Stephen Manley v. Invesco , 555 F. App'x 344 ( 2014 )


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  •      Case: 13-20209      Document: 00512523251         Page: 1    Date Filed: 02/05/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-20209                              February 5, 2014
    Summary Calendar
    Lyle W. Cayce
    Clerk
    STEPHEN MANLEY,
    Plaintiff – Appellant
    v.
    INVESCO, also known as Invesco Investment Services, also known as
    Invesco Group Services, Incorporated, also known as Invesco Management
    Group; MATRIX RESOURCES, INCORPORATED; NATIONAL
    PROSOURCE, INCORPORATED,
    Defendants – Appellees
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 4:11-CV-02408
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant,     Stephen      Manley,     sued    Defendants-Appellees,
    alleging discrimination based on race, color, and gender in violation of Title
    VII of the Civil Rights Act of 1974, the Civil Rights Act of 1991, and Section
    605 of the Fair Credit Reporting Act. The district court granted Defendants’
    motions for summary judgment and dismissed Manley’s claims. We AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-20209    Document: 00512523251   Page: 2   Date Filed: 02/05/2014
    No. 13-20209
    FACTUAL BACKGROUND
    In 2010, Invesco contracted with two employment agencies, Matrix and
    ProSource, to fill a temporary job opening for a junior “Siebel developer.” When
    the job opening was not filled after a few months, Invesco instructed Matrix
    and ProSource to broaden their search to consider candidates qualified for a
    junior Structured Query Language (“SQL”) developer position who Invesco
    would then train on Siebel. Matrix found Plaintiff’s resume on Monster.com,
    contacted him about the opening, recommended him to Invesco, and forwarded
    his resume to Rakhee Matlapudi, a senior recruiter at Invesco. Matlapudi
    determined that, as Manley had eight years of SQL experience, he was
    overqualified for the position and did not send Plaintiff’s resume to Invesco’s
    hiring manager for further consideration.
    Independent of Matrix and Invesco’s activities, ProSource contacted
    Manley about the same Invesco job opening. Manley sent ProSource a written
    application, in which he indicated that he had never “been convicted of a crime”
    and authorized ProSource to run his criminal background report. By signing
    the    application,    Manley   stated   that   he   “underst[ood]   that    any
    misrepresentation, falsification, or omission of information may be grounds for
    termination of the interview process, refusal to hire, or, if hired, termination
    of employment.” ProSource subsequently interviewed Manley, administered a
    skills test, and contracted with a third party credit reporting agency for
    Manley’s criminal background report.         The criminal background report
    revealed that Manley had been convicted of driving with an invalid license in
    2006, assault causing bodily injury in 2001, and theft of between $20 and $500
    in 1995. ProSource thereafter decided not to refer Manley to Invesco for the
    SQL developer position. Later, without the assistance of Matrix or ProSource,
    Invesco found and hired a candidate – a woman with one year and eight
    months of SQL experience – to fill the SQL/Siebel developer position.
    2
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    No. 13-20209
    On June 24, 2011, Manley, proceeding pro se, filed an Original Complaint
    raising disparate treatment and impact discrimination claims based on race,
    color, and gender. Manley asserts that Defendants Invesco, ProSource, and
    Matrix have “a pattern and a blanket policy to deny employment opportunity
    [sic] to individuals with criminal records which disparately impacts and
    adversely affects the minority applicant pools who are protected classes under
    law” in violation of Title VII of the Civil Rights Act of 1974, the Civil Rights
    Act of 1991 (42 U.S.C. § 1981), and Section 605 of the Fair Credit Reporting
    Act (“FCRA”). Manley further alleged that “the retrieved criminal information
    antedated seven years which also violated plaintiff’s rights under the FCRA
    § 605 and was used as the sole determinant in denying plaintiff an employment
    opportunity.” Defendants moved for summary judgment. On March 5, 2013,
    the district court issued a final judgment and dismissed the case with
    prejudice. Manley timely appeals. 1
    STANDARD OF REVIEW
    We review a district court’s grant of summary judgment de novo.
    LeMaire v. Louisiana, 
    480 F.3d 383
    , 386-87 (5th Cir. 2007).                          Summary
    judgment      is   appropriate      “if the      pleadings, depositions, answers               to
    interrogatories, and admissions on file, together with the affidavits, if any,
    show that there is no genuine issue as to any material fact and that the moving
    party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
    1  Appellees argue that Manley’s brief fails to comply with the requirements set forth
    in Rules 28 and 32 of the Federal Rules of Appellate Procedure and in the Rules and Internal
    Operating Procedures of the Fifth Circuit. Specifically, Appellees assert that Manley’s brief
    is twice the allowed page limit, hard to decipher, repetitive, raises issues for the first time on
    appeal, fails to cite to the record to support assertions of purported error, and impugns the
    district court. While pro se pleadings are to be construed liberally, nonconforming briefs
    should not be considered when doing so prejudices an opposing party. Grant v. Cuellar, 
    59 F.3d 523
    , 524 (5th Cir. 1995). However, as the legal issues presented are straightforward,
    we do not reach Appellees’ arguments as to the form and content of Manley’s brief.
    3
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    No. 13-20209
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986). We construe all facts and
    evidence in the light most favorable to the non-moving party. United Fire &
    Cas. Co. v. Hixson Bros., Inc., 
    453 F.3d 283
    , 285 (5th Cir. 2006).
    DISCUSSION
    Manley makes three arguments challenging the district court’s dismissal
    of his claims. 2 Manley first argues that the district court erred in dismissing
    his disparate impact and disparate treatment claims against Invesco, Matrix,
    and ProSource. 3 Second, he maintains that the district court erred in denying
    his motion for recusal. Lastly, Manley asserts that the district court erred in
    its discovery rulings.
    A.       “Disparate Treatment” and “Disparate Impact” Claims
    Manley first argues that the district court committed reversible error in
    granting Defendants’ motions for summary judgment and dismissing his
    disparate impact and disparate treatment claims against Invesco, Matrix, and
    ProSource.
    The summary judgment analysis is the same for claims of discrimination
    under Title VII and 42 U.S.C. § 1981. Patel v. Midland Mem’l Hosp. & Med.
    Ctr., 
    298 F.3d 333
    , 342 (5th Cir. 2002). Section 1981 ensures that all persons
    have the same right to make and enforce contracts, including “the making,
    performance, modification, and termination of [employment] contracts.” 42
    U.S.C. § 1981. Title VII of the Civil Rights Act of 1964 prohibits employers
    from “fail[ing] or refus[ing] to hire . . . any individual . . . because of such
    2Appellant’s brief presents twenty-five issues. These issues can be grouped into three
    buckets for analytical clarity, as the Appellees do in their responsive briefs.
    3 The district court also granted Defendants’ motion for summary judgment as to
    Manley’s claims for FCRA violations; the court held that Manley’s FCRA claims failed as a
    matter of law since Invesco, Matrix, and ProSource were not “credit reporting agencies” as
    required for liability under FCRA. Manley does not dispute the district court’s findings with
    respect to FCRA anywhere in his brief. Therefore, he waived his FCRA claims on appeal.
    4
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    individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-
    2(a)(1). Title VII also makes it unlawful for an employment agency “to fail or
    refuse to refer for employment, or otherwise to discriminate against, any
    individual because of his race, color, religion, sex, or national origin . . . .” 42
    U.S.C. § 2000e-2(b).
    Under Title VII, courts recognize both disparate treatment claims
    (involving deliberate discrimination) and disparate impact claims (involving
    facially neutral practices that fall more harshly on one group than another and
    cannot be justified by business necessity). Munoz v. Orr, 
    200 F.3d 291
    , 299
    (5th Cir. 2000); Stout v. Baxter Healthcare Corp., 
    282 F.3d 856
    , 860 (5th Cir.
    2002) (quoting Int’l Bhd. of Teamsters v. United States, 
    431 U.S. 324
    , 335 n.15
    (1977)). To establish a prima facie case of disparate treatment, the plaintiff
    must demonstrate that he “(1) is a member of a protected class; (2) was
    qualified for [his] position; (3) was subject to an adverse employment action;
    and (4) was replaced by someone outside the protected class, or . . . that others
    similarly situated were treated more favorably.” Okoye v. Univ. of Tex. Hous.
    Health Sci. Ctr., 
    245 F.3d 507
    , 512-13 (5th Cir. 2001). To establish a prima
    facie disparate impact claim, a plaintiff must (1) “identify the employment
    practice that has the allegedly disproportionate impact” and (2) “establish
    causation by offering statistical evidence to show that the practice in question
    has resulted in prohibited discrimination.” 
    Stout, 282 F.3d at 860
    .
    The district court granted summary judgment dismissing Manley’s
    disparate treatment and disparate impact claims against Matrix and Invesco
    for lack of standing. “In order to have standing, a plaintiff must show: (1) it
    has suffered, or imminently will suffer, a concrete and particularized injury-
    in-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a
    favorable judgment is likely to redress the injury.” Miss. State. Democratic
    Party v. Barbour, 
    529 F.3d 538
    , 544 (5th Cir. 2008). The district court correctly
    5
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    found that Manley did not meet his burden of establishing injury-in-fact fairly
    traceable to Matrix. In fact, Matrix referred Manley for employment (despite
    his criminal record of which Matrix was unaware) and played no role in
    Invesco’s decision not to hire Manley. As Matrix’s alleged policy of declining
    to refer applicants with criminal records did not cause Manley injury, his
