Revised January 22, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-60874

HERMAN RAGGS,

Plaintiff-Appellant,

VERSUS

MISSISSIPPI POWER & LIGHT COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Mississippi

January 3, 2002 Before JONES and DeMOSS, Circuit Judges, and FELDMAN, District Judge.1

DeMOSS, Circuit Judge:

Plaintiff-Appellant, Herman Raggs (Raggs), filed suit against

Defendant-Appellee, Mississippi Power & Light Company (MP&L),

alleging race discrimination and retaliation in violation of Title

VII of the Civil Rights Act of 1964 and

, which

arose from his 1996 layoff by MP&L and its subsequent failure to

1 District Judge for the Eastern District of Louisiana, sitting by designation. rehire him in 1999. The magistrate judge presiding over the trial

granted MP&L's Motion for Judgment as a Matter of Law pursuant to

Rule 50 of the Federal Rules of Civil Procedure, and dismissed the

case with prejudice. We AFFIRM.

I. BACKGROUND

Raggs started working for MP&L in 1979 as a groundsman in the

Greenville Service Department. Groundmen assist linemen working on

electric utility poles by sending equipment up to them. Raggs was

promoted in 1983 to lineman, and again in 1987 to troubleman.

Linemen work fixed hours as part of a crew. Troublemen work alone

and are called in at any hour to assess utility problems. Notably,

in 1987, when Raggs became a troubleman, he was the first African-

American to be hired in the Greenville Service Department.

In 1989, Raggs filed a race discrimination claim with the

Equal Employment Opportunity Commission (EEOC). The claim was

eventually dismissed. In 1990, Jimmy McDaniel (McDaniel) became

the area supervisor over Raggs' department. McDaniel gave Raggs a

favorable performance evaluation for the 1990 to 1991 time period,

rating him fully adequate, above average, or superior for all

categories.

In 1993, however, MP&L suspended and then terminated Raggs for

allegedly installing an MP&L security light at his residence and

for stealing electricity. Raggs contested his termination through

2 his union. At the arbitration hearing, the arbitrator found that

MP&L did not demonstrate that Raggs was fired for just cause

because it had not produced sufficient evidence that he had

installed the light. Raggs, therefore, was reinstated in February

1994.

During the ten-month period Raggs was not working as a result

of his termination, his position as troubleman was filled by an

African-American lineman. When Raggs returned to work, he was

assigned to work the northern territory. As a result, Raggs was

required to travel greater distances than his co-workers to make

service calls, which made it difficult for him to make the same

quantity of service calls as his co-workers.

In 1996, MP&L decided to reduce its number of journeyman

employees in response to increased competition and deregulation.

Included in this category of employees were groundmen, linemen, and

troublemen. MP&L developed a formula based on seniority and

performance for determining who to layoff. This system, known as

the “Employee Profile Process” (EPP), complied with the existing

union contract and involved multiple evaluations and reviews.

Under the EPP, supervisors evaluated employees on a 1-to-5 scale

for (1) present job performance, (2) job-related personal

characteristics, (3) special skills, (4) potential, and (5) other

job-related factors. McDaniel evaluated Raggs as below average or

unsatisfactory in all categories except for special skills, where

he marked Raggs as average. Based on company records, written

3 customer complaints, and intra-company complaints, McDaniel claimed

that Raggs (1) completed fewer assignments than other employees,

(2) performed his work poorly, and (3) had a high rate of

absenteeism. Raggs' EPP score was the lowest of the five employees

in the service department and of the 14 employees evaluated by

McDaniel. Of the employees McDaniel evaluated, the top scorer was

African-American, followed by four white employees, then three

African-American employees, then five more white employees, and

Raggs.

Overall, MP&L laid off 17 African-Americans and 49 whites in

1996. Raggs was the only employee laid off from the service

department. MP&L offered Raggs several compensation options.

Raggs chose to take two weeks severance pay, which allowed him to

file a grievance regarding the layoff and left him subject to being

recalled.

In September 1996, Raggs filed a second EEOC complaint

claiming that he was laid off because of race discrimination and

retaliation for his 1989 EEOC complaint. The EEOC issued a no-

cause determination and dismissed Raggs' claim in September 1997,

but issued him a right to sue letter. Raggs never filed a lawsuit.

