Auguster v. Vermilion Parish School Board

 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 00-30736 _______________ CAROL L. AUGUSTER, Plaintiff-Appellant, VERSUS VERMILION PARISH SCHOOL BOARD, Defendant-Appellee. _________________________ Appeal from the United States District Court for the Western District of Louisiana _________________________ May 3, 2001 Before REAVLEY, SMITH, and DeMOSS, I. Circuit Judges. After teaching and coaching football for many years, Auguster, a black male, was hired JERRY E. SMITH, Circuit Judge: to teach sixth grade at J.H. Williams Middle School for the 1997-98 year. Pursuant to his Carol Auguster appeals a summary contract, the district reserved the right to re- judgment in favor of the Vermilion Parish move him for cause in accordance with the School Board in his suit under 42 U.S.C. § state’s tenure laws.1 Auguster alleges that the 1981 and title VII, 42 U.S.C. § 2000e et seq. Seeing no error, we affirm. 1 The school board contendsSSand Auguster (continued...) superintendent, Dan Dartez, told him when he On July 8, 1998, Auguster received notice was hired of “a problem that they had with that the board would consider a past black coaches, and if there was another recommendation by Dartez not to renew his problem, no matter what it was, that he would contract. The board held a hearing on July 22 do his best to get rid of me, from day one.” In but failed to adopt the recommendation. On the same conversation, Auguster alleges, August 6, however, Dartez notified Auguster Dartez told him that “he had bad luck with that the board had decided not to renew his black men working in Abbeville.”2 contract for the following year. Auguster’s position eventually was filled by a white In March 1998, Jonathon Williams, the female. principal, received a complaint that Auguster had improperly used corporal punishment to II. discipline students. After investigating the in- The board argued that Auguster had failed cident, Williams sent Auguster a reprimand let- to establish a viable claim of discrimination. ter informing him that he had violated the The district court, analyzing the issue under corporal punishment policy. Sometime later, the framework of McDonnell Douglas Corp. Auguster showed an “R” rated movie to his v. Green, 411 U.S. 792 (1973), and its class, an activity the school board considered progeny, held that, although Auguster had unacceptable and for which Auguster received presented a prima facie case of discrimination, another reprimand. the school board had articulated a legitimate, non-discriminatory reason for his firing. In May 1998, Auguster received a written Because Auguster could not establish that the evaluation outlining his deficiencies in proffered reason was mere pretext, the court management and instruction and referencing granted summary judgment. Auguster argues the corporal punishment incident and the that he did establish pretext. unacceptable movie. As a result of the evaluation, the board developed an “Intensive III. Assistance Plan,” pursuant to which Auguster We review a summary judgment de novo, received counseling and agreed to refrain from applying the same standards as did the district corporal punishment. Williams began court, while viewing all disputed facts and rea- personally to monitor Auguster’s in-class sonable inferences “in the light most favorable performance to ensure compliance with school to the nonmoving party . . . .” Duffy v. board policies. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). Summary judgment is appropriate where “there is no genuine issue as to any 1 material fact and . . . the moving party is (...continued) entitled to judgment as a matter of law.” FED does not disputeSSthat Auguster was a R. CIV. P. 56(c). To survive summary probationary teacher with no tenure rights. judgment, however, the nonmoving party must 2 The school board disputes the statements, and do more than allege an issue of material fact: the only evidence supporting the statements is “Rule 56(e) . . . requires the nonmoving party Auguster’s testimony. Because we are reviewing to go beyond the pleadings and by her own a summary judgment, however, we must assume affidavits, or by the depositions, answers to that Auguster’s testimony is correct. See infra. 