* 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. 07-60041

KHALED RIKABI, M.D.

Plaintiff-Appellant

v.

JIM NICHOLSON, Secretary, Department of Veterans Affairs

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:05-CV-102

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

The sole issue in this employment retaliation case is whether the plaintiff

has set forth sufficient evidence of pretext to withstand a motion for summary

judgment. Because there is sufficient evidence to create a genuine issue of

material fact whether the employer’s proffered explanation for the adverse

employment action was a pretext for retaliation, we reverse and remand this

matter to the district court for proceedings consistent with this opinion.

United States Court of Appeals

Fifth Circuit

F I L E D

January 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-60041

2

I. BACKGROUND

Khaled Rikabi, M.D., is a Muslim of Lebanese origin, a naturalized citizen

of the United States, and an experienced physician specializing in infectious

diseases. On August 18, 1996, he began working as a staff physician for the

Department of Veterans Affairs at the Biloxi VA Medical Center (the “Center”).

In June 1997, his role was expanded to provide medical care to injured

employees at the Center’s Occupational Health Service. In January 2000, his

role was again expanded to include case management, essentially granting him

the full complement of duties and responsibilities of the Occupational Health

Director. Dr. Gregg Parker, Chief of Staff of the Center, supervised Dr. Rikabi’s

work as a physician. Gary Butterfield, Human Relations Manager, supervised

his work as Occupational Health Director.

Following the September 11, 2001 attacks, Dr. Rikabi began noticing signs

of anti-Muslim sentiment at the Center. Specifically, he alleges that Dr. Parker

openly referred to Muslims as a threat to the United States. He also alleges that

Butterfield’s wife, who worked as a secretary at the Center, informed him that

she and her husband dislike Muslims and how Muslims live.

On January 3, 2003, Dr. Parker and Butterfield informed Dr. Rikabi that

they were reorganizing the Occupational Health Service and that they might

“phase out” his position. On January 18, 2003, Dr. Rikabi made a presentation

demonstrating the significant savings that would be lost without an occupational

health physician on site. Nonetheless, on March 17, 2003, Butterfield

terminated Dr. Rikabi, effective March 27, 2003, explaining that his services

were no longer needed. Although Dr. Rikabi pursued a private practice, he

continued to provide infectious disease consultations at the Center on an

intermittent basis at the request of Dr. Kenneth C. Roberts, Chief of Medicine

at the Center. Dr. Rikabi continues to retain his privileges at the Center.
No. 07-60041

3

In June 2003, Dr. Rikabi learned that the Center had issued a recruiting

announcement for an occupational health physician - the very position from

which he was terminated. On June 17, 2003, he made a verbal EEO complaint

with the Center’s EEO Manager, Pat Griffin, alleging that Dr. Parker

discriminated against him on the bases of religion and national origin. Almost

immediately, the number of calls requesting his consultation services at the

Center dropped significantly. In fact, almost three hours after making his EEO

complaint, Dr. Parker announced that any patient needing an infectious disease

consult should not be seen by Dr. Rikabi, but should instead be transported to

Pascagoula, Mississippi. During the next few months, the Center began

reviewing any physician who called Dr. Rikabi for an infectious disease

consultation, intermittently terminated his computer access, and during one

consult, Butterfield said to him, “You’re not supposed to be here. Why are you

here?”

On February 24, 2005, Dr. Rikabi filed suit in federal court alleging

wrongful termination, hostile work environment, and retaliation claims. The

district court granted summary judgment in favor of the defendant on the

wrongful termination and hostile work environment claims on the ground that

they were untimely. It also granted summary judgment in favor of the

defendant on the retaliation claim on the ground that Dr. Rikabi failed to

establish pretext. Dr. Rikabi filed this timely notice of appeal. 

II. STANDARD OF REVIEW

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

applying the same standards as the district court. Turner v. Baylor Richardson

Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary

judgment only if “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 a judgment as a matter of law.” Fed. R. Civ.
No. 07-60041

4

P. 56(c). On a motion for summary judgment, the court must view the facts in

the light most favorable to the non-moving party and draw all reasonable

inferences in its favor. See Hockman v. Westward Commc’ns, LLC, 407F.3d 317,

325 (5th Cir. 2004). In reviewing the evidence, the court must therefore “refrain

from making credibility determinations or weighing the evidence.” Turner, 476

F.3d at 343.

III. ANALYSIS

To establish a claim for retaliation under Title VII, a plaintiff must

demonstrate that: (1) he engaged in protected activity; (2) he suffered an

adverse employment action; and (3) a causal connection exists between the

protected activity and the adverse employment action. See Fabela v. Socorro

Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003). Once the plaintiff

establishes a prima facie case for retaliation, the burden of production shifts to

the defendant to provide a legitimate non-retaliatory purpose for the adverse

employment action. Pineda v. UPS, 360 F.3d 483, 487 (5th Cir. 2004).