Raggs did, however, file a grievance with his union protesting his

layoff. A grievance arbitration hearing was held in which the

arbitrator upheld the layoff decision. The arbitrator noted that

Raggs' relative lack of competence as evidenced by documented

incident reports, customer complaints, and his low number of work

4 orders, outweighed any seniority he might have had over competent

but junior employees. Raggs did not testify at the hearing to

refute or explain the evidence of his relative lack of competence.

In June 1998, Raggs filed a third EEOC complaint, re-alleging

the same claims he had made in his second EEOC complaint as well as

asserting that McDaniel's testimony at the 1997 arbitration hearing

indicated that his low EPP rating was a pretext for his layoff,

which was actually motivated by race discrimination and retaliation

for his 1989 EEOC claim. The EEOC issued Raggs a right to sue

letter in July 1998. Raggs sued MP&L in October 1998, alleging

race discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964 and

.

MP&L was required by its collective bargaining agreement to

notify laid-off employees of positions available with the company.

A union representative informed MP&L that it had violated this

requirement by failing to send notices to Raggs and one other

employee. Thereafter, MP&L sent Raggs five letters in 1997 and

1998 notifying him of open positions with the company. Raggs did

not respond to three of the letters, and the other two were

returned as not received.

In 1999, Raggs responded to a letter from MP&L, and indicated

that he was interested in a lineman position in Greenville. MP&L,

however, replied in a letter that it considered Raggs “not

qualified” for the position. Michael Vaughn (Vaughn), who

participated in the decision not to rehire Raggs, stated that MP&L

5 based this decision entirely on a review of the previous

arbitrator's report, which included Raggs' EPP evaluation, his

incident report file, and all the complaints lodged against him.

Notably, Vaughn did not know Raggs. And McDaniel, who retired in

November 1997, had no part in the decision not to rehire Raggs.

Nevertheless, Raggs filed a fourth EEOC complaint alleging that

MP&L's decision not to rehire him was motivated by race

discrimination and retaliation. The EEOC issued Raggs a right to

sue notice and, in October 1999, he amended his lawsuit to

incorporate the allegations from his fourth EEOC complaint.

A jury trial was held before a magistrate judge on October 30

and 31, 2000. After the close of Raggs' evidence, MP&L moved for

judgment as a matter of law under Rule 50 of the Federal Rules of

Civil Procedure. The judge denied the motion but carried it with

the case, stating that Raggs “may have established a prima facie

case” as to MP&L's failure to rehire him in 1999. However, the

judge noted that he wanted to develop the record before ruling on

the motion.

At the close of all the evidence, MP&L renewed its motion for

judgment as a matter of law. The magistrate judge granted the

motion, stating that no rational jury could conclude that racial

discrimination played a role in Raggs' termination and failure to

be rehired. In explaining his decision, which was announced orally

from the bench, the magistrate judge discussed only Raggs' claims

6 of race discrimination. The magistrate judge, however, made no

mention of Raggs' claims of retaliation. Raggs now appeals that

decision.

II. STANDARD OF REVIEW

This Court reviews de novo a grant of a Motion for Judgment as

a Matter of Law pursuant to Rule 50 of the Federal Rules of Civil

Procedure. Russell v. McKinney Hosp. Venture,

(5th Cir. 2000). Judgment as a matter of law is proper where there

is no legally sufficient evidentiary basis for a reasonable jury to

find for the non-moving party. This Court must draw all reasonable

inferences in favor of the non-moving party, but may not assess the

credibility of witnesses or weigh the evidence. Lytle v. Household

Mfg., Inc.,

(1990). More specifically, this

Court should give credence to the evidence favoring the non-moving

party and any uncontradicted or unimpeached evidence supporting the

moving party where such evidence comes from disinterested

witnesses. Reeves v. Sanderson Plumbing Prods., Inc.,

(2000).

III. DISCUSSION

The issue before this Court is whether the magistrate judge

erred in granting judgment as a matter of law in favor of MP&L with

respect to Raggs' claims of racial discrimination and retaliation

7 under Title VII of the Civil Rights Act of 1964 and

. We agree with the magistrate judge in this case. Based on

the evidence presented at trial, there is no legally sufficient

evidentiary basis for a reasonable jury to find in favor of Raggs.

A. The Burden-Shifting Framework for Discrimination Cases.

This Court considers claims of intentional discrimination,

which include racial discrimination and retaliation claims based on

Title VII and

, under the same rubric of analysis.

