Filed: Jun. 03, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 3, 2004 _ Charles R. Fulbruge III Clerk No. 03-41215 _ KALVIN BUCKLEY; TERANCE FLENOY; WILKEN MICKEY; A. J. HUNT, Plaintiffs - Appellants, versus DONOHUE INDUSTRIES INC., Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Texas - Lufkin Division No. 9:01-CV-345 Before JONES, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM:* In this appeal
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 3, 2004 _ Charles R. Fulbruge III Clerk No. 03-41215 _ KALVIN BUCKLEY; TERANCE FLENOY; WILKEN MICKEY; A. J. HUNT, Plaintiffs - Appellants, versus DONOHUE INDUSTRIES INC., Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Texas - Lufkin Division No. 9:01-CV-345 Before JONES, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM:* In this appeal,..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2004
_______________________ Charles R. Fulbruge III
Clerk
No. 03-41215
_______________________
KALVIN BUCKLEY; TERANCE FLENOY; WILKEN MICKEY;
A. J. HUNT,
Plaintiffs - Appellants,
versus
DONOHUE INDUSTRIES INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Texas - Lufkin Division
No. 9:01-CV-345
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this appeal, Appellants challenge the district court’s
decision to set aside the entry of default, to deny Appellants’
motion for extension of time to file a response to defendant’s
motion for summary judgment, to deny Appellants’ motion for
reconsideration, and to grant summary judgment in favor of the
defendant on Appellants’ Title VII discrimination claims. We
AFFIRM the district court in all respects.
*
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this opinion should not be published and is not precedent except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.
I. BACKGROUND
Appellants were all long-time employees of Donohue’s
paper mill in Lufkin, Texas. From 1999 to 2001, Donohue underwent
a significant modernization of its equipment, including the paper
mills. Specifically, Donohue introduced the new “Number 8” paper
machine in 2001 and simultaneously phased out three older mills.
The Number 8 machine was completely different from Donohue’s older
machines, requiring employees assigned to that mill to undergo
extensive training. In anticipation of the Number 8 employee
selection process, Donohue met with the local union to discuss the
process and the criteria to be used. This meeting was memorialized
by an agreement between Donohue and the union regarding the
selection process. Subsequently, all employees eligible to apply
for a position on the Number 8, including Appellants, were sent
information packets describing the position and certain essential
qualifications.
Eighty candidates, including all four Appellants, applied
for 33 available positions on the Number 8. After a selection
process that included a written assessment and oral interview, none
of the appellants was selected for a position on the Number 8. Of
those employees selected, 28 were white (43 per cent of the white
applicants), four were African-American (31 per cent of the
African-American applicants), and one was Hispanic (50 per cent of
the Hispanic applicants). Subsequently, Appellants filed charges
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of discrimination with the Texas Commission on Human Rights and the
EEOC. After receiving an EEOC right-to-sue letter, Appellants, all
African-Americans, filed suit on December 31, 2001, alleging racial
discrimination in violation of Title VII.
On October 28, 2002, the district court ordered that
default be entered against Donohue, as no answer was on file at
that time. Donohue argued that due to human error in its corporate
mail room, it was unaware of the existence of the lawsuit until it
received service of the entry of default. The district court set
aside the entry of default.
Other than sitting for their own depositions, Appellants
conducted no discovery within the discovery period. Donohue filed
a motion for summary judgment but Appellants filed no timely
response. Five days after the deadline, they sought to extend time
to file a response. The district court denied the motion and
ultimately granted Donohue’s motion for summary judgment.
Appellants then filed a motion for reconsideration, which the
district court also denied. This appeal followed.
II. DISCUSSION
For each of the above-referenced non-dispositive motions,
we review the district court’s ruling for abuse of discretion. See
Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (entry of
default); Latham v. Wells Fargo Bank, N.A.,
987 F.2d 1199, 1202
3
(5th Cir. 1993) (extension of time); Briddle v. Scott, 63 F.3d 364,
379 (5th Cir. 1995) (reconsideration).