    disparate   impact   challenge    against     the    facially    neutral   policy   as
    discriminatory against Black or male applicants likewise fails. The district
    court also acted properly in holding that Manley could not show an injury fairly
    traceable to Invesco’s conduct. Manley offered no evidence that, when Invesco
    made its decision not to interview him after viewing his resume, the company
    knew his race or color, as would be required to establish that Invesco’s reason
    for not hiring him, i.e. that he was overqualified, was pretextual and to support
    a disparate treatment claim. As Invesco was similarly unaware of his criminal
    background, Manley cannot establish that Invesco’s alleged policy of declining
    to hire individuals with criminal records had a disparate impact on him.
    The district court likewise acted appropriately in dismissing Manley’s
    claims that ProSource discriminated against him when it refused to refer him
    to Invesco for employment because of his criminal record.               Persons with
    criminal records are not a protected class under Title VII, preventing Manley
    from basing his Title VII claim on this status, and he does not allege that
    ProSource failed to refer him because he was Black or male. In any event,
    ProSource has previously referred Blacks and males who had criminal records
    while failing to refer Whites who, like Manley, made misrepresentations as to
    their criminal records – ProSource’s stated reason for declining to refer him.
    “[M]isrepresentations    on   employee       documents    can     be   a   legitimate,
    nondiscriminatory reason for an adverse employment decision, like declining
    to hire or firing an employee.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 
    570 F.3d 606
    , 622 (5th Cir. 2009). Manley’s conclusory allegations to the contrary
    6
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    are insufficient to establish a genuine issue of material fact that ProSource’s
    legitimate, nondiscriminatory reason for not referring him was false or
    pretextual; he thus failed to meet the summary judgment burden for his
    disparate treatment claim against ProSource. Given the absence of admissible
    statistical data or other evidence that ProSource’s policy disparately impacts
    Blacks or males, Manley similarly failed to meet his summary judgment
    burden for his disparate impact claims against ProSource; these claims were
    appropriately dismissed.
    B.     Denial of Motion for Recusal
    Manley also argues that the district court erred by denying his Motion
    to Recuse based on 28 U.S.C. § 455 and § 144. “Under either statute, the
    alleged bias must be ‘personal’, as distinguished from judicial, in nature.”
    Phillips v. Joint Legislative Comm., 
    637 F.2d 1014
    , 1020 (5th Cir. 1981).
    “Thus, a motion for disqualification ordinarily may not be predicated on the
    judge’s rulings in the instant case or in related cases, nor on a demonstrated
    tendency to rule any particular way, nor on a particular judicial leaning or
    attitude derived from his experience on the bench.” Id.; see United States v.
    Grinnell Corp., 
    384 U.S. 563
    , 583 (1966). Manley has failed to present any
    evidence that the district court held any personal bias against him. Instead,
    Manley’s assertion that the district court should have recused himself is based
    solely on judicial rulings in the case. Accordingly, the district court was correct
    in denying his Motion to Recuse.
    C.     Discovery Rulings
    Manley appears to contend that the district court’s abatement of
    discovery interfered with his ability to obtain admissible discovery. It is well
    established that a district court can “exercise its sound discretion to restrict
    what materials are obtainable” in discovery. Leatherman v. Tarrant County
    Narcotics Intelligence and Coordination Unit, 
    28 F.3d 1388
    , 1394 (5th Cir.
    7
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    1994) (quoting Harris v. Amoco Prod. Co., 
    768 F.2d 669
    , 684 (5th Cir. 1985)).
    “In reviewing a district court’s curtailment of discovery under the Federal
    Rules of Civil Procedure, errors made with regard to the allowance of discovery
    do not require reversal unless they result in substantial prejudice to a party’s
    case.” 
    Id. (quoting United
    States v. Garrett, 
    571 F.2d 1323
    , 1326 (5th Cir.
    1978)). Manley did not indicate what particular admissible evidence he was
    prevented from obtaining, and whether such discovery would constitute
    competent summary judgment evidence. Nor did he even allege much less
    demonstrate that the district court’s discovery rulings caused him “substantial
    prejudice.” Moreover, while “Rule 56 does not require that any discovery take
    place before summary judgment can be granted,” the district court specifically
    allowed Manley to conduct additional discovery before granting ProSource’s
    Third Motion for Summary Judgment. 
    Id. at 1396
    (quoting Washington v.
    Allstate Ins. Co., 
    901 F.2d 1281
    , 1285 (5th Cir. 1990)). Absent specifics as to
    what discovery was erroneously excluded and what prejudice such exclusion
    did or did not cause the plaintiff, we find no error in the district court’s
    discovery rulings.
    CONCLUSION
    Accordingly, we AFFIRM the district court’s orders of dismissal.
    8
    

