     Case: 12-31175      Document: 00512520284         Page: 1    Date Filed: 02/03/2014




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

                                                                                 FILED
                                      No. 12-31175                         February 3, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
KIMBERLY M. JOHNSON,

                                                 Plaintiff–Appellant
v.

MAESTRI MURRELL PROPERTY MANAGEMENT,

                                                 Defendant–Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:09-CV-638


Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Kimberly Johnson (“Johnson”) filed suit under Title
VII against Defendant–Appellee Maestri-Murrell Property Management
(“Maestri-Murrell”) claiming that Maestri-Murrell unlawfully discriminated
against her when it denied her employment based on her race. The district
court granted summary judgment in favor of Maestri-Murrell and dismissed
the lawsuit with prejudice. We reverse and remand.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 12-31175
                            I.    BACKGROUND
      This is the second appeal from the underlying action. In the first appeal,
this Court reviewed the district court’s grant of Maestri-Murrell’s motion for
summary judgment. Johnson v. Maestri-Murrell Prop. Mgmt., LLC (Johnson
I), 487 F. App’x 134, 135 (5th Cir. 2012) (per curiam) (unpublished).          In
granting summary judgment, the district court reasoned that Johnson could
not establish a prima facie case of discrimination because Johnson had not
presented any evidence of causation. Id. at 137. Upon de novo review, we
concluded that “[w]hether or not the evidence is deemed direct or
circumstantial or both, it is clear that Johnson has established a prima facie
case of racial discrimination, and the district court should have denied Maestri-
Murrell’s summary judgment motion.” Id. We thus reversed and remanded
“for further proceedings consistent with this opinion.” Id. at 139.
      On remand, the district court set a deadline for the parties to submit any
motions for leave to re-urge summary judgment. Maestri-Murrell obtained
leave and moved for reconsideration of its summary judgment motion, re-
urging that Johnson was not qualified for the property manager position she
applied for—a ground that the district court had purportedly not reached. The
district court agreed with Maestri-Murrell, granted summary judgment, and
dismissed the case with prejudice. Johnson timely appealed and asks this
Court to reassign the case to a new district judge upon remand. The EEOC, as
amicus curiae, filed a brief in support of Johnson.
                            II.   DISCUSSION
      First, we address the district court’s application of the remand order
from Johnson I. Because we reverse the district court on the ground that it
violated the remand order, we need not reach the substantive merits of the




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qualification issue raised on appeal. Second, we address Johnson’s request to
have the matter reassigned to a new district court judge upon remand. 1
A. The District Court’s Application of the Remand Order
       “We review de novo a district court’s interpretation of our remand order,
including whether the law-of-the-case doctrine or the mandate rule forecloses
any of the district court’s actions on remand.” Gene & Gene, L.L.C. v. BioPay,
L.L.C., 624 F.3d 698, 702 (5th Cir. 2010). Under the law of the case doctrine,
“an issue of law or fact decided on appeal may not be reexamined either by the
district court on remand or by the appellate court on a subsequent appeal.” Id.
at 702 (citation and internal quotation marks omitted). “The doctrine is ‘based
upon sound policy that when an issue is once litigated and decided, that should
be the end of the matter.’” Id. (quoting United States v. U.S. Smelting Ref. &
Mining Co., 339 U.S. 186, 198 (1950)).             “Exceptions to the doctrine allow
reexamination of issues decided on appeal only if ‘(i) the evidence on a
subsequent trial was substantially different, (ii) controlling authority has since
made a contrary decision of the law applicable to such issues, or (iii) the
decision was clearly erroneous and would work a manifest injustice.’” Id.
(quoting Fuhrman v. Dretke, 442 F.3d 893, 897 (5th Cir. 2006)).
       The mandate rule is a “specific application of the general doctrine of law
of the case.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (citation
and internal quotations marks omitted). “Absent exceptional circumstances,
the mandate rule compels compliance on remand with the dictates of a superior


       1  Maestri-Murrell alternatively suggests that, even if Johnson satisfied her prima
facie burden, “summary judgment was undoubtedly proper as to plaintiff’s claim for
reinstatement, front pay, and back pay to, at the very least, the date when defendant learned
of plaintiff’s dishonesty.” However, Maestri-Murrell does not suggest that it had moved for
summary judgment as to the recovery period, or that the district court granted partial
summary judgment as such. This alternate request is therefore not properly before this
Court as there is no judgment to review. See, e.g., Am. River Transp. Co. v. US Mar. Servs.,
Inc. (In re Am. River Transp. Co.), 490 F.3d 351, 356 n.28 (5th Cir. 2007).
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court and forecloses relitigation of issues expressly or impliedly decided by the
appellate court.” Id.
       In granting summary judgment, the district court treated Johnson’s
claim as built solely upon circumstantial evidence. A Title VII discrimination
case, however, “can be established through either direct or circumstantial
evidence.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). In the absence
of direct evidence of discrimination, a court evaluates the discrimination claim
under the McDonnell Douglas burden-shifting framework. 2 West v. Nabors
Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir. 2003). Conversely, when a
plaintiff presents direct evidence of discrimination, the McDonnell Douglas
analysis is inapplicable. Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 n.3
(5th Cir. 2012).
       The district court’s grant of summary judgment violated the mandate
rule in two respects, each of which independently requires reversal. First,
regarding Johnson’s direct evidence case, the district court ignored this Court’s
holding in Johnson I that Johnson presented sufficient direct evidence of
discrimination to survive summary judgment. Second, regarding Johnson’s
circumstantial evidence case, the district court improperly relitigated
Johnson’s qualifications under the McDonnell Douglas analysis after Johnson
I had decided the issue.




