Crawford v. City of Houston Texas

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 20, 2007

No. 06-20575 Charles R. Fulbruge III

Clerk

JOHNNY B. CRAWFORD, ORLANDO EDGERSON,

BERNARD GARRETT, DERRELL HOPSON,

ARTHUR HYPOLITE, LOUELLA NIMROD,

WILLIE PRATT

Plaintiffs-Appellants

v.

CITY OF HOUSTON TEXAS

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-04555

Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.

PER CURIAM:*

Johnny Crawford, Orlando Edgerson, Bernard Garrett, Derrell Hopson,

Arthur Hypolite, Louella Nimrod, and Willie Pratt (Plaintiffs) brought suit

against the City of Houston alleging racial discrimination in violation of 42

U.S.C. §§ 1981 and 1983. The City moved for summary judgment, which the

district court granted. Plaintiffs appealed. We affirm.

*

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. 06-20575

I

In November 2000, Plaintiffs, all of whom are African Americans, were

employed as Community Service Inspectors in the City’s Department of Public

Works and Engineering, Neighborhood Protection Division (the Department).

On November 8, the Department sought applicants to fill three openings as

Senior Inspectors. All Plaintiffs applied for promotion to Senior Inspector;

however, none was selected.

Human Resources initially screened all of the applications. The

applications that met the position’s minimum qualifications were passed on to

the Department. The Department utilized screening committees to review the

applications and interview candidates. Jennifer Wylie and Angela Dotson, both

African American females, and Elmo Day, a white male, were each

recommended by a screening committee as its top choice for one of the open

positions. Barbara Jones, a white female, and Lee Pipes, a white male,

comprised the committee that recommended Day. The recommendations were

first reviewed by Todd Cooper, a white male, before being forwarded to Deputy

Director Beatrice Link, a black female. Link reviewed the recommended

candidates and approved all three. Subsequently, Link learned of recent

criminal misconduct by Wylie; she withdrew her selection of Wylie and asked the

screening committee that had recommended Wylie to refer another applicant.

The screening committee recommended Herbert Williams, an African American

male; Link approved Williams.

Plaintiffs sued the City alleging discrimination in the promotion of Day to

the Senior Inspector position. Plaintiffs initially brought a Title VII action

against the City; however, it was dismissed for failure to exhaust administrative

remedies. Plaintiffs then filed the present suit, alleging violations under 42

U.S.C. § 1981; Plaintiffs amended their complaint to allege violations under 42

U.S.C. §§ 1981 and 1983. Plaintiffs allege that Day was less qualified than they

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No. 06-20575

and did not meet the job’s minimum qualifications. They argue that he was

hired because of an affirmative action policy that had a goal of hiring white

males to correct for under-representation of whites in the Department. Plaintiffs

foot their argument that there was such a policy on the annual affirmative

action reports that the Department prepared for the City’s Affirmative Action

Advisory Commission. The reports described, inter alia, the racial makeup of

the Department’s employees, and, most important in this case, included charts

labeled “employment goals.” The 1999 report, for example, has two tables

discussing the Department’s “goals.” Under the percentage goals, the report lists

approximately twenty percent for whites and is blank for African Americans,1

and for raw numbers lists eighteen for whites and zero for African Americans.

The City denies that there was any policy to give whites a preference, urging

instead that these were mere responsive reports and that the reports were never

adopted as official City policy.

The City moved for summary judgment arguing that the statute of

limitations had run; Plaintiffs could not prove a violation of § 1981; and

Plaintiffs could not prove the elements for municipality liability under § 1983.

The district court held that the action was not time barred, but it granted the

City’s motion on the latter two points. Plaintiffs filed this appeal.

II

We review de novo the district court’s decision to grant summary

judgment.2 Summary judgment is appropriate when there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law.3

1

The photocopy of the report in the record is difficult to read. The percentage for white

males appears to be 20.8 %, but from this copy we cannot be certain. In any event, the exact

percentage is not dispositive.

2

Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

3

Fed. R. Civ. P. 56(c).

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We view all of the evidence and draw all inferences in the light most favorable

to the nonmoving party, “and all reasonable doubts about the facts should be

resolved in favor of the nonmoving party.”4 “Unsubstantiated assertions,

improbable inferences, and unsupported speculation are not sufficient to defeat

a motion for summary judgment.”5 “Conclusory statements in an affidavit do not

provide facts that will counter summary judgment evidence, and testimony

based on conjecture alone is insufficient to raise an issue to defeat summary

judgment.”6

III

To establish a violation of § 1981 a plaintiff must prove (1) he is a member

of a protected class; (2) there was an intent to discriminate on that basis; and (3)

the discrimination concerned one or more of the activities in the statute.7

Although § 1981 speaks of the right to “make and enforce contracts,” an

employer’s failure to promote is actionable under the statute.8 Section 1981 race

discrimination claims are analyzed under the McDonnell Douglas framework.9

Section 1981 does not itself create a cause of action against a municipality;

rather, a plaintiff complaining of a municipality’s violations of § 1981 must

4

Terrebonne Parish Sch. Bd., 310 F.3d at 877.

5

Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).

6

Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992).

7

Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002); Green v. State Bar of Tex., 27 F.3d

1083, 1086 (5th Cir. 1994).

8

Police Ass’n of New Orleans v. City of New Orleans, 100 F.3d 1159, 1170 (5th Cir.

1996).

9

Price v. Fed. Express Corp., 283 F.3d 715, 719-20 (5th Cir. 2002); Pratt v. City of

Houston, 247 F.3d 601, 606 & nn. 1, 2 (5th Cir. 2001); see McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

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assert his claims via § 1983.10 In doing so, the plaintiff “cannot proceed under

a theory of respondeat superior and must instead satisfy the ‘custom or policy’

test fashioned for suits against a municipality under § 1983.”11 This “requires

proof of three elements in addition to the underlying claim of a violation of

rights: a policymaker; an official policy; and a violation of constitutional rights

whose ‘moving force’ is the policy or custom.”12 The final element requires the

plaintiff to prove causation; that is, that the policy or custom is the cause in fact

of the rights violation.13

We conclude that Plaintiffs failed to offer evidence from which a

reasonable jury could find that the City’s alleged affirmative action policy served

as the “moving force” behind the decision to promote Day instead of one of the

Plaintiffs. We therefore do not address whether the district court correctly

applied the McDonnell Douglas framework, nor is it necessary for us to decide

whether Plaintiffs offered sufficient evidence to create a fact question over the

existence of an official policy or custom.

The district court found that

Plaintiffs have not shown that the Affirmative Action Program

Report actually played a role in the decision to promote Elmo Day.

Plaintiffs have presented no evidence that the members of the

10

Felton, 315 F.3d at 481-82; Oden v. Oktibbeha County, Miss., 246 F.3d 458, 463-64

(5th Cir. 2001).

11

Evans v. City of Houston, 246 F.3d 344, 358 (5th Cir. 2001).

12

Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005) (quoting Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (internal quotation marks omitted).

13

We described the “moving force” element in Fraire v. City of Arlington, 957 F.2d 1268,

1281 (5th Cir. 1992), a § 1983 excessive police force case, as requiring that “a direct causal

connection must exist between the policy and the alleged constitutional deprivation. This

connection must be more than a mere ‘but for’ coupling between cause and effect. To form the

basis of liability under § 1983, a municipal policy must be affirmatively linked to the

constitutional violation and be the moving force behind it.” See also City of Canton v. Harris,

489 U.S. 378, 391 (1989); Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379

F.3d 293, 310 (5th Cir. 2004); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980).

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[screening] committee . . . or any other person involved in the

promotion decisions . . . had any knowledge of the Affirmative

Action Program Report or the goals set forth therein.14

Plaintiffs’ counsel conceded as much at oral argument. Asked if there was

evidence in the record demonstrating that those who promoted Day knew of the

affirmative action reports, counsel responded:

Not that I’m aware of, but since we had never received like an

adequate justification or production of evidence as to what [the

City’s] reason for hiring Mr. Day was, we didn’t have the

opportunity to get that evidence. . . . As far as I know, there is no

evidence in the record—

Counsel then qualified his statement, admitting that both Link and Cooper had

given depositions; in other words, Plaintiffs had the opportunity to develop their

knowledge of the affirmative action reports.

