* 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. 07-10917

Summary Calendar

BRENNAN MORRISON

Plaintiff - Appellant

v.

DALLAS COUNTY COMMUNITY COLLEGE; BRENT DUDENHOEFFER,

in his individual and official capacity

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

No. 3:05-cv-01821

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff Brennan Morrison argues that fact questions should have

prevented the grant of summary judgmentin favor of Defendants Dallas County

Community College District and Brent Dudenhoeffer on his race discrimination

and retaliation claims, brought in part under Title VII of the 1964 Civil Rights

Act, and his defamation claim under Texas state law. The Defendants allege

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-10917

1 The Natatorium is operated as a partnership among the District, the City of Irving,

and the Irving Independent School District. The agreement governing the Natatorium

empowered the District to hire the Supervisor (Morrison’s position) according to District hiring

guidelines. Once hired, the Supervisor would report to both the City Aquatic Supervisor

(Ritchie’s position) and an administrator designated by the District (Dudenhoeffer).

2

that the appeal is frivolous and seek imposition of sanctions. We affirm the

grant of summary judgment but deny the Defendants’ motion for sanctions.

I. Facts and Procedural Background

Brennan Morrison, an African American male, was employed by the Dallas

County Community College District(the “District”) as a Natatorium Supervisor,

i.e., the supervisor of an indoor swimming facility. The facility is at North Lake

College in Irving, Texas, where Morrison was employed from November 2003 to

February 2005. His supervisors were Brent Dudenhoeffer, an Assistant Dean

at North Lake College, and Walter Ritchie, the City of Irving’s Superintendent

of Parks, Athletics and Acquatics.1 As Natatorium Supervisor, Morrison was

responsible for oversight of all services, including supervision of pool staff. 

At some point, Dudenhoeffer began to raise concerns regarding Morrison’s

job performance. Morrison responded with complaints that the requirement that

he reportto two supervisors caused confusion and inhibited his job performance.

The District responded by requiring Dudenhoeffer and Morrison to have weekly

progress meetings with two other North Lake College staff members beginning

in October 2004. The meetings provided opportunities for Dudenhoeffer to

explain Morrison’s reporting and job responsibilities, and for Morrison to raise

specific concerns regarding his duties. Morrison’s job performance allegedly

continued to fall below the District’s expectations. During the months of October

and November 2004, Morrison received several written reprimands and

memoranda detailing the District’s expectations.

On December 8, 2004, the District decided to respond to Morrison’s

continued job-related deficiencies by placing him on “decision-making leave.”
No. 07-10917

3

District policy provides that employees with significant on-going deficiencies

receive one day of paid leave followed by a probationary period. Failure to

improve past deficiencies during the probationary period could result in the

employee’s termination. On December 13, 2004, Morrison filed a grievance

against Dudenhoeffer in accordance with the District’s internal grievance

procedure. On December 15, 2004, Dudenhoeffer informed Morrison that he was

being placed on “decision-making leave” for one day and provided Morrison with

documentation for this decision in accordance with the District’s policy. 

Morrison returned to work on December 17, 2004. However, he received

two reprimands in January 2005 and was terminated on February 17, 2005, for

“ongoing job performance deficiencies.” Morrison appealed his termination to

the President of North Lake College, alleging it to be discriminatory, and filed

a charge of discrimination with the Equal Employment Opportunity

Commission. Thereafter, Morrison filed suit in the district court. He now

appeals that court’s grant of summary judgment in favor of Defendants.

II. Discrimination and Defamation Claims

We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. Greenwell v. State Farm Mut.

Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007). Summary judgment may be

granted only if there exists no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

A. Discrimination Claim

Morrison has not offered direct evidence of discrimination; therefore, we

analyze his claim under the familiar burden-shifting framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); McCoy v. City of Shreveport,

492 F.3d 551, 556-57 (5th Cir. 2007). Because the District terminated Morrison’s

employment, he satisfies the requirements for a prima facie case under this
No. 07-10917

2 As did the district court, we reject Morrison’s argument that the District’s decision to

placehim onone day of paid decision-making leave constitutes an “adverse employment action”

for purposes of establishing a prima facie case of discrimination under the McDonnell Douglas

framework. McCoy, 492 F.3d at 559-60. 

