FOR MENTAL HEALTH, INC.,

BRYAN LIBELL,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the

Northern District of Alabama

_________________________

(June 10, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Plaintiff Rilous Perkins appeals the district court’s grant of summary

judgment to defendants Riverbend Center for Mental Health, Inc. (“Riverbend”)
In the district court, Perkins raised a breach of contract claim under state law, but he has not 1

challenged its dismissal on appeal. Accordingly, this issue is deemed waived and not discussed

further. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11 Cir. 1998) (an issue that appellant th

fails to raise on appeal is deemed abandoned).

2

and Bryan Libell on his complaint alleging racial discrimination and denial of due

process. After review, we affirm. 1

I. BACKGROUND

Riverbend is a state-funded mental health hospital in Alabama. Perkins, an

African-American male, worked for Riverbend as a house manager between 1997

and February of 2002. Before Perkins began working, Riverbend provided him

with a copy of Riverbend’s Personnel Policies and Procedures (“the Policy”) . 

According to the Policy, Perkins was an at-will employee who could be dismissed

for any reason, including any behavior “where the Chief Executive Officer

concludes that immediate dismissal is appropriate.” Additionally, the Policy

stated:

Employment and compensation are for no fixed period of time and can

be terminated with or without cause and with or without notice at any

time, at the option of the employee or Riverbend. No representative of

Riverbend other than the Chief Executive Officer has the authority to

enter into any agreement for employment for any specified period of

time or to make any agreement contrary to the foregoing.

According to an October 14, 1997 Employee Conference Form, Ashley

Crow, another Riverbend employee, reported that Perkins became hostile with a
Although Perkins’s signature is on the October 14, 1997 Employee Conference Form, he 2

denied signing the document. However, Perkins agreed that if such conduct occurred, it would have

been a terminable offense.

Although his signature is also on this document, Perkins denied signing the November 2, 3

2000 Employee Conference Form.

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client, raised his voice, used foul language, and eventually grabbed the client by

his shirt. Subsequently, a November 2, 2000 Employee Conference Form, 2

detailed that Perkins was: (1) frequently unwilling to communicate with coworkers, thereby compromising client care; and (2) prone to frequent displays of

disruptive, volatile emotions. However, Perkins also received numerous positive

3

evaluations from his supervisors.

For example, in September 1998, Valerie Wesson, Perkins’s supervisor,

noted that Perkins was supportive of other staff members and always positive. In

March 1999, Wesson noted that Perkins was dependable, trustworthy, cooperative

with other members of the staff, and always ready to volunteer for tasks. Wesson

further stated that he worked well with all employees and was a team leader. In

May 2000, Wesson gave Perkins another exceptional score and commented that he

was dependable and trustworthy. In May 2001, Riverbend management noted that

Perkins was a hard worker and had developed into an excellent team player. 

On December 3, 2001, Joann McDougal, a Riverbend employee, filed a

complaint with Riverbend management, alleging Perkins: (1) became enraged and
4

screamed at McDougal; (2) called McDougal names; (3) insinuated that

McDougal received kickbacks from a pharmacy at a staff meeting; (4) refused to

apologize; (5) called clients names and threatened to throw one off a bus if he did

not stop coughing; (6) contacted a client at home to prevent him from reporting an

incident involving Perkins; and (7) uttered racial remarks, such as, “when he sees

a white woman that just means trouble for him.”

On December 4, 2001, Perkins was called in to speak with Wesson, Liz

James, Wesson’s supervisor, and Marty Sims, the Human Resources Director at

Riverbend. Perkins was informed of McDougal’s complaint and that Sims would

be investigating the allegations.

Sims met with employees, both former and current, who had worked with

Perkins and were mentioned in McDougal’s complaint. Sims’s investigation

revealed that another Riverbend employee, Joan Kilburn, felt scared and

intimidated by Perkins. According to Kilburn, after she gave a message to Perkins

concerning the use of a note board, he said to her, “[D]on’t ever tell me what

another staff member has said.” Kilburn asserted that Perkins’s size, presence, and

demeanor were “overpowering and scary.”

Kilburn further stated that George Coleman, a client, reported an altercation

with Perkins. According to Kilburn, Coleman informed her that while he was in a
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van with Perkins, Perkins called him a “gigolo” and threatened to throw him off

the van if he did not stop coughing. Perkins then called Coleman at home and told

him that he “shouldn’t be telling this kind of thing.” Kilburn also stated that she

considered resigning her position because of the working environment. 

According to Sims’s investigation, Renee Smith, a former Riverbend

employee, stated that she witnessed McDougal’s reaction to an altercation with

Perkins. Smith said that McDougal was so distraught that Smith thought she was

suffering from a stroke. According to Smith, Perkins was prone to sudden and

severe mood swings, and that during one incident, he “went off” on employee

Linda Bullington, questioning her on whether she was fabricating food counts and

stealing allocations.

Smith also asserted that she intervened in an altercation between Perkins

and Randall Richard, a client. According to Smith, Perkins became so violent she

feared for herself and Richard. Smith also stated that at one time or another,

Perkins made every single female staff member cry.

According to Joyce Causly, an employee at Riverbend, Perkins was

occasionally accusatory and irrational. According to Causly, on two occasions,

Perkins had unreasonable, emotional reactions to job assignments that she had

given him.
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Although Perkins denied all of the above incidents occurred, Sims, after

conferring with Riverbend CEO, Bryan Libell, was instructed to terminate

Perkins’s employment.

