Bright v. G B Bioscience Inc

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 15, 2008

No. 07-20906 Charles R. Fulbruge III

Clerk

TREVOR BRIGHT

Plaintiff - Appellant

v.

G B BIOSCIENCE INC

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas, Houston

No. 4:06-CV-1622

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Trevor Bright appeals the district court’s grant of GB

Biosciences’s motion for summary judgment on Bright’s 42 U.S.C. § 1981 racial

discrimination claim. Bright claims that GB Biosciences acted with

discriminatory motivation when it did not hire him for permanent employment.

Because Bright has failed to raise a genuine issue of material fact permitting an

inference of discrimination, 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. 07-20906

I. Background

A. Factual Background

GB Biosciences manufactures crop protection products. Bright, who is

African American, began working at GB Biosciences as a temporary contract

worker in March 2003. At that time, Bryce Danna, one of GB Biosciences’s

superintendents, selected Bright and four others for temporary positions.

Bright started at GB Biosciences on the A Shift, where Craig Murphy

supervised and trained him.1 In June 2003, Murphy noted that Bright was

having attendance and performance problems. Murphy conveyed his concerns

to Danna. After Danna discussed these problems with Bright, Bright requested

a transfer, claiming that Murphy was not properly training him. Danna granted

Bright’s request, and Bright was transferred to the C Shift, where Gene Evans

supervised him. Evans also noted Bright’s attendance problems. Bright’s co-

worker on the C Shift, Joe Nelson, however, believed that Bright was a good

worker without any problems.

In June 2004, Bright unsuccessfully applied for a permanent operator

position with GB Biosciences. Dixie Mullis, GB Biosciences’s human resources

manager, invited all five temporary workers to submit applications for the open

position, in addition to seeking outside applicants. An interview panel consisting

of Mullis, Danna, C Shift’s head operator Pat Edwards, shift facilitator Lonnis

Hawkins, and chief operator Wade Willis interviewed Bright for the position.

Using a “targeted selection” process, the panel ranked Bright last out of the five

1

Throughout Bright’s brief to this court, his counsel confuses Craig Murphy, Bright’s

supervisor, with Richard Murphy, one of the temporary workers with whom Bright worked.

2

No. 07-20906

in-house applicants (making him fifth out of the seven applicants overall). GB

Biosciences hired the highest-rated applicant.

GB Biosciences laid Bright off from his temporary position in July 2004,

without complaint from Bright. Afterward, Bright continued to pursue

permanent operator positions at GB Biosciences when they became available.

Two such positions opened up in spring 2005, and GB Biosciences accepted

applications for those positions from April 14 to May 9, 2005 (the “April–May

period”). Willis notified Bright of the openings, and Bright confirmed them with

Nelson. A factual dispute exists as to whether Bright submitted an application

during this time frame. In deposition testimony, Bright asserted that he

submitted three resumes “from March to about June, July.” Although he lacked

recollection of specific days or months, or with whom he spoke, he testified that

he left the resumes at the receptionist’s desk for the human resources

department. In an affidavit in response to GB Biosciences’s motion for summary

judgment, he attested that he submitted applications in April and July 2005.

Mullis, however, affirmed that she did not receive a resume from Bright during

the period from April 14 to May 9. Whether or not Bright submitted his resume,

his application was not considered, and he was not interviewed for the available

positions. GB Biosciences interviewed four applicants, one of whom was African

American, and hired two Caucasian applicants to fill the positions.

In June and July 2005 (the “June–July period”), GB Biosciences accepted

applications for three additional experienced operator positions. Bright

submitted, and GB Biosciences considered, his resume for these positions. Dave

Lewis, the new CTL complex superintendent, and Mullis screened over 200

applications. Noting that Bright had previously worked at GB Biosciences as a

contract worker, Lewis consulted with Danna about Bright’s performance.

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No. 07-20906

Danna told Lewis that he should not hire Bright, based on Danna’s observations

and information Murphy and Evans provided to him. Because of this negative

feedback and Bright’s relative lack of operator experience, Lewis marked “no

interest” on Bright’s resume.2 At the time, Lewis was not aware of Bright’s race.

After screening resumes, Lewis and Mullis selected ten applicants for

interviews, which were conducted on August 11 and 15, 2005. Two of the

selected applicants were African American. From the ten selected interviewees,

one African American applicant, one Caucasian applicant, and one Hispanic

applicant were hired.

