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not be published and is not precedent except under the limited circumstances set forth in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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60103

Summary Calendar

EDDIE MCKINNEY

Plaintiff - Appellant

v.

BOLIVAR MEDICAL CENTER

Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 3:07-CV-209

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Eddie McKinney (“McKinney”) appeals the district

court’s grant of summary judgment on his retaliation and discrimination claims

against his former employer, Defendant-Appellee Bolivar Medical Center

(“Bolivar”). For the following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 13, 2009

Charles R. Fulbruge III

Clerk
No. 09-60103

2

FACTS AND PROCEEDINGS

McKinney, who is black, began working as a speech therapist for Bolivar

in 1998. In 2005, McKinney’s employment status changed from full time to “as

needed” because, according to Bolivar, the services provided by its other speech

therapist, Stephanie Hutchinson (“Hutchinson”), were in greater demand with

patients and her performance was superior to McKinney’s. McKinney also took

issue with his reassignment to a smaller office and the new billing and

documentation policies imposed on the staff. In September 2006, McKinney was

terminated for failing to comply with these policies and making unjustified

accusations of racism against his supervisors.

In October 2006, McKinney filed a charge of discrimination with the EEOC

under the Equal Pay Act, arguing that Hutchinson received a higher pay based

on her sex. He later amended his charge with a claim that the wage disparity

was due to his race. After obtaining his right to sue notice from the EEOC,

McKinney filed this lawsuit in October 2007. His state and federal claims

against Bolivar include race discrimination and retaliation under 42 U.S.C. §

1981, thus circumventing Title VII’s requirement that discrimination and

retaliation claims be first raised before the EEOC. The district court granted

Bolivar’s motion for summary judgment on all of McKinney’s claims. On appeal,

McKinney only challenges the dismissal of his § 1981 claims of race

discrimination and retaliation.

STANDARD OF REVIEW

“This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standards as the district court.” Condrey v. SunTrust

Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary
No. 09-60103

3

judgment, “[t]he evidence and inferences from the summary judgment record are

viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.

Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment

is proper when the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Kane v. Nat’l Union

Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see

also FED. R. CIV. P. 56(c).

DISCUSSION

First, McKinney argues that the district court improperly dismissed his

claim of race discrimination. To establish a prima facie case of discrimination

under § 1981, a plaintiff must show: (1) membership in a protected class; (2) that

he was qualified for the position; (3) that he suffered an adverse employment

action; and (4) that he was replaced by a person outside his protected class.

DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). The burden then shifts to

the employer to articulate “a legitimate, nondiscriminatory reason” for its

employment action. Id. If the employer meets this burden, the plaintiff bears

the final burden of proving that the employer’s proffered reason is a pretext for

discrimination—either through evidence of disparate treatment or by showing

that the employer’s explanation is false or unworthy of credence. Laxton v. Gap

Inc., 333 F.3d 572, 578 (5th Cir. 2003).

We will assume, as the district court did, that McKinney made a proper

prima facie showing of race discrimination. We agree with the district court that

Bolivar met its burden by offering two nondiscriminatory reasons for

terminating McKinney. Bolivar has presented ample evidence of McKinney’s
No. 09-60103

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poor work performance, including his over-billing of patients on several

occasions and his failure to comply with Bolivar’s documentation policies, and

further alleges that McKinney made unjustified accusations of racism against

his supervisors. McKinney has not shown that the performance based

justification for terminating him was pretextual; in fact, he does not even appear

to challenge Bolivar’s allegations regarding his performance. This alone would

be reason enough to dismiss the discrimination claim because a plaintiff is

required to rebut each nondiscriminatory reason articulated by his employer to

carry his burden of demonstrating pretext. See id.

With respect to Bolivar’s claim that he improperly accused his superiors

of racism, McKinney denies ever making such statements. However, regardless

of whether McKinney made the alleged accusations, the relevant issue is

whether Bolivar believed in good faith that such accusations were made and

whether McKinney was truly terminated based on that good faith belief. See

Waggoner v. City of Garland, 987 F.2d 1160, 1165–66 (5th Cir. 1993) (holding

that a plaintiff has not demonstrated that the employer’s reason for terminating

him was pretextual if the employer reasonably believed the complaint of sexual

harassment lodged against the plaintiff and acted on it in good faith). Even

assuming that McKinney’s supervisors falsely reported the accusations of

racism, McKinney has offered no evidence that Bolivar knew or had reason to

believe that these accusations were fabricated. 

McKinney claims that, even if Bolivar itself was innocent of any

discriminatory intent, his supervisors’ discriminatory attitudes should be

imputed to Bolivar. Indeed, an employer may be held liable if it “acted as a

rubber stamp, or the ‘cat’s paw’ for [a supervisor’s] prejudice, even if the
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[employer] lacked discriminatory intent.” Russell v. McKinney Hosp. Venture,

235 F.3d 219, 227 (5th Cir. 2000) (quotation omitted). However, in order to use

the “cat’s paw” analysis, a plaintiff must show that the supervisor who

influenced the adverse employment action exhibited “discriminatory animus”

towards him. Id. McKinney has provided no evidence that his supervisors

acted with race-based animus in complaining that McKinney had called them

racists. In fact, McKinney testified that he never heard racial comments or

witnessed his white co-workers being treated differently while employed at

Bolivar. There is therefore no “discriminatory animus” on the part of Bolivar

employees that could be imputed to Bolivar. Accordingly, McKinney’s

discrimination claim fails and was properly dismissed by the district court.

Next, McKinney contends that the district court erred in dismissing his

claim that he was terminated in retaliation for allegedly accusing his supervisors

of racism. To establish a prima facie case of retaliation under § 1981, a plaintiff

must show: (1) he participated in an activity protected by Title VII; (2) his

employer subjected him to an adverse employment action; and (3) a causal

connection exists between the protected activity and the adverse action. Davis

v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). “An employee

has engaged in activity protected by Title VII if [he] has either (1) ‘opposed any

practice made an unlawful employment practice’ by Title VII or (2) ‘made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing’ under Title VII.” Long v. Eastfield Coll., 88 F.3d 300, 304

(5th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). McKinney concedes that he did

not engage in any protected activity.

Nevertheless, he alleges that Bolivar retaliated against him because it
No. 09-60103

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believed that he was engaging in protected activity and that such a

misperception suffices for a retaliation claim. See Fogelman v. Mercy Hosp.

Inc., 283 F.3d 561, 571–72 (3d Cir. 2002) (holding that a plaintiff’s retaliation

claim is cognizable even in the absence of protected activity, as long as his

employer perceived him to be engaged in such activity). As noted by the district

court, the Fifth Circuit has not adopted this perception theory of retaliation.

Furthermore, nothing in the record suggests that Bolivar believed McKinney to

be engaged in protected activity or that it terminated him for that reason. On

the contrary, the evidence supports Bolivar’s assertion that McKinney was

terminated due to his poor work performance and his unfounded accusations of

racism. Accordingly, summary judgment on McKinney’s retaliation claim was

proper.

CONCLUSION

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

AFFIRMED.