4

framework.2 However, the District offered several legitimate, nondiscriminatory

reasons for its decision to terminate Morrison. The District cites Morrison’s poor

job performance generally and, more specifically, his failure to submit timely and

accurate time sheets, making unapproved modifications to his work hours,

failure to submit leave forms for his absences, and scheduling special events at

the Natatorium without proper notification. The burden shifted back to

Morrison to demonstrate (1) that the defendants’ proffered reasons are not true

(pretext theory) or (2) even if the reasons are true, the defendants’ decision was

motivated in part by Morrison’s race (mixed-motive theory). Rachid v. Jack in

the Box, 376 F.3d 305, 312 (5th Cir. 2004).

Morrison first argues that the District’s proffered reasons are “simply

pretext” and “verifiably false.” To support this argument, Morrison suggests

that Dudenhoeffer’s trustworthiness is “questionable,” argues that he was not

given an opportunity to refute Dudenhoeffer’s allegations of deficient job

performance, asserts that his other supervisor, Ritchie, did not understand

Dudenhoeffer’s concerns over Morrison’s performance, and Ritchie would have

approved a more flexible schedule for Morrison. But none of these assertions

verify the allegation of falsity; Morrison points to no record evidence that would

demonstrate pretext. Therefore, Morrison has failed to put forth evidence that

would rebut any ofthe District’s proffered legitimate nondiscriminatory reasons.

See Wallace v. Methodist Hosp. System, 271 F.3d 212, 220 (5th Cir. 2001).

Morrison also attacks the District’s decision to terminate him under the

mixed-motive theory, arguing that he was treated differently than

underperforming white employees because of his race. However, Morrison has

not shown that these employees were given preferential treatment under
No. 07-10917

5

circumstances “nearly identical”to his own. See Okoye v. Univ. of Texas Houston

Health Science Center, 245 F.3d 507, 514 (5th Cir. 2001). He offers three

examples of alleged “differential” treatment. One employee was not disciplined

despite watching pornographic material at work; another was not disciplined

despite being caught asleep on the job. These violations of District policy are

wholly dissimilar to those committed by Morrison. Finally, he alleges that a

white employee at the Natatorium engaged in time sheet violations but was not

disciplined or terminated; however, this employee’s infractions were not

discovered until after her resignation, precluding the District from taking any

disciplinary action against her. These comparisons do not support an inference

of racially motivated decision-making by the District. See id. at 514-15.

The District has articulated several legitimate nondiscriminatory reasons

for its decision to terminate Morrison. Morrison has failed to rebut these

proffered reasons with record evidence. Thus, his claim for discrimination under

Title VII fails.

B. Retaliation Claim

Morrison alleges that the District’s decision to place him on decisionmaking leave and terminate him both constitute retaliatory acts under Title VII.

In order to establish a prima facie case of retaliation, Morrison must show that

(1) he engaged in protected activity, (2) he experienced an adverse employment

action following the protected activity, and (3) a causal link between the

protected activity and the adverse employment action. McCoy, 492 F.3d at 556-

57. If a prima facie case of retaliation is established, the McDonnell Douglas

burden-shifting framework is employed. Id. at 557.

We accept Morrison’s argumentthat he engaged in protected activity when

he orally complained of race-based discrimination to Dudenhoeffer’s supervisor
No. 07-10917

3 We assume thatthis allegation – taken from Morrison’s deposition testimony – is true.

We note, however, that Morrison also filed a written grievance on the same day. The written

grievance made no mention of race and gave no indication that Morrison believed he was

opposing racially-motivated actions by Dudenhoeffer or the District. As the district court

correctly noted, the written grievance does not constitute protected activity. See Tomanovich

v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (“Although filing an official complaint

with an employer may constitute statutorily protected activity under Title VII, the complaint

must indicate the discrimination occurred because of sex, race, national origin, or some other

protected class.”).

