REVISED - July 6, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-30063

FERMAN CHANEY,

Plaintiff - Appellant-Cross-Appellee,

VERSUS

NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INCORPORATED,

Defendant - Appellee-Cross-Appellant.

*******************************************

No. 98-30201

FERMAN CHANEY,

Plaintiff - Appellant,

VERSUS

NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INCORPORATED,

Defendant - Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

June 17, 1999-2-

BEFORE GARWOOD, DAVIS, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Ferman Chaney sued Ne w Orleans Public Facility Management,

Inc. for unlawful retaliatory discharge, and succeeded in obtaining

damages and reinstatement to his former position. We find that the

evidence adduced at trial by Chaney is insufficient to support the

jury’s finding of liability, and accordingly we rever se the

judgment below.

I.

Ferman Chaney is an employee of New Orleans Public Facility

Management, Inc. (NOPFMI), who was di scharged, filed this

employment discrimination lawsui t, and then was reinstated as a

result of his victory in the district court. C haney was originally

hired by NOPF MI in conjunction with the opening of the Ernest N.

Morial Convention Center in 1984. Chaney worked at the Convention

Center continuously for twelve years until he was discharged.

During this time, Chaney established a reputation as the primary

problem-solver for roof leaks.

In October 19 94, NOPFMI hired its first human resources

director, Lawrence Robinson. In the course of his duties Robinson

revised NOPFMI’s policy and procedure manual, resulting in a much

stricter work environment than that to which the Convention Center

employees had become accustomed. The changes prompted by Robinson

affected management as well, and supervisors were required to

maintain logs of employees’ job performance and give empl oyees

periodic formal evaluations. The new policies were promulgated in-3-

March 1995. R obinson reviewed these new policies with each

employee, including Chaney.

At the same time as the new policies were being implemented,

Cha ney’s supervisor, Richard Lyons, was replaced as foreman by

Gerard Johnston. Lyons subsequently filed a racial discrimination

lawsuit against NOPFMI. The factual underpinnings of the Lyons

litigation are important to the background of this case. Lyons, a

white man, had been a foreman at the Convention Center, and his

direct supervisor was Vincent Ducré, a black man. Lyons alleged

that Ducré undermined his authority in favor of Johnston, who is

black and who was one of Lyons’ subordinates. When Lyons was

demoted and Johnston w as promoted to foreman (Lyons’ former

position), Lyons filed his lawsuit against NOPFMI, alleging racial

discrimination.

Johnston was Chaney’s supervisor during the period of time at

issue in this appeal. Some Convention Center employees, including

Chaney, were subpoenaed by counsel for Lyons for the purpose of

providing testimony. On July 13, 1994, Chaney was required to

leave work to meet the lawyers, and he provided them with a

handwritten affidavit which supported Lyons’ claims. Chaney claims

that when he returned to work, he was confronted by Johnston, who

accused: “Yeah, you tried to nail your boy, huh?”

F ive days later, Chaney received a negative evaluation from

his supervisors for the first time in his ten years of employment

at the Convention Center. (Notably, Chaney had not received any

f ormal evaluation whatsoever in the preceding four years.) This-4-

event was followed by what Chaney describes as an “intense barrage

of negative formal assessments and less formal ‘wri te-ups’” by

Johnston from July 1994 to August 1996.

The final event, which resulted in Ch a ney’s termination,

occurred on August 8, 1996. Chaney entered the carpenter shop to

eat his lunch, and there he met Johnston, who told him to go repair

a leak in the roof. Chaney responded that he was waiting for a

phone call, and would complete the task after lunch. Johnston

twice more ordered Chaney to attend to the repair immediately, and

then he sent another employee. Chaney was suspended without pay,

and on August 22 was informed by Robi son that he had been

terminated for “improper behavior towards supervisor” in the August

8 incident.

Subsequently, Chaney filed this lawsuit against his employer,

alleging inter alia that he had been terminated in retaliation for

providing the affidavit in the Lyons litigation, in violation of 42

U.S.C. § 2000e-3(a). The case was tried to a jury, which rendered

a verdict in his favor. Chaney recovered damages and reinstatement

to his former position. The district judge declined to enter

judgment on the damages which the jur y had awarded to Chaney for

mental anguish. Both Chaney and NOPFMI appeal.

II.

