IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41331

Summary Calendar

SUE MANAWAY,

Plaintiff - Appellant

v.

THE MEDICAL CENTER OF SOUTHEAST TEXAS,

Defendant - Appellee

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 1:09–CV–356

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Sue Manaway filed this lawsuit against The Medical Center of Southeast

Texas, alleging that The Medical Center fired her because of her age and race,

and in retaliation for complaints she made about discrimination at The Medical

Center. Manaway appeals the magistrate judge’s order granting The Medical

Center’s motion for summary judgment on all of Manaway’s claims. We

AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2011

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. FACTUAL & PROCEDURAL BACKGROUND

Sue Manaway is a former employee of The Medical Center of Southeast

Texas (the “Medical Center”). Prior to her termination, Manaway was employed

in the Medical Center’s telemetry unit. In June 2007, Manaway’s schedule was

changed so that she was no longer the “charge nurse” in telemetry, and the

position began to rotate between several different nurses. In October 2007,

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Manaway’s supervisor, Shannon Smith, began to receive complaints about

Manaway’s work performance.

Smith stated that, as a result of these complaints, she removed Manaway

from her charge nurse rotation for her shift on November 2, 2007, but did not

give Manaway advance notice. Manaway called Smith’s home to complain about

her removal and abruptly hung up while speaking with Smith. That same day,

Manaway notified the Medical Center’s Alertline that she had been removed

from her shift without advance notice. In a follow-up call to the Alertline, she

stated that Smith had threatened to send the Ku Klux Klan to a co-worker’s

house and that white employees were paid at a higher rate than black

employees.

On November 8, 2007, Manaway met with Smith, Jennifer Barroeta (the

Medical Center’s Director of Human Resources), and Heidi Wolf (the Medical

Center’s Chief Nursing Officer). At the meeting, Smith apologized for removing

Manaway from her shift as charge nurse without notifying her first. But

Manaway was told that her behavior in response to the shift change was

unacceptable and was given performance counseling for hanging up abruptly on

her supervisor in violation of the Medical Center’s customer service policy.

On November 16, 2007, Manaway did not appear for her shift and was

given a verbal warning for having six absences in a twelve-month period. On

On appeal, Manaway does not argue that her removal from the position of charge 1

nurse is the basis for her discrimination and retaliation claims.

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January 10, 2008, the charge nurse requested Manaway to take a patient

assignment but Manaway responded that she was too busy. Smith and another

Medical Center employee met with Manaway on January 17, 2008, to address

her refusal to take a patient assignment, and, although Manaway disputed that

she had refused to take the assignment from the charge nurse, Manaway

assured Smith that there would be no problems in the future.

On January 23, 2008, the charge nurse reassigned two patients from

Manaway to another nurse, Tiffany Guillroy, and reassigned two patients from

Guillroy to Manaway. Guillroy requested that Smith assign these patients to

her because she had cared for them previously, and Smith instructed the charge

nurse to make the change. Manaway allegedly refused to accept the

reassignment, and no patients were reassigned. On January 28, 2008, Manaway

met with Smith and Barroeta to address her refusal to accept the reassignment.

Manaway abruptly left the meeting before it was finished, and she was sent a

final warning about her conduct by mail.

On February 9, 2008, the charge nurse asked Manaway to perform an

assessment on a new patient. Manaway allegedly refused to perform the

assessment, and the charge nurse drafted a memorandum of the incident and

sent it to the Medical Center’s administration. As a result of Manaway’s alleged

conduct, Smith recommended that Manaway be terminated. On February 15,

2008, Manaway had a final meeting with Wolf, in which Manaway expressed

several concerns she had with other employees’ conduct in the telemetry unit.

Among these concerns she expressed was that the other employees were

“tattling” on her. After the meeting, Wolf drafted a memorandum outlining

Manaway’s conduct that warranted termination, which included her difficulty

accepting her removal from the charge nurse position and her refusal to accept

direction from other charge nurses. Wolf concluded that Manaway’s termination

would be appropriate, and discussed the issue with Baroetta. Baroetta and Russ

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Folis (the Medical Center’s Corporate Director of Human Resources) discussed

Manaway’s insubordination and lack of cooperation during her performance

counseling, which included making unrelated complaints about other employees.

Folis approved Manaway’s termination.

After her termination, Manaway commenced this lawsuit against the

Medical Center, alleging three bases for liability: (1) she was terminated on the

basis of her race, in violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 (the “Title VII claim”);

(2) she was terminated on the basis of her age, in violation of the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq.

(the “ADEA claim”); and (3) she was terminated in retaliation for complaints she

made about the Medical Center’s discriminatory practices, in violation of Title

VII and § 1981 (the “retaliation claim”). Manaway claimed her refusal to accept

assignments and insubordination were “bogus,” and that the real reasons for her

termination were her race and age and the complaints she had made regarding

racial discrimination at the Medical Center. The parties agreed to have the case

proceed before a magistrate judge.

The Medical Center moved for summary judgment on all of Manaway’s

claims, stating that she had failed to make out a prima facie case of racial

discrimination, age discrimination, or retaliation, and argued that the real

reason for her termination was insubordination. The magistrate judge granted

the Medical Center’s motion for summary judgment on all of Manaway’s claims,

concluding that she had failed to make out a prima facie case on any of her

claims. In the alternative, the magistrate judge concluded that Manaway had

failed to allege a genuine dispute over whether the Medical Center’s reason for

her termination was pretextual. Manaway appealed.

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II. STANDARD OF REVIEW

This court “review[s] the grant of summary judgment de novo, viewing the

evidence in the light most favorable to the nonmoving party.” Cerda v. 2004-

EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

III. DISCUSSION

A. Manaway’s Title VII and ADEA Claims

Manaway’s Title VII and ADEA claims are analyzed under the burdenshifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–03 (1973). See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374,

2

378 (5th Cir. 2010) (applying the McDonnell Douglas framework to an ADEA

claim). Under this framework, the plaintiff must first create a presumption of

discrimination by making a prima facie case. Laxton, 333 F.3d at 578. This

requires the plaintiff to prove that: (1) “she is a member of a protected class”; (2)

“she was qualified for her position”; (3) “she suffered an adverse employment

action”; and (4) “others similarly situated were more favorably treated.” Willis

v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006) (regarding Title VII

claims) (citation and internal quotation marks omitted); see also Smith v. City

of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003) (same regarding ADEA

claims).

Once the plaintiff has made a prima facie case, the burden shifts to the

employer to “produce a legitimate, non-discriminatory reason for her

termination,” which “causes the presumption of discrimination to dissipate.”

Manaway hints in her brief that there is direct evidence of Smith’s age discrimination

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against her. Manaway has not properly briefed this argument, and we do not consider it. See

Fed. R. App. P. 28(A)(9)(a); see also United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.

2010) (“It is not enough to merely mention or allude to a legal theory.” (citation and internal

quotation marks omitted)).

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Laxton, 333 F.3d at 578 (citation omitted). The plaintiff may prove pretext

“either through evidence of disparate treatment or by showing that the

employer’s proffered explanation is false or unworthy of credence.” Id. (citation

and internal quotation marks omitted). With this framework in mind, we turn

to Manaway’s Title VII and ADEA claims.

There is no dispute in this case that Manaway has met the first three

prongs of proving a prima facie case for her Title VII and ADEA claims.

Manaway is a 58-year-old, African-American woman, she was qualified for her

position, and she suffered an adverse employment action when she was

terminated. There is a dispute, however, over whether Manaway has made a

prima facie case of disparate treatment by stating that other Medical Center

employees who refused assignments were not terminated. Because the burden

for establishing a prima facie case is “very minimal,” see Nichols v. Loral Vought

Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (citation and internal quotation marks

omitted), and because we decide Manaway’s Title VII and ADEA claims on the

basis of pretext, we assume, without deciding, that Manaway has made a prima

facie case of discrimination. See Okoye v. Univ. of Tex. Houston Health Science

Ctr., 245 F.3d 507, 513 (5th Cir. 2001).

The Medical Center stated that Manaway was terminated because of her

insubordination and refusal to carry out patient assignments, which satisfies its

burden of providing a “legitimate, non-discriminatory” reason for Manaway’s

termination. See Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164,

167–68 (5th Cir. 1999) (“The failure of a subordinate to follow the direct order

of a supervisor is a legitimate nondiscriminatory reason for discharging that

employee.”). Manaway has failed to carry her burden of proving that there is a

genuine dispute over whether the Medical Center’s proffered reason is a pretext

for race or age-based animus.

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Manaway first argues that her termination was pretextual because she did

not refuse patient assignments. However, the record undisputedly shows that

Manaway was asked by supervisors to carry out patient assignments and that

those assignments were not carried out. Manaway’s “assertion of innocence

alone does not create a factual issue as to the falsity of [the employer’s] proffered

reason for terminating [her].” Jackson, 602 F.3d at 379; see also Evans, 246 F.3d

at 355 (stating that employee’s claim cannot survive summary judgment “merely

because she disagrees with [her employer’s] characterization of her disciplinary

history” (citation and internal quotation marks omitted)). Furthermore,

Manaway does not dispute that she hung up on her supervisor in violation of the

Medical Center’s policy and left a counseling session before it was completed.

Manaway next argues that the Medical Center’s reason for her

termination was pretextual because similarly situated employees were not

terminated for similar conduct. See Laxton, 333 F.3d at 578. Proof of disparate

treatment requires her to “demonstrate that the misconduct for which she was

discharged was nearly identical to that engaged in by an employee not within

her protected class whom the company retained.” Wallace v. Methodist Hosp.

Sys., 271 F.3d 212, 221 (5th Cir. 2001) (citation, internal alteration, and internal

quotation marks omitted). Manaway points to two other employees who

allegedly engaged in similar conduct but were not terminated. Manaway claims

that one white employee, Marva Roan, would routinely yell at co-workers and

refused assignments. Manaway claims that another white employee, Debra

Vanover, would read novels and work on crossword puzzles and also refused

assignments. She claims that neither of these employees was reprimanded or

fired for her conduct.

However, Manaway has provided no evidence, aside from her

unsubstantiated assertion, to establish that Vanover or Roan refused

assignments. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th

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Cir. 2007) (“[A] party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence.” (internal

citation and quotation marks omitted)). Nor has she claimed that Smith and the

Medical Center’s administrators were, with the exception of Roan’s yelling,

aware of Vanover and Roan’s conduct. See Wallace, 271 F.3d at 221 (stating that

employees were not similarly situated, in part, because “no one in a supervisory

capacity was aware” of the other employee’s actions). Finally, she has not

provided any evidence that Vanover or Roan had her track record of refusing

counseling for misconduct and insubordination, which the Medical Center’s

employees testified as contributing to her termination. See id. (“[T]he conduct

at issue is not nearly identical when the difference between the plaintiff’s

conduct and that of those alleged to be similarly situated accounts for the

difference in treatment[.]”). Accordingly, Manaway has not created a genuine

dispute over the Medical Center’s disparate treatment of employees.

Finally, Manaway argues that several comments made by Smith prior to

Manaway’s termination create a genuine dispute over the reason for her

termination. First, Manaway claims that Smith threatened to send the Ku

3

Klux Klan to an African-American co-worker’s house. Assuming Smith actually

made this statement, it was made one year prior to Manaway’s termination and

was not made in the context of Smith’s decision to terminate Manaway.

Therefore, it does not demonstrate that Manaway’s termination was the result

of racial discrimination. See Jackson, 602 F.3d at 380 (stating that a comment

Because Manaway’s evidence of pretext is weak or non-existent, we apply this court’s 3

“stray remarks” doctrine to Smith’s alleged comments. See, e.g., Auguster v. Vermilion Parish

Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (applying the stray remarks doctrine where “the

plaintiff has failed to produce substantial evidence of pretext”). Stray remarks are evidence

of discrimination when they are (1) “related to the protected class of persons of which the

plaintiff is a member”; (2) “proximate in time to the complained-of adverse employment

decision”; (3) “made by an individual with authority over the employment decision at issue”;

and (4) “related to the employment decision at issue.” Jackson, 602 F.3d at 380 (citation and

internal quotation marks omitted).

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made one year before adverse employment action and unrelated to employment

action does not establish a genuine issue of material fact regarding pretext).

Next, Manaway claims that Smith made two age-related comments that

create a fact issue over whether Manaway’s termination was motivated by age

discrimination. Manaway alleges that, shortly before rotating the charge nurse

position, Smith stated that she had heard that Manaway was retiring.

Manaway also alleges that Smith stated, at a staff meeting, that “she want[ed]

some younger people, new ideas, and she’s just a person that like[s] new ideas.”

Smith explained that she made this comment because she enjoyed “hiring new

nurses who come in with a fresh concept and a new idea.” There is no evidence

in the record from which to conclude that either of Smith’s comments were made

in connection with Smith’s decision to recommend Manaway for termination.

See Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 344 (5th Cir. 2002)

(stating that comments were “stray remarks,” in part because they did not relate

to the adverse employment action). Furthermore, Smith’s comment about

Manaway’s retirement was made in June 2007, almost eight months before her

termination, and Manaway cannot remember when Smith stated that she liked

hiring younger employees with new ideas. Therefore, these comments do not

satisfy Manaway’s burden of proving a conflict in substantial evidence regarding

the Medical Center’s decision for her termination, and the magistrate judge

properly granted summary judgment on Manaway’s Title VII and ADEA claims.

See Wallace, 271 F.3d at 222 (“Where comments are vague and remote in time

they are insufficient to establish discrimination.” (citation, internal alteration,

and internal quotation marks omitted)).

B. Manaway’s Retaliation Claim

A plaintiff may prove retaliation under Title VII by direct or

circumstantial evidence. Direct evidence of retaliation “is evidence which, if

believed, proves the fact of intentional retaliation without inference or

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presumption.” Fieros v. Tex. Dep’t of Health, 274 F.3d 187, 195 (5th Cir. 2001)

(citation, internal alteration, and internal quotation marks omitted), overruled

on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003). In the

absence of direct evidence of retaliation, the plaintiff must make a prima

facie case of retaliation, which is governed by the McDonnell Douglas burdenshifting framework. See id.