Assuming the defendant meets this burden, “the employee’s ultimate burden is

to prove that the employer’s stated reason for the adverse action was merely a

pretextfor the real, retaliatory purpose.” Septimus v. Univ. of Houston, 399 F.3d

601, 608 (5th Cir. 2005). “To satisfy this burden, the plaintiff must offer ‘some

evidence . . . that permits the jury to infer that the proffered explanation was a

pretext for [retaliation]. The trier of fact may not simply choose to disbelieve the

employer’s explanation in the absence of any evidence showing why it should do

so.’” Pineda, 360 F.3d at 487 (quoting Swanson v. GSA, 110 F.3d 1180, 1185 (5th

Cir. 1997). “[T]he combination of suspicious timing with other significant

evidence of pretext, can be sufficient to survive summary judgment.”

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

Here, it is undisputed that Dr. Rikabi set forth a prima facie case of

retaliation: (1) he engaged in protected activity; (2) he experienced a significant
No. 07-60041

1 Dr. Parker denies having had knowledge of the EEO complaint at this time.

2 Notwithstanding his “concerns,” Dr. Parker still informed his staff that if Dr. Ekenna

or the infectious disease specialist at the Keesler Air Force Base was unavailable, “Dr. Rikabi

was fine.”

3 Specifically, Dr. Parker gave Dr. Rikabi a rating of “outstanding” for “clinical

competence,”“education competence,” and “research and development,” anda rating of“highly

satisfactory” for “administrative competence” and “personal qualities.”

5

and sudden drop in his workload at the Center; and (3) this action occurred

almost immediately following his protected activity. Thus, the burden of

production shifts to the defendant to provide a non-retaliatory explanation for

the adverse employment action and if the defendant meets this burden, the

ultimate burden of persuasion shifts to the plaintiff to provide some evidence of

pretext. Pineda, 360 F.3d at 487. 

At the June 17, 2003 meeting -- a mere three hours after Dr. Rikabi made

his verbal EEO complaint at the Center -- Dr. Parker instructed his staff to stop

using Dr. Rikabi’s services, explaining that Dr. Rikabi had an onsite altercation

and had to be escorted off campus by security.1In response to Dr. Parker’s

instruction, Dr. Roberts investigated the alleged incident and confirmed that in

March 2003, Dr. Rikabi and his wife had an altercation at the Center and had

to be escorted off campus by security. We initially agree that a reasonable jury

could find the timing of this explanation suspicious given that Dr. Parker used

an incidentthat occurred three months prior as a justification for his instruction

to stop using Dr. Rikabi’s services. Moreover, at his deposition, Dr. Parker gave

a different justification, explaining that he was actually concerned that Dr.

Rikabi was providing substandard patient care.2 Not only could a reasonable

jury find this subsequent explanation suspicious given that it was not the

explanation provided at the June 17, 2003 meeting, but just ten months prior,

Dr. Parker gave Dr. Rikabi an overall performance rating of “outstanding.”3In

fact, there is nothing in the record, other than Dr. Parker’s blanket assertion,
No. 07-60041

6

indicating that Dr. Rikabi provided substandard patient care. Incidentally, Dr.

Parker is no longer the Center’s chief of staff and the new chief of medicine has

since inquired about using Dr. Rikabi’s services again because the current

consultation service is highly substandard. That the Center is now

contemplating the use of Dr. Rikabi’s services again lends doubt to Dr. Parker’s

explanation that Dr. Rikabi provided substandard care. A reasonable jury could

further question the sincerity of Dr. Parker’s varying explanations given that

other physicians at the Center were troubled by his instruction to send patients

to Pascagoula, Mississippi when Dr. Rikabi was offering onsite consultations.

In fact, when asked about the true motive behind Dr. Parker’s instruction, Dr.

Lactancio Fernandes testified at his deposition that “the rumor around the

hospital was that it was because [Dr. Rikabi] had filed an EEO complaint.”

Given (1) the timing of Dr. Parker’s instruction; (2) the rumor that he was

angry aboutthe EEO complaint; (3)the varying explanations for his instruction;

(4) the fact that his instruction raised concerns about patient care; (5) Dr.

Rikabi’s outstanding performance evaluations; and (6) the fact that the Center

is once again seeking Dr. Rikabi’s services, we conclude that evidence of pretext

sufficient to create a genuine issue of material fact exists. See Shackelford, 190

F.3d at 409 (“[T]he combination of suspicious timing with other significant

evidence of pretext, can be sufficient to survive summary judgment.”).

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment of the district court

and remand this matter for proceedings consistent with his opinion.

REVERSED AND REMANDED.