According to Bright, Willis then told Bright that “you might need to call

the EEOC and have them do an investigation out here on their hiring practices.”

Willis did not indicate to Bright why he should do so, and, during his deposition,

Bright could not recall if Willis mentioned race. Although some employees

supported Bright’s application and decried rumors about his poor performance,

none of the deposed witnesses suggested that race was a factor in Bright’s

negative evaluations or GB Biosciences’s decision not to hire him.

B. Procedural History

After an EEOC investigation, Bright filed the present complaint on May

12, 2006. He claimed racial discrimination giving rise to liability under § 1981

for two of GB Biosciences’s employment decisions: (1) its decision not to hire him

during the April–May period and (2) its decision not to hire him during the

2

During the resume screening process, Mullis also received negative feedback on

Bright. When later questioned by the Equal Opportunity Employment Commission (the

“EEOC”) after Bright filed an administrative complaint, Mullis attributed this negative

feedback to Edwards, who oversaw C Shift’s operations but had no supervisory authority over

employees. During her deposition testimony, however, Mullis corrected that it came from

either operations manager Steve Hamm or Danna.

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No. 07-20906

June–July period. On June 22, 2007, GB Biosciences moved for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. GB

Biosciences asserted that Bright failed to make a prima facie case of

discrimination and failed to rebut its nondiscriminatory reasons for not hiring

Bright. Bright opposed the motion.

The magistrate judge recommended granting summary judgment to GB

Biosciences, and the district court adopted the magistrate judge’s memorandum

and recommendation (the “order”) on December 4, 2007. In the order, the

district court analyzed the case under the burden-shifting paradigm established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the evidentiary

burdens clarified in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133

(2000). The district court held that Bright had made a prima facie case. It

granted summary judgment, however, because Bright failed to show that GB

Biosciences’s proffered nondiscriminatory reasons for not hiring Bright were

pretexts for unlawful discrimination. Analyzing the strength of Bright’s prima

facie case, the probative value of the proof that GB Biosciences’s explanations

were false, and other evidence that GB Biosciences did not discriminate in its

hiring decisions, the district court held:

Unfortunately for Bright, his prima facie case is rudimentary

at best, tipping only the weaker end of the scale. The most he has

shown is that he applied for several operator openings, that he was

rejected despite his basic qualifications, and that [GB Biosciences]

continued to consider other applicants after he was rejected. These

minimal facts generate the barest of discriminatory inferences.

Bright has offered no other facts to buttress the inference that

discriminatory bias played a role in his non-selection. An

African-American was in fact hired for one of the positions sought.

No pattern of racial discrimination in hiring was shown, statistically

significant or otherwise. No evidence of racially-biased comments

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No. 07-20906

or favoritism on the part of [GB Biosciences] management was

shown. Nor was there a history of similar discrimination

complaints, charges, or lawsuits against the employer.

On top of the rudimentary prima facie case, the district court concluded that

Bright’s rebuttal of GB Biosciences’s nondiscriminatory reasons had low

probative value. It found that Bright’s “extremely vague testimony about

dropping off a resume did not directly contradict Mullis’s clear testimony that

she did not receive the application” during the April–May period and that, in any

event, Bright failed to demonstrate a fact issue with regard to GB Biosciences’s

other articulated reason for his rejection—his history of performance and

attendance problems and relative lack of experience. For the June–July period,

the district court held that Lewis, the decision maker, “relied on competent

information regarding Bright’s experience and performance, and not his race, in

making his decision.” Other evidence, according to the district court, likewise

refuted any inference of discrimination. GB Biosciences received over 200

applications during the June–July period; interviewed ten individuals, including

two African Americans; and hired three new operators, including one African

American. Bright was ranked last of the in-house contract workers during the

2004 hiring process, and “there is no evidence that Bright was more qualified,

much less ‘clearly more qualified,’ for the positions than the individuals hired by

[GB Biosciences] for the operator positions in 2005.” Overall, the district court

held that “considering the record evidence as instructed by Reeves, [GB

Biosciences] is entitled to summary judgment because a reasonable factfinder

could not infer from this evidence that [GB Biosciences]’s proffered motivation

is not its true one and that [GB Biosciences] discriminated against Bright

because of his race.”

