IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30621
Summary Calendar
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JERRY TOUSSAINT; MYRA RENEE
TOUSSAINT,
Plaintiffs-Appellants,
versus
CHARLES HAMLIN; RENTERS
CHOICE INCORPORATED,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 96-CV-357
_________________________________________________________________
April 8, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Myra Toussaint was hired by Magic-Rent-To-Own as a manager-in-
training. Magic-Rent-To-Own was subsequently purchased by
defendant Renter’s Choice (“Renters”), at which point Toussaint, in
order to maintain her employment at Renters, was required to change
to an account manager position. Toussaint alleges that, during her
employment at Renters and while under the supervision of defendant
Charles Hamlin, she was subjected to many acts of discrimination on
the basis of her race and subjected to a hostile work environment
because of the defendants’ disparate treatment of African-American
*
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this opinion should not be published and is not precedent except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.
customers. Toussaint also alleges that, despite her good work
record, the defendants terminated her employment because she is
African-American. Based on the above allegations, Toussaint filed
the instant suit against the defendants, pursuant to 42 U.S.C.
§ 1981 (“§ 1981") and the Louisiana Human Rights Commission Act,
La. R.S. 51:2242. Id. at 1-5. Additionally, Jerry Toussaint
(“Jerry”), the husband of Myra Toussaint, asserted a claim pursuant
to Louisiana Civil Code Article 2315 against the defendants for
“loss of services, emotional distress from concern for his wife,
loss of society and consortium.”
The district court granted the defendants’ motion for summary
judgment on all counts of the complaint and dismissed the complaint
with prejudice. Toussaint filed a timely notice of appeal.
On appeal, Toussaint argues that the district court erred by
granting the defendants’ summary judgment motion regarding her
discriminatory discharge claim, because there were genuine issues
of material fact. Although the defendants have fully briefed their
arguments regarding Toussaint’s other claims, Toussaint failed to
argue her other claims, as well as Jerry’s claim, in her appeal
brief. Toussaint’s other claims and Jerry’s claim are therefore
deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (holding that claims not argued in the body of the brief
are abandoned on appeal).
We review a grant of summary judgment de novo. Green v. Touro
Infirmary, 992 F.2d 537, 538 (5th Cir. 1993). Summary judgment is
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appropriate when, considering all of the admissible evidence and
drawing all inferences in the light most favorable to the nonmoving
party, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)(en banc). There is no genuine issue of material fact, if,
taking the record as a whole, a rational trier of fact could not
find for the nonmoving party. Newell v. Oxford Management, Inc.,
912 F.2d 793, 795 (5th Cir. 1990).
Claims of racial discrimination brought under § 1981 are
subject to the same evidentiary framework as those brought under
Title VII. See Harrington v. Harris, 108 F.3d 598, 605 (5th Cir.
1997).
[T]he proper allocation of burdens of production in
employment discrimination cases [is]: First, the
plaintiff must establish a prima facie case of
discrimination; second, if [the plaintiff] is so
successful, the defendant must articulate some
legitimate, nondiscriminatory reason for the challenged
employment action; and third, if the defendant is so
successful, the inference of discrimination raised by the
prima facie case disappears, and the plaintiff then must
prove, by a preponderance of the evidence, both that the
defendant's articulated reason is false and that the
defendant intentionally discriminated.
Walton v. Bisco Ind., 119 F.3d 368, 370 (5th Cir. 1997) (citations
omitted). To establish a prima facie case of discriminatory
discharge, the plaintiff must show that: (1) she is a member of a
protected class; (2) she was qualified for the position that she
formerly held; (3) she was discharged from that position; and (4)
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after being discharged, her position was filled by a person who is
not a member of the protected class. See Meinecke v. H & R Block,
66 F.3d 77, 83 (5th Cir. 1995).
The district court held that Toussaint had established a prima
facie case of discriminatory discharge, but that the defendants had
offered a legitimate, nondiscriminatory reason for her discharge,
which was that Toussaint had failed to meet the stated credