IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50320

Summary Calendar

FAKIH J. KHALFANI,

Plaintiff - Appellant

v.

BALFOUR BEATTY COMMUNITIES, L.L.C.,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:12-CV-422

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

In this employment discrimination case, the plaintiff, Fakih J. Khalfani 

(“Khalfani”) levies two charges against his former employer, Balfour Beatty 

Communities, L.L.C. (“Balfour”): (1) unlawful retaliation, and (2) race and 

color discrimination. Balfour moved for summary judgment on both counts, 

which the district court granted. 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.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-50320 Document: 00512875507 Page: 1 Date Filed: 12/18/2014
No. 14-50320

Khalfani was an African American employee of Balfour, which owns and 

operates military housing at Fort Bliss, Texas. During his tenure at the 

company, he raised several complaints about racially discriminatory behavior 

with his supervisor. At the time of his termination, Khalfani was a housing 

inspector who was responsible for “checking out” rental property after the 

previous tenants had left – in essence to determine what, if any, repairs needed 

to be conducted when a rental unit was transferred to a new tenant. In August 

2011, Balfour received a complaint that, during a check out, Khalfani had 

removed and disposed of certain personal items belonging to a former resident. 

Khalfani was terminated a few days later. 

We analyze this case pursuant to our Title VII jurisprudence.1 In 

general, that analysis follows in three parts: (1) the employee-plaintiff must 

make a prima facie case of unlawful retaliation or race/color discrimination, (2) 

the burden of production shifts to the employer-defendant, who must articulate 

a legitimate, non-discriminatory reason for the challenged action, and (3) if it 

does, the plaintiff can show that the defendant’s stated reason is pretextual.2 

The district court concluded – and we agree – that Khalfani had met his burden 

of making a prima facie showing of retaliation and race/color discrimination, 

and then that Balfour had shown adequate neutral reasons for taking the job 

1 Khalfani brought both his race and color discrimination claim and his retaliation 

claim pursuant to Chapter 21 of the Texas Labor Code and 42 U.S.C. § 1981. R. 1380. The 

legal framework governing claims under both statutes is the same as for claims brought 

under Title VII. See, e.g., Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014) 

(discrimination claim brought under section 1981 is analyzed pursuant to Title VII 

framework); Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (retaliation claim brought 

under section 1981 is analyzed pursuant to Title VII framework); Wallace v. Methodist Hosp. 

Sys., 271 F.3d 212, 219 n.10 (5th Cir. 2001) (claims brought pursuant to Chapter 21 of the 

Texas Labor Code are analyzed pursuant to Title VII framework).

2 See, e.g., Haire v. Bd of Sup’rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 

362-63 (5th Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 

2

 

 Case: 14-50320 Document: 00512875507 Page: 2 Date Filed: 12/18/2014
No. 14-50320

actions at issue. The court then held that Khalfani had made an insufficient 

showing of pretext in both his race/color and retaliation claims. 

While we agree with the district court’s pretext analysis, Khalfani raises 

several arguments in his appellate briefing that were not addressed by the 

lower court, and which warrant consideration here.3

I.

Turning first to the unlawful retaliation claim, Khalfani now focuses on 

two arguments to show pretext. First, he points to the behavior of his 

supervisor, and states that when he complained of mistreatment based on his 

race, the supervisor would turn “red in the face” and would get angry with him

after he brought up reports that he had been racially discriminated against.4 

Taking these statements about the supervisor’s emotional reaction as true, as 

we must, they are not enough to show pretext. We have held that “[a]n oral 

statement exhibiting discriminatory animus may be used to demonstrate 

pretext.”5 Here, there are no explicit oral statements, rather there are 

emotional reactions. We have never held that non-verbal evidence alone is 

sufficient to show pretext, though there is no logical reason why it could not be 

used under certain circumstances. The determining factor is the clarity of the 

evidence: we require such statements to clearly “demonstrate discriminatory 

3 While these arguments were not discussed in depth in Khalfani’s memorandum in 

opposition to summary judgment, they were mentioned in district court papers. As such, we 

do not consider them waived, nor does the appellee so argue. See Blackwell v. Laque, 275 F. 

App’x 363, 366 n.3 (5th Cir. 2008) (unpublished). 4 Khalfani cites to a deposition where he acknowledged that his supervisor “never said 

anything derogatory to [him] about [his] race,” but stated that when he complained about 

discrimination, the supervisor “just turned really red in the face.” R. 863. In an affidavit, 

Khalfani averred that “[t]he more I brought this up to him [the alleged differential treatment 

based on race], the angrier he got with me.” R. 975. 

