Johnny Johnson v. David Wade Correctional Facil, e , 410 F. App'x 735 ( 2010 )


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  •      Case: 10-30440 Document: 00511309612 Page: 1 Date Filed: 12/02/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 2, 2010
    No. 10-30440
    Summary Calendar                         Lyle W. Cayce
    Clerk
    JOHNNY JOHNSON,
    Plaintiff-Appellant,
    v.
    DAVID WADE CORRECTIONAL FACILITY; VENETIAL MICHAELS,
    Individually and in her official capacity as Warden, David Wade Correctional
    Facility,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 5:08-CV-903
    Before KING, BENAVIDES, and ELROD, Circuit Judges.
    PER CURIAM:*
    Appellant, Johnny Johnson (Johnson), sued David Wade Correctional
    Facility (DCWF) and Venetia Michaels1 (Michaels), both in her official capacity
    as Warden of DCWF and in her individual capacity, alleging claims under Title
    VII, 
    42 U.S.C. §§ 1981
    , 1983, 1985, 1986 and the Equal Protection Clause of the
    * Pursuant to Fifth Circuit Rule 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    not be published and is not precedent except under the limited circumstances set forth in Fifth
    Circuit Rule 47.5.4.
    1
    Defendant’s name is properly spelled “Venetia” not “Venetial” as it appears in the
    caption of the case.
    Case: 10-30440 Document: 00511309612 Page: 2 Date Filed: 12/02/2010
    No. 10-30440
    the United States Constitution. Johnson now appeals the district court’s
    summary judgment as to his Title VII claim for non-promotion based on race.2
    Johnson argues that the district court erred in finding that he did not offer
    sufficient evidence to create a fact issue as to whether DCWF and Michaels’s
    stated legitimate, nondiscriminatory reasons for not promoting Johnson were
    mere pretext for race-based discrimination. Johnson has failed to demonstrate
    that Appellees’ stated nondiscriminatory reasons were mere pretext; thus, we
    AFFIRM.
    This    case     concerns      employment-related,         race-based      claims     of
    discrimination. At the time of the events leading to this suit, and currently,
    Johnson is a Facility Assistant Maintenance Manager 2 in the Maintenance
    Division at DWCF. The highest position within the Maintenance Division at
    DWCF is the Facility Maintenance Manager 4 position. Johnson’s primary
    claim, and the only claim that he argues on appeal, is that Appellees have
    repeatedly not promoted him because he is African-American. Specifically,
    Johnson alleges that Appellees failed to promote him for race-based,
    discriminatory reasons on three occasions: March of 2006, July of 2006, and
    August of 2008.3
    Summary judgment is proper when there is no genuine issue of material
    fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
    56(c); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986). “A dispute about a
    material fact is ‘genuine’ if the evidence is such that a reasonable jury could
    return a verdict for the nonmoving party.” Hanchey v. Energas Co., 
    925 F.2d 96
    ,
    97 (5th Cir. 1990). In evaluating a summary-judgment motion, the district court
    2
    In the district court, Johnson also claimed that defendants were responsible for
    exposing him to a hostile work environment, conspiring to deprive him of equal protection
    under the law, and retaliating for activity protected under Title VII of the Civil Rights Act of
    1964, 42 U.S.C. §2000e, et seq. Insofar as Johnson has raised these claims on appeal, he has
    failed to adequately brief them; therefore, they are deemed waived. See U.S. v. Scroggins, 
    599 F.3d 433
    , 446-47 (5th Cir. 2010).
    3
    Johnson filed a discrimination complaint with the Equal Employment Opportunity
    Commission (EEOC) related to each non-promotion incident.
    2
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    No. 10-30440
    must draw all reasonable inferences in favor of the non-moving party. Duplantis
    v. Shell Offshore, Inc., 
    948 F.2d 187
    , 189 (5th Cir. 1991). We review a district
    court’s summary judgment de novo. Tolson v. Avondale Indus., Inc., 
    141 F.3d 604
    , 608 (5th Cir. 1998).