2 interrogatories, and admissions on file, to support a reasonable inference that designate specific facts showing that there is a the proffered reason is false; a mere genuine issue for trial.” Celotex Corp. v. shadow of doubt is insufficient.” This Catrett, 477 U.S. 317, 324 (1986) (internal court has consistently held that an quotation marks omitted); accord Urbano v. employee’s “subjective belief of Continental Airlines, Inc., 138 F.3d 204, 205 discrimination” alone is not sufficient to (5th Cir. 1998). warrant judicial relief. The district court analyzed Auguster’s title Bauer v. Albemarle Corp., 169 F.2d 962, 967 VII and § 1981 claims under the framework (5th Cir. 1999) (quoting E.E.O.C. v. La. established by McDonnell Douglas, according Office of Cmty. Servs., 47 F.3d 1438, to which a plaintiff must first establish a prima 1443-44, 1448 (5th Cir. 1995)) (citation facie case of discrimination, whereupon the omitted).3 burden of production shifts to the defendant to articulate a legitimate, non-discriminatory Auguster undisputedly established a prima reason for its action. Shackelford v. Deloitte facie case: He is black, he suffered an adverse & Touche, LLP, 190 F.3d 398, 404 (5th Cir. employment decision, and his former position 1999). At that point, “the McDonnell was filled by a white woman. Likewise, the Douglas frameworkSSwith its presumptions school board articulated a legitimate, non- and burdensSSdisappear[s], and the sole discriminatory reason for its decision not to remaining issue [is] discrimination vel non.” rehire Auguster: his poor evaluation, as Reeves v. Sanderson Plumbing Prods, Inc., evidenced by his inappropriate use of corporal 530 U.S. 133, 142-43 (2000) (citations and punishment and screening of an R-rated film. quotation marks omitted). If the plaintiff can Auguster admits that the events occurred, and show that the proffered justification is mere he cannot seriously dispute that they provide pretext, however, that showing, coupled with ample justification for the refusal to renew his the prima facie case, will be sufficient in most contract.4 His case depends on the contention cases to survive summary judgment. Id. at 146-48. 3 Bauer was decided before Reeves, which “Although intermediate evidentiary burdens changed our jurisprudence on the evidentiary con- shift back and forth under this framework, sequences of a successful showing of pretext. ‘[t]he ultimate burden of persuading the trier Nothing in Reeves, however, abrogates Bauer’s of fact that the defendant intentionally requirement of substantial evidence to support a discriminated against the plaintiff remains at all claim of pretext. Cf. Reeves, 530 U.S. at 144 times with the plaintiff.’” Id. at 143 (quoting (“Petitioner, however, made a substantial showing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 that respondent’s explanation was false.”). U.S. 248, 256 (1981)). To carry that burden, 4 At oral argument, Auguster alleged that white the plaintiff must produce substantial evidence teachers who had committed similar offenses were of pretext: not similarly punished. If taken as true, that allegation might be evidence of disparate impact “Evidence that the proffered reason is sufficient to survive summary judgment. The issue unworthy of credence must be enough has been abandoned, however, because Auguster (continued...) 3 that the articulated justification is merely Nonetheless, the fact that Dartez acted pretext for discrimination. outside his statutory authority is not probative with respect to whether the board’s articulated As evidence of pretext, Auguster argues justification is mere pretext. There is no ev- that Dartez unilaterally refused to renew his idence that he acted any differently from how contract in contravention of the board’s he would have in any other situation; indeed, mandate to rehire Auguster.5 That allegation the board asserts that Dartez does in fact have is not supported by the record, which reflects the authority unilaterally to make employment only that the board reached a stalemate when decisions with respect to untenured teachers. voting on Dartez’s recommendation not to rehire Auguster, not that the board Although the school board’s view of state affirmatively voted to renew his contract. The record does support an inference that Dartez acted without legal authority in refusing to 6 (...continued) renew Auguster’s contract, because there is no the stipulation means Dartez was vested with dis- evidence that the board made any decision cretion to make the decision. Under Louisiana law, whatsoever regarding the renewal of the the board’s interpretation appears to be im- contract.6 permissible: Although the statutes do not refer specifically to contract renewals, they do expressly govern the hiring of teachers and the dismissal of 4 (...continued) probationary teachers, the combination of which 1 failed to assert it in his brief. See Strong v. Bell- presumably envelops contract renewals. See LA. 2 South Telecomms. Inc., 137 F.3d 844, 853 n.9 (5th REV. STAT. ANN. §§ 17:81, 17:442. 