Peguese v. Borup ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40716
Summary Calendar
_____________________
DARWIN PEGUESE,
Plaintiff-Appellant,
versus
J.R. BORUP, Individually; J.W. COONROD, Individually; MICHAEL T.
GODINICH, Individually; J.M. LANE, Individually; WENDY L.
MORRISON, Individually; J.H. SMITH, Individually; GEORGE W.
WYLLIE, Individually; GALVESTON-TEXAS CITY PILOTS; GALTEX PILOTS
SERVICE CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(G-00-CV-519)
February 28, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Maintaining that the individual defendants, known collectively
as the Galveston-Texas City Pilots (Pilots), and a corporation
owned by the Pilots, Galtex Pilots Service Corporation (Galtex),
discriminated against him by declining to select him as a Galveston
deputy pilot, Darwin Peguese appeals the summary judgment awarded
the Pilots and Galtex on Peguese’s claims for: racially-motivated
*
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this opinion should not be published and is not precedent except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.
deprivation of the right to make and enforce contracts, in
violation of 42 U.S.C. § 1981(a); conspiracy to deprive that right,
in violation of 42 U.S.C. § 1985(3); and state-law fraud,
intentional infliction of emotional distress, and conspiracy to
violate the constitutional right to contract. AFFIRMED.
I.
The hiring process for deputy pilots is codified in the Texas
Transportation Code. The Board of Pilot Commissioners for the
Ports of Galveston County (Pilot Board), which is not a party to
this action, is charged with “accept[ing] applications for pilot
licenses and certificates and determin[ing] whether each applicant
meets the qualifications for a pilot”. TEX. TRANSP. CODE § 67.017(2).
The Pilot Board does not have an administrative staff; it delegates
to the Pilots the responsibility for initially collecting
applications; and the Pilots forward those applications to the
Pilot Board so it may review applicant qualifications. After
completing the review, the Pilot Board “provide[s] names of all
qualified applicants for certificates to each pilot association
office [e.g., the Pilots] of Galveston County”. Id. § 67.017(3).
The Pilots may only appoint deputy pilots approved by the Pilot
Board. Id. § 67.038-.039.
The Pilots received Peguese’s application, along with
approximately 200 others, and forwarded it to the Pilot Board.
Because of several deficiencies in his application, the Pilot Board
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did not approve Peguese as a qualified applicant. Specifically,
Peguese had failed to: (1) explain why he left prior jobs; (2)
identify supervisors at prior jobs; and (3) include telephone
numbers for his references. The Pilots selected two candidates —
one black and one white.
Peguese filed this action. With respect to the federal
claims, the district court granted summary judgment to the Pilots
because of the absence of a genuine issue of material fact as to
intentional racial discrimination. The district court noted that
evidence of intentional discrimination “is an essential element of
a claim for relief under section 1981”. See Nat’l Ass’n of Gov’t
Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 714
(5th Cir 1994). Similarly, a § 1985(3) plaintiff must proffer
evidence of “invidiously discriminatory animus behind the
conspirators’ action”. Griffin v. Breckenridge, 403 U.S. 88, 102
(1971); see also Earnest v. Lowentritt, 690 F.2d 1198, 1202-03 (5th
Cir. 1982).2
2
Citing Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d
1214, 1218 n.2 (5th Cir.), modified, 819 F.2d 545 (5th Cir. 1987),
cert. denied sub nom. 484 U.S. 1010 (1988), and concluding that the
same issue — intentional discrimination — was critical to the §
1981 and § 1985 claims, the district court analyzed only the § 1981
claim expressly. Peguese does not take issue with that approach.
In part II, and because the § 1985 claim is for conspiracy to
violate a right secured by § 1981, we likewise address only the §
1981 claim. See Ramirez v. Sloss, 615 F.2d 163, 167 n.4 (5th Cir.
1980) (“The claim under 42 U.S.C. § 1985(3) alleges a conspiracy to
violate section[] 1981[;] therefore our discussion is confined to
the latter section[].”).