Both Chaney and NOPFMI appeal from adverse sufficiency-based

rulings o n NOPFMI’s motion for judgment as a matter of law, s ee

Fed. R. Civ. P. 50(a)(1). NOPFMI appeals the district court’s-5-

failure to grant judgment as a matter of law on Chaney’s

retaliation claim.

This Co urt reviews the decision below de novo, applying the

same standards as does the district c ourt. S ee, e.g.

, Fields v.

J.C. Penney Co. , 968 F.2d 533, 536 (5th Cir. 1992). The standard

for granting judgment as a matter of law in employment

discrimination is well settled. S ee Rhodes v. Guiberson Oil Tools

,

75 F.3d 989, 992 (5th Cir. 1996) (en banc). We test the

sufficiency of evidence supporting jury verdicts and summary

judgments under the standard of Boeing Co. v. Shipman

, 411 F.2d 365

(5th Cir. 1969) (en banc). In order to create a jury question,

there must be a dispute in the substantial evidence, that is,

evidence which is of such quality and weight that reasonable and

fair-minded men in the exercise of impartial judgment might reach

different conclusions. Consequently, a mere scintilla of evidence

is insufficient to pr esent a question for the jury. S ee Boeing

,

411 F.2d at 374-75. Even if the evidence is more than a scintilla,

Boeing assumes that some evidence may exist to support a position

which is yet so overwhelmed by contrary proof as to yield to a

directed verdict. S ee Rhodes

, 75 F.3d at 992; Neely v. Delta Brick

& Tile Co., Inc. , 817 F.2d 1224, 1226 (5th Cir. 1987).

III.

Chaney’s retaliation claim is based solely on the contention

that his dismissal stemmed from his submission of an affidavit in

the Lyons case. The governing statute provides: “It shall be an-6-

unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has made a charge,

testified, assisted, or participated in any manne r in an

investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e-3(a). A prima facie case of retaliatory discharge

under 42 U.S.C. § 2000e-3(a) thus consists of proof that the

employee engaged in protected con duct, that the employee was

thereafter subjected to an adverse employment action, and that such

adverse employment action was motivated by animus inspired by the

protected conduct. If the plaintiff makes a prima facie case, the

burden shifts to the employer to provide a legitimate,

nonre taliatory reason for the adverse employment action. Should

the employer provide a permissible ration ale, the plaintiff then

shoulders the ultimate burden of proving that the employer’s

proffered rationale was pre textual and that engaging in the

protected activity was the but-for cause of the adverse employment

action ( i.e.

, the employer actually retaliated against the

employee). S ee Anderson v. D ouglas & Lomason Co., Inc. , 26 F.3d

1277, 1300 (5th Cir. 1994); McMillan v. Rust College, Inc.

, 710

F.2d 1112, 1116 (5th Cir. 1983); see also St. Mary’s Honor Ctr. v.

Hicks

, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2748-49 (1993); Texas

Dep’t of Community Affairs v. Burdine

, 450 U.S. 248, 252-58, 101 S.

Ct. 1089, 1093-96 (1981); M cDonnell-Douglas Corp. v. Green

, 4 1 1

U.S. 792, 802-05, 93 S. Ct. 1817, 1824-25 (1973). Chaney failed to

satisfy his ultimate burden in this case because the evidence fails

to demonstrate that NOPFMI’s justification for his discharge ---7-

Chaney’s insubordination

-- was a pretext and that retaliation was

the real motive for his discharge.

A.

As an initial matter, there is no evidence in the record that

casts any shadow of possible pretext. Chaney concedes that he

failed to comply with Johnston’s ord ers on August 8, 1996. The

policy and procedure manual governing employment at the Convention

Center warns that disrespect for a supervisor and failure to follow

a direct order are grounds for suspension or discharge. NOPFMI

told Chaney that his refusal to follow a direct order was the

reason for his discharge. The failure of a subordinate to follow

the direct order of a supervisor is a legitimate nondiscriminatory

reason for discharging that employee. In a case in which the

employer has articulated a rational justification for terminating

an employee, and the facts supporting that justification are not

seriously disputed, the task of proving pretext becomes quite

difficult. S ee Elliott v. Gr oup Med. & Surgical Serv. , 714 F.2d

556, 567 (5th Cir. 1983).

That difficulty is compounded in this case, in which there is

no evidence that NOPFMI’s employment policies were enforced

strictly against employees who helped Lyons, but not against other

employees. Chaney himself testified that the work environment

changed significantly for all employees after Robinson was hired as

a human resources director. It is true that a record of Chaney’s

workplace infractions was developed in the mon ths following his-8-

affidavit, and that the re was no such record beforehand, but,

again, this is explained by NOPFMI’s renewed enforcement of

employment policies under Robinson’s leadership, which required

supervisors to kee p logs of employees’ workplace performance.

