Johnny Johnson v. David Wade Correctional Facil, et al

Filing

UNPUBLISHED OPINION FILED. [10-30440 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/23/2010 [10-30440]

Johnny Johnson v. Davide: 10-30440 Document: 00511309612 Cas Wade Correctional Facil, et al

Page: 1 Date Filed: 12/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30440 S u m m a r y Calendar December 2, 2010 Lyle W. Cayce Clerk

J O H N N Y JOHNSON, Plaintiff-Appellant, v. D A V I D WADE CORRECTIONAL FACILITY; VENETIAL MICHAELS, I n d iv id u a lly and in her official capacity as Warden, David Wade Correctional F a c ility , D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 5:08-CV-903

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A p p e lla n t , Johnny Johnson (Johnson), sued David Wade Correctional F a c ilit y (DCWF) and Venetia Michaels1 (Michaels), both in her official capacity a s Warden of DCWF and in her individual capacity, alleging claims under Title V I I , 42 U.S.C. §§ 1981, 1983, 1985, 1986 and the Equal Protection Clause of the

* Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4. 1 Defendant's name is properly spelled "Venetia" not "Venetial" as it appears in the caption of the case.

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Case: 10-30440 Document: 00511309612 Page: 2 Date Filed: 12/02/2010 No. 10-30440 t h e United States Constitution. Johnson now appeals the district court's s u m m a r y judgment as to his Title VII claim for non-promotion based on race.2 J o h n s o n argues that the district court erred in finding that he did not offer s u ffic ie n t evidence to create a fact issue as to whether DCWF and Michaels's s t a t e d legitimate, nondiscriminatory reasons for not promoting Johnson were m e r e pretext for race-based discrimination. Johnson has failed to demonstrate t h a t Appellees' stated nondiscriminatory reasons were mere pretext; thus, we A F F IR M . T his case concerns employment-related, race-based claims of

d is c r im in a t io n . At the time of the events leading to this suit, and currently, J o h n s o n is a Facility Assistant Maintenance Manager 2 in the Maintenance D iv is io n at DWCF. The highest position within the Maintenance Division at D W C F is the Facility Maintenance Manager 4 position. Johnson's primary c la im , and the only claim that he argues on appeal, is that Appellees have r e p e a t e d ly not promoted him because he is African-American. Specifically, J o h n s o n alleges that Appellees failed to promote him for race-based, d is c r im in a t o r y reasons on three occasions: March of 2006, July of 2006, and A u g u s t of 2008.3 S u m m a r y judgment is proper when there is no genuine issue of material fa c t and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 5 6 (c ); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A dispute about a m a t e r ia l fact is `genuine' if the evidence is such that a reasonable jury could r e t u r n a verdict for the nonmoving party." Hanchey v. Energas Co., 925 F.2d 96, 9 7 (5th Cir. 1990). In evaluating a summary-judgment motion, the district court
In the district court, Johnson also claimed that defendants were responsible for exposing him to a hostile work environment, conspiring to deprive him of equal protection under the law, and retaliating for activity protected under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. Insofar as Johnson has raised these claims on appeal, he has failed to adequately brief them; therefore, they are deemed waived. See U.S. v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010). 3 Johnson filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) related to each non-promotion incident.
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Case: 10-30440 Document: 00511309612 Page: 3 Date Filed: 12/02/2010 No. 10-30440 m u s t draw all reasonable inferences in favor of the non-moving party. Duplantis v . Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991). We review a district c o u r t's summary judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d 6 0 4 , 608 (5th Cir. 1998). B e fo r e turning to the merits of Johnson's claims, we first address their t im e lin e s s . A claimant must file a Title VII discrimination claim with the EEOC w it h in 300 days of the alleged discriminatory act. See Frank v. Xerox Corp., 347 F .3 d . 130, 136 (5th Cir. 2003). We agree with the district court's conclusion that J o h n s o n did not timely file such claims with respect to the non-promotions of M a r c h and July 2006. Thus, the claims arising from these non-promotions are t im e barred. In addition, all of his Title VII claims cannot survive summary ju d g m e n t on the merits. T o survive a summary-judgment motion, the plaintiff must first present a prima facie case of discrimination.4 Patel v. Midland Memorial Hosp. & Med. C tr ., 298 F.3d 333, 342 (5th Cir. 2002). "An employee can prove discrimination t h r o u g h direct or circumstantial evidence." Jones v. Robinson Prop. Group, L.P., 4 2 7 F.3d 987, 992 (5th Cir. 2005). Cases of discrimination based on c ir c u m s t a n t ia l evidence are subject to the McDonnell Douglas burden-shifting a n a ly s is . See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (c it in g McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If

