Appendix — Curtis v. Napolitano (No. 08-1570)

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APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT FILED MARCH 23, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40978

Summary Calendar

Austin L. CURTIS,

Plaintiff-Appellant

v.

Micheal CHERTOFF, Individually and as Secretary,

Department of Homeland Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

4:07-CV-307

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM?’

Austin L. Curtis appeals the dismissal of his various

employment-discrimination claims on summary

* Pursuant to 57TH Cik. 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that this opinion should not be published and is not precedent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.

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Appendix A

judgment. We review a grant of summary judgment

de novo, applying the same standard as the district court.

Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 365

(5th Cir. 2007). For the reasons set forth by the district

court, Curtis failed to meet his responsive burden on

summary judgment. Accordingly, the judgment of the

district court is AFFIRMED.

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APPENDIX B — MEMORANDUM ADOPTING

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE OF THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF TEXAS, SHERMAN DIVISION

DATED AUGUST 20, 2008

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CASE NO. 4:07cev307

Austin L. CURTIS,

Plaintiff,

V.

MICHAEL CHERTOFF, SECRETARY

DEPARTMENT OF HOMELAND SECURITY,

IN HIS OF FICIAL CAPACITY ONLY,

Defendant.

MEMORANDUM ADOPTING REPORT

AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE

Came on for consideration the report of the United

States Magistrate Judge in this action, this matter

having been referred to the United States Magistrate

Judge pursuant to 28 U.S.C. § 636. On July 28, 2008,

the report of the Magistrate Judge was entered

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Appendix B

containing proposed findings of fact and

recommendations that Defendant Michael Chertoff's

Motion for Summary Judgment (Dkt. 62) be GRANTED

and that Plaintiff should take nothing by his claims in

this case.

Having received the report of the United States

Magistrate Judge, and no objections thereto having

been timely filed, this Court is of the opinion that the

findings and conclusions of the Magistrate Judge are

correct and adopts the Magistrate Judge's report as

the findings and conclusions of the Court. Therefore,

Defendant Michael Chertoff's Motion for Summary

Judgment (Dkt. 62) is GRANTED and Plaintiff should

take nothing by his claims in this case.

All motions by either party not previously ruled on

are hereby DENIED.

IT ISSO ORDERED.

SIGNED this 20th day of August, 2008.

s/ Michael H. Schneider

MICHAEL H.SCHNEIDER

UNITED STATES DISTRICT JUDGE

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APPENDIX C — REPORT AND RECOM-

MENDATION OF UNITED STATES MAGISTRATE

JUDGE OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF TEXAS,

SHERMAN DIVISION DATED JULY 25, 2008

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CASE NO. 4:07¢ev307

AUSTIN L. CURTIS,

Plaintiff,

v.

MICHAEL CHERTOFF, SECRETARY

DEPARTMENT OF HOMELAND SECURITY,

IN HIS OFFICIAL CAPACITY ONLY,

Defendant.

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Now before the Court is Defendant Michael

Chertoff’s Motion for Summary Judgment (Dkt.62). The

Court finds that it should be GRANTED.

This lawsuit arises out of claims of employment

discrimination and retaliation under Title VII, “Bivens,”

and 42 U.S.C. §§ 1981, 19838, 1985, 1988. Plaintiff Austin

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Appendix C

Curtis was an employee of the Federal Emergency

Management Agency (FEMA) which is currently a

component of the Department of Homeland Security.

According to Plaintiff, while he was employed by

Defendant as a “Supply Management Specialist

(Leader),” he was subjected to racial discrimination, a

hostile working environment, and retaliation for his

complaints of discrimination. According to Defendant,

Plaintiff was never a supervisor while working at FEMA.

In his motion summary judgment, Defendant argues

that Plaintiff’s non-Title VII claims are barred because

Title VII is the exclusive remedy for employment

discrimination claims for federal employees. Further,

Defendant argues that he is entitled to summary

judgment on Plaintiff’s Title VII claims because Plaintiff

cannot make his prima facie case of discrimination and

even if Plaintiff could present a prima facie case of

discrimination, Plaintiff was terminated for legitimate

nondiscriminatory reasons, causing his claims to fail.

M .rIoN FOR SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when, viewing

the evidence and all justifiable inferences in the light

most favorable to the non-moving party, there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fep. R. Civ. P

56(c); Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct.