Appellants first argue that the district court abused its
discretion by setting aside the entry of default. FEDERAL RULE OF
CIVIL PROCEDURE 55(c) allows a court to set aside an entry of default
on a showing of good cause. FED. R. CIV. P. 55(c). In making this
determination, the court should consider (1) whether the default
was willful; (2) whether setting it aside would prejudice the
adversary; and (3) whether a meritorious defense is presented. CJC
Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 64 (5th Cir.
1992). The district court properly applied this standard in
deciding to set aside the entry of default. Donohue provided ample
evidence to show that the default was indeed inadvertent and
anomalous, and the consequence of granting the motion was to simply
require Appellants to prove their case. The district court did not
abuse its discretion in this regard.
Next, Appellants argue that the district court abused its
discretion in denying Appellants’ motion for extension of time to
file a response to Donohue’s motion for summary judgment. FEDERAL
RULE OF CIVIL PROCEDURE 16(b) allows the district court to modify a
scheduling order only upon a showing of good cause. FED. R. CIV. P.
16(b). The good cause standard requires the party seeking relief
to show that the deadline cannot be met despite that party’s
diligence. S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A.,
315 F.3d 533, 535 (5th Cir. 2003). Appellants’ counsel did not
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seek an extension of time until after the scheduling deadline had
passed. Additionally, Donohue proved to the district court that,
despite Appellants’ protestations to the contrary, Appellants
received the motion for summary judgment on time and enjoyed the
full allotted time to prepare a response. The district court did
not abuse its discretion in denying the motion.
Appellants further argue that the district court abused
its discretion in denying the motion for reconsideration. Under
FEDERAL RULE OF CIVIL PROCEDURE 60(b)(1), Appellants must show “mistake,
inadvertence, surprise, or excusable neglect” to obtain relief from
the judgment. FED. R. CIV. P. 60(b)(1). Appellants seem to argue
that their failure to file a timely response to Donohue’s motion
for summary judgment constituted “excusable neglect.” However, as
discussed above, Appellants received the motion for summary
judgment well within the scheduled period to prepare a response.
Even so, Appellants’ counsel did not request an extension of time
until five days after the deadline. Given these circumstances, the
district court did not abuse its discretion in denying Appellants’
motion.
Finally, Appellants challenge the district court’s grant
of summary judgment in favor of Donohue. We review a district
court’s grant of summary judgment de novo and apply the same
standard as the district court. Gowesky v. Singing River Hosp.
Sys., 321 F.3d 503, 507 (5th Cir. 2003). Even considering
Appellants’ response to Donohue’s motion for summary judgment,
5
which essentially mirrors their brief to this court, we find that
the district court correctly granted summary judgment in this case.
To meet their prima facie burden under Title VII,
Appellants must show that (1) they belong to a protected class;
(2) they were qualified for the position sought; (3) they were
rejected for that position; and (4) they were replaced by someone
outside the protected class. Price v. Fed. Express Corp., 283 F.3d
715, 720 (5th Cir. 2002). Appellants fail to satisfy the second
and fourth prongs of this test.
Appellants point to no record evidence tending to prove
that they were qualified for positions on the Number 8. Despite
Donohue’s publication of “essential employee elements” in advance
of the selection process, Appellants incredibly argue that they
were unaware of any qualifications for the position. In addition,
Appellants merely state their subjective belief that they are
qualified. An employee’s subjective belief of discrimination
cannot be the basis of judicial relief. Little v. Republic
Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991). Moreover, as
discussed supra, four African-Americans were selected for positions
on the Number 8. Appellants make no argument and point to no
evidence tending to show that they were passed over for positions
on the Number 8 in favor of persons outside the protected class.
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As such, Appellants fail to establish a prima facie case of race
discrimination.1
For the reasons stated above, the judgment of the
district court is AFFIRMED.
1
Even if Appellants could establish a prima facie case of
race discrimination, the district court’s grant of summary
judgment would remain proper. Donohue advanced a legitimate,
non-discriminatory reason for Appellants’ non-selection, namely,
that they were less qualified than those employees selected for
positions on the Number 8. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Appellants failed to prove that
this reason was pretext for discrimination.
Id. at 804. Again,
a subjective belief of discrimination cannot, without more,
create a jury issue in the face of a legitimate, non-
discriminatory reason.
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