e s t a b lis h e d , a prima facie case raises an inference of discrimination, and the b u r d e n shifts to the defendant to articulate a legitimate, nondiscriminatory r e a s o n for its adverse decision. Patel, 298 F.3d at 342. If the defendant presents s u c h a reason, then the inference disappears, and the plaintiff must offer e v id e n c e that the proffered reason is a pretext for racial discrimination. Id.
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65 For a prima facie case of racial discrimination, a plaintiff must prove that (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was not promoted; and (4) either the position was filled by someone not in the protected class, or the person was not promoted because of his race. See Rutherford v. Harris County, Texas, 197 F.3d 173, 179 (5th Cir. 1999). 3

Case: 10-30440 Document: 00511309612 Page: 4 Date Filed: 12/02/2010 No. 10-30440 W e assume arguendo that Johnson has established a prima facie case of d is c r im in a t io n , and thus, focus on whether Johnson established that Appellees' p r o ffe r e d reasons for failing to promote him were pretext for racial d is c r im in a t io n . We first address the March 2006 and August 2008 promotions. The le g it im a t e reason proffered by the Appellees for not promoting Johnson in both in s t a n c e s was that there was a better candidate. We have acknowledged that " c h o o s in g some other candidate because he is the best-qualified individual for t h e job is generally a legitimate, nondiscriminatory reason for an adverse e m p lo y m e n t decision." Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004). J o h n s o n argues that in both instances his application materials evince that he w a s clearly a better candidate than the individual ultimately selected. However, a s the district court observed, a comparison of the application materials s u b m it t e d by Johnson and the applicants who were hired does not indicate that J o h n s o n was clearly better qualified. Rather, the application materials, at best, m e r e ly indicate that Johnson and the individuals hired had a similar amount of m a n a g e m e n t experience. We have held that merely "[s]howing that two c a n d id a t e s are similarly qualified does not establish pretext." Price v. Federal E x p r e s s Corp., 283 F.3d 715, 723 (5th Cir. 2002). We next address the Maintenance Manager 3 position that Johnson a p p lie d for in July of 2006. Appellees indicate that due to institutional needs this p o s i t io n was converted to a plumber/ pipe fitter foreman position prior to any a p p lic a n t being selected for the job. Johnson offers absolutely no evidence that A p p e lle e s ' proffered nondiscriminatory reason, that is, the position was c o n v e r t e d for institutional needs, was mere pretext for racial discrimination. R a t h e r than present evidence, Johnson relies solely on his subjective beliefs that d is c r im in a t io n has occurred. We have held that "a plaintiff cannot merely rely on his subjective belief that discrimination has occurred" to demonstrate pretext. P r ic e v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997). 4

Case: 10-30440 Document: 00511309612 Page: 5 Date Filed: 12/02/2010 No. 10-30440 T a k e n as a whole, the arguments and evidence relied upon by Johnson fail t o create a fact issue as to whether Appellees' nondiscriminatory reasons for fa ilin g to promote Johnson in 2006 and 2008 were mere pretext for race-based d is c r im in a t io n . The judgment of the district court is therefore AFFIRMED.

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