Auguster v. Vermilion Parish School Board

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-30736

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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