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No. 07-20906

Bright timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

We review the district court’s order granting summary judgment de novo,

applying the same standard that the district court employed. Cardinal Towing

& Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 690 (5th Cir. 1999); Norman

v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). “We may affirm a summary

judgment on any ground supported by the record, even if it is different from that

relied on by the district court.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254,

258 (5th Cir. 2001).

Under de novo review, we view all the evidence in the light most favorable

to and draw all inferences in favor of the nonmovant. Littlefield v. Forney Indep.

Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Crawford v. Formosa Plastics Corp.,

234 F.3d 899, 902 (5th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986)). Summary judgment is proper when “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). “A genuine issue of material

fact exists ‘if the evidence is such that a reasonable jury could return a verdict

for the non-moving party.’” Crawford, 234 F.3d at 902 (quoting Anderson, 477

U.S. at 248).

A plaintiff can prove a claim of intentional discrimination by either direct

or circumstantial evidence. Absent direct evidence of discriminatory intent, as

is the case here, we examine circumstantial evidence using the burden-shifting

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No. 07-20906

framework set forth in the seminal case of McDonnell Douglas, 411 U.S. at 802.3

Under this framework, a plaintiff first creates a presumption of intentional

discrimination by establishing a prima facie case. St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993). The burden then shifts to the employer to

articulate one or more legitimate, nondiscriminatory reasons for rejecting the

applicant. McDonnell Douglas, 411 U.S. at 802; Russell v. McKinney Hosp.

Venture, 235 F.3d 219, 222 (5th Cir. 2000). If the employer meets that burden,

the prima facie case dissolves and the employee must demonstrate either that

“a discriminatory reason more likely motivated the employer or . . . that the

employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981).

An employee alleging racial discrimination against his employer based on

circumstantial evidence must first establish a prima facie case of discrimination.

McDonnell Douglas, 411 U.S. at 802; Russell, 235 F.3d at 222. The general

prima facie requirement is that “[t]he plaintiff must prove by a preponderance

of the evidence that she applied for an available position for which she was

qualified, but was rejected under circumstances which give rise to an inference

of unlawful discrimination.” Burdine, 450 U.S. at 253–54. In this case, Bright

must show: (i) that he belongs to a racial minority; (ii) that he applied and was

qualified for a job for which GB Biosciences was seeking applicants; (iii) that he

was not hired; and (iv) that GB Biosciences rejected him under circumstances

3

Bright asserts his claim under § 1981. Although McDonnell Douglas was a Title VII

case, we evaluate claims of race discrimination under § 1981 using the same analysis as those

under Title VII. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989), superceded

by statute on other grounds as stated in CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951,

1957–58 (2008); Pratt v. City of Houston, 247 F.3d 601, 606 n.1 (5th Cir. 2001).

8

No. 07-20906

giving rise to an inference of unlawful discrimination.4 See McDonnell Douglas,

411 U.S. at 802. Establishing a prima facie case raises a mandatory inference

of discrimination. St. Mary’s Honor Ctr., 509 U.S. at 509–10 & n.3; Burdine, 450

U.S. at 254 & n.7, 256 n. 10; Russell, 235 F.3d at 222. Overall, the burden of

establishing a prima facie case is not onerous. See Burdine, 450 U.S. at 253.

If Bright establishes a prima facie case, the burden shifts to GB

Biosciences to produce one or more nondiscriminatory reasons for its decisions

not to hire Bright. The burden on the employer “is one of production, not

persuasion; it ‘can involve no credibility assessment.’” Reeves, 530 U.S. at 142

(quoting St. Mary’s Honor Ctr., 509 U.S. at 509). To meet this burden, the

employer must show, through admissible evidence, a legally sufficient reason for

not hiring the plaintiff. Burdine, 450 U.S. at 255. When “the employer carries

its burden, the ‘mandatory inference of discrimination’ created by the plaintiff’s

prima facie case ‘drops out of the picture’ and the fact finder must ‘decide the

ultimate question: whether [the] plaintiff has proven [intentional

discrimination].’” Russell, 235 F.3d at 222 (internal citations omitted,

4

This standard is not inflexible, and the Supreme Court permits the plaintiff to

establish an inference of discrimination under the fourth prong based on evidentiary

requirements calibrated to the circumstances in each case. Burdine, 450 U.S. at 254 n.6;