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on December 13, 2004.3 Morrison also alleges that both his placement on one

day of paid decision-making leave and his termination constitute adverse

employment actions. Even were we to make the generous assumption that

placing an employee on one day of paid leave is an adverse employment action,

Morrison fails to establish the requisite causal link between his lodging the oral

complaint and the District’s decision to place him on leave. Undisputed record

evidence shows that the decision to place Morrison on leave was made on

December 8, five days prior to Morrison’s voicing his complaint.

Morrison’s termination occurred approximately two months after his oral

complaint. Assuming this two-month time period is sufficient to establish a

causal link and satisfy the elements of Morrison’s prima facie case, the District

explained that the termination was a result of documented job performance

deficiencies that occurred during Morrison’s post-leave probationary period.

“[O]nce the employer offers a legitimate, nondiscriminatory reason that explains

both the adverse action and the timing, the plaintiff must offer some evidence

from which the jury may infer that retaliation was the real motive.” Swanson

v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). 

On appeal, Morrison asserts that he “can surely make his prima facie case

of retaliation;” this may be, but he just as surely fails to offer any evidence that

would rebut the District’s proffered nondiscriminatory reasons for his

termination. Morrison’s subjective belief that he was treated unfairly, even

Ritchie’s alleged belief that Morrison was treated unfairly, is not sufficient to
No. 07-10917

7

rebut the specific nondiscriminatory reasons offered by the District. Little v.

Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991).

For these reasons, Morrison’s Title VII retaliation claim also fails.

C. Defamation Claim

Finally, Morrison claims that Dudenhoeffer defamed him by telling a third

party that Morrison was terminated for fighting. Texas law recognizes slander

per se and slander per quod. Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.

2005). Morrison argues that Dudenhoeffer’s statement constitutes slander per

se because it caused injury to his office, business or profession. See id. 

The district court properly rejected this argument. In order to constitute

slander per se under this analysis, a statement must be “so obviously harmful”

to the defendant’s professional reputation that damages may be presumed. See

e.g., Shearson Lehman Hutton, Inv. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.

1991) (statement suggesting that stock broker would lose his license was

slanderous per se “because it is aimed at his conduct as a licensed stockbroker

and it asserts a matter incompatible with his practicing that profession”);

Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App. 1989) (“To charge an employee

with dishonesty in his dealings with his employer is slanderous per se . . . .”).

Dudenhoeffer’s alleged statement does not rise to the level of “so obviously

harmful”to Morrison’s occupation or profession that a court may presume he has

suffered damages. 

Thus, Morrison must prove that his reputation was actually damaged as

a result of Dudenhoeffer’s statement. Moore, 166 S.W.3d at 384. The district

court found that Morrison had offered no evidence of actual damages. On

appeal, Morrison does not dispute this finding. Instead, he suggests only that

the district court misapplied the law because “[i]n a defamation per se context,

damages are presumed without proof of injury.” As noted above, Dudenhoeffer’s

statements were not per se defamatory. Because Morrison fails to point us to
No. 07-10917

8

any evidence of actual damage, we conclude that the district court properly

granted summary judgment to Dudenhoeffer on Morrison’s defamation claim.

In light of the forgoing, we AFFIRM the district court’s grant of summary

judgment to the District and Dudenhoeffer.

III. Motion for Sanctions

The District and Dudenhoeffer move this Court to impose sanctions on

Morrison for pursuing this appeal, which they describe as frivolous. This Court

has the discretion to penalize frivolous appeals by awarding “just damages and

single or double costs to the appellee.” Fed. R. App. P. 38. “An appeal is

frivolous if the result is obvious or the arguments of error are wholly without

merit.” Coghlan v. Starkey, 852 F.2d 806, 810-11 (5th Cir. 1988). Under Rule

38, we may impose sanctions on the client, his counsel, or both. Id. at 818.