As discussed below, the record is devoid of evidence indicating that those

who promoted Day knew of the reports. Counsel is incorrect in suggesting that

Plaintiffs’ responsibility for proving causation turns on the City articulating or

proving its reasons for promoting Day. Proving that a policy or custom was a

moving force in the violation is a prerequisite, free-standing requirement for a

plaintiff’s pursuing municipal liability under § 1983.

Plaintiffs’ briefs do not directly address the moving-force requirement or

the district court’s ruling on that point. We read their briefs as pointing to the

following evidence that Day was promoted in accordance with the reports: the

interview process was discriminatory toward African American applicants, in

particular because of the “surprise” skills test and writing sample requirement;

Day had advanced knowledge of the test; the City “lost” screening committee

interview notes; Day received more favorable treatment than Wylie, an African

American applicant; and Day was less qualified than Plaintiffs.

14

Crawford et al. v. City of Houston, No. 4:04-CV-04555 (S.D. Tex. May 24, 2006).

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No. 06-20575

All of the evidence proffered by Plaintiffs in this case suffers from the

defect identified by the district judge: none of it establishes that those

responsible for promoting Day knew of the affirmative action reports, let alone

the purported employment goals contained therein. Knowledge of the reports

is antecedent to acting on the reports; logically, the reports cannot have been the

moving force in the decision to promote Day if those responsible did not know of

the reports’ existence. Furthermore, the individual pieces of evidence suffer

from particularized defects, dissipating any inference of knowledge of the reports

on the part of those who promoted Day.

That the job posting failed to disclose that a skills test or evaluation would

be given favors no person or group. Anyone reading the posting and preparing

for the job would be equally “surprised”; and, while some of the questions were

technical, the test itself was neutral and the questions were related to the job.15

There is no competent evidence that Day received advanced warning of the

skills test and writing sample requirement. The only evidence indicating that

he did are Hypolite’s and Pratt’s declarations. Both declarations state –

verbatim – that “[s]hortly before the interviews, I observed Elmo Day in private

conferences with Todd Cooper and Lee Pipes, and Barbara Jones discussing the

interview and selection process.” The declarations are entirely conclusory and

conjectural; neither declaration describes the contents of the conversation nor

even alleges that Hypolite or Pratt could hear what was being said.

Evidence regarding the missing notes is relevant only to the extent that

the notes were “lost” to cover up something. That the notes are missing and that

15

Questions included: “How have you directly or indirectly prepared yourself for this

position?”; “What is the purpose of and procedures for [the Family Medical Leave Act]?”;

“Compare and contrast the Administrative Hearing and the Building and Standards

Commission hearing process.”

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No. 06-20575

the EEOC found this to be a Title VII record keeping violation16 may, standing

alone, give rise to an inference of a bad act; but, without more, they are not

probative of whether those who promoted Day knew of the reports.

The allegation that Day received more favorable treatment than Wylie is

not helpful either. Day had been convicted for misdemeanor assault in 1996,

while Wylie’s difficulties surfaced during the interview process. Link withdrew

Wylie’s recommendation for promotion, but not Day’s. This, Plaintiffs say, shows

discrimination.

However, Plaintiffs fail to account for the factual differences. Both Link

and Cooper testified in their depositions that the Office of the Inspector General

(OIG) contacted Link after she had approved Wylie for the promotion. According

to Cooper, the OIG explained that Wylie’s criminal issues involved “some

misrepresentation involving an ATM card and that there was a pending trial.”