1. Direct Evidence of Retaliation

Manaway claims that the magistrate judge erred by requiring her to make

a prima facie showing of retaliation under Title VII because she had direct

evidence that she was fired in retaliation for her complaints. Manaway’s direct

evidence is a statement at the end of Wolf’s termination memorandum:

Sue has made several other allegations of discrimination over the

past few months, all of which have been investigated either at the

hospital level or the corporate level and were found to be

unsubstantiated. Although every employee is highly valued to me

and The Medical Center of Southeast Texas, it is becoming more

evident that we may not be able to reach a resolution which is

amicable to all of the parties involved. As such, I have decided to

separate the employment relationship at this time. I will allow Sue

to submit a resignation if she requests to do so.

If Wolf’s memorandum discussed only Manaway’s complaints, some of

which undisputedly are protected by Title VII, 42 U.S.C. § 2000e-3(a), then this

excerpt could be read as direct evidence that Wolf recommended Manaway’s

termination because of her “several other allegations of discrimination over the

past few months.” However, the memorandum is nearly three pages in length,

and it details Manaway’s repeated counseling regarding her insubordination,

refusal to accept patient assignments, and inability to have a proper working

relationship with Smith. Given the significance of this other content,the excerpt

Manaway cites from Wolf’s memo is not direct evidence of retaliation, and she

must establish a prima facie case. See Sandstad v. CB Richard Ellis, Inc., 309

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F.3d 893, 898 (5th Cir. 2002) (stating that a remark was not direct evidence of

age-based animus, in part because of the “ambiguity of the remark”).

2. Circumstantial Evidence of Retaliation

A prima facie case of retaliation requires the plaintiff to prove that:

(1) “she participated in an activity protected by Title VII”; (2) “her employer took

an adverse employment action against her”; and (3) “a causal connection exists

between the protected activity and the materially adverse action.” Aryain v.

Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). Once the plaintiff

makes a prima facie case of retaliation, the burden shifts to the employer to

“provide a legitimate, non-retaliatory reason for the adverse employment action.”

Hernandez v. Yellow Transp., Inc., — F.3d —, 2011 WL 1796366, at *8 (5th Cir.

May 12, 2011) (citation and internal quotation marks omitted). The burden then

shifts back to the employee to “prove that the protected conduct was a ‘but for’

cause of the adverse employment decision.” Id. (citation and internal quotation

4

marks omitted).

The parties do not dispute that Manaway met the first two prongs of a

prima facie case of retaliation: she made complaints about pay disparity

between white and black employees at the Medical Center, she reported an

allegedly racist comment made by Smith to another employee, she claimed she

was replaced by a white employee from her position as temporary charge nurse,

and she was terminated. With respect to the third prong, Manaway argues that

Wolf’s memorandum establishes a causal link between her protected complaint

and her termination.

Manaway argues that she may also meet her burden by proving that retaliation was

4

a “motivating factor” in the decision to terminate her. Because this argument has been raised

for the first time in Manaway’s reply brief, it has been waived. See United States v. Brown,

305 F.3d 304, 307 n.4 (5th Cir. 2002) (stating that “[t]his Court will not consider a claim raised

for the first time in a reply brief”); see also Nasti v. CIBA Specialty Chems. Corp., 492 F.3d

589, 595 (5th Cir. 2007) (treating mixed motive theory asserted for the first time on appeal as

waived).

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Assuming, without deciding, that Wolf’s memorandum is sufficient to

establish a causal link between Manaway’s complaints and her termination, the

magistrate judge’s grant of summary judgment on this claim was still

appropriate because Wolf’s memorandum does not create a genuine dispute of

material fact that, but for Manaway’s complaints over conduct prohibited by

Title VII, she would not have been terminated. See Hernandez, — F.3d —, 2011

WL 1796366, at *9. The temporal proximity between Manaway’s complaints

alone is not sufficient to create a genuine issue of material fact on the issue of

retaliation. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th

Cir. 2007). It is undisputed that, in at least two instances, Manaway’s

supervisors asked her to perform assignments, and that those assignments went

unperformed. This led to a final warning from the Medical Center, after which

the charge nurse reported that Manaway had refused another assignment. The

record shows that this conduct, and Manaway’s well-documented inability to

work in a professional manner with Smith and other Medical Center staff, are

what precipitated her termination. Therefore, we conclude that there is no

genuine dispute on the issue of but-for causation, and the magistrate judge

properly granted summary judgment on Manaway’s retaliation claim.

IV. CONCLUSION

For the foregoing reasons, the judgment of the magistrate judge is

AFFIRMED.

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