McDonnell Douglas, 411 U.S. at 802 n.13. In failure-to-hire cases, courts generally permit an

inference where an applicant from a nonprotected class was hired or the employer continued

to seek applicants after rejecting a qualified applicant from a protected class. See Burdine, 450

U.S. at 254 n.6 (inferring discrimination when “after [complainant’s] rejection, the position

remained open and the employer continued to seek applicants from persons of complainant’s

qualifications”); McDonnell Douglas, 411 U.S. at 802 (same); Blow v. City of San Antonio, 236

F.3d 293, 296 (5th Cir. 2001) (inferring discrimination where position was filled by someone

outside the protected class); Risher v. Aldridge, 889 F.2d 592, 596 n.11 (5th Cir. 1989)

(inferring discrimination where employer hired a nonminority for the job or continued to seek

nonminority applicants for the position); Page v. U.S. Indus., Inc., 726 F.2d 1038, 1055 (5th

Cir. 1984) (same).

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No. 07-20906

alterations in original) (quoting St. Mary’s Honor Ctr., 509 U.S. at 511–12;

Burdine, 450 U.S. at 256 n. 10).

Thus, the ultimate burden remains with the plaintiff who may meet the

burden by providing evidence that a discriminatory reason more likely motivated

the employer or that the employer’s proffered explanation is unworthy of

credence. Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 256. If the plaintiff

chooses the latter route, he must raise a genuine issue of material fact to “rebut

each nondiscriminatory reason articulated by the employer.” Laxton v. Gap Inc.,

333 F.3d 572, 578 (5th Cir. 2003). Thus, as part of this analysis, the trier of fact

may continue to consider the evidence establishing plaintiff’s prima facie case

and properly drawn inferences therefrom to reach the “issue of whether the

defendant’s explanation is pretextual.” Burdine, 450 U.S. at 255 n.10; see also

Reeves, 530 U.S. at 148 (holding that “a plaintiff’s 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”). While the ultimate burden of proving discrimination remains

with the plaintiff throughout the case, within the context of a summary

judgment motion, “the question is not whether the plaintiff proves pretext, but

rather whether the plaintiff raises a genuine issue of fact regarding pretext.”

Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991).

A. The April–May Hiring Decision

For the April–May period, we assume without deciding that Bright has

established a prima facie case and hold that he has failed to rebut GB

Biosciences’s nondiscriminatory reason for its decision not to hire Bright. GB

Biosciences asserts that Bright failed to apply for the operator positions (a

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No. 07-20906

requirement of the second prong of the prima facie test), failed to present

evidence giving rise to an inference of unlawful discrimination (the fourth prong

of the prima facie test), and failed to rebut its nondiscriminatory reason for not

hiring him. We further assume without deciding that Bright has raised a

genuine issue of material fact regarding whether he applied during the relevant

April–May period and thus whether he satisfied the second prong for that

period.5 We also conclude that because GB Biosciences hired two Caucasian

applicants during that period, Bright has shown facts permitting an inference

of discrimination. We therefore assume without deciding that Bright has

established a prima facie case for the April–May period. We agree with the

district court, however, that Bright’s “prima facie case is rudimentary at best,”

and “generate[s] the barest of discriminatory inferences.”

Within the context of a weak prima facie case, Bright has failed to raise

a genuine issue of material fact probative of pretext. GB Biosciences proffers

that it did not hire Bright because of his failure to provide a resume during the

period of acceptance between April 14 and May 9, 2005. Thus, the burden shifts

to Bright to show that discrimination was more likely GB Biosciences’s

motivation or that this reason is a pretext for discrimination. To meet this

burden, Bright argues only that GB Biosciences received and rejected Bright’s

5

The only requirement identified by GB Biosciences for the application process was

submitting an application within the April 14 to May 9 window. Bright’s deposition testimony

was equivocal, showing only that he submitted three resumes from March to July. In his

affidavit, he clarified that he submitted applications in both April and July. The first half of

April was, however, outside of the April–May period. Even if Bright has raised a genuine issue

as to whether he submitted an application during the relevant period, we view GB

Biosciences’s proffer that Mullis never received the application as a nondiscriminatory reason

for not hiring Bright and analyze it that context. Cf. Blow, 236 F.3d at 297 n.1 (treating

untimeliness of application as nondiscriminatory reason rather than element of prima facie

case based on plaintiff’s framing of the case).

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No. 07-20906

resume during the April–May period. We hold that Bright has failed to raise a

genuine issue of fact regarding pretext. GB Biosciences provided evidence that

it did not hire Bright because Mullis did not receive his application. Bright’s

vague testimony that he submitted three resumes to someone at GB Biosciences

from March to July and slightly more specific affidavit stating that he submitted

a resume to someone at GB Biosciences in April do not directly controvert

Mullis’s testimony that she did not receive a resume from Bright during the

relevant April 14 to May 9 period. Not only was the first half of April outside of

the April–May period, but even if he applied during the second half of April, his

affidavit and other evidence have not shown that Mullis, who screened the

resumes during this period, ever received it, let alone rejected it. At best, he has

shown that he handed his resume to someone in the human resources

department other than Mullis during the relevant timeframe. As the district

court concluded, “[w]hile Bright’s affidavit may suggest the possibility of clerical

error in handling or misplacing his paperwork, it certainly does not justify the

inference that his application was deliberately discarded or ignored for reasons

of his race.” This evidence simply does not create a genuine issue of material

fact that GB Biosciences’s nondiscriminatory reason was pretext or that

discrimination was more likely the reason for his rejection. See Burdine, 450

U.S. at 255–56 (concluding that at the pretext stage, “the factual inquiry

proceeds to a new level of specificity”). Thus, GB Biosciences is entitled to

summary judgment on Bright’s claims related to the April–May period.6

6

We do not decide whether GB Biosciences’s other nondiscriminatory reasons—his

performance and attendance problems as a temporary employee and his placement as fifth in

the previous round of interviewing—provide an alternative basis for our ruling regarding the

April–May period.

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No. 07-20906

B. The June–July Hiring Decision

For the June–July period, we hold that Bright has failed to establish a

prima facie case and has failed to rebut GB Biosciences’s nondiscriminatory

reasons for not hiring him. GB Biosciences asserts the Bright failed to present

evidence giving rise to an inference of unlawful discrimination (the fourth prong

of the prima facie test), and that Bright failed to rebut its nondiscriminatory

reason for not hiring him. Regarding the prima facie case, GB Biosciences hired

an African American applicant. Moreover, despite the district court’s ruling to

the contrary, GB Biosciences did not continue to seek applicants for the open

operators positions after Bright was rejected—his rejection during the June–July

period was part of a single hiring process that resulted in the positions being

filled. These circumstances do not give rise to any viable inference of

discrimination of the sort considered in McDonnell Douglas and Burdine where

temporal delays permitted such an inference. See Burdine, 450 U.S. at 254 n.6

(drawing an inference of discrimination where employer continued to search for

several months after receiving application from protected applicant); McDonnell

Douglas, 411 U.S. at 802 (permitting an inference of discrimination where

employer “sought mechanics, respondent’s trade, and continued to do so after

respondent’s rejection”). Bright points to no other record facts on which to base

an inference of discrimination7 and has not argued that GB Biosciences engaged

in a pattern of racial discrimination in hiring, that GB Biosciences has a history

of discriminatory complaints against it, or that the relevant decisionmakers

expressed racially biased comments or engaged in racially biased favoritism. We

7

Assertions in Bright’s appellate brief that Bright’s coworkers believed that GB

Biosciences’s decision was based on racial motivation are without factual citation, without

support in the record, and wholly frivolous.

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No. 07-20906

therefore hold that Bright has failed to establish a prima facie case for the

June–July period. Nothing that Bright has shown for this period requires the

court to put GB Biosciences to the burden of justifying its decisions or face entry

of judgment against it. We thus affirm the district court’s order for the

June–July period on this alternative ground.

Even assuming that Bright has established a prima facie case for the

June–July period, he has nonetheless failed to rebut GB Biosciences’s

nondiscriminatory reasons for not hiring him. GB Biosciences proffers a number

of nondiscriminatory reasons for not hiring Bright, including his lack of

qualifications sought by Lewis, his performance and attendance problems as a

temporary employee, and his placement as fifth in the previous round of

interviewing. GB Biosciences argues that Bright lacked qualifications sought

by Lewis. Lewis stated in his affidavit that he did not select Bright for an

interview because Bright “did not have the level of experience I was seeking for

the position. He did not have the significant long term experience working for

other chemical process companies like the candidates that I did approve for

further interview.” At the time, Lewis was unaware of Bright’s race. Bright

presents no evidence to refute this reason for GB Biosciences’s rejection of his

application. Bright’s inability to raise a genuine issue of material fact showing

that this reason was pretext entitles GB Biosciences to summary judgment on

his claim related to the June–July period.

GB Biosciences also submits that it did not hire Bright based on his

performance and attendance problems known to Danna and on his fifth-place

ranking in the 2004 round of interviews. Uncontroverted evidence shows that

Danna received negative feedback about Bright from Bright’s direct supervisors

at GB Biosciences—Evans and Murphy. Although Bright challenges the veracity

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No. 07-20906

of Danna’s, Evans’s, and Murphy’s reports and documents a few supporters who

vouch for his performance, he provides the court with no relevant record facts on

which to base a contrary conclusion and no legal authority to suggest Lewis and

Mullis were not entitled to rely on Danna’s statements in their decisionmaking

process, whether or not Danna’s perception of Bright’s performance was

accurate. Furthermore, Bright does not dispute that he ranked fifth out of the

five in-house applicants in the 2004 interview process. These nondiscriminatory

reasons thus provide alternative bases on which to grant GB Biosciences

summary judgment on Bright’s claim arising from the June–July period. Bright

provides the court with no other evidence from which to draw a contrary

conclusion.8

8

Nor does Bright contest the qualifications of the selected applicants. Bright argues

that the district court erred by applying an incorrect legal standard when finding that he was

not “clearly more qualified” than the selected applicants. This court has long held that a

showing that the unsuccessful applicant was “clearly better qualified” than the selected

applicant meets the plaintiff’s burden to prove that the employer’s proffered reasons for not

hiring him are pretexts. See Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003);

Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002); Odom v. Frank, 3 F.3d 839,

845–46 (5th Cir. 1993). In Manning, the court rejected the plaintiff’s argument, echoed here

by Bright, that Reeves precludes the application of the clearly better qualified test. See

Manning, 332 F.3d at 882 n.4 (concluding that “[plaintiff] fails to explain (and we fail to see)

how the Court’s decision in Reeves undermines our cases articulating the ‘clearly more

qualified’ standard”).

Nor, as Bright also asserts, is the standard no standard at all. Acknowledging that

courts are not well positioned to compare applicants’ qualifications, this court has stated, when

discussing the clearly better qualified standard, that “unless disparities in curricula vitae are

so apparent as virtually to jump off the page and slap us in the face, we judges should be

reluctant to substitute our views for those of the individuals charged with the evaluation duty

by virtue of their own years of experience and expertise in the field in question.” Deines v. Tex.

Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999) (emphasis in

original). While the Supreme Court has rejected the “jumping off the page” test as “unhelpful

and imprecise,” see Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (per curiam), this court

has clarified that “the phrase should be understood to mean that disparities in qualifications

must be of such weight and significance that no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate selected over the plaintiff for the job in question,”

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Overall, Bright has wholly failed to present a single piece of evidence that

creates a genuine issue of material fact permitting an inference of racial

discrimination in GB Biosciences’s rejection of his applications. We therefore

affirm the district court’s order granting summary judgment.9

III. Conclusion

For the reasons stated above, we AFFIRM the district court’s order

granting summary judgment in favor of the GB Biosciences. Costs shall be

borne by appellant.

Deines, 164 F.3d at 280–81. The Court in Ash approved of this latter formulation of the

standard, see 546 U.S. at 457, and nothing in the district court’s order here suggests a

nonconforming understanding or application. The district court’s reliance on the clearly more

qualified standard when discussing an alternative way that Bright could have (but had not)

shown pretext was not erroneous.

9

Bright claims that the district court improperly granted summary judgment on a

ground not requested by GB Biosciences. Generally, “a district court may not grant summary

judgment sua sponte on grounds not requested by the moving party.” John Deere Co. v. Am.

Nat’l Bank, 809 F.2d 1190, 1192 (5th Cir. 1987). The factual predicate of Bright’s claim is

difficult to discern. As discussed above, GB Biosciences moved for summary judgment on the

grounds that Bright failed to establish a prima facie case of racial discrimination and that

Bright failed to rebut GB Biosciences’s nondiscriminatory reasons for not hiring him. The

district court based its decision on Bright’s failure to rebut GB Biosciences’s nondiscriminatory

reasons; therefore, Bright’s contention is without merit.

16