Mills v. Ege ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20035
Summary Calendar
_____________________
IGALIOUS I. MILLS,
Plaintiff-Appellant,
versus
CHARLES S. EGE, III, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA H 93 2765)
_________________________________________________________________
August 31, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Igalious Mills ("Mills"), a black male, sued his employer,
Bank One, Texas, N.A. ("Bank One"), and his supervisors, Charles
S. Ege III ("Ege") and Dennis Huffman ("Huffman") alleging racial
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as well as discrimination in violation of ERISA and the
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
Equal Pay Act. The district court granted the defendants' motion
for summary judgment, and Mills appeals the portion of the
summary judgment relating to his Title VII claim. We affirm.
I. Factual Background
Mills worked for Bank One in Port Arthur, Texas as a Credit
and Collection Supervisor. Bank One restructured its collection
department and centralized the department's responsibilities in
Houston, thereby eliminating Mills' position at the Port Arthur
branch office. After the restructuring, Mills was informed of a
similar position in the Houston office as a Collection
Specialist, possibly with a higher salary; however, he rejected
the position because he was unwilling to relocate and because he
believed no firm offer had been made. Some employees' positions
at the Port Arthur branch, including those of three white
females, were reclassified rather than eliminated in the
restructuring, meaning that their job responsibilities were
redefined to absorb additional duties. Mills applied for other
positions at Bank One, including a loan supervisor position that
was awarded to a black female, and a branch manager position for
which he was also not selected. Mills eventually accepted a non-
supervisory position as a Credit Investigator II, but he resigned
from Bank One in September 1992.
In September 1993, Mills filed a complaint in the United
States District Court for the Southern District of Texas,
against Bank One, Ege and Huffman, alleging racial discrimination
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in violation of Title VII. Mills later amended his complaint to
include claims under ERISA and the Equal Pay Act. The district
court granted the defendants' motion for summary judgment,
disposing of Mills' Title VII, ERISA, and Equal Pay Act claims,
and entered final judgment on December 20, 1994. Mills only
appeals the summary judgment as to his claim of racial
discrimination under Title VII; therefore, this court will not
address the ERISA and Equal Pay Act claims. Securities Exch.
Comm'n v. Recile, 10 F.3d 1093, 1096 (5th Cir. 1993)(noting that
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issues not raised in appellant's brief are waived).
II. STANDARD OF REVIEW
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).
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Bank One, Ege and Huffman urge this court to dismiss the
appeal because Mills fails to make specific references to the
record in his brief. An appeal may be dismissed for failure to
provide specific citations to the record as required by Federal
Rule of Appellate Procedure 28(a)(4) and Local Rule 28.2.3.
Moore v. F.D.I.C., 993 F.2d 106, 107 (5th Cir. 1993). These
rules require references to the record to support statements of
fact. FED. R. APP. P. 28(a)(4),(e); 5TH CIR. R. 28.2.3. However,
the cases in which an appeal has been dismissed for an infraction
of this rule involve more egregious omissions than those
committed by appellant's attorney in his brief. See Moore, 993
F.2d at 107; Mitchel v. General Elec. Co., 689 F.2d 877(9th Cir.
1982). In these cases, the appellants' failure to reference the
record coupled with other factors prevented the appellees from
adequately responding and made it impossible for the court to
address the claims. Because the record in this case is not so
voluminous as to make our examination prohibitive, we will decide
the appeal on its merits.
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First, we consult the applicable law to ascertain the material
factual issues. King v. Chide, 974 F.2d 653, 656 (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 non-moving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994);
F.D.I.C. 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, 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).
Under Rule 56(c), the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Norman, 19 F.3d at 1023. The burden is not on the movant
to produce evidence showing the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323 (stating that the
moving party need not "support its motion with affidavits or
other similar materials negating the opponent's claim"). A
defendant who moves for summary judgment may rely on the absence
of evidence to support an essential element of the plaintiff's
claim. Id. at 322.
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If the moving party meets its burden, the burden shifts to
the non-moving party to establish the existence of a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Norman, 19 F.3d at 1023. The
burden on the non-moving party is to "do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586.
III. ANALYSIS
In this appeal, Mills claims that the district court erred
in granting summary judgment because he raised a genuine issue of
fact as to whether the defendants discriminated against him on
the basis of race in violation of Title VII. Section 703(a) of
Title VII of the Civil Rights Act of 1964 provides in relevant
part:
It shall be an unlawful employment practice for an
employer-- (1) to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions or privileges of
employment, because of such individual's race . . .
42 U.S.C. § 2000(e)-2(a) (1994).
The Supreme Court has devised an evidentiary procedure for
disparate treatment claims that allocates the burden of
production and establishes an orderly presentation of proof. St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993);
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
To succeed on a claim of racial discrimination, a plaintiff must
first establish by a preponderance of the evidence a prima facie
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case by demonstrating that: (1) he belongs to a protected class;
(2) he is qualified to hold the position; (3) an adverse
employment action occurred; and (4) persons outside the protected
class were treated more favorably. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Davis v. Chevron U.S.A., Inc.,
14 F.3d 1082, 1087 (5th Cir. 1994).
If the plaintiff successfully demonstrates a prima facie
case of discrimination, a presumption arises and the burden
shifts to the defendant to produce evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th
Cir. 1995).