       2  The McDonnell Douglas framework requires a plaintiff to first demonstrate a prima
facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The burden of production then shifts to the defendant to establish a legitimate, non-
discriminatory reason for its adverse employment action. Id. at 802–03. If the employer
meets its burden, the plaintiff then bears the burden of persuading the trier-of-fact, by a
preponderance of the evidence, that the employer intentionally discriminated against the
plaintiff because of the plaintiff’s protected status. Id. at 807. See generally Laxton, 333 F.3d
at 578–79.
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                                 No. 12-31175
  1. Johnson’s Direct Evidence Case
      Maestri-Murrell contends that the Johnson I Court “apparently found
[Kimball’s] statement insufficient alone to satisfy the direct evidence proof
structure, opting instead to rely on the McDonnell Douglas analysis.” Because
“direct evidence proves the occurrence of discrimination without the need for
inference,” Maestri-Murrell continues, the Johnson I Court indicated that it
did not apply a direct evidence analysis when it “[drew] all inferences from [the
evidence] in Johnson’s favor” to arrive at its holding. We disagree.
      A plain reading of this Court’s opinion in Johnson I reveals that it held
Johnson’s direct evidence of discrimination sufficient to survive summary
judgment. The opinion provides two sections offering two separate analyses—
one entitled “Evidence of Racial Discrimination” and the other entitled
“McDonnell Douglas Framework”—each independently finding that summary
judgment was premature. Johnson I, 487 F. App’x at 136–38. In the section
entitled “Evidence of Racial Discrimination,” the opinion is replete with
statements that Johnson’s direct evidence of racial discrimination was
sufficient to defeat summary judgment:
      Whether or not the evidence is deemed direct or circumstantial or
      both, it is clear that Johnson has established a prima facie case of
      racial discrimination, and the district court should have denied
      Maestri-Murrell’s summary judgment motion.
      ...
      This case presents direct evidence of racial discrimination—sworn
      deposition testimony by Curtis that Kimball stated to her that she
      did not think that Maestri-Murrell wanted an African American
      as assistant manager at Azalea Point.
      ...
      The district court erred in disregarding Kimball’s alleged
      comments that Maestri-Murrell would not consider hiring an
      African American. To the contrary, the comments provide, at a
      minimum, evidence sufficient to defeat summary judgment.
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                                No. 12-31175
      ...
      The remarks, if true, provide evidence of discrimination.
      ...
      The evidence included Johnson’s resume, which, unlike other
      resumes that Maestri Murrell supplied during the EEOC’s
      investigation and discovery, had no comments written on it by
      Kimball indicating her views. It also included the Curtis
      deposition.
Id. at 137.
      This Court concluded, in the same section, that “[v]iewing all of this
evidence and drawing all reasonable inferences from it in Johnson’s favor, a
jury could reasonably find that Kimball had screened Johnson out based on
race prior to hiring Cedatol.” Id. Maestri-Murrell’s argument regarding the
Court’s drawing of inferences is inapposite; the Court was simply applying the
summary judgment standard. See id. (“On summary judgment, the district
court was required to view the evidence and draw all reasonable inferences
from the evidence in the light most favorable to Johnson.” (citation omitted)).
Only after holding that Johnson had sufficient direct evidence to survive
summary judgment did we proceed to additionally apply the McDonnell
Douglas framework, consistent with our conclusion that “[w]hether or not the
evidence is deemed direct or circumstantial or both, it is clear that Johnson
has established a prima facie case of racial discrimination.” Id. Accordingly,
this Court in Johnson I, without having to apply the McDonnell Douglas
framework, held that Johnson’s direct evidence was sufficient to defeat
summary judgment and remanded “for further proceedings consistent with
this opinion.” Id. at 139.
      On remand from Johnson I, the district court applied only the McDonnell
Douglas framework when it granted summary judgment and dismissed all
claims. In so doing, the district court disregarded this Court’s prior holding

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                                 No. 12-31175
that summary judgment was inappropriate because Johnson had presented
sufficient direct evidence of discrimination. See Turner, 675 F.3d at 892 n.3
(stating that the McDonnell Douglas analysis is inapplicable where there is
direct evidence of discrimination). Accordingly, the district court violated the
mandate rule when it granted summary judgment and must be reversed.
  2. Johnson’s Circumstantial Evidence Case
      With respect to Johnson’s circumstantial evidence case, Maestri-Murrell
argues that the district court’s ruling did not violate the mandate rule because
this Court’s opinion in Johnson I “did not address in any detail the alternate
ground for summary judgment upon which defendant’s motion for
reconsideration was based (qualifications).” Maestri-Murrell, however, cites
no law—nor are we aware of any—to support the proposition that the law of
the case doctrine and the mandate rule foreclose relitigation of only those
issues discussed “in detail.”
      On the contrary, the Court need only have “expressly or impliedly
decided” the issue. Lee, 358 F.3d at 321 (emphasis added). In Johnson I, this
Court impliedly decided the issue of qualification when it held, upon de novo
review, that Johnson met her prima facie burden on summary judgment. 487
F. App’x at 138. In fact, in Johnson I, Maestri-Murrell fully briefed the very
same arguments regarding Johnson’s qualifications that the district court
adopted in its grant of summary judgment, and those arguments are now
before us once again. See Brief on Behalf of Appellee at 20–26, Johnson I, 487
F. App’x 134 (No. 11-30914), 2012 WL 6018917, at *20–26. Having held in
Johnson I that Johnson satisfied her prima facie burden on summary
judgment, we necessarily decided the qualification issue that the district court
and Maestri-Murrell now rely upon. See, e.g., Johnson v. Louisiana, 351 F.3d
616, 621–22 (5th Cir. 2003) (requiring plaintiff to establish a prima facie case
by evidence that, inter alia, she was qualified for the available position);
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                                  No. 12-31175
Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279
(5th Cir. 2001) (holding that if an issue was “fully briefed to the appellate court
and . . . [a] necessary predicate[] to the [court’s] ability to address the issue or
issues specifically discussed, [those issues] are deemed to have been decided
tacitly or implicitly, and their disposition is law of the case”). Indeed, we
explicitly stated that Johnson “appeared to be qualified” for the position.
Johnson I, 487 F. App’x at 138.
      The district court therefore failed to follow our remand order with
respect to Johnson’s circumstantial evidence case because this Court’s holding
in Johnson I foreclosed its relitigation of the qualification issue. Accordingly,
the district court violated the mandate rule and must be reversed.
B. Johnson’s Request for Reassignment upon Remand
      According to Johnson, the district court’s failure to follow Johnson I
demonstrates the district judge’s substantial difficulty in putting out of his
mind his view that Johnson’s discrimination claim is built upon circumstantial
evidence. Therefore, Johnson continues, the matter should be reassigned to a
new judge upon remand.
      The “‘power to reassign pending cases is an extraordinary one’; it is
‘rarely invoked.’” Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997)
(quoting In re John H. McBryde, 117 F.3d 208, 228–29 (5th Cir. 1997)). This
Court has used two different tests. The first test is:
      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her
      mind previously-expressed views or findings determined to be
      erroneous or based on evidence that must be rejected, (2) whether
      reassignment is advisable to preserve the appearance of justice,
      and (3) whether reassignment would entail waste and duplication
      out of proportion to any gain in preserving the appearance of
      fairness.



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                                       No. 12-31175
In re DaimlerChrysler Corp., 294 F.3d 697, 700–01 (5th Cir. 2002) (citation
omitted). The second test asks if the facts “might reasonably cause an objective
observer to question [the judge’s] impartiality.”               Id. at 701 (citation and
internal quotation marks omitted).
       Here, the single instance of the district court’s failure to follow Johnson
I does not warrant this rarely invoked extraordinary remedy. See Liteky v.
United States, 510 U.S. 540, 555 (1994) (stating that “judicial rulings alone
almost never constitute a valid basis” for finding bias or partiality (citation
omitted)).     As the Supreme Court has held, judicial rulings in and of
themselves “can only in the rarest circumstances evidence the degree of
favoritism or antagonism required” to warrant recusal. Id. Because Johnson
does not present any evidence that the district judge directed hostility toward
her, we deny Johnson’s request for reassignment. 3
                               III.    CONCLUSION
       For the foregoing reasons, the district court’s grant of summary
judgment is REVERSED, and this matter is REMANDED for further
proceedings consistent with this opinion. Johnson’s request to have the matter
reassigned upon remand is DENIED.




       3 At oral argument, Johnson expressed concern that “there’s no jury request in this
matter” and that the case was set for a bench trial. Johnson later answered in the affirmative
when asked whether a jury trial would be an acceptable alternative to reassignment. We do
not have authority, on this appeal, to determine whether such relief is proper because
Johnson did not previously file a motion requesting a jury trial, which the district court must
decide in the first instance.
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