Filed: May 23, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the May 23, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-30155 Summary Calendar _ NORRIS SMITH, Plaintiff-Appellant, VERSUS CONSOLIDATED RECREATION AND COMMUNITY CENTER AND PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; ET AL., Defendants, CONSOLIDATED RECREATION AND COMMUNITY CENTER AND PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; TIM COULON, JEFFERSON PARISH PRESIDE
Summary: United States Court of Appeals Fifth Circuit F I L E D In the May 23, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-30155 Summary Calendar _ NORRIS SMITH, Plaintiff-Appellant, VERSUS CONSOLIDATED RECREATION AND COMMUNITY CENTER AND PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; ET AL., Defendants, CONSOLIDATED RECREATION AND COMMUNITY CENTER AND PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; TIM COULON, JEFFERSON PARISH PRESIDEN..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the May 23, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-30155
Summary Calendar
_______________
NORRIS SMITH,
Plaintiff-Appellant,
VERSUS
CONSOLIDATED RECREATION AND COMMUNITY CENTER AND
PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; ET AL.,
Defendants,
CONSOLIDATED RECREATION AND COMMUNITY CENTER AND
PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON;
TIM COULON,
JEFFERSON PARISH PRESIDENT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
MICHAEL QUIGLEY,
DIRECTOR OF THE JEFFERSON PARISH PARK AND RECREATION DEPARTMENT
AND/OR CONSOLIDATED RECREATION AND COMMUNITY CENTER
AND PLAYGROUND DISTRICT NUMBER 1, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
KEVIN O’QUINN,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
SCOTT MUHOBERAC,
INDIVIDUALLY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CV-2042-B
_________________________
Before DAVIS, SMITH, and DENNIS, ter’s proffered legitimate, nondiscriminatory
Circuit Judges. reason for not selecting him was pretext for
unlawful discrimination.
PER CURIAM:*
Smith contends the court should not have
Norris Smith appeals a summary judgment required him to demonstrate pretext because
in his suit against his former employer, Jeffer- the Center failed to carry its antecedent burden
son Parish Consolidated Recreation and Com- of articulating a legitimate, nondiscriminatory
munity Center ( the “Center”) and four of its rationale for denying him the promotion.
employees for, inter alia, racial discrimination Indeed, Smith attacks the Center’s proffered
and retaliation. We review a summary judg- rationaleSSSmith’s poor performance during
ment de novo and are bound by the same the interview and selection process relative to
standard as is the district court.1 Finding no other potential candidatesSSas “unworthy of
error, we affirm. credence.” But the governing law explicitly
precludes courts from testing the credibility of
I. reasons proffered by employers in response to
Smith claims he was not selected for a a prima facie case of alleged discrimination;
promotion on account of his race. The district the “burden on the employer is only of pro-
court determined that Smith had established a duction, not persuasion, involving no credibil-
prima facie case because he is a member of a ity assessments.”2
protected class and was certified as eligible
and sought the supervisory position ultimately Smith attempts to demonstrate a genuine
awarded to another employee not within the issue of material fact as to pretext by reference
protected class. The court concluded that to three self-styled affidavits submitted by
Smith had failed to demonstrate a genuine former co-workers. Only one of these submis-
issue of material fact as to whether the Cen- sions, however, is at all probative of unlawful
discrimination. In any event, as the district
court concluded, this submission is not com-
*
Pursuant to 5TH CIR. R. 47.5, the court petent summary judgment evidence, because it
has determined that this opinion should not be pub-
lished and is not precedent except under the limited
2
circumstances set forth in 5TH CIR. R. 47.5.4. Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000) (citing Texas Dep’t
1
See Bryan v. McKinsey & Co., 375 F.3d of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56
358, 360 (5th Cir. 2004); FED. R. CIV. P. 56(c). (1981)).
2
is not sworn to be true and correct before a and was in any event of little substantive value.
public notary or stated to be true and correct Smith complains of the denial but has failed
under penalty of perjury.3 Moreover, Smith’s properly to appeal the order denying the
unsupported allegations and his own subjective motion. His notice of appeal, filed after the
belief that he was not selected for the entry of judgment but before entry of the order
promotion based on race are insufficient to denying his motion, was ineffective to appeal
raise a fact issue as to pretext.4 Summary the entry of judgment until the order disposing
judgment on this claim was appropriate. of his reconsideration motion had been en-
tered.5 Because Smith did not amend his pre-
II. viously filed notice of appeal, in which he
Smith contends he was terminated in retali- designated only the summary judgment order
ation for filing complaints with state and as being appealed, appellate review of the
federal agencies. The district court decided order denying his motion for reconsideration is
that Smith’s claim fails because he offered precluded.6
nothing but unsupported statements linking the
protected activity to the termination decision AFFIRMED.7
and because the record indicates that Smith
had received negative performance appraisals
and disciplinary actions before the decision
was made to terminate him. Smith claims that
his performance was adequate and that these
infractions were trumped up, but he has failed
to provide any competent evidence that his
supervisors’ dissatisfaction with his
performance and demeanor was not the reason
for his termination. The district court was
correct in entering summary judgment on the
retaliation claim.
III.
The district court denied Smith’s post-
judgment motion for reconsideration, finding
that the evidence Smith claimed to be newly-
5
discovered was previously available to Smith See Simmons v. Reliance Stand. Life Ins.
Co., 310 F.3d 865, 868 n.1 (5th Cir. 2002); FED.
R. APP. P. 4(a)(4)(A)(iv), (B)(i).
3 6
See Nissho-Iwai Am. Corp. v. Kline, 845 See F ED. R. APP. P. 4(a)(4)(B)(ii),
F.2d 1300, 1306 (5th Cir. 1988); 28 U.S.C. 3(c)(1)(B).
§ 1746.
7
Because Smith’s briefing adequately ad-
4
See Ramsey v. Henderson, 286 F.3d 264, dresses only his promotion denial and retaliation
269 (5th Cir. 2002); Lawrence v. Univ. of Tex. claims, any challenge to the summary judgment
Med. Branch at Galveston,
163 F.3d 309, 313 (5th entered on the balance of his claims is deemed
Cir. 1999). waived.
3
