The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-30509
Summary Calendar
____________________
GARY L BROWN,
Plaintiff-Appellant,
v.
T H HARRIS VOCATIONAL/TECHNICAL SCHOOL, ET AL,
Defendants,
J RAYMOND LALONDE, in his official capacity as Director of T
H Harris Vocational Technical School,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(93-CV-2184)
_________________________________________________________________
November 19, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Gary L. Brown appeals the district
court’s entry of summary judgment in favor of defendant-appellee
J. Raymond Lalonde in his official capacity as Director of T.H.
*
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this opinion should not be published and is not precedent except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.
Harris Technical Institute on Brown’s claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We
affirm.
I. BACKGROUND
Plaintiff-appellant Gary L. Brown, an African-American male,
was employed as an instructor at T.H. Harris Technical Institute
(“T.H. Harris”) pursuant to a contract (the “Special Needs
Contract”) funded by the Job Training Partnership Act (“JTPA”),
29 U.S.C. §§ 1501-1781. T.H. Harris entered into the Special
Needs Contract with the St. Landry Parish Police Jury (the
“Police Jury”), the JTPA administrative entity that services the
parish in which T.H. Harris is located. The Special Needs
Contract provided that T.H. Harris would provide special needs
instruction to eligible students in consideration for the Police
Jury’s paying the expenses of providing such instruction,
including the salary of the special needs instructor. The
contract provided funding for Brown’s position from July 1, 1991
to June 30, 1992.
During the term of the Special Needs Contract, student
enrollment in special needs classes was substantially lower than
the contract contemplated. Chris Dunbar, the JTPA program
administrator for the service area covering St. Landry Parish,
notified J. Raymond Lalonde, the Director of T.H. Harris, that he
intended to cancel the Special Needs Contract as of March 6,
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1992. Lalonde, however, persuaded Dunbar to allow the contract
to remain in effect until June 30, 1992. When the contractual
term ended, JTPA officials informed Lalonde that renewal of the
Special Needs Contract would probably not receive approval in
light of unfavorable monitoring reports regarding special needs
class attendance. Lalonde did not submit the contract for
renewal.
Brown contends that discriminatory animus motivated
Lalonde’s failure to submit the Special Needs Contract for
renewal. He alleges that “deeply rooted racial problems began to
surface on or around August of 1991” at T.H. Harris, but he
provides no factual allegations as to the specific nature of
these alleged problems. Brown avers that he approached Lalonde
about problems with student attendance and performance and
suggested methods of alleviating these problems. He contends
that, in February 1992, he requested that T.H. Harris stop
discriminating against him and that he was discharged on the
basis of his race on June 30, 1992.
On December 23, 1993, Brown filed suit in federal district
court against T.H. Harris, asserting claims under 42 U.S.C.
§§ 1981 and 1985 as well as Title VII.1 Brown amended his
complaint twice and added a number of additional defendants in
1
Brown also asserted a putative class claim on behalf of
“all blacks and/or females seeking employment in the historically
and predominantly white job classifications” in the school.
However, the district court never granted class certification.
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their individual and official capacities, including Lalonde.
Judge Putnam, the district court judge to whom the case was
originally assigned, entered an order dismissing all defendants
except Lalonde on grounds of insufficient and untimely service of
process. Judge Putnam also dismissed all claims against Lalonde
in his individual capacity and all claims except Brown’s Title
VII claims against Lalonde in his official capacity as Director
of T.H. Harris. Brown does not appeal these dismissals.
On August 16, 1996, Lalonde filed a motion for summary
judgment. Brown filed a cursory opposition which stated without
any supporting analysis that genuine issues of material fact
precluded summary judgment. On October 3, 1996, Larry E. Broome,
counsel for Brown, was injured in an automobile accident. On
this basis, Brown made a motion to continue all matters pending
in the case. Judge Putnam entered an order staying disposition
of Lalonde’s summary judgment motion pending improvement of
Broome’s medical condition. On January 30, 1997, the case was
reassigned to Judge Doherty. The minute entry informing the
parties of the case’s reassignment states that “[a]ny pending
motions will be reset on Judge Doherty’s motion calendar for
April, 1997, without oral argument.”
On April 15, 1997, Brown filed a motion to continue the
district court’s ruling on Lalonde’s motion for summary judgment
on the ground that Broome’s injuries from the automobile accident
had prevented him from “devot[ing] all the necessary time to the
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case” and had prevented him from taking the deposition of Shelton
Cobb, whom Brown alleges, without explanation, is a “key witness”
in the case. The court denied this motion and granted Lalonde’s
motion for summary judgment on April 18, 1997.
II. DISCUSSION
Brown challenges the district court’s entry of summary
judgment in favor of Lalonde on Brown’s Title VII claims on two
grounds. First, he argues that the district court erred in
refusing to grant his motion for a continuance in order to
provide him with time to more fully respond to Lalonde’s summary
judgment motion. Second, he argues that genuine issues of
material fact preclude summary judgment. We reject both of these
arguments.
A. Continuance
“This court reviews a district court's denial of a motion
for continuance for abuse of discretion.” Dorsey v. Scott Wetzel
Servs., Inc., 84 F.3d 170, 171 (5th Cir. 1996); see also
McAllister v. FDIC, 87 F.3d 762, 766 (5th Cir. 1996).
On appeal, Brown advances two arguments as to why he was
entitled to a continuance allowing him more time to respond to
Lalonde’s motion for summary judgment. First, he argues that
Judge Doherty never lifted Judge Putnam’s stay of the motion for
summary judgment. However, the January 30, 1997 minute entry
reflecting the case’s reassignment to Judge Doherty makes clear
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that Judge Putnam’s stay was lifted because it states that all
pending motions were calendared for April 1997.