3 Cir. 1998) (considering waived an issue asserted at 4 oral argument but not addressed in the briefs). Both of those statutes provide for action by the school board on the superintendent’s 5 recommendation, but not for unilateral action by Auguster also argues that the articulated jus- tification must be pretext because he already had the superintendent. Furthermore, the Louisiana been reprimanded for the incidents in question Attorney General has interpreted the statutes to before the decision not to rehire him. Thus, ac- preclude delegation of those functions to the sole cording to Auguster, the school board could not discretion of the superintendent. See La. Att’y permissibly have revisited those incidents in de- Gen. Op. No. 93-654 (1993) (“Th[e] power to hire, ciding whether to renew his contract. That fire, demote, transfer and promote teachers is a argument is meritless on its face. discretionary power vested in the school board and may not be delegated.”); La. Att’y Gen. Op. No. 6 The parties stipulated that “the decision to not 80-1103 (1980) (“[T]he legislature strongly renew Carol Auguster’s contract of employment intended that the local school board should have the with the Vermilion Parish School Board was made final selection authority and that this selection by Dr. Daniel Dartez in his sole discretion as power should not be totally in the hands of the Superintendent of Vermilion Parish Schools.” The superintendent. It is therefore the opinion of this parties disagree, however, on the meaning of the office that both the legislative intent and plain stipulation. meaning of the statute dictate that the local school board must approve and select teachers to be hired Auguster contends that it means Dartez acted . . . .”). Thus, although we can infer that the board on his own, while the school board contends that attempted to vest sole authority for the decision in (continued...) Dartez, we cannot infer that it in fact did so. 4 law may be wrong in this respect, it does in- In Russell, 235 F.3d at 229 & n.19, we dicate that Dartez’s failure to renew Auguster questioned the continued vitality of the stray was not a maverick action, as Auguster as- remarks doctrine, stating that, “[i]n light of the serts, which might be evidence that the board’s Supreme Court’s admonition in Reeves, our articulated justification is mere pretext. pre-Reeves jurisprudence regarding so-called Instead, Dartez’s action merely represents the ‘stray remarks’ must be viewed cautiously.” mistaken understanding of both Dartez and the Notably, however, in both Reeves and Russell, board that he had unilateral authority to make there was substantial evidence of pretext apart employment decisions, at least with respect to from the comments at issue.8 In fact, the untenured teachers. Supreme Court faulted our decision in Reeves9 not for applying the stray remarks doctrine, That alone is insufficient to establish pre- but for failing to accord proper weight to the text. Thus, because Auguster failed to carry his burden of establishing pretext, the district court correctly concluded that his claim cannot 8 In Reeves, the employer cited the employee’s survive under the McDonnell Douglas poor recordkeeping as justification for dismissing framework; Auguster therefore must prove him, asserting that the recordkeeping affected union discrimination without the benefit of McDon- relations and cost the company overtime wages. nell Douglas’s shifting burdens. The Court found, however, that the plaintiff had produced substantial evidence that the articulated IV. justification was pretext by explaining in detail the Auguster did present some direct evidence alleged bookkeeping discrepancies and showing of discrimination: the comments by Dartez to that there had never been a union grievance filed because of them; nor had the employer ever even the effect that the school had “a problem . . . calculated the amount of the alleged overpayments with past black coaches, and if there was resulting from the discrepancies. Reeves, 530 U.S. another problem, no matter what it was, that at 143-46. Only after discussing that evidence of he would do his best to get rid of me, from day pretext and noting that the court