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The district court concluded that, in the light of his
incomplete application, Peguese was “unqualified in the starkest of
terms: Defendants were legally barred from selecting him”. The
district court ruled that summary judgment was proper because
qualification is a sine qua non of a racial discrimination claim
under both methods of proving a prima facie case of discrimination
(by direct evidence or by an indirect or inferential method of
proof, see Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th
Cir. 1995)).
The district court rejected Peguese’s assertion that the
Pilots had contributed to his not being qualified by failing to
inform him his application was incomplete. Peguese offered summary
judgment evidence in the form of a transcript of surreptitiously-
recorded telephone conversations with a William Kern, in which Kern
stated that one of the Pilots had sent letters to applicants
notifying them of deficiencies in their applications. Because the
large majority of the applicants were white, Peguese inferred that
his not receiving such a letter of deficiency was attributable to
the conspiracy to discriminate against him. The district court
noted that Kern had not stated that Peguese was singled out for
different treatment and that it was actually Peguese who informed
Kern that he had not received a letter of deficiency. Accordingly,
the district court declined to infer that Peguese’s not receiving
a letter was attributable to his race.
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As to Peguese’s state-law claims, the district court granted
the Pilots summary judgment on: the fraud claim, because, being
unqualified, Peguese suffered no injury; the intentional infliction
of emotional distress claim, because Peguese had not proffered
evidence of extreme and outrageous conduct; and the claim for
conspiracy to violate Peguese’s constitutional right to contract,
for essentially the same reasons the court rejected the federal
claims.
II.
“We review a grant of summary judgment de novo, applying the
same standard as the district court.” Your Ins. Needs Agency Inc.
v. United States, 274 F.3d 1001, 1003 (5th Cir. 2001). “Summary
judgment is appropriate where no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of
law.” DeLeon v. Lloyd’s London, Certain Underwriters, 259 F.3d
344, 347 (5th Cir. 2001); see also FED R. CIV. P. 56(c). “On a
motion for summary judgment, a court reviews the facts in the light
most favorable to the non-movant.” Pratt v. City of Houston, 247
F.3d 601, 606 (5th Cir. 2001).
A.
Peguese contends the district court erred in ignoring “direct
and circumstantial evidence” of intentional discrimination against
him. “[A § 1981] plaintiff carries the initial burden of showing
actions taken by the employer from which one can infer, if such
5
actions remain unexplained, that it is more likely than not that
such actions were based on a discriminatory criterion illegal under
[§ 1981].” Ramirez v. Sloss, 615 F.2d 163, 168-69 (5th Cir. 1980)
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1979);
internal quotation marks omitted) (applying Title VII principles to
§ 1981 employment discrimination). Peguese maintains there is “a
gross disparity in the way that [he], a black applicant” was
treated as compared to how the “180-200 primarily white applicants”
were treated; but, he has proffered no evidence as to the racial
composition of those applicants who did or did not receive letters
of deficiency. All that may be said with any certainty is that
Peguese did not receive such a letter. Given the circumstances of
this case — especially the fact that one of apparently only three
black applicants was chosen, from a pool of approximately 200 white
applicants, to fill one of the two available positions — it cannot
be inferred that Peguese’s not receiving a letter was attributable
to his race.3
B.
As for Peguese’s state-law claims, he correctly acknowledges
they turn largely on the disposition of his federal claims. He
3
Peguese construes the Pilots’ hiring of a black applicant as
an effort to “thwart” an EEOC complaint Peguese had filed. Such an
assertion, if true, might be tangentially relevant to a retaliation
claim. However, Peguese’s presses only a discrimination claim on
appeal. To the extent he raised a retaliation claim in district
court, such claim is deemed waived. See, e.g., United States v.
Maldonado, 42 F.3d 906, 910 n.7 (5th Cir. 1995).
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fails to demonstrate: injury, as to the fraud claim; extreme and
outrageous conduct, as to the intentional infliction of emotional
distress claim; and discrimination, as to the claim for conspiracy
to violate his right to contract.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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