1545, 143 L.Ed.2d 731 (1999). The appropriate inquiry

is “whether the evidence presents a sufficient

disagreement to require submission to a jury or wnether

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Appendix C

it is So one-sided that one party must prevail as a matter

of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment has the

initial burden to prove there are no genuine issues of

material fact for trial. Provident Life & Accident Ins.

Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). In sustaining

this burden, the movant must identify those portions of

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The moving party, however, “need not negate the

elements of the nonmovant’s case.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

The movant’s burden is only to point out the absence of

evidence supporting the nonmoving party’s case.

Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996).

In response, the nonmovant’s motion “may not rest

upon mere allegations contained in the pleadings, but

must set forth and support by summary judgment

evidence specific facts showing the existence of a genuine

issue for trial.” Ragas v. Tennessee Gas Pipeline Co.,

136 F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477

U.S. at 255-57, 106 S.Ct. at 2513-14). Once the moving

party makes a properly supported motion for

summary judgment, the nonmoving party must look

beyond the pleadings and designate specific facts in the

record to show that there is a genuine issue for trial.

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Appendix C

Stults, 76 F.3d at 655. The citations to evidence must be

specific, as the district court is not required to “scour

the record” to determine whether the evidence

raises a genuine issue of material fact. E.D. Tex. LOCAL

R. CV-56(d). Neither “conclusory allegations” nor

“unsubstantiated assertions” will satisfy the

nonmovant’s burden. Stults, 76 F.3d at 655.

ANALYSIS

“Bivens” and Title 42 U.S.C. $§ 1981, 1983, 1985, 1988

Claims

In this case, Plaintiff purports to assert claims under

Bivens v. Six Unknown Named Agents and Title

42 U.S.C. §§ 1981, 1983, 1985, and 1988 alleging the same

set of facts that give rise to Plaintiff’s Title VII claims.

Defendant has argued that these claims cannot survive

because Title VII is the exclusive remedy for such

allegations and that the Section 1981 claim also fails

because there was no employment contract between the

parties. Defendant further argues that Plaintiff has no

viable “Bivens” claims as there are no Defendants acting

in an individual capacity in this suit.

The Court agrees. Title VII of the Civil Rights Act

is the exclusive and preemptive remedy for claims of

racial discrimination in federal employment. Rowe v.

Sullivan, 967 F.2d 186, 189 (5th Cir. 1992) (holding that

the plaintiff’s claims under 42 U.S.C. §§ 1981, 1983,

1985(3) are preempted by ‘itle VII); see Perez uv. F'B.I.,

71 F.8d 518, 515 (Sth Cir. 1995) (holding that the plaintiff

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Appendix C

could not prevail on her “Bivens” action because Title

VII was her exclusive remedy); see also Lakoski v.

James, 66 F.3d 751, 755 (5th Cir.1995); Porter v. Adams,

639 F.2d 273, 278 (5th Cir.1981). Further, the Court

already denied Plaintiff’s request to add individual

defendants in an attempt to assert “Bivens” claims

(see Dkt. 53), and the only defendant here is Defendant

Chertoff, who is proceeding in his official capacity only.

Because Title VII is the exclusive remedy for the live

allegations before the Court, summary judgment in

favor of Defendant is appropriate on Plaintiff’s “Bivens”

and Title 42 U.S.C. $§ 1981, 1983, 1985, 1988 claims.

Title VII Claims

The grant of Defendant’s summary judgment as to

Plaintiff’s “Bivens” and Title 42 U.S.C. §§ 1981, 1983,

1985, and 1988 claims leaves only his Title VII claims to

be examined for purposes of this summary judgment

motion. Title VII proscribes an employer from

discharging or otherwise discriminating against any

individual because of that individual’s race. 42 U.S.C.

§ 2000e-2(a)(1). A Title VII inquiry is focused on whether

the defendant intentio.iilly discriminated against the

plaintiff. Roberson v. Alltel Info. Servs., 373 F.3d 647,

651 (5th Cir. 2004). Here, Plaintiff has made claims of

race-based discrimination, retaliation and termination

under Title VII.

The Fifth Circuit has set forth a specific rubric under

which this Court must analyze the summary judgment

record in the employment discrimination context.

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Appendix C

The modified McDonnell Douglas test is used when

analyzing claims for race discrimination under Title VII.

Under the modified McDonnell Douglas approach, a

plaintiff must demonstrate a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Rachid

v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004);

Willis v. Coca Cola Enters., Inc., 445 F.3d 418, 420 (5th

Cir. 2006). In order to establish a prima facie case of

race discrimination, a plaintiff must show: (1) he is a

member of a protected group; (2) he was qualified for

the position; (3) an adverse employment action occurred;

and (4) he was replaced by a person not in the protected

group. Alvarado v. Texas Rangers, 492 F.3d 605, 611

(5th Cir. 2007) St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Once established, the prima facie case raises a

presumption of discrimination which the defendant must

rebut by articulating legitimate, nondiscriminatory

reasons for its actions. Rachid v. Jack In The Box, Inc..,

376 F.3d 305, 312 (5th Cir. 2004); see also Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142,

120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct.

1089, 67 L.Ed.2d 207 (1981). The burden on the employer

at this stage is one of production, not persuasion and

does not involve any assessment of the employer’s

credibility. Alvarado v. Texas Rangers, 492 F.3d 605, 611

(5th Cir.2007).

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Appendix C

Once the defendant produces evidence of a

legitimate, nondiscriminatory reason for the adverse

action, “the presumption of discrimination created by

the plaintiff’s prima facie case disappears and the

plaintiff must meet its ultimate burden of persuasion

on the issue of intentional discrimination.” Machinchick

v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).

Consequently, the burden shifts back to the plaintiff to

show that either: (1) the defendant’s reason is not true,

but is instead designed to serve as pretext for unlawful

discrimination; or (2) that the defendant’s reason, while

true, is not the only reason for its conduct, and another

“motivating factor” is the plaintiff’s protected

characteristic. Jd. at 351-52; Rachid, 376 F.3d at 312

(citation omitted). “[T)Jhe plaintiff must rebut each

nondiscriminatory or nonretaliatory reason articulated

by the employer.” McCoy v. City of Shreveport, 492 F.3d

551, 556-57 (5th. Cir. 2007).

Having reviewed the record, the Court finds that

Plaintiff has failed to make a prima facie showing of race

discrimination. In particular, there is no evidence (or

allegation) before the Court that Plaintiff was replaced

by a person not in a protected class. Further, as noted

above, even if Plaintiff had made a sufficient prima facie

showing of discrimination, Defendant here has made a

showing of a legitimate, nondiscriminatory reason for

Plaintiff’s termination. Specifically, Defendant has

offered evidence in support of several grounds for

Plaintiff’s termination, including his failure to properly

account for or make proper distribution of government

cell phones, unauthorized use of government cell phone

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Appendix C

and government car for personal or unauthorized use,

and for insubordination for driving a government vehicle

without a valid Texas driver’s license despite being

ordered to get one. In the face of these non-

discriminatory reasons (and the evidence supporting

them), Plaintiff is required to offer evidence of

intentional discrimination to show that the reasons

offered by Defendant are merely pretextual.

Plaintiff has not offered any credible evidence of

discrimination or pretext. Indeed, Plaintiff has

altogether failed to sustain his clear summary judgment

burden here. Despite numerous chances to correct the

summary judgment record, Plaintiff has failed to comply

with this Court’s rules and practice regarding proper

citation to summary judgment evidence. Plaintiff was

directed to comply with the Local Rule requiring him to

attach “excerpted copies of pleadings, depositions,

answers to interrogatories, admissions, affidavits, and

other admissible evidence cited in the motion for

summary judgment or the response thereto” (see Dkt.

73 citing E.D. Trex. L.R. CV-56(d) (emphasis added)).

He did not do so, but rather attached the entirety of

the deposition transcripts for this Court’s review.

Plaintiff also appears to rely on summary judgment

evidence which is not attached to his response or

otherwise before the Court. For example, Plaintiff has

cited to complaints made by him, Lawrence Bannister,

Larry Springer, and Doris Miller, his interrogatory

responses, “the records of the Branch Chief for FEMA

Denton, Texas,” and flyers containing racial epithets

(see Dkt. 77 at 4, 13, 19, and 23) in support of his summary

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Appendix C

judgment response. Those documents, however, are not

attached to his pleadings or part of the summary

judgment record.

Moreover, the majority of Plaintiff’s motion is wholly

unsupported by any citations to the record. Rather than

show how each piece of evidence supports a specific

element of one of his claims, Plaintiff, in his late-filed

response, has merely inserted a battery of page and line

references to deposition testimony—often nonsensical

as to their context and failing to specify which piece of

evidence he is referring—purporting to support his

claims of discrimination (see Dkt. 77 at pp. 6-13). In

regards to the entire 50-page deposition transcript of

Mary Swann, Plaintiff has argued: “The material factual

record of Ms. Swann’s deposition alone creates a genuine

issue of material fact that the human resources

explanation for the hostile environment, retaliation, and

termination of Plaintiff was not the result of pretextual,

after the fact explanation to justify the grave and

serious deviations from basic federal personnel

procedures under EEO Management Directive 715.”

