Rhodes v. Runyon ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60747
Summary Calendar
RICKY D RHODES
Plaintiff - Appellant
v.
MARVIN RUNYON, Post Master General of
the United States Postal Service
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(4:94-CV-125-D-D)
_________________________________________________________________
July 1, 1996
Before KING, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ricky D. Rhodes appeals the district court’s granting of
summary judgment in favor of Marvin Runyon, Post Master General
of the United States Postal Service, in Rhodes’s Title VII
lawsuit against the Postal Service alleging racial
discrimination. We affirm.
*
Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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I. BACKGROUND
During 1991, Rhodes, a black male, worked on a temporary
basis at the U.S. Post Office in Greenville, Mississippi. On
April 4, 1992, he received an appointment for a position as a
part-time flexible carrier at the Greenville facility. As with
all new employees, Rhodes was required to undergo a ninety-day
probationary period during which he was to be trained to perform
the duties of letter carrier. These duties included the delivery
and the “casing,” or sorting, of mail. Employees are advised at
the beginning of their employment that they are subject to
“separation,” or termination, at any time during the probation
period if they fail to meet the performance standards of the
Postal Service.
Gertrude Campbell, a black female, supervised Rhodes during
his probationary period. Campbell conducted Rhodes’s thirty-day,
sixty-day, and eighty-day evaluations. Campbell expected a
carrier to become proficient in the casing of at least two routes
during the probationary period. Such proficiency included the
ability to case at least eighteen letters and eight “flats,” or
magazine-sized pieces of mail, per minute. Among the individuals
assigned to train Rhodes during his probationary period were
experienced letter carriers Leon Brown and Elijah Phillips, both
black males. For a short period of time after his first
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evaluation, Rhodes was assigned to the Crossroads Station where
he was supervised by John Grossi, a white male. According to
Rhodes, Grossi addressed and treated him in a racially derogatory
manner while he was working at the Crossroads Station.
In Campbell’s opinion, Rhodes’s performance during the
probationary period was marred by recurrent problems and
unresolved deficiencies. Among other things, Rhodes never
reached the required level of proficiency in casing.
Consequently, after Rhodes’s eighty-day evaluation, Campbell
notified the Superintendent of Postal Operations in Greenville
that she felt Rhodes should be terminated. The Superintendent
approved her decision and on June 25, 1992, Campbell issued
Rhodes a letter of separation.
Rhodes filed an administrative complaint alleging that in
being discharged he had been discriminated against on the basis
of race. The Postal Service investigated the complaint and
Rhodes elected to receive a final agency decision without a
hearing as to his discrimination claim. In the Postal Service’s
final decision, it found no discrimination in connection with
Rhodes’s separation. Rhodes appealed this decision to the Office
of Federal Operations of the Equal Employment Opportunity
Commission (the “EEOC”). The EEOC found no discrimination and
Rhodes’s subsequent request for reconsideration was denied.
On May 10, 1994, having exhausted his administrative
options, Rhodes brought this action in the United States District
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Court for the Northern District of Mississippi. After discovery,
the Postal Service moved for summary judgment and, on November 1,
1995, the district court entered an Order granting the motion.
In its Memorandum Opinion, the district court held that Rhodes
failed to establish a prima facie case of discrimination. In
addition, the court held that Rhodes presented insufficient
evidence tending to prove that the Postal Service’s reasons for
discharging him were a pretext for discrimination. Rhodes timely
appealed.
II. ANALYSIS
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).
First, we consult the applicable law to ascertain the material
factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.
1992). We then review the evidence bearing on those issues,
viewing the facts and inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC v.
Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114 S.
Ct. 2673 (1994). Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
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together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). Where the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, a dispute about a
material fact is “genuine.” Meadowbriar Home for Children, Inc.
v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); Amburgey v.
Corhart Refractories Corp., Inc., 936 F.2d 805, 809 (5th Cir.
1991). There is no genuine issue for trial, however, if “the
record--taken as a whole--could not lead a rational trier of fact
to find for the nonmoving party.” Davis v. Chevron U.S.A., Inc.,
14 F.3d 1082, 1084 (5th Cir. 1994) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Because it is unusual to find direct evidence of employment
discrimination, courts have devised an inferential method of
proving such discrimination. Davis, 14 F.3d at 1085. In
McDonnell Douglas Corp. v. Green, the Supreme Court set forth the
basic order of inferential proof for discrimination cases brought
under Title VII. 411 U.S. 792 (1973). In a Title VII case, as
in any other action in which the plaintiff seeks to enforce
rights under a statute, the plaintiff is required to carry the
initial burden of establishing facts sufficient to warrant
recovery. Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir.
1993). In a discharge case, a plaintiff establishes a prima
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facie case of discrimination by demonstrating that: (1) he is a
member of a protected group; (2) he was qualified for the job he
held; (3) he was discharged; and (4) after his discharge, his
employer filled the position with a person who is not a member of
the protected group. Norris v. Hartmarx Specialty Stores, Inc.,
913 F.2d 253, 254 (5th Cir. 1990).
Once the prima facie case is established, a rebuttable
presumption, or inference, of discrimination arises. Armstrong,
997 F.2d at 65 & n.4. (“More recently the [Supreme] Court has
described this as an inference.”). At this point, under the
burden-shifting framework established in McDonnell Douglas, the
defendant bears the burden of articulating a legitimate,
nondiscriminatory business reason for the challenged action.
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir.
1995). If the defendant demonstrates such a reason, the burden
shifts back to the plaintiff to prove by a preponderance of the
evidence that the defendant’s proffered reasons were a pretext
for discrimination. Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); Grizzle v. Travelers Health Network,
Inc., 14 F.3d 261, 267 (5th Cir. 1994). Use of the term
“pretext” in this context does not mean that the Title VII
plaintiff must show that he was discharged solely on the basis of
his race, without regard to any alleged deficiencies: “[N]o more
is required to be shown than that race was a ``but for’ cause.”
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McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 (1976).
Summary judgment is ordinarily “an inappropriate tool for
resolving claims of employment discrimination, which involve
nebulous questions of motivation and intent.” Thornbrough v.
Columbus and Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir.
1985). This is because, to defeat a motion for summary judgment,
the plaintiff need not prove a prima facie case of
discrimination, but must simply raise a genuine issue of material
fact as to the existence of a prima facie case. Id. at 641 n.8.
In the instant case, Rhodes clearly met two of the four elements
of a prima facie case under Title VII--the first and third
elements. As a black man, Rhodes is a member of a protected
group; and he was discharged from his postal position.
Nonetheless, the district court found that Rhodes failed to
establish a prima facie case because he did not satisfy the
second and fourth elements. The court determined that Rhodes
failed to raise a genuine issue of material fact with regard to
whether he was qualified for the postal job and with regard to
whether the Postal Service replaced him with a nonminority
employee.
Rhodes maintains that he did establish a prima facie case.
He contends that as to the second element there was evidence that
he would have been qualified for the postal position by the end
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of his probationary period.1 As to the fourth element of the
prima facie case, rather than offering evidence, Rhodes argues
that this element is unnecessary. Citing Jones v. Western
Geophysical Co., he contends that a plaintiff is not required to
show that he was replaced by a member of a nonprotected group:
All that the plaintiff need do is prove by a
preponderance of the evidence that he was discharged
from the position for which he was qualified “under
circumstances which give rise to an inference of
unlawful discrimination.” The underlying purpose of
the fourth element in the McDonnell Douglas formulation
is precisely to establish this unlawful inference of
discrimination. But proof that the employer replaced
the fired minority employee with a nonminority employee
is not the only way to create such an inference.
669 F.2d 280, 284 (5th Cir. 1982).
Notwithstanding the fact that the fourth element need not be
specifically addressed in every discrimination inquiry, we find
that Rhodes failed to establish a prima facie case because he did
not produce evidence giving rise to an inference of unlawful
discrimination. Moreover, resolution of the prima facie issue is
1
In his appellate brief, Rhodes supports this assertion by
citing to a statement that Campbell made during her June 28, 1995
deposition. Speaking of Rhodes’s casing performance at the time of
his thirty-day evaluation, Campbell stated: “I think that he could
possibly have [met the casing requirement] on [route] 9 and [route]
13 possibly.” To characterize this statement as Rhodes does--i.e.,
“in [Campbell’s] opinion, [Rhodes] would have met the casing
requirement on these two routes by the end of his probationary
period”--is a bit of a stretch. In this regard, we note that the
raising of “conclusory allegations,” “unsubstantiated assertions,”
or “only a scintilla of evidence” is insufficient to show that
there is a genuine issue of material fact. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. National
Wildlife Fed’n, 497 U.S. 871-73 (1990), Hopper v. Frank, 16 F.3d 92
(5th Cir. 1994), and Davis, 14 F.3d at 1086, respectively).
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unnecessary because Rhodes’s case ultimately stumbles during the
final movement of the McDonnell Douglas procedural minuet--the
pretext test. Rhodes failed to present evidence sufficient to
convince a reasonable finder of fact that the Postal Service’s
proffered reasons for his discharge were pretextual.
Assuming that Rhodes established a prima facie case, the
Postal Service had “the burden of producing evidence that the
adverse employment actions were taken for a legitimate,
nondiscriminatory reason.” St. Mary’s Honor Ctr. v. Hicks, 113
S. Ct. 2742, 2747 (1993) (citation and internal quotation marks
omitted). The Postal Service met its burden of production by
offering a legitimate reason for the decision to terminate
Rhodes--he did not measure up to the requirements of the job.
“[W]here, as here, the employer offers a legitimate,
nondiscriminatory explanation for the adverse action, the burden
is on the employee to show that the explanation is merely a
pretext for discrimination.” Armstrong, 997 F.2d at 67. To show
that the proffered explanation was pretextual Rhodes was required
to show that “but for” his race he would not have been
discharged. Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th
Cir. 1995); Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th
Cir. 1981) (citing McDonald, 427 U.S. at 282). Rhodes was
required to show that race was a “significant factor” in the
Postal Service’s decision to discharge him. Walsdorf v. Board of
Comm’rs, 857 F.2d 1047, 1052 (5th Cir. 1988) (finding that
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defendants discriminated against plaintiff, a female police
officer, on the basis of sex in not selecting her for promotion).
The ultimate issue is whether there was sufficient evidence for a
reasonable finder of fact to conclude that Campbell’s unfavorable
evaluations of Rhodes were merely a pretext, and that the true
reason for his dismissal was his race. Grizzle, 14 F.3d at 267.
A review of the record convinces us that no reasonable
factfinder could believe that the reasons offered by the Postal
Service were pretexts for discrimination. Campbell testified
that she formally evaluated Rhodes three times during his
probationary period. She indicated in her thirty-day evaluation
that, although she was generally pleased with Rhodes’s
performance, “he did not fully meet the expectations of the
position.” Moreover, as his probationary period continued she
found that “he did not subsequently meet those expectations.”
Campbell explained:
In his 60 and 80-day evaluations I listed any number of
performance deficiencies, including the inability to
case mail at an acceptable rate, the miscasing and
misdelivery of mail, unsafe parking of his Postal
vehicle, parking at unauthorized park points on the
routes he was assigned to deliver, failure to secure
the mail in his vehicle when parking, failure to follow
my instructions concerning calling in on time when he
would be unable to deliver his route without
assistance, customer complaints concerning his
performance, etc. Those evaluations told Mr. Rhodes
exactly what was wrong with his work and what I
expected of him.
In his appellate brief, Rhodes spends a good deal of time
focusing on Campbell’s evaluation of his casing abilities.
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However, Campbell’s dissatisfaction with Rhodes’s casing
performance was merely one aspect of her overall impression that
he was “not the sort of individual we would want as a permanent
employee.” Campbell testified: “[T]he failure to case mail at
an acceptable rate was only one of the problems I had with his
work. The remaining problems mentioned above, especially his
failure to follow my instructions, would have been more than
enough to justify his separation.”
Furthermore, perhaps the fact most fatal to Rhodes’s attempt
to show that the reasons proffered by the Postal Service were
pretextual is the fact that it was Campbell who decided to
terminate Rhodes.2 Campbell is a black woman. She was Rhodes’s
supervisor and she testified that the decision to discharge
Rhodes was entirely her own. It is particularly difficult to
show racial animus when both parties are members of the same
race. See Farias v. Bexar County Bd. of Trustees for Mental
Health and Mental Retardation Servs., 925 F.2d 866, 879 (5th
Cir.), cert. denied, 502 U.S. 866 (1991). We were faced with a
similar scenario in Farias, where a plaintiff of Hispanic descent
alleged that the defendant trustees voted not to renew his
2
In attempting to show that the reasons articulated by the
Postal Service for his discharge were a pretext for discrimination,
Rhodes alleges that John Grossi used racially derogatory language
in addressing him and discriminated against him in job assignments
at the Crossroads Station. Even accepting Rhodes’s allegations as
true for purposes of reviewing this summary judgment, this argument
is unavailing. It is uncontested on appeal that the decision to
discharge Rhodes was Campbell’s.
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contract on the basis of his national origin. Id. In Farias, we
held that the district court’s finding of no discrimination was
not clearly erroneous because one of the three defendants, three
other trustees who voted not to renew the plaintiff’s contract,
and the person who replaced the plaintiff, were all of Hispanic
ancestry. Id. at 878-79. Similarly, in the case at bar, the
evidence before us demonstrates that Campbell did not consider
Rhodes’s race in determining to discharge him during the course
of his probationary period.
We conclude that there is insufficient evidence that but for
Rhodes’s race he would not have been terminated by the Postal
Service. Rhodes cannot prevail on his Title VII claim because
the record, taken as a whole, could not lead a reasonable finder
of fact to find that the Postal Service’s articulated reasons for
discharging him were pretextual.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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