See, e.g., Byers v. Dallas Morning News, Inc.,

, 422

n.1 (5th Cir. 2000); Harrington v. Harris,

(5th

Cir. 1997); LaPierre v. Benson Nissan, Inc.,

, 448 n.2

(5th Cir. 1996); Wallace v. Texas Tech Univ.,

(5th Cir. 1996); Anderson v. Douglas & Lomason Co., Inc.,

, 1284 n.7 (5th Cir. 1994). In Reeves v. Sanderson Plumbing

Products, Inc., the Supreme Court reviewed the burden-shifting

framework that governs these discrimination claims, and the

relationship of that framework to a Rule 50 motion.

(2000). To sustain a claim under this framework, the plaintiff

must first establish a prima facie case of discrimination. Reeves,

. A prima facie case can generally be satisfied if

the plaintiff (1) is a member of a protected class, (2) he was

qualified for the position that he held before being discharged,

(3) he was discharged, and (4) his employer filled the position

8 with a person who is not a member of the protected class. See,

e.g., Vaughn v. Edel,

(5th Cir. 1990); see also,

McDonnell Douglas v. Green,

, 802 & n.13 (1973).

If the plaintiff establishes a prima facie case of

discrimination, the burden then shifts to the employer to produce

evidence that its actions were justified by a legitimate,

nondiscriminatory reason. Reeves,

. This burden of

production “can involve no credibility assessment.” St. Mary's

Honor Ctr. v. Hicks,

(1993). Finally, the burden

then shifts back to the plaintiff to show by a preponderance of the

evidence that the employer's nondiscriminatory explanation is

pretextual. Reeves,

. Evidence of pretext alone

may, but not always, sustain a fact-finder's determination of

unlawful discrimination. See

(holding that “a

plaintiff's prima facie case, combined with sufficient evidence to

find that the employer's asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully

discriminated”). In particular, evidence of pretext is not enough

where the plaintiff has created only a weak issue of fact as to

whether the employer's reason is untrue, and there is “abundant and

uncontroverted independent evidence that no discrimination []

occurred.”

Although the evidentiary burdens shift between the

parties in this framework, “[t]he ultimate burden of persuading the

trier of fact that the defendant intentionally discriminated

9 against the plaintiff remains as all times with the plaintiff.”

at 143 (quoting Texas Dep’t. of Cmty. Affairs v. Burdine, 450

U.S. at 248, 353 (1981). Finally, when a full trial on the merits

has been conducted, this Court focuses not on the plaintiff's prima

facie case, but on the ultimate question of whether the record

contains sufficient evidence to support a jury finding of race

discrimination. Id. at 149.

At the close of Raggs' evidence, the magistrate judge

concluded that Raggs, “by the thinnest of margins . . . may have

established a prima facie case” of discrimination. Thus, the

burden shifted to MP&L, which put forth legitimate,

nondiscriminatory explanations for both Raggs' layoff and its

refusal to rehire him. Specifically, MP&L produced evidence that

Raggs was laid off in 1996 as part of a labor reduction due to

outside market pressures on the company. Furthermore, MP&L stated

that it refused to rehire Raggs for the lineman position in 1999

because of his poor performance rating, customer complaints, and

intra-company complaints.

After both parties presented their case, the magistrate judge

concluded that the only evidence in support of Raggs' claims was

that he suffered two adverse employment decisions, and that he is

African-American. In fact, the judge further noted that the

evidence, taken as a whole, rebutted Raggs' claim that his layoff

and the failure to rehire were racially based. Because MP&L was

10 able to provide evidence to rebut any possible prima facie case

that may have been established, we must consider whether Raggs

produced sufficient evidence for a reasonable jury to conclude that

MP&L's nondiscriminatory explanations are false and, if so, whether

a reasonable jury could further conclude that MP&L's actions were

based on racial discrimination. We believe the evidence discussed

below supports the magistrate judge's conclusion that a reasonable

jury could not conclude that MP&L's justifications for its actions

are pretext.

