Blue v. Harris Cty Juvenile ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No. 99-20660
(Summary Calendar)
_______________________________________
BYRON KEITH BLUE, Plaintiff-Appellant,
versus
HARRIS COUNTY JUVENILE PROBATION
DEPARTMENT; LARRY SMITH, Individually
and in his official capacity as the
Superintendent of the Harris County
Juvenile Probation Department Delta-3
Boot Camp; ELMER BAILEY, Individually
and in his official capacity as the
Executive director of the Harris County
Juvenile Probation Department,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(98-CV-3623)
_________________________________________________
March 23, 2000
Before POLITZ, WIENER, and EMILIO GARZA, Circuit Judges:
Per Curiam*
In this appeal, Plaintiff-Appellant Byron Keith Blue, a black
male, challenges the district court’s grant of summary judgment to
Defendants-Appellees Harris County Juvenile Probation Department,
Larry Smith (Superintendent), and Elmer Bailey (Executive Director)
(collectively, “Defendants”) on his Title VII1 discriminatory
*
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this opinion should not be published and is not precedent except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.
1
28 U.S.C. § 2000e, et seq.
1
discharge claim. He also challenges the district court’s denial of
his motion for a continuance.
We review the district court’s grant of summary judgment de
novo, applying the same standard as that court.2 We review the
denial of a motion for a continuance for abuse of discretion.3
Blue was employed for nine years by Harris County Juvenile
Probation Department. He was working as a shift supervisor on the
night of the suicide of a juvenile detainee, the incident that
preceded his firing. It is undisputed that (1) part of Blue’s
responsibilities during the shift that night were to perform
quarter-hourly checks on the detainee who died, (2) at the start of
the shift, Blue initialed all the spaces on the unit surveillance
form so that it would appear that he had performed the checks as
scheduled, (3) after the suicide was discovered, he removed the
completely pre-initialed form and replaced it with a different one,
filling in his initials only up to the time the death was
discovered, (4) he admitted to Houston Police Department
investigators that he had replaced the form, explaining that
because of his busy schedule, he sometimes completed the
surveillance form in advance, (5) he was terminated from employment
the day he gave his statement to the police, and (6) subsequently,
he was convicted under state law of the felony offense of tampering
with/fabricating physical evidence.
2
United States v. Johnson, 160 F.3d 1061, 1062 (5th Cir.
1998).
3
Dorsey v. Scott Wetzel Services, Inc., 84 F.3d 170, 171 (5th
Cir. 1996).
2
Blue nevertheless contends that his termination was racially
motivated in violation of Title VII because other Harris County
Juvenile Probation Department employees who engaged in similarly
egregious treatment and negligent supervision of detainees were not
fired. In particular, Blue contends that a non-minority employee
who admitted to destroying documents on the night of the incident
was neither reprimanded nor terminated. Blue proffered no evidence
in support of his allegations of analogous misconduct or admissions
by other employees on the night of the suicide or at other times.
The district court, in an oral ruling, granted summary
judgment to Defendants on the ground that Blue failed to establish
a prima facie case of employment discrimination on the basis of
race.4 The district court determined that the fourth element of
the plaintiff’s prima facie case for discriminatory discharge
required him to show that his former position was filed by a non-
minority; he failed to do so, as a black male was hired to replace
him.
We have held, however, that the fourth element may also be
established by showing that the plaintiff was terminated and that
others not in the plaintiff’s protected class, “having comparable
4
To establish a prima facie case, a plaintiff must show that
(1) he was a member of the protected class, (2) he was qualified
for the job, (3) he was terminated, and (4) after his termination,
the employer filled the position with a worker not in the protected
class. Whiting v. Jackson State University, 616 F.2d 116, 120-21
(5th Cir. 1980) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)); see also Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981); Weaver v. Casa Gallardo, Inc.,
922 F.2d 1515, 1525 (11th Cir. 1991).
3
or lesser qualifications,”5 were retained, or that the plaintiff
suffered differential application of work or disciplinary rules.6
Blue, accordingly, made allegations which, if supported, could have
made out a prima facie case, contrary to the district court’s
ruling. We nevertheless affirm, albeit on different grounds, as
Blue failed to produce any evidence of his allegations that
comparably delinquent employees were retained.
Apparently aware of the fatal lack of proof for his claim,
Blue filed -- a few days after Defendants filed their motion for
summary judgment -- a Rule 56(f) motion for continuance, seeking
additional time to conduct discovery. The district court denied
the motion. Blue also appeals that order.
Rule 56(f) provides that the court may order a continuance to
allow time for the party opposing a motion for summary judgment to
obtain affidavits essential to justify the party’s position. A
party requesting a continuance for that reason must submit an
affidavit to the court stating why the relevant summary judgment
evidence could not timely be obtained.7
Blue contends that he was in the process of contacting
witnesses, reviewing Defendants’ responses to discovery, and
reviewing documents and videotapes prior to the time his response
to Defendants’ motion for summary judgment -- which they filed on
5
Whiting, 616 F.2d at 121.
6
See id.; Weaver, 922 F.2d at 1525.
7
Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017(5th Cir. 1983).
4
order of the court -- was due. In his reply brief, Blue also
indicates that, as a named defendant to a lawsuit by the deceased
juvenile’s parents, he had become aware of evidence that would
support his Title VII claim. Defendants urge, however, that Blue
(1) did not file an affidavit with his motion for a continuance
explaining why discovery was delayed and (2) did not even request
discovery from Defendants until after their motion for summary
judgment was filed.
We conclude that the district court did not abuse its
discretion in denying Blue’s motion for a continuance, as he did
not file an affidavit as required by Rule 56(f), explaining his
need for additional time for discovery. Lacking any evidence to
support his allegations of discriminatory discharge, Blue could not
survive summary judgment, and the district court properly dismissed
his Title VII claim.
AFFIRMED
5