Second, Brown argues that Broome’s medical condition
prevented him from adequately responding to the motion for
summary judgment. If a party cannot adequately defend against a
motion for summary judgment, Rule 56(f) of the Federal Rules of
Civil Procedure is his remedy. See Potter v. Delta Air Lines,
Inc., 98 F.3d 881, 887 (5th Cir. 1996). Rule 56(f) provides as
follows:
Should it appear from the affidavits of a party
opposing the motion [for summary judgment] that the
party cannot for reasons stated present by affidavit
facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or
may make such other order as is just.
FED. R. CIV. P. 56(f). “To obtain a continuance of a motion for
summary judgment in order to obtain further discovery, a party
must indicate to the court by some statement, preferably in
writing (but not necessarily in the form of an affidavit), why he
needs additional discovery and how the additional discovery will
create a genuine issue of material fact." Krim v. BancTexas
Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). The party “may
not simply rely on vague assertions that additional discovery
will produce needed, but unspecified, facts.” SEC v. Spence &
Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980).
Brown’s motion for continuance fails to specifically
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identify the controverting facts that he would have been able to
establish had the court granted a continuance and allowed further
discovery. Rather, it simply states that Brown had not been able
to take the deposition of Shelton Cobb and that Cobb “has factual
knowledge of the plaintiff’s allegations [that will be] very
supportive of these allegations.” This falls short of meeting
Rule 56(f)’s requirement of an enumeration of the controverting
facts that further discovery would reveal.
Furthermore, after the parties were informed on January 30,
1997 that the summary judgment motion was calendared for April
1997, Brown waited until April 15, 1997 to file a motion
indicating that Broome’s medical condition had impaired his
ability to adequately respond to Lalonde’s motion for summary
judgment. Additionally, a month and a half passed between the
date that Lalonde filed his motion for summary judgment and the
date of Broome’s automobile accident. Brown offers no reason why
he could not have developed an adequate response to the motion
for summary judgment during this time period. Brown also offers
no reason why he could not have conducted adequate discovery
during the nearly three years that this lawsuit was pending prior
to Broome’s automobile accident. In sum, we conclude that the
district court did not abuse its discretion in denying Brown’s
motion for a continuance.
B. Summary Judgment
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“We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance.”
Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d
1095, 1099 (5th Cir. 1996), cert. denied, 117 S. Ct. 2497 (1997).
Summary judgment is proper “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
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The district court granted Lalonde’s motion for summary
judgment on Brown’s Title VII claims on the ground that, as a
matter of law, Lalonde was not Brown’s “employer” within the
meaning of Title VII and thus is not subject to liability under
Title VII. We decline to address this issue because we conclude
that, regardless of whether Lalonde was Brown’s employer for
Title VII purposes, the record contains no summary judgment
evidence indicating that the nondiscriminatory rationales
advanced by Lalonde for his failure to submit the Special Needs
Contract for renewal are a mere pretext for race-based
discrimination. See Doctor's Hosp. of Jefferson, Inc. v.
Southeast Med. Alliance, Inc., 123 F.3d 301, 307 (5th Cir. 1997)
(“A district court's grant of summary judgment may be affirmed on
grounds supported by the record other than those relied on by the
court.”).
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In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the Supreme Court articulated “the proper order and nature of
proof in actions under Title VII.” Id. at 793-94. Under the
framework adopted by the Court, the plaintiff bears the burden of
establishing a prima facie case by a preponderance of the
evidence; doing so raises an inference of unlawful
discrimination. See id. at 802. A prima facie claim under Title
VII requires proof of the following elements:
(1) that the claimant belongs to a protected group;
(2) that he was qualified for his position;
(3) that, despite his qualifications, he was dismissed or
suffered an adverse employment action; and
(4) the defendant employer sought to replace the claimant
with a similarly qualified person outside the protected
group.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (U.S.
1993); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
Once the claimant establishes a prima facie claim, “[t]he
burden of production then shifts to the defendant to proffer a
legitimate, nondiscriminatory reason for the challenged
employment action.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989,
992-93 (5th Cir. 1996) (en banc) (citing McDonnell Douglas, 411
U.S. at 802). The defendant may meet this burden by presenting
evidence that, “if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the
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employment action.” Hicks, 509 U.S. at 507. If the defendant
meets this burden, the presumption of unlawful discrimination
disappears, but the plaintiff may still establish Title VII
liability by “demonstrat[ing] that the defendant’s articulated
rationale [for the employment action] was merely a pretext for
discrimination.” Rhodes, 75 F.3d at 993.
We assume arguendo that a genuine issue of material fact
exists as to each of the elements that Brown must establish in
order to state a prima facie claim under Title VII. Lalonde has
rebutted the presumption of unlawful discrimination that arises
from such a prima facie showing by offering evidence that the
trier of fact could construe as supporting a conclusion that
Lalonde did not engage in unlawful discrimination. The summary
judgment record contains evidence that Lalonde declined to
request renewal of the Special Needs Contract because JTPA
officials informed him that the contract would not be renewed
because of poor performance evaluations. The summary judgment
record is devoid of evidence from which a reasonable trier of
fact could conclude that this rationale is merely a pretext for
racial discrimination. Brown has offered nothing more than the
allegations in his complaint that “deeply rooted racial problems
began surfacing” at T.H. Harris and that he was discharged on the
basis of race. Such unsupported allegations cannot create a
genuine issue of material fact and thereby defeat a motion for
summary judgment. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th
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Cir. 1996) (“[M]ere conclusory allegations are not competent
summary judgment evidence, and such allegations are insufficient,
therefore, to defeat a motion for summary judgment.”). We
therefore conclude that the district court properly granted
summary judgment in favor of Lalonde on Brown’s Title VII claims.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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