Without evidence of disparate treatment, it is difficult to

maintain that a straightforward application of workplace policies

and procedure s was pretextual. S ee Swanson v. General Servs.

Admin.

, 11 0 F.3d 1180, 1186 (5th Cir.) (citing O dom v. Frank

, 3

F .3d 839, 849 (5th Cir. 1993)), cert. denied

, 118 S. Ct. 366

(1997).

B.

Second, the eviden ce does not establish that any of the

supervisors responsible for Chaney’s discharge knew about Chaney’s

affidavit or its contents at the time Chaney was disc harged.

Chaney testified that he did not tell anybody at the Convention

Center that he had given an affidavit for Lyons and that he never

revealed the contents of the affidavit to anyone. Robinson, the

human resources director, testified that he did not know about the

affidavit at the time of Chaney’s dis charge, and that he did not

learn about the affidavit until Chaney filed this lawsuit. Ducré,

the foreman at the time the affidavit was submitted, testified that

he was aware that some Convention Center employees had received

subpoenas in the Lyons case, but that he had no specific knowledge

that Chaney was one of them. Likewise, Johnston, Chaney’s direct

supervisor, testified that he did not know and nobody had told him-9-

about Chaney’s affidavit or its contents at the time of Chaney’s

termination. If an employer is unaware of an employee’s protected

conduct at the time of the adverse employment action, the employer

plainly could not have retaliated against the emplo yee based on

that conduct. S ee Grizzle v. Travelers Health Network, Inc.

, 14

F.3d 261, 267 (5th Cir. 1994); cf. McKennon v. Nashville Banner

Publ’g Co.

, 513 U .S. 352, 359-60, 115 S. Ct. 879, 885 (1995) (an

employer could not defend itself from an allegation of employment

discrimination by offering a nondiscriminatory justification for

discharge which was discovered after the actual discharge).

The best piece of circumstantial evidenc e of the employer’s

knowledge adduced by Chaney is the alleged confrontation in which

Johnst on purportedly stated: “Yeah, you tried to nail your boy,

huh?” Additionally, several witnesses stated a subjective belief,

unsupported by personal knowledge, that Convention Center

supervisors knew which employees were providing testimony to Lyons,

and Chaney testified that in discussions about his negati ve work

evaluations he told Ducré and Johnston, without elaboration, that

he was “testifying against” Johnston. But there is no direct

evidence to contradict the managers’ testimony that they were

unaware of Chaney’s affidavit. The testimony of Chaney’s

colleagues was speculative at best. Each of Chaney’s witnesses had

a lawsuit against NOPFMI, so all of the circumstantial evidence was

e ntirely self-serving. In a case such as this, in which the

employer has provided a l egitimate nonretaliatory reason for the

employment action based on essent ially uncontested facts, such-10-

generalized e vidence is of negligible probative value to prove

intentional discrimination. See Elliott , 714 F.2d at 564.

C.

Finally, we note that fully two years passed between Chaney’s

submission of the affidavit and the allegedly reta liatory

discharge. While not entirely dispositive, this circumstance

renders a theory of retaliation quite doubtful. S ee, e.g.

,

Grizzle , 14 F.3d at 268.

IV.

In sum, we are convinced that Chaney failed to prove causation

in light of the overwhelming factual evidence supporting NOPFMI’s

claim that it discharged Chaney for nonretaliatory reasons. The

speculations of a few co-workers provided a very slight amount of

circumstantial evidence to support Chaney’s retaliation theory.

This evidence is simply insufficient in light of NOPFMI’s perfectly

rational justification for discharging Chaney, based on a workplace

infraction which is not seriously disputed. Our conclusion is

bolstered by the absence of any evidence that Chaney’s supervisors

knew about his affidavit or its contents, the lack of evidence of

selective enforcement of polices, and the lapse of two years

between the protected action and the discharge. We conclude that

no reasonable juror could conclude that re taliation for the

affidavit actually motivated Chaney’s discharge.-11-

For the aforementioned reasons, we REVERSE the judgment below

based on the insufficiency of the evidence to prove retaliation.

Our disposition on this point renders moot Chaney’s appeal and all

other arguments raised by the parties.