II. THE DISTRICT COURT 

Perkins filed this lawsuit, asserting that he was terminated because of his

race and that Riverbend had violated his due process rights by not providing him

with an opportunity to address the allegations prior to his termination. 

Specifically, Perkins asserted that the defendants refused or failed to comply with

employment policies regarding termination and failed to treat him in the same

manner as other employees. Perkins asserted that he: (1) suffered discrimination

based on his race, in violation of 42 U.S.C. §§ 1981, 1983, and 2000e; and (2) that

he was denied equal protection and due process, in violation of 42 U.S.C. § 1983. 

Perkins sought reinstatement, back pay, damages, attorney’s fees and costs.

With regard to Perkins’s Title VII (42 U.S.C. § 2000e), and §§ 1981 and

1983 claims, the district court concluded that Perkins produced no direct evidence

of racial discrimination. Accordingly, the district court evaluated Perkins’s claim

under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). 

The district court determined that because Perkins could point to no similarlysituated employees outside his protected class who were treated more favorably,
“We review a grant of summary judgment de novo, using the same legal standard as the 4

district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184 (11 Cir. 1997). Summary th

judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue

of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The evidence, and all inferences

drawn from the facts, must be viewed in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).

In order to defeat summary judgment, however, the non-moving party “must do more than simply

show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S. Ct. at 1356.

The non-moving party must make a sufficient showing on each essential element of the case for

which he has the burden of proof. Celotex, 477 U.S. at 323, 106 S. Ct. at 2552. 

7

he failed to make a prima facie case. Further, the district court concluded that

even if Perkins could sustain a prima facie case, he failed to produce any evidence

to show the reasons given by Riverbend for his termination were a pretext for

racial discrimination.

With regard to Perkins’s equal protection claim, the district court concluded

that because Perkins could not establish that he was treated differently from

similarly-situated employees who were not African-American, his claim failed. As

to Perkins’s due process claim, the district court concluded that because Perkins

was an at-will employee, he had no property interest in his continued employment. 

Accordingly, the district court granted summary judgment to the defendants.

4

III. DISCUSSION

A. Direct Evidence

Perkins first argues that the district court erred in finding that he presented

no direct evidence of racial discrimination. “Direct evidence of discrimination is
To succeed with his discriminatory discharge claim, Perkins had to show that: (1) he was 5

a member of a protected minority; (2) he was qualified for the job from which he was discharged;

(3) he was discharged; and (4) he was treated less favorably than a similarly situated individual

outside his protected class or his former position was filled by a non-minority. Maynard v. Bd. of

Regents, 342 F.3d 1281, 1289 (11 Cir. 2003). th

8

evidence which, if believed, would prove the existence of a fact [in issue] without

inference or presumption. Only the most blatant remarks, whose intent could be

nothing other than to discriminate on the basis of [race] . . . constitute direct

evidence of discrimination.” Bass v. Bd. of County Comms., 256 F.3d 1095, 1105

(11 Cir. 2001) (internal quotation marks and citations omitted). th

Perkins’s only proffered direct evidence of discrimination is a conversation

he had with Valerie Wesson. According to Perkins, Wesson asked him if he

thought she was the type of person who would call another person “nigger,” and

that the other person would “just have to take it.” However, Perkins testified that

he did not believe that his conversation with Wesson was inappropriate, and he

had never witnessed or heard anything at Riverbend that was racially offensive or

inappropriate. Thus, we agree with the district court that Perkins presented no

evidence of direct racial discrimination.

B. Circumstantial Evidence

Under the McDonnell Douglas/Burdine framework, Perkins must first

establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 5
9

802, 93 S. Ct. at 1824; see Holifield v. Reno, 115 F.3d 1555, 1561-62 (11 Cir. th

1997). If Perkins establishes a prima facie case, the burden shifts to the

defendants to “articulate some legitimate, nondiscriminatory reason” for his

termination. McDonnell Douglas, 411 U.S. at 802; 93 S. Ct. at 1824. Perkins

must then show that the proffered reason is merely a pretext for racial

discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253,

101 S. Ct. 1089, 1093 (1981).

To show the proffered reason is merely a pretext, Perkins must

demonstrate that the proffered reason was not the true reason for the

employment decision. The plaintiff may succeed in this either

directly by persuading the court that a discriminatory reason more

likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.

Jackson v. Alabama State Tenure Comm., – F.3d –, 2005 WL 851935, at *12 (11th

Cir. Apr. 14, 2005) (internal quotation marks, brackets, ellipses, and citations

omitted). Perkins must produce sufficient evidence to allow a reasonable finder of

fact to conclude the defendants’ articulated reasons are not believable. Id. This

can be accomplished by pointing to “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the proffered explanation. Id. (internal

quotation marks and citations omitted).
Perkins’s equal protection and due process claims are without merit and not discussed 6

further.

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We concluded that the district court properly determined that Perkins failed

to establish a prima facie case of racial discrimination. Further, even assuming

Perkins has established a prima facie case of discrimination, he has failed to

produce any evidence to show that the defendants’ reasons for his termination

were pretextual. The fact remains that McDougal complained about Perkins’s

inappropriate behavior to management. Riverbend conducted a thorough

investigation, and decided to terminate Perkins only after many of the charges in

the complaint were substantiated by other current and former employees. Perkins

offers no evidence or even an assertion that other, similarly-situated employees

were not terminated. Consequently, the district court properly granted summary

judgment to the defendants.

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AFFIRMED.