Kutche v. Rubin ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 97-10933
___________________________
TONY KUTCHE, II,
Plaintiff-Appellant,
VERSUS
ROBERT RUBIN, Secretary,
United States Department of Treasury
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(4:96-CV-683-A)
___________________________________________________
April 15, 1998
Before KING, DAVIS, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Tony Kutche, II appeals the district court’s order granting
summary judgment in favor of defendant in this employment
discrimination case brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 20003 et seq. and the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq.
The district court granted summary judgment on the ground that
*
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this opinion should not be published and is not precedent except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.
Kutche failed to raise a genuine issue of fact as to one of
defendant’s proffered legitimate nondiscriminatory reasons for
failing to promote him. We agree that Kutche failed to present any
evidence to create a fact issue as to whether defendant chose not
to promote him because of his negative attitude. Even assuming
that Kutche produced sufficient evidence to raise a fact issue as
to defendant’s other proffered reason for failing to promote him --
that the candidate selected for the position was otherwise more
qualified -- we agree with the district court that this is not a
case where “disparities in curricula vitae are so apparent
virtually to jump off the page and slap us in the face.” See EEOC
v. Louisiana Office of Community Servs., 47 F.3d 1438, 1445 (5th
Cir. 1995). Thus, this proffered reason is not so highly
questionable as to cast doubt on defendant’s other articulated
rationale. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994
(5th Cir. 1996) (en banc).
We also conclude that the district court did not abuse its
discretion in entertaining defendant’s motion for summary judgment
before the close of discovery. Defendant moved for summary
judgment a few weeks before the close of discovery and over nine
months after Kutche filed suit. Thus, Kutche had adequate
opportunity to conduct discovery before the district court granted
summary judgment.
AFFIRMED.
2
3