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 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 juryÂ’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 NOPFMIÂ’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 employeesÂ’ job performance and give empl oyees periodic formal evaluations. The new policies were promulgated in 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§ 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 NOPFMIÂ’s motion for judgment as a matter of law, s ee Fed. R. Civ. P. 50(a)(1). NOPFMI appeals the district courtÂ’s failure to grant judgment as a matter of law on ChaneyÂ’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§ 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 employerÂ’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. MaryÂ’s Honor Ctr. v. Hicks , 509 U.S. 502, 510-11, 113 S. Ct. 2742, 2748-49 (1993); Texas DepÂ’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 NOPFMIÂ’s justification for his discharge ChaneyÂ’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 JohnstonÂ’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 NOPFMIÂ’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 ChaneyÂ’s workplace infractions was developed in the mon ths following his affidavit, and that the re was no such record beforehand, but, again, this is explained by NOPFMIÂ’s renewed enforcement of employment policies under RobinsonÂ’s leadership, which required supervisors to kee p logs of employeesÂ’ 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 ChaneyÂ’s discharge knew about ChaneyÂ’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 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 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 ChaneyÂ’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 NOPFMIÂ’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 ChaneyÂ’s retaliation theory.

This evidence is simply insufficient in light of NOPFMIÂ’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 ChaneyÂ’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 ChaneyÂ’s discharge.

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 ChaneyÂ’s appeal and all other arguments raised by the parties.