Link testified that Wylie had been charged for theft on City time. As Cooper

explained, “Link and the inspector general’s office and H&R felt like [Wylie]

would not be a good candidate . . . .” There was no evidence that the OIG or

“H&R” had similar misgivings about Day and his misdemeanor assault

conviction. Moreover, there is a timing difference: Day’s conviction was on his

application for Human Resources to review during the initial screening process,

while Wylie’s criminal problems did not arise until well after the initial

screening. And, because Wylie’s problems came to light after the screening

panels and Cooper reviewed her application, there can be no suggestion that

they treated Day and Wylie differently. The difference in treatment Day and

16

See 29 C.F.R. § 1602.14 (“Any personnel or employment record made or kept by an

employer (including but not necessarily limited to . . . application forms submitted by

applicants and other records having to do with hiring [or] promotion . . .) shall be preserved by

the employer for a period of one year from the date of the making of the record or the personnel

action involved, whichever occurs later.”).

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No. 06-20575

Wylie received did not have its genesis within the Department’s promotion

process, belying any inference that it resulted from the reports.

Plaintiffs’ oft-made allegation that Day was less qualified suffers the same

infirmity as the other evidence: on its own, his being less qualified says nothing

of whether those who picked him did so in conformity with the reports. Indeed,

it does not overcome Plaintiffs’ threshold problem: whether those who picked

Day even knew of the reports.

The most substantial evidence concerning the affirmative action reports

was the deposition testimony of Thomas Rolen, the then-Director of the

Department. Rolen testified that the reports were prepared by Herb Fain, whom

he indicated was the Deputy Director in personnel. Rolen explained that he

reviewed the reports, signed the transmittal letter, and returned the reports to

Fain to transmit to the City’s Affirmative Action Council. Rolen gave no

indication that the reports were distributed within the Department; Link

testified that she did not know of the reports, and both Cooper and Link testified

that they had never been told of any policy favoring white applicants.

Rolen did state that the reports were provided to Human Resources, the

department that initially screened the applications to ensure that they met the

minimum qualifications. However, the potential exposure of Human Resources

to the reports does not advance Plaintiffs’ claim: all of Plaintiffs were approved

in the initial screening. That is, at the only point in the promotion process

where the record supports an inference that a decisionmaker could have been

exposed to the reports,17 the reports caused Plaintiffs no harm; they, along with

Day and everyone else who applied, moved to the next round.

17

Even that is a circumstantial inference as there was no testimony that the reports

were generally distributed in Human Resources, or that the person in Human Resources who

reviewed these particular senior inspector applications had seen the reports.

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No. 06-20575

Nor does Rolen’s or Fain’s exposure to the reports advance Plaintiffs’

cause, as there is no evidence indicating that they were involved in the decision

to promote Day. Rolen testified that it was the people under him who made the

hiring and promotion decisions. Day was selected and approved by Link before

Fain and those in personnel became involved. The testimony clearly establishes

that the persons involved in selecting Day over Plaintiffs were the members of

the Department’s screening panels, Cooper, and Link.18

The only evidence indicating that the alleged affirmative action policy was

a moving force in the decision to promote Day are the conclusory, speculative

statements of Plaintiffs themselves.19 In the absence of any corroborative

evidence, the subjective beliefs and conjecture of Plaintiffs are not enough to

create a genuine issue of material fact.20

IV

As Plaintiffs introduced no direct evidence, or evidence giving rise to an

inference, that those who selected Day knew of, let alone acted on, the purported

discriminatory policy, they cannot establish § 1983 municipal liability and

consequently cannot prevail on their § 1981 claim. AFFIRMED.

18

The parties dispute at which point in the Department’s promotion process the decision

to hire Day was made – that is, who among the screening panels, Cooper, and Link actually

made the decision. Because of the lack of evidence indicating that any of them knew of the

affirmative action reports, this dispute is of no moment.

19

For example: “I think [they] were following the policy, discriminatory policy” (Hopson

deposition); “I do understand why it was going on because of that document about that they

was underrepresented by white males” (Pratt deposition); “The only thing I can tell you is the

fact that, you know, a less qualified white applicant was given preference in this hiring

situation in accordance with the affirmative action memo that the Public Works Department

came up with” (Edgerson deposition); “Mr. Cooper, along with the other interviewers, they

were probably I would say acting on the affirmative action report” (Nimrod deposition).

20

See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993) (“We have

held that a plaintiff’s subjective belief that his discharge was based on age is simply

insufficient to establish an ADEA claim.”).

10