of appeals had in one.”7 Given the overwhelming evidence fact found pretext did the Court look at “additional supporting the school board’s legitimate jus- evidence of discrimination” in the form of age- tification, however, Dartez’s comments can be related comments. Id. at 151. viewed as no more than stray remarks, which are insufficient to survive summary judgment. Likewise, in Russell, 235 F.3d at 224, we found that where the employer justified firing the employee to introduce a “change in management style,” the employee’s outstanding evaluations and 7 Auguster contends that, under the McDonnell the employer’s failure to follow internal procedures Douglas framework, the comments establish that in terminating the employee were substantial the school board’s asserted justification is pretext. evidence of pretext. Only then did we analyze Although discriminatory comments can be evidence remarks evidencing age-related animus as of pretext, see Russell v. McKinney Hosp. Venture, “Additional Evidence of Discrimination.” Id. 235 F.3d 219, 225 n.9 (5th Cir. 2000), in a case at 225. such as this, where there is no other evidence of 9 pretext, it is appropriate to analyze such comments Reeves v. Sanderson Plumbing Prods., Inc., as direct evidence of discrimination, apart from the 197 F.3d 688 (5th Cir. 1999), rev’d, 530 U.S. 133 McDonnell Douglas framework. (2000). 5 plaintiff’s substantial evidence of pretext. The fact that Dartez told Auguster that “if Reeves, 530 U.S. at 149 (“It suffices to say there was another problem, no matter what it that, because a prima facie case and sufficient was, that he would do his best to get rid of evidence to reject the employer’s explanation [him]” is insignificant in comparison to the may permit a finding of liability, the Court of evidence of Auguster’s unfitness as a teacher Appeals erred in proceeding from the premise and thus is insufficient, on its own, to establish that a plaintiff must always introduce discrimination.10 Absent any evidence that additional, independent evidence of Dartez would have been more lenient of discrimination.”). In a decision that binds us, similar indiscretions by a white teacher or that this court already has interpreted Reeves not to Auguster did not in fact commit the acts cited overrule our stray remarks jurisprudence, at by the school board in his evaluation, we least where the plaintiff has failed to produce cannot conclude that Dartez’s statement, on its substantial evidence of pretext. See own, is sufficient to meet Auguster’s burden of Rubinstein v. Adm’rs of Tulane Ed. Fund, 218 establishing discriminatory motive for the F.3d 392, 400-01 (5th Cir. 2000) (applying the refusal to renew his contract. stray remarks doctrine where the plaintiff had failed to establish that each of the defendant’s AFFIRMED. articulated justifications was pretext), cert. denied, 121 S. Ct. 1393 (2001). We analyze stray remarks under Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996): “[F]or comments in the workplace to provide sufficient evidence of discrimination, they must be ‘1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) re- 10 In Rubinstein, 218 F.3d at 400, a Jewish lated to the employment decision at issue.’” professor who was denied tenure produced Krystek v. Univ. of S. Miss., 164 F.3d 251, evidence that members of the committees 256 (5th Cir. 1999) (quoting Brown, 82 F.3d responsible for the denial had made discriminatory at 655). It is true that the comments at issue comments, including an observation “that, if ‘the here were made by Dartez, who ultimately Russian Jew’ could obtain tenure, then anyone made the decision not to renew Auguster’s could.” Faced with that evidence, we concluded contract; moreover, the comments pertained to that “Rubinstein has failed to meet his burden of producing any evidence of discrimination sufficient black teachers, and in particular to Auguster. to survive summary judgement, and his evidence to Nonetheless, the comments were made nearly rebut the non-discriminatory reasons offered by a year before the decision not to renew Augus- Tulane is not so persuasive so as to support an ter’s contract, and there is no substantial evi- inference that the real reason was discrimination.” dence that the comments related to Dartez’s Id. Similarly, the alleged comment by Dartez ultimate decision not to renew Auguster’s con- cannot, without more, support an inference that the tract. real reason for the school board’s refusal to renew his contract was discrimination. 6