The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 12, 2007
No. 07-60325 Charles R. Fulbruge III
Summary Calendar Clerk
MICHAEL TILLMAN
Plaintiff-Appellant
v.
SOUTHERN WOOD PRESERVING OF HATTIESBURG, INC.
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
2:06-CV-33
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Tillman (“Tillman”) appeals the district court’s grant of summary
judgment in favor of Southern Wood Preserving of Hattiesburg, Inc.
(“Southern”). Tillman alleges that Southern, his former employer, discriminated
against him based on his race in violation of Title VII. We affirm the district
court’s grant of summary judgment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-60325
I
Southern hired Tillman, a black male, in 1989 or 1990, but he left soon
thereafter for another job. Tillman regained employment with the defendant in
1997 as a “laborer,” specifically a pole framer.1 During Tillman’s tenure as a
laborer, Southern also employed two people whose primary responsibilities were
to operate one of two “cat loaders,” which are used to load logs on to and off of
trucks at Southern’s plant. Southern termed these employees “loaders.” At
various times during Tillman’s employment there were vacancies in the loader
positions and Tillman was called upon to fill in by taking on partial
responsibility for operating the vacant loader. Tillman filled in as a loader on
a number of separate occasions for varied lengths of time over the course of six
to seven years. During these periods, Tillman continued to perform pole framing
and laborer duties when not filling in as a loader.
In November 2004, Southern hired Bobby Cooley (“Cooley”), a white male,
to permanently fill a vacant loader position which Tillman had been temporarily
filling. Tillman was then asked to return to his laborer and pole framing
responsibilities full time. Southern’s failure to give Tillman the job was viewed
by Tillman as discriminatory, and because Cooley was hired in at $9.00 per hour
versus Tillman’s $8.00, he also claimed discrimination in his wage.2
Based on these grievances, Tillman filed a charge of racial discrimination
with the United States Equal Employment Opportunity Commission (“EEOC”).
The EEOC issued a determination that there was reasonable cause to believe
1
At Southern, a pole framer prepares utility poles for delivery to various utility
companies. This involves drilling holes in the poles, placing identification tags on the poles,
and sawing a flat spot on the poles so that electrical equipment can more easily be attached.
2
While the appellant’s brief on appeal is unclear on the matter, sometimes referring to
Tillman as being demoted, we treat Tillman’s first alleged adverse employment action as a
failure to promote. We do so because Tillman provided no evidence that he ever held any
permanent position other than that of laborer and pole framer.
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that Tillman had been discriminated against, and issued a right to sue letter.
Tillman then brought this action against Southern alleging violations of Title
VII.
II
We review a district court’s grant of summary judgment de novo using the
same standard as the district court. Chacko v. Sabre Inc., 473 F.3d 604, 609
(5th Cir. 2006). If the moving party presents a properly supported motion for
summary judgment, in order to avoid summary judgment, the nonmoving party
must “go beyond the pleadings and designate specific facts in the record showing
that there is a genuine issue for trial. Neither conclusory allegations nor
unsubstantiated assertions will satisfy the nonmovant's burden.” Wallace v.
Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (internal quotations
omitted).
III
In this case, Tillman offers no direct evidence of discrimination. We
evaluate claims of racial discrimination based only on circumstantial evidence
under the familiar burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). Under this framework, plaintiffs begin by
establishing a prima facie case of discrimination. Pratt v. City of Houston, 247
F.3d 601, 606 (5th Cir. 2001). Once the plaintiff meets that burden, the
defendant bears a burden to produce a legitimate, nondiscriminatory
explanation for the adverse employment action. Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981). Finally, the plaintiff has an opportunity to
prove by a preponderance of the evidence that the explanation offered by the
defendant is false. Id. at 256. A prima facie case, combined with, “sufficient
evidence to find that the employer’s asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully discriminated.” Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000). The district
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court assumed that Tillman had met the prima facie case requirements, but
granted summary judgment based on Southern’s legitimate, nondiscriminatory
explanation for the employment decisions.
Tillman alleges two actions by Southern that he claims amount to
discrimination under Title VII, a failure to promote him to the loader position
and discriminatory pay, both based on Tillman’s race.
To establish his prima facie case of a failure to promote, Tillman must
show that he was a member of a protected group, was qualified for his position,
and suffered an adverse employment action. Mason v. United Air Lines, Inc.,
274 F.3d 314, 318 (5th Cir. 2001). Tillman has done so. He is as a black male,
part of a protected group and the position he sought was filled by Cooley, a white
male. Further, Tillman’s experience with Southern generally, and specifically
his experience filling in as operator of the cat loader, arguably qualified him for
the permanent position. Finally, a failure to promote Tillman constitutes an
adverse employment action. Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th
Cir. 2007) (“It is equally well established, however, that the denial of a
promotion is an actionable adverse employment action.”).
However, Southern has proffered a legitimate, nondiscriminatory
explanation for hiring Cooley over Tillman. Southern contends that differences
in the two men’s level of experience justified Southern’s decision to hire Cooley.
Wallace, 80 F.3d at 1048 (recognizing a difference in experience as a legitimate,
nondiscriminatory justification and affirming summary judgment in favor of
employer).
At this third stage in the burden shifting, Tillman has two methods
available to rebut Southern’s proffered reason for failing to promote him, which
would again create an issue of fact as to discrimination: (1) Tillman could show
that Southern's proffered explanation is false or unworthy of credence; or (2)
Tillman could try to prove that he is clearly better qualified than the person
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No. 07-60325
selected for the position. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc.,
482 F.3d 408, 412 (5th Cir. 2007) (internal quotations and citations omitted).
Based on the summary judgment evidence, there is no issue of material fact
remaining as to Southern’s nondiscriminatory justification. Tillman has failed
to provide any evidence as to either method of rebuttal.
The record shows that Cooley had significantly more experience than
Tillman in operating a cat loader. Cooley had greater than twenty years
experience operating a cat loader while Tillman only had six-to-seven years of
part-time experience at Southern. Southern determined that this greater
experience would result in Cooley’s damaging the logs less than Tillman was
known to do. Finally, Southern decided that Cooley’s broader experience in
maintenance and welding would enable him to undertake more varied tasks
along with his loading responsibilities. Other than his own conclusory
statements, Tillman offers no proof that Southern failed to promote him based
on his race. Conclusory statements are insufficient to create a genuine issue of
material fact as to Southern’s proffered nondiscriminatory reason. Therefore,
we affirm the district court’s grant of summary judgment as to Tillman’s failure
to promote claim.
Tillman also alleges discriminatory compensation. To establish a prima
facie case of discriminatory pay a plaintiff must prove, "(1) that she is a member
of a protected class, and (2) that she is paid less than a nonmember for work
requiring substantially the same responsibility." Uviedo v. Steves Sash & Door
Co., 738 F.2d 1425, 1431 (5th Cir. 1984). Tillman has shown that he is a member
of a protected class based on his race. And while Tillman was paid less than
Cooley, he provides insufficient evidence to create a material issue of fact as to
whether he and Cooley undertook substantially the same responsibilities. “By
properly showing a significant difference in job responsibilities, a defendant can
negate one of the crucial elements in [a] plaintiff’s prima facie case.” Pittman,
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644 F.2d at 1074. The summary judgment record shows that Tillman was hired
primarily as a laborer and pole framer. While working as a laborer, he filled in
intermittently over the course of six to seven years when Southern experienced
a gap in employment at one of its permanent loader positions. These interim
duties involved a shared responsibility for running the loader, though Tillman
sometimes did a majority of the fill-in work operating one of the loaders.
Tillman was paid $8.00 per hour primarily for his work as a pole framer and he
merely filled in as a loader. Even during his interim work as a loader, Tillman
still spent a portion of his time carrying out his responsibilities as a pole framer.
Cooley, on the other hand, worked primarily as a loader. Cooley also had
responsibilities for general maintenance and welding around the plant, as well
as running a trim saw mill. Tillman offers no evidence to rebut these differences
in responsibility made clear from the summary judgment record. As such, he
has not made out his prima facie case for wage discrimination, and the district
court’s grant of summary judgment was proper.
IV
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.
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