Darius J Whitson Sr v. LM Services Corp. , 69 F. App'x 815 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 03-1216/03-1618
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Darius Whitson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
LM Services Corporation, doing * [UNPUBLISHED]
business as Sheraton Hotel at West *
Port Plaza; Jim Grant, Human Resource *
Director; Mitch Bolen, General *
Manager, doing business as Sheraton *
Inn at Westport, General Manager for *
LM Services, *
*
Appellees. *
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Submitted: June 30, 2003
Filed: July 3, 2003
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Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
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PER CURIAM.
Darius Whitson appeals the district court’s1 adverse grant of summary
judgment, and the court’s subsequent award of costs and attorney’s fees to defendant,
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
in Whitson’s action alleging employment discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. We affirm.
Having carefully reviewed the record, we find that the district court properly
granted summary judgment to LM Services Corporation (LM) on Whitson’s claim
that he was denied promotions based on his race. Whitson did not establish a prima
facie case of discrimination with respect to four of the five positions at issue. See
Dotson v. Delta Consol. Indus., 251 F.3d 780, 781 (8th Cir. 2001) (elements of prima
facie case). Specifically, Whitson failed to show that he was qualified for the
positions of Night Manager or Night Auditor, that the Line Prep and Chef’s Assistant
position was ever open or filled, or that the shipping-and-receiving position was filled
by someone outside his protected class. As to the Security Officer position, Whitson
failed to rebut LM’s legitimate, nondiscriminatory reason for not promoting him--
concerns over his customer-service skills and a written warning in his file. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (if employer raises
legitimate, nondiscriminatory reason, burden of production shifts back to plaintiff to
show pretext). We further find that the magistrate judge2 properly dismissed the
individual defendants. See Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th
Cir. 1998) (Title VII does not impose liability on employer’s employees, agents, or
officers).
In addition, we conclude that the district court did not abuse its discretion in
awarding attorney’s fees, based on its finding that Whitson litigated in bad faith, see
Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 994 (8th Cir. 2003) (standard
of review); EEOC v. Hendrix Coll., 53 F.3d 209, 211 (8th Cir. 1995) (attorney fees
may be assessed in discrimination case if defendant establishes plaintiff litigated in
2
The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was initially referred for final
disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).
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bad faith), or in awarding court costs, see Fed. R. Civ. P. 54(d); Lee-Thomas, Inc. v.
Hallmark Cards, Inc., 275 F.3d 702, 708 (8th Cir. 2002) (standard of review).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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