Morrison responds that he should not be sanctioned because (1) discrimination

cases are inherently fact-based and this precludes a finding that his appeal is

wholly without merit and (2) an appeal based on a “questionable legal position”

is not frivolous if “the underlying litigation is complex or confusing.”

First, although we recognize that employment discrimination cases are

generally fact-intensive, there is nothing inherently complex or confusing about

Morrison’s claims. In fact, the McDonnell Douglas framework was developed

over thirty years ago in order to clarify and simplify the burdens of production

and persuasion in discrimination cases. That framework is routinely applied by

federal courts to claims such as Morrison’s. Second, the fact-intensive nature of

an employment discrimination suit does not relieve a litigant from his

responsibility to pursue only those legal claims that are justified by the facts.

Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999).

In addition, Morrison’s brief to this Court essentially ignores the findings

and rationale of the district court. Morrison embarks upon a factual recitation

and legal analysis of his case that gives no indication as to which facts and legal
No. 07-10917

9

arguments the district court credited, and which ones it rejected. More

importantly, Morrison does not tell this Court with any specificity why the

district court erred in applying the law to the facts of his case. Our de novo

standard of review on summary judgment appeals does not render the district

court’s decision irrelevant. It should come as no surprise that “failing to explain

how the trial court erred or to present cogent or clear arguments for reversal”

may warrant sanctions under Rule 38. Abbs v. Principi, 237 F.3d 1342, 1345

(Fed. Cir. 2001).

Morrison’s counsel also treads very close to blatant misrepresentations of

the record; at best, counsel is guilty of gross mistakes in citations to the record.

For example,the brief asserts that Morrison’s decision-making leave day was not

paid time off, as the District represented. First, this fact was irrelevant to the

district court’s decision and, therefore, not a material fact for summary judgment

purposes. The district court concluded that the timing of the District’s decision

to place Morrison on leave (and not the compensated or uncompensated nature

of that leave) precluded Morrison from relying on the leave day for purposes of

establishing a prima facie case of retaliation. Second, Morrison purports to

support this argument with no less than eight citations to the record. Not one

of these eight record citations even mentions the decision-making leave day,

much less supports Morrison’s proposition that it was unpaid leave. 

In another example, Morrison attributes the following direct quote to

Ritchie: “you could tell by the tone in Dudenhoeffer’s voice it was about race.”

The record reveals that this is a loose – and borderline misleading – paraphrase

of Ritchie’s testimony, not a direct quote. Morrison also cites Ritchie’s deposition

testimony for the proposition that Ritchie believed Morrison was being treated

unfairly because of race. In fact, Ritchie’s deposition testimony establishes only

that Morrison complained to Ritchie that Morrison believed he was being treated

unfairly because of race. Significant misrepresentations of the record and
No. 07-10917

10

selectively quoting from the record in a manner that would seriously mislead the

reviewing court may constitute sanctionable conduct. See Williams v. Phillips

Petroleum Co., 23 F.3d 930, 940-41 (5th Cir. 1994). 

Morrison’s appeal lacks merit, but this does not necessitate a finding of

frivolousness. Coghlan, 852 F.2d at 810 n.10. We are mindful of the chilling

effect that the imposition of sanctions could have on other litigants. See id. at

810-11; Abbs, 237 F.3d at 1346. We are presented with a very close case for

sanctions. Morrison and his counsel’s failure to engage the reasoning of the

district court, be this a legal strategy or simply careless preparation, is an

unhelpful method of appeal. We also note our serious concern regarding

counsel’s careless and arguably misleading citations to the record. While we are

dissatisfied with counsel’s approach to this appeal, we are unable to say that the

appeal is so “wholly without merit” as to warrant sanctions.

Therefore, the District and Dudenhoeffer’s motion for sanctions is

DENIED. The summary judgment is AFFIRMED.