    Before turning to the merits of Johnson’s claims, we first address their
    timeliness. A claimant must file a Title VII discrimination claim with the EEOC
    within 300 days of the alleged discriminatory act. See Frank v. Xerox Corp., 
    347 F.3d. 130
    , 136 (5th Cir. 2003). We agree with the district court’s conclusion that
    Johnson did not timely file such claims with respect to the non-promotions of
    March and July 2006. Thus, the claims arising from these non-promotions are
    time barred. In addition, all of his Title VII claims cannot survive summary
    judgment on the merits.
    To survive a summary-judgment motion, the plaintiff must first present
    a prima facie case of discrimination.4 Patel v. Midland Memorial Hosp. & Med.
    Ctr., 
    298 F.3d 333
    , 342 (5th Cir. 2002). “An employee can prove discrimination
    through direct or circumstantial evidence.” Jones v. Robinson Prop. Group, L.P.,
    
    427 F.3d 987
    , 992 (5th Cir. 2005). Cases of discrimination based on
    circumstantial evidence are subject to the McDonnell Douglas burden-shifting
    analysis. See Meinecke v. H & R Block of Houston, 
    66 F.3d 77
    , 83 (5th Cir. 1995)
    (citing McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973)).                          If
    established, a prima facie case raises an inference of discrimination, and the
    burden shifts to the defendant to articulate a legitimate, nondiscriminatory
    reason for its adverse decision. Patel, 
    298 F.3d at 342
    . If the defendant presents
    such a reason, then the inference disappears, and the plaintiff must offer
    evidence that the proffered reason is a pretext for racial discrimination. 
    Id.
    4
    65 For a prima facie case of racial discrimination, a plaintiff must prove that (1) he
    is a member of a protected class; (2) he was qualified for the position; (3) he was not promoted;
    and (4) either the position was filled by someone not in the protected class, or the person was
    not promoted because of his race. See Rutherford v. Harris County, Texas, 
    197 F.3d 173
    , 179
    (5th Cir. 1999).
    3
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    No. 10-30440
    We assume arguendo that Johnson has established a prima facie case of
    discrimination, and thus, focus on whether Johnson established that Appellees’
    proffered reasons for failing to promote him were pretext for racial
    discrimination.
    We first address the March 2006 and August 2008 promotions. The
    legitimate reason proffered by the Appellees for not promoting Johnson in both
    instances was that there was a better candidate. We have acknowledged that
    “choosing some other candidate because he is the best-qualified individual for
    the job is generally a legitimate, nondiscriminatory reason for an adverse
    employment decision.” Patrick v. Ridge, 
    394 F.3d 311
    , 318 (5th Cir. 2004).
    Johnson argues that in both instances his application materials evince that he
    was clearly a better candidate than the individual ultimately selected. However,
    as the district court observed, a comparison of the application materials
    submitted by Johnson and the applicants who were hired does not indicate that
    Johnson was clearly better qualified. Rather, the application materials, at best,
    merely indicate that Johnson and the individuals hired had a similar amount of
    management experience. We have held that merely “[s]howing that two
    candidates are similarly qualified does not establish pretext.” Price v. Federal
    Express Corp., 
    283 F.3d 715
    , 723 (5th Cir. 2002).
    We next address the Maintenance Manager 3 position that Johnson
    applied for in July of 2006. Appellees indicate that due to institutional needs this
    position was converted to a plumber/ pipe fitter foreman position prior to any
    applicant being selected for the job. Johnson offers absolutely no evidence that
    Appellees’ proffered nondiscriminatory reason, that is, the position was
    converted for institutional needs, was mere pretext for racial discrimination.
    Rather than present evidence, Johnson relies solely on his subjective beliefs that
    discrimination has occurred. We have held that “a plaintiff cannot merely rely
    on his subjective belief that discrimination has occurred” to demonstrate pretext.
    Price v. Marathon Cheese Corp., 
    119 F.3d 330
    , 337 (5th Cir. 1997).
    4
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    No. 10-30440
    Taken as a whole, the arguments and evidence relied upon by Johnson fail
    to create a fact issue as to whether Appellees’ nondiscriminatory reasons for
    failing to promote Johnson in 2006 and 2008 were mere pretext for race-based
    discrimination. The judgment of the district court is therefore AFFIRMED.
    5