(Dkt. 77 at 14). In making this blanket statement,

Plaintiff has not cited to a single excerpt from the

deposition, nor has he attached a copy of the directive

referenced. Arguments like this, without evidentiary

support, are completely insufficient to sustain Plaintiff's

burden.

And the arguments that are supported by citations

to evidence still do not satisfy Plaintiff's McDonnell

Douglas burden in showing pretext. Plaintiff has cited

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Appendix C

primarily to his own deposition transcript and

interrogatory responses (which are-as noted above-not

part of the summary judgment record) in support of his

claim. A plaintiff’s subjective belief that he suffered an

adverse employment action as a result of discrimination,

without more, is generally not enough to survive a

summary judgment motion, in the face of proof showing

an adequate nondiscriminatory reason. Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir.

1996). Further, Plaintiff’s characterization of statements

by Swann is not supported by the record or Swann’s

deposition testimony, and the Court, having made a

general review of the entire deposition, finds that

testimony does not create any issues of material fact in

support of Plaintiff’s claims.

In failing to show pretext under McDonnell Douglas,

Plaintiff has also failed to provide the Court with any

evidence to show that “the adverse employment action

. would not have occurred but for {the] protected

conduct,” causing any retaliation claim he has to fail.

Strong v. University HealthCare Sys., LLC, 482 F.3d

802, 806 (5th Cir.2007). Similarly, Plaintiff has not shown

that Defendant gave preferential treatment to another

employee with “nearly identical” conduct in order to

support his disparate treatment claim, Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 901 (5th Cir.2002), nor

has he pointed to any evidence of race-based harassment

that affected a term, condition or privilege of his

employment at FEMA in support of his hostile work

environment claim. £.2.0.C. v. WC & M Enters., Inc.,

496 F.3d 393, 399 (5th Cir. 2007); Harvill v. Westward

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Appendix C

Comme’ns, L.L.C., 4838 F.3d 428, 484 (5th Cir. 2005).

Therefore, in light of the summary judgment evidence

before this Court and having applied the parties’

respective burdens, all of Plaintiff’s claims under

Title VIT fail.

The Court notes that this is not the first instance in

this case when Plaintiff has failed to comply with the

Rules of Civil Procedure or the Local Rules of this Court

with respect to this motion for summary judgment and

other proceedings before the Court. Plaintiff has even

failed to comply with Court requests regarding

conducting a settlement conference prior to the Court

addressing the merits of Defendant’s summary

judgment motion. Plaintiff was afforded three

opportunities to file his summary judgment response

such that it would comply with practice and procedure

in this Court, and, in fact, there are at least five docket

entries corresponding to Plaintiff’s attempts at filing a

single response. Simply put, the Court’s patience is

exhausted.

Although the Court has reviewed what it has before

it, the Court will not—and indeed is not required to—

scour the record in this matter to determine whether

Plaintiff could create a genuine issue of material facts

as to each element of his claims. The evidence that the

Court has been able to decipher does not create any

fact issue, and it declines to spend its time in order to

create one. The non-movant’s burden in summary

judgment proceedings is clear. See Ragas, 136 F:3d at

158; Stults, 76 F.3d at 655. The Court’s time and

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Appendix C

resources are limited, and the Court will not do

Plaintiff’s work for him.

Plaintiff has not sustained his summary judgment

burden. Defendant’s motion for summary judgment

should, therefore, be granted in its entirety and Plaintiff

should take nothing by his claims in this case.

Recommendation

Based on the foregoing, the Court recommends that

Defendant’s Motion for Summary Judgment (Dkt.62)

be GRANTED and that Plaintiff take nothing by his

claims in this case.

Within ten (10) days after service of the magistrate

judge’s report, any party may serve and file written

objections to the findings and recommendations of the

magistrate judge. 28 U.S.C.A. § 636(b)(1)(C).

Failure to file written objections to the proposed

findings and recommendations contained in this report

within ten days after service shall bar an aggrieved

party from de novo review by the district court of the

proposed findings and recommendations and from

appellate review of factual findings accepted or adopted

by the district court except on grounds of plain error or

manifest injustice. Thomas v. Arn, 474 U.S. 140, 148,

106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Rodriguez v.

Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

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Appendix C

SIGNED this 25th day of July, 2068.

s/ Don D. Bush

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE