Case: 15-60291      Document: 00513462331         Page: 1    Date Filed: 04/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 15-60291
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 12, 2016

THOMAS PAYNE, Doctor,                                                      Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

UNIVERSITY OF SOUTHERN MISSISSIPPI; MARTHA SAUNDERS,
Doctor, Individually and Officially; LISA NORED, Doctor, Individually and
Officially; ROBERT LYMAN, Doctor, Individually and Officially; JOE
WHITEHEAD, Doctor, Individually and Officially; DALE LEDFORD, Doctor,
Individually and Officially; REX GANDY, Doctor, Individually and Officially,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:12-CV-41


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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      Plaintiff-Appellant Thomas Payne was a tenured Associate Professor of
Criminal Justice at the University of Southern Mississippi (the “University”).
Payne alleges that the University and several of its employees 1
      (1) Violated Title VII by retaliating against him for filing several
      EEOC charges and internal grievances;

      (2) Violated his First Amendment right to preach his Christian
      faith to his students;

      (3) Violated his substantive and procedural due process rights in
      numerous respects;

      (4) Breached his employment contract;

      (5) Violated the Equal Protection Clause by treating him
      differently from other professors because of his religious beliefs;

      (6) Intentionally or negligently inflicted emotional distress upon
      him; and

      (7) Intentionally misrepresented to him that he could engage in an
      unlimited amount of outside employment.


The district court granted judgment in Defendants’ favor on all of Payne’s
claims. We affirm in part and dismiss the appeal in part.


                                            I.
      We first address Payne’s Title VII retaliation claims. Payne asserts that
the University 2 subjected him to a series of retaliatory actions after he filed
multiple internal grievances and EEOC charges. Among other adverse actions,
he claims that the University unlawfully limited his ability to engage in


      1  As the district court observed, Payne’s complaint does not specify which causes of
action he asserts against which Defendants.
       2 Payne concedes on appeal that only the University, and not the individual

defendants, may be held liable under Title VII.
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                                         No. 15-60291
outside employment and gave him an unfavorable and inaccurate performance
evaluation.


                                                A.
       Under this Court’s burden-shifting framework, if the plaintiff
establishes a prima facie case of retaliation, the employer must provide a
legitimate, nonretaliatory reason for the adverse action. 3 “After the employer
states its reason, the burden shifts back to the employee to demonstrate that
the employer’s reason is actually a pretext for retaliation[.]” 4
       To establish pretext in the Title VII retaliation context, the employee
must show “that the adverse action would not have occurred ‘but for’ the
employer’s retaliatory motive.” 5 A court may grant judgment in the employer’s
favor if the employee creates only a “weak issue of fact” as to whether the
employer’s reason for the challenged employment action is untrue, and there
is “abundant and uncontroverted independent evidence” that no retaliation
occurred. 6
       For the following reasons, the district court correctly concluded that
Payne failed to introduce sufficient evidence of pretext.




       3 Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 

, 454 (5th Cir. 2013).
       4 

(citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

, 2533 (2013)).
       6 Reeves v. Sanderson Plumbing Prods., 

, 148 (2000).

       Payne argues that Reeves’s “weak issue of fact” standard applies only in
discrimination cases, not retaliation cases. That is incorrect. This Court has repeatedly
applied the “weak issue of fact” standard in retaliation cases and discrimination cases alike.
See Harrelson v. Lufkin Indus., Inc., 614 F. App’x 761, 765 (5th Cir. 2015); Ellerbrook v. City
of Lubbock, Tex., 465 F. App’x 324, 331 (5th Cir. 2012); Leal v. BFT, Ltd. P’ship, 423 F. App’x
476, 481 (5th Cir. 2011); Mauder v. Metro. Transit Auth. of Harris Cnty., Tex., 

,
583-84 (5th Cir. 2006); Montemayor v. City of San Antonio, 

, 694 (5th Cir. 2001).
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                                     No. 15-60291
                                            B.
       There is no evidence that the University’s reasons for restricting Payne’s
outside employment were pretextual. The record unequivocally establishes
that the University sought to restrict Payne’s outside employment several
months before he engaged in any protected activity. As a result, no reasonable
juror could conclude “that the adverse action would not have occurred ‘but for’
the employer’s retaliatory motive.” 7


                                            C.
       We also conclude that Payne has not shown that the University’s reasons
for his unfavorable performance review were pretextual. The University gave
Payne an unfavorable performance review in 2009, citing perceived deficits in
the areas of “Service & Advising,” “Scholarship,” and “Instruction.” Payne
claims that the University gave him this unfavorable evaluation as retaliation
for filing multiple grievances against the University.
       “Merely disputing” an employer’s assessment of the plaintiff’s work
performance “will not necessarily support an inference of pretext.” 8 The
question is whether the employer’s perception of the plaintiff’s performance,
accurate or not, was the real reason for the challenged adverse employment
action. 9
       After reviewing the record, we conclude that no reasonable juror would
find that the University based the unfavorable evaluation on anything other
than its perception that Payne had performed poorly. The record establishes
that the University was dissatisfied with Payne’s engagement with students



       7See 

(citing 

).
       8Shackelford v. Deloitte & Touche, LLP, 

, 408 (5th Cir. 1999) (citations
omitted).
      9 

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                                      No. 15-60291
and lack of publications in peer-reviewed journals as early as 2005, several
years before Payne filed his first grievance in 2009. Thus, once again, no
reasonable juror could conclude “that the adverse action would not have
occurred ‘but for’ the employer’s retaliatory motive.” 10


                                             D.
      Payne raised other Title VII retaliation claims in addition to the two
claims discussed above. We affirm the judgment in the University’s favor on
those claims essentially for the reasons given by the district court.


                                             II.
      Payne also raised numerous constitutional and state law claims against
Defendants. The district court entered judgment in Defendants’ favor on all of
them. After reviewing the record, the district court’s order, the parties’
arguments, and the relevant case law, we conclude that the district court
committed no error. We therefore affirm the judgment in its entirety.


                                            III.
      The district court also awarded Defendants attorneys’ fees because it
concluded    that    Payne     unreasonably        and    vexatiously      multiplied   the
proceedings. Payne attempts to challenge the fee award on appeal.
      We lack jurisdiction to review the fee award. 11 If Payne wishes to
challenge the district court’s order awarding attorney’s fees, he must file a
separate notice of appeal. 12




      10 See 

(citing 

).
      11 See Armour v. Knowles, 

, 156 (5th Cir. 2007).
      12 See 

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                                 No. 15-60291
                                      IV.
      The judgment is AFFIRMED. The appeal is DISMISSED to the extent
Payne attempts to challenge the district court’s award of attorneys’ fees.




                                       6