B. The 1996 Layoff.

The record indicates that Raggs does not challenge MP&L's

claim that the EPP was a nondiscriminatory review process based on

both employee performance and seniority. Although Raggs claims

that he had greater seniority than several white employees who were

retained by MP&L, he admitted at trial that all of the white

employees retained by the Greenville Service Department had greater

seniority than he did. Raggs, however, does argue that the EPP

methodology is vulnerable to the racial animus of individual

supervisors. Raggs' primary contention is that McDaniel, based on

racially discriminatory motives, gave him an extraordinarily low

and undeserved performance score that resulted in his layoff.

MP&L, however, asserts that McDaniel's rating was based on the

substandard quality and quantity of Raggs' work.

11 In order to show that MP&L's justifications for his layoff

were a pretext, Raggs claimed that he was supplied inferior

equipment. For example, Raggs contends that he received radio

equipment inferior to that of his white co-workers, and that his

equipment put him at a disadvantage in performing his job.

Specifically, Raggs testified that white employees were given a

“backpack radio” that they could carry around in their trucks or

pockets so they could hear the communications between the

dispatcher and other employees. Raggs argues that he was

disadvantaged by the fact that when he was away from his truck

performing work on behalf of the company, he was not able to hear

a call and respond as other employees were able to do. There is no

doubt that this fact would bear directly on the integrity of Raggs'

EPP score. Furthermore, Raggs argues that he was not given an air

conditioned truck as was a white employee who had less time in the

service department. However, Raggs presents no evidence to

contradict McDaniel's testimony that trucks were assigned according

to area and were replaced as they wore out.

In addition, Raggs and a white co-worker, Jimmy Peets,

testified that McDaniel and other managers scrutinized and

reprimanded Raggs more severely than white employees. Their

testimony indicates that this treatment primarily occurred after

Raggs' 1994 reinstatement. Raggs gave no specific instances of

such treatment, but he was specific about the types of unfavorable

treatment, which included reprimands, prohibition from taking

12 breaks, and using work hours for a promotional campaign.

Raggs contends that several prior positive evaluations

conducted by McDaniel indicate that his low EPP score was a pretext

for laying him off. Nonetheless, Raggs does not dispute the

substance of the various complaints lodged against him, which were

factored into his EPP score. Thus, Raggs' EPP score does not

necessarily indicate a pretext. See, e.g., Crawford v. Formosa

Plastics Corp.,

(5th Cir. 2000) (noting that

“where there is no direct evidence of discrimination, the plaintiff

needs to present sufficient evidence that [the defendant's]

proffered reason is false”).

Furthermore, Raggs argues that McDaniel's testimony at the

1996 arbitration hearing that Raggs' low EPP score was based

partially on complaints indicates a pretext because some of the

complaints in his personnel file were added after the EPP review.

Raggs, however, does not dispute that his personnel file at the

time of the EPP evaluation included customer and intra-company

complaints. The complaints added after the EPP review did not have

a negative effect on his score.

Raggs also presents evidence that, at some point in time, an

unknown MP&L manager referred to Raggs as a “black so-and-so.”

There was no evidence that the comment was made by McDaniel or

anyone else who had anything to do with Raggs' EPP evaluation and

subsequent layoff. This Court has held that such unattributed

13 “stray remarks” are insufficient to support an inference of

discrimination. See, e.g., E.E.O.C. v. Texas Instruments, Inc.,

(5th Cir. 1996); Waggoner v. City of Garland,

(5th Cir. 1993).

Lastly, Raggs argues that the fact MP&L did not ask McDaniel

for positive information about Raggs for purposes of computing his

EPP score indicates a pretext. We disagree. The inclusion of only

“the bad stuff” in evaluations being conducted of employees

throughout the company does not in any way indicate an attempt to

discriminate against a specific individual.

The sum of Raggs' relevant evidence that MP&L's assignment to

him of inferior equipment, his low EPP score, and the different

level of scrutiny and harshness of reprimands that he contends

management applied to him, possibly could be construed as more than

a “mere scintilla” of evidence of a pretext, as the magistrate

judge concluded. Wyvill v. Unite Cos. Life Ins. Co.,

(5th Cir. 2000), cert. denied,

(2001). As we

noted above, evidence of pretext alone may, but will not always,

will sustain a fact-finder's inference of unlawful discrimination.

In this case, however, we agree with the magistrate judge that the

evidence was not sufficient for a reasonable jury to conclude that

MP&L unlawfully discriminated against Raggs when it laid him off.

14 C. The 1999 Failure to Rehire.

Raggs' EPP evaluation was central to MP&L's 1999 decision not

to rehire him. Therefore, the above discussion regarding evidence

of Raggs' low EPP score and the absence of sufficient evidence of

pretext to lay him off also applies to the issue of discrimination

in MP&L's decision not to rehire him. As we noted above, there is

very little, if any, evidence that Raggs' low EPP score evidenced

a pretext. However, there was additional evidence presented at

trial regarding MP&L's failure to rehire Raggs, which we will now

address.

Raggs' primary contention is that a pretext for race

discrimination is evidenced in the letter MP&L sent to him

indicating the reason for not rehiring him. The letter stated that

the reason for not rehiring Raggs was that he was “not qualified.”

Raggs contends that, contrary to the rationale contained in MP&L's

letter to him, he was thoroughly “qualified” for the position of

lineman. MP&L does not dispute that Raggs had many years of

experience and thorough knowledge of the job. Rather, MP&L asserts

that it used the words “not qualified” in the letter to comply with

its collective bargaining agreement, when it really meant that

Raggs was an inferior or incompetent employee based on his previous

record with the company.

Given Vaughn's testimony that MP&L's decision not to rehire

Raggs was based entirely on the arbitrator's report, we conclude

15 that the letter sent to Raggs merely contained a poor choice of

words. We do not believe that a reasonable jury could conclude,

based on this issue of semantics, that MP&L's use of the word

“qualified” referred to characteristics such as experience and

knowledge of the job. Rather, we believe the only rational

inference from the evidence is that MP&L used the words “not

qualified” to mean incompetent or inferior.

In addition, MP&L provided further evidence in its favor on

the issue of discrimination playing a factor in its decision not to

rehire Raggs. The job was originally offered to Jerry Miles, an

African-American. After he was killed in an automobile accident

before he started work, the next laid-off employee to be rehired

was Robert Lester, who is also African-American. Therefore, we

conclude that MP&L's 1999 failure to rehire Raggs was not racially

motivated.

D. The Retaliation Claim.

Raggs claims that his low EPP score and the 1996 termination

were in retaliation for his 1989 EEOC complaint. In addition,

Raggs claims that MP&L's refusal to rehire him was retaliatory for

his 1989 and subsequent EEOC complaints as well as the lawsuit that

led to this appeal. There are three elements to a prima facie case

of retaliation under Title VII: (1) that the plaintiff engaged in

activity protected by Title VII, (2) that an adverse employment

16 action occurred, and (3) that a causal link existed between the

protected activity and the adverse action. See, e.g., Evans v.

City of Houston,

(5th Cir. 2001). Significantly,

this Court “has held that the 'causal link' required in prong three

of the prima facie case for retaliation is not as stringent as the

'but for' standard.”

at 354 (citing Long v. Eastfield Coll.,

, 305 n.4 (5th Cir. 1996)).

The seven-year time lapse between Raggs' 1989 EEOC claim and

his 1996 layoff, and the intervening positive evaluation by

McDaniel, undermine any causal connection between those two events.

See Mayberry v. Vought Aircraft Co.,

(5th Cir.

1995). Thus, no reasonable jury could conclude that retaliation

was the reason for MP&L's 1996 decision to layoff Raggs. Unlike

the 1989 EEOC complaint, however, the litigation in this case was

initiated only five months prior to MP&L's refusal to rehire Raggs.

Nevertheless, we have held that “the mere fact that some adverse

action is taken after an employee engages in some protected

activity will not always be enough for a prima facie case. . . .

Title VII's protection against retaliation does not permit EEO

complainants to disregard work rules or job requirements.” Swanson

v. General Servs. Admin.,

, 1188 n.3 (5th Cir. 1997).

Other than the five month time period, Raggs has presented no

evidence of retaliation. Thus, we conclude that MP&L's decision

not to rehire Raggs in 1999 was not a function of retaliation.

17 VI. CONCLUSION

For the foregoing reasons, we AFFIRM the magistrate judge's

grant of judgment as a matter of law regarding the claims of race

discrimination and retaliation under Title VII of the Civil Rights

Act of 1964 and

. Based on the evidence, a

reasonable jury could not conclude that MP&L's justifications for

laying off Raggs were pretext to hide racially motivated

intentions. Further, there is not sufficient evidence for a

reasonable jury to conclude that MP&L's decision not to rehire

Raggs was racially motivated.

18