Nwakanma v. Waller ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20466
Summary Calendar
BEKEE C. NWAKANMA, Ed.D.,
Plaintiff-Appellant,
versus
STEVE WALLER, DEBORAH TOMLIN, WAYNE SCOTT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-893
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February 12, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Bekee C. Nwakanma, appearing pro se, appeals the summary
judgment in favor the defendants dismissing all claims. He also
appeals the district court’s denial of default judgment and he
has filed a motion for default judgment in this court because the
appellees did not file their brief in a timely manner. Contrary
to Nwakanma’s allegations, the appellees requested leave to file
an out-of-time brief, which was granted by this court.
Furthermore, there is no default judgment in appellate practice.
The motion is DENIED.
*
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that this opinion should not be published and is not precedent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.
No. 98-20466
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Nwakanma alleged civil rights violations based on his race
and national origin and brought claims under Title VII and 42
U.S.C. §§ 1981 and 1983. To state a claim under Title VII for
employment discrimination, the plaintiff must establish a prima
facie case that the defendant employer made an employment
decision that was motivated by a protected factor, such as race
or national origin. McDonnell-Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1089 (5th Cir. 1995). A plaintiff, however, is not required to
bear the initial burden under summary judgment. FED. R. CIV.
P. 56(c). Instead, the district court should assume that the
plaintiff has established a prima facie case of discrimination.
See Boyd v. State Farm Ins. Co., 158 F.3d 326, 329 (5th Cir.
1998). Although the district court erred in holding that
Nwakanma failed to establish a prima facie case of discrimination
on various grounds, the record shows that the error does not
require reversal and remand. “In the context of summary
judgment, a substantial conflict in evidence must exist to create
a jury question on the issue of discrimination.” Id. at 328.
Such genuine issues of material fact do not exist.
The district court held that the defendants could not be
sued under Title VII in their individual capacities because they
were not “employers” within the meaning of that title. The court
also held that sovereign immunity barred suit against the
defendants in their official capacity as employees of the Texas
Department of Criminal Justice (TDCJ). This holding was not
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erroneous. See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989).
The district court considered the merits of Nwakanma’s
claims of employment discrimination. On Nwakanma’s five
applications for promotion which were not time-barred, the
district court held that Nwakanma had established a prima facie
case of discrimination with respect to his other three
applications, as should have been assumed. The defendants put
forth evidence showing that the individuals hired were equally or
more qualified than Nwakanma for the positions, which was a
nondiscriminatory reason for the rejection. Nwakanma failed to
produce evidence creating a genuine issue of material fact. The
district court did not err in dismissing these claims.
The district court held that the other two applications did
not establish a prima facie case of discrimination and that
Nwakanma had also failed to establish a prima facie case on the
grounds of retaliation, harassment, and hostile work environment.
Although this analysis is improper under summary-judgment
standards, the rationales for these decisions also permit
dismissal under summary judgment if it is assumed that a prima
facie case had been proved. Nwakanma submitted no evidence to
counter this summary-judgment evidence by the TDCJ employees and
create a genuine issue of material fact. His conclusional
allegations that this evidence is incorrect and that all problems
stemmed from discrimination and retaliation are insufficient to
withstand summary judgment. See Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994)(en banc)(the nonmovant cannot
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satisfy his summary-judgment burden with conclusional
allegations, unsubstantiated assertions, or only a scintilla of
evidence). The district court did not err in dismissing these
claims on summary judgment.
The court also held that Nwakanma’s breach-of-contract claim
could not stand because he had failed to prove the existence of a
contract. A person asserting a breach of contract in Texas must
first establish that a contract exists. Incorporated Carriers,
Ltd. v. Crocker, 639 S.W.2d 338, 340 (Tex. App. 1982).
Nwakanma’s only argument in support of his claim is that all
employment relationships are contractual under the Civil Rights
Act. He does not, however, provide any evidence to support this
claim. The district court did not err in dismissal.
Nwakanma’s argument that the district court erred in
refusing to grant default judgment is frivolous. “A party is not
entitled to a default judgment as a matter of right, even where
the defendant is technically in default.” Ganther v. Ingle, 75
F.3d 207, 212 (5th Cir. 1996). The defendants filed a motion to
dismiss before Nwakanma filed his motion for a judgment by
default. The defendants defended the suit, and the district
court properly denied the motion for a default judgment. See
McCorstin v. United States Dep’t of Labor, 630 F.2d 242, 244 (5th
Cir. 1980)(default judgment inappropriate when defendant answered
complaint before plaintiff requested default judgment).
AFFIRMED.