If the defendant succeeds in carrying its burden of
production, the presumption "drops out of the picture." St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993).
"[T]he Title VII plaintiff at all times bears the `ultimate
burden of persuasion.'" Id. (citations omitted). To prevail, the
plaintiff must show by a preponderance of the evidence not only
that the employer's proffered reason for the adverse action was
false, but also that discrimination was the real reason. See id.
at 2752; Bodenheimer, 5 F.3d at 957 (5th Cir. 1993).2
At the summary judgment stage, the issue is whether the
Title VII plaintiff has tendered factual evidence that creates a
2
"It is not enough . . . to disbelieve the employer; the
factfinder must believe the plaintiff's explanation of
intentional discrimination." St. Mary's, 113 S. Ct. at 2754.
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genuine issue of material fact as to whether unlawful
discrimination was the employer's real reason for the adverse
employment action. Bodenheimer, 5 F.3d at 959; Moore v. Eli
Lilly & Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 114 S.
Ct. 467 (1993).
The district court's opinion granting summary judgment
organized Mills' rather amorphous allegations into four claims.
Mills alleged that Bank One discriminated against him by: (1)
demoting him while white employees were retained; (2) forcing him
to relocate while not forcing white employees to do so; (3)
failing to inform him of open positions; and (4) failing to hire
him for certain positions. The district court disposed of each
of these claims in turn. While purporting to appeal the district
court's entire judgment with respect to his Title VII claims,
Mills only presents argument regarding Bank One's failure to hire
him for four distinct positions after his Credit and Collection
Supervisor position was eliminated. We need not consider issues
or arguments not raised in the appellant's brief. Pan E.
Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1124 (5th Cir.
1988); see also Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.)
(noting that "an appellant abandons all issues not raised and
argued in its initial brief on appeal" (emphasis omitted)), cert.
denied, 115 S. Ct. 189 (1994); Securities Exch. Comm'n v.
Recile, 10 F.3d 1093, 1096 (5th Cir. 1993).
Therefore, we must only consider whether Mills raised a
genuine issue of material fact with respect to whether Bank One
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discriminated against him in failing to hire him for any of the
four positions discussed in his brief. These four positions are:
(1) Branch Manager of the Orange, Texas branch; (2) Loan Officer
at the Sabine Pass branch; (3) Analyst One at the Port Arthur
branch; and (4) Training Officer at the Port Arthur branch. As a
first step, Mills must have produced evidence to the trial court
supporting a prima facie case of employment discrimination--(1)
that he was a member of a protected class; (2) that he applied
for and was qualified for the position; (3) that he was not
hired; and (4) that the position remained open or was filled by
someone outside the protected class. Davis v. Chevron U.S.A.,
Inc., 14 F.3d 1082, 1087 (5th Cir. 1994). Mills failed to defeat
the defendants' motion for summary judgment, however, because he
offered no evidence supporting this prima facie case. Mills'
affidavit demonstrates his membership in a protected class; but
he failed to produce evidence that he applied for these four
particular positions, that he was qualified to hold these
positions, or that these particular positions were filled by
persons outside the protected class. Mills' affidavit contains a
statement that he "was qualified for several positions filled by
white males and females." Although we consider the evidence in
the light most favorable to the non-moving party, a plaintiff
cannot successfully oppose a motion for summary judgment with
conclusory allegations unsupported by concrete and particular
facts. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312
(5th Cir. 1995); Topalian v. Ehrman, 954 F.2d 1125 (5th Cir.)
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("mere conclusory allegations are not competent summary judgment
evidence"), cert. denied, 113 S. Ct. 82 (1992); International
Ass'n of Machinists and Aerospace Workers, AFL-CIO, Lodge No.
2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 222 (5th Cir.
1987). In his brief, Mills alludes to discovery responses and
deposition testimony that apparently would show that he was
qualified, that he applied for these positions, and that they
were filled by whites; however, neither the discovery responses
nor the deposition transcript were attached to his response to
the summary judgment motion, nor were the discovery responses and
deposition brought forward to this court as part of the record.
Indeed, the only portion of the deposition made part of the
record was attached to the defendant's reply to Mills' response
to their motion for summary judgment. The defendants' included
these deposition pages to demonstrate their lack of support for
the allegations for which the deposition excerpts were cited in
Mills' response. The responsibility of ensuring that relevant
parts of the record are brought forward on appeal rests with the
appellant. See FED. R. APP. P. 10. Furthermore, in reviewing a
summary judgment, we must limit our inquiry to the summary
judgment record before the trial court; the parties cannot
propose new evidence, theories or issues on appeal. Topalian,
954 F.2d at 1131 n.10; John v. Louisiana(Bd. of Trustees for
State Colleges and Univ.), 757 F.2d 698, 710 (5th Cir. 1985).
Because Mills failed to produce any summary judgment evidence
raising a genuine issue of material fact that the defendants
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discriminated against him on the basis of race, the district
court correctly granted summary judgment in favor of Bank One,
Ege, and Huffman.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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