Document Info

Docket Number: 13-20209

Citation Numbers: 555 F. App'x 344

Judges: Davis, Higginson, Per Curiam, Southwick

Filed Date: 2/5/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023

Authorities (17)

Grant v. Cuellar , 59 F.3d 523 ( 1995 )

Okoye v. University of Texas Houston Health Science Center , 245 F.3d 507 ( 2001 )

Jacqueline M. Harris, Equal Employment Opportunity ... , 768 F.2d 669 ( 1985 )

United Fire & Cslty v. Hixson Brothers Inc , 453 F.3d 283 ( 2006 )

united-states-of-america-and-keith-p-powers-and-caroll-w-butler-revenue , 571 F.2d 1323 ( 1978 )

p-v-patel-md-individually-p-v-patel-md-a-professional-association , 298 F.3d 333 ( 2002 )

John E. Washington v. Allstate Insurance Company , 901 F.2d 1281 ( 1990 )

Munoz v. Orr , 200 F.3d 291 ( 2000 )

Mississippi State Democratic Party v. Barbour , 529 F.3d 538 ( 2008 )

Stout v. Baxter Healthcare Corp. , 282 F.3d 856 ( 2002 )

Charlene Leatherman v. Tarrant County Narcotics ... , 28 F.3d 1388 ( 1994 )

LeMaire v. Louisiana Department of Transportation & ... , 480 F.3d 383 ( 2007 )

Equal Employment Opportunity Commission v. Chevron Phillips ... , 570 F.3d 606 ( 2009 )

25-fair-emplpraccas-120-25-empl-prac-dec-p-31611-barbara-phillips , 637 F.2d 1014 ( 1981 )

United States v. Grinnell Corp. , 86 S. Ct. 1698 ( 1966 )

International Brotherhood of Teamsters v. United States , 97 S. Ct. 1843 ( 1977 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

View All Authorities »