Filed: Feb. 28, 2005
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 February 28, 2005 Charles R. Fulbruge III Clerk No. 04-30558 JOSEPH HOWARD KENNERSON Plaintiff-Appellant, v. BILLY GUIDRY; ST. MARTIN PARISH SCHOOL BOARD Defendants-Appellees Appeal from the United States District Court For the Western District of Louisiana (02-CV-2541) Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Joseph Howard Kennerson brought th
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit February 28, 2005 Charles R. Fulbruge III Clerk No. 04-30558 JOSEPH HOWARD KENNERSON Plaintiff-Appellant, v. BILLY GUIDRY; ST. MARTIN PARISH SCHOOL BOARD Defendants-Appellees Appeal from the United States District Court For the Western District of Louisiana (02-CV-2541) Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Joseph Howard Kennerson brought thi..
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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 February 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-30558
JOSEPH HOWARD KENNERSON
Plaintiff-Appellant,
v.
BILLY GUIDRY; ST. MARTIN PARISH SCHOOL BOARD
Defendants-Appellees
Appeal from the United States District Court
For the Western District of Louisiana
(02-CV-2541)
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Joseph Howard Kennerson brought this
action against his former supervisor, Billy Guidry, and his former
employer, St. Martin Parish (collectively, “Appellees”), alleging
that his firing was the product of race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
*
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this opinion should not be published and is not precedent except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.
1
1964.2 The district court found that Kennerson failed to rebut
Appellees’ legitimate non-discriminatory reason for terminating his
employment and granted summary judgment in Appellees’ favor. After
reviewing the record and the parties’ arguments, we affirm the
district court.
I. Background
Kennerson, an African-American, was hired by St. Martin Parish
School Board in May of 1996, upon the recommendations of the
superintendent and Billy Guidry, Kennerson’s soon-to-be supervisor.
Kennerson’s new position was as the St. Martin Parish school system
Senior Computer Programmer.
When Kennerson took the St. Martin Parish job, he knew that he
was not familiar with the computer systems or programs used by the
parish school system. Between 1997 and 2002, Appellees grew
increasingly dissatisfied with Kennerson’s performance. Despite
Appellees’ provision of several formal opportunities for Kennerson
to remedy his deficiencies, Kennerson was terminated in July of
2002. A person outside Kennerson’s protected class was hired to
fill the St. Martin Parish School Board Senior Computer Programmer
position.
Prior to his termination, and during the several attempts at
remediation, Kennerson filed two complaints of race discrimination
and retalitation with the Equal Employment Opportunity Commission
2
42 U.S.C. § 2000(e).
2
(“EEOC”). After Kennerson was terminated, and after he received
his right to sue letter, he timely filed this suit in district
court.
Upon motion by Appellees, the district court granted summary
judgment against Kennerson on both his Title VII discrimination and
retaliation claims. Kennerson timely appeals.
II. Standard of Review
This court reviews a grant of summary judgment de novo, and
applies the same standard as the district court.3 District courts
properly grant summary judgment if, viewing the facts in the light
most favorable to the nonmovant, the movant shows that there is no
genuine issue of material fact and that the movant is entitled to
judgment as a matter of law.4
III. Analysis and Conclusions
Like the district court, we assume for the purposes of this
appeal that Kennerson has established both of his prima facie
claims of Title VII race discrimination and retaliation arising
from his termination. Also like the district court, we conclude
that Kennerson has failed to rebut the Appellees’ contention that
his termination was the result of a legitimate non-discriminatory
3
Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313
F.3d 295, 297 (5th Cir. 2002) (citing Potomac Ins. Co. v. Jayhawk
Med. Acceptance Corp.,
198 F.3d 548, 550 (5th Cir. 2000)).
4
FED. R. CIV. P. 56(c).
3
reason, viz., Appellees’ dissatisfaction with Kennerson’s
performance. Under the McDonnell-Douglass5 burden shifting
paradigm for Title VII discrimination and retaliation claims,6 this
failure entitles Appellees to summary judgment.7
First, there is no question that Appellees have articulated
their legitimate non-discriminatory reason for the termination with
sufficient clarity to afford Kennerson a realistic opportunity to
show that the reason was pretextual.8 Second, Kennerson does not
present any summary judgment evidence to dispute the Appellees’
legitimate non-discriminatory reason for his termination. His own
deposition and affidavit testimony concedes that he had difficulty
performing his job and that several of his co-workers were rather
disappointed with his performance. More importantly, Kennerson
does not point to any record evidence showing a non-African-
American was treated differently by Appellees under any
substantially similar circumstance.
Ultimately, Kennerson only offers a subjective belief that his
termination was motivated by race discrimination and retaliation
5
411 U.S. 792 (1973).
6
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th
Cir. 2000) (“As this Court has held, the McDonnell Douglas test
applied to Title VII disparate treatment cases is also applicable
to Title VII unlawful retaliation cases.”).
7
McDonnell Douglas Corp. v. Green, 411 U.S. at 802-03.
8
Burdine v. Tex. Dep’t of Cmty. Affairs, 450 U.S. 248, 255-56,
67 L. Ed. 2d 207,
101 S. Ct. 1089 (1981).
4
because his problems allegedly began after he “clashed” with a
white co-worker and he was fired after he filed complaints with the
EEOC. Not only is a Title VII employment discrimination or
retaliation plaintiff’s subjective belief an insufficient defense
to a summary judgment motion,9 in this case, that subjective belief
is refuted by the undisputed record evidence showing that: (1)
performance deficiencies were being documented by Kennerson’s
supervisor two years before Kennerson’s clash and well before he
filed his first EEOC complaint; (2) the pre-clash, and pre-EEOC
complaint performance deficiencies are of the same variety as those
deficiencies documented post-clash and post-EEOC complaint; and,
(3) there was no marked increase in the documented deficiencies
following the clash or the filing of the EEOC complaints.
Kennerson does not argue that Appellees’ summary judgment
evidence regarding their legitimate non-discriminatory reason was
manufactured, post-hoc, in order to justify firing him.10 Moreover,
though Kennerson contends that his performance had in fact
9
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (explaining that “conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to
satisfy the nonmovant’s burden” at the summary-judgment stage of an
employment-discrimination case).
10
Cf. Evans v. Houston, 246 F.3d 344, 355-56 (5th Cir.
2001)(finding lack of certain documentation and suspicious timing
on other documentation along with a plaintiff’s allegations that
the documents were back-dated to support a termination decision
created a genuine issue of material fact as to whether employer’s
legitimate non-discriminatory reason was pretext).
5
improved, and that Guidry and the School Board incorrectly believed
he was underperforming, “even an incorrect belief that an
employee’s performance is inadequate constitutes a legitimate, non-
discriminatory reason [and] . . . a dispute in the evidence
concerning [the employee’s] job performance does not provide a
sufficient basis for a reasonable factfinder to infer that [the
employer’s] proffered justification is unworthy of credence.”11
Therefore, because Kennerson offers no summary judgment
evidence to substantiate his subjective belief that his termination
was due to discriminatory animus or retaliation, he is unable to
raise a genuine issue of material fact as to whether the Appellees’
proffered legitimate non-discriminatory reason for the termination
decision was pretext. Accordingly, summary judgment for the
Appellees is warranted and the district court is AFFIRMED.
11
Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.
1991).
6