5 Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003); see also Kanida v. Gulf Coast 

Medical Personnel LP, 363 F.3d 568, 581 (5th Cir. 2004) (“comments are admissible to show 

pretext if they 1) show retaliatory animus and 2) were made by the individual primarily 

responsible for the retaliatory conduct.”).

3

 

 Case: 14-50320 Document: 00512875507 Page: 3 Date Filed: 12/18/2014
No. 14-50320

animus,”6 and here, it is not clear, without more, that animus motivated the 

supervisor’s emotional reaction.

Second, Khalfani argues that the district court should have looked at the 

“course of conduct [against him],” including changes in his job responsibilities, 

increased scrutiny of his activities, and false discipline.7 We have 

acknowledged that course of employer conduct can be relevant, and have held 

that “the combination of suspicious timing with other significant evidence of

pretext” can warrant denial of a summary judgment motion.8 This standard 

can be met when, for example, the plaintiff had highly positive performance 

reviews up until the complaint was leveled against the company, and then 

suffered a sharp decline in treatment immediately after the protected conduct 

occurred.9 It is not met here. Rather, as the district court concluded, there 

was a lack of clear temporal proximity between the complaints and the 

negative job consequences, making it difficult to find the sharp decline in 

treatment we have previously used to infer causality, and with it, pretext.10 

Given the Supreme Court’s recent clarification that a plaintiff making a 

retaliation claim “must establish that his or her protected activity was a butfor cause of the alleged adverse action by the employer,”11 we cannot conclude 

that Khalfani has adequately shown pretext. 

II.

Khalfani’s second claim was for race and color discrimination. In his 

briefing, Khalfani focuses on two arguments: (1) that he did not violate 

6 Laxton, 333 F.3d at 583. 

7 Appellant Br. 49.

8 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999).

9 Id. at 409-10 (collecting cases).

10 See R. 1399-1400.

11 Univ. of Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2534 (2013).

4

 

 Case: 14-50320 Document: 00512875507 Page: 4 Date Filed: 12/18/2014
No. 14-50320

Balfour’s policy when he threw out the tenant property, and (2) even if he did

violate the policy, the policy was inconsistently applied.

Turning to the first issue, there is evidence in the summary judgment

record that there was no written documentation of a policy about not disposing 

of material left by tenants.12 Even assuming this is true, as we do, it is of no 

moment. We have held that a good faith termination based on neutral reasons 

– even mistaken reasons – does not violate antidiscrimination law.13 The key 

inquiry is thus whether Khalfani’s supervisor believed that Khalfani’s actions 

violated procedure, not whether those actions actually violated such a policy. 

And as the district court noted, there is no evidence in the record in support of 

that proposition.14

Next, Khalfani argues that the tenant property policy was inconsistently 

applied, and puts forth testimony from his deposition that other inspectors had 

thrown out resident property and had not been terminated.15 This is not 

enough. Though we have held that differential treatment of similarly-situated 

employees can show pretext, we require that the contexts be “nearly 

identical,”16 and here there is no evidence in the record about the relative 

contexts of employees who were responsible for the disposal of tenant property. 

As a consequence, Khalfani’s second pretext argument falls short. 

12 See R. 943-43. The Balfour official who testified at a deposition that there was no 

written policy did, however, state that there was a “standard operating procedure” forbidding 

employees from throwing out tenant property without permission. See id. Moreover, there 

does appear to be a written code of conduct which prohibits this behavior. See id. at 1412.

13 See, e.g., Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 477 (5th Cir. 2005).

14 See R. 1412-13.

15 See id. at 854 (“Q: Are you aware of any other employees that were Turnkey 

Inspectors that did a turn ultimately resulting in some valuable property being disposed of, 

that weren’t terminated? A [Khalfani]: I can remember an incident happening at Biggs 

Airfield, the Sergeant Major Academy....[s]omebody went and took everything out of that 

unit. The Inspector was not terminated.”).

16 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 659 (5th Cir. 2012). 

5

 

 Case: 14-50320 Document: 00512875507 Page: 5 Date Filed: 12/18/2014
No. 14-50320

III.

For the aforementioned reasons, as well as the reasons expressed in the 

district court opinion, we AFFIRM the district court decision granting 

summary judgment in favor of the defendant.

6

 Case: 14-50320 Document: 00512875507 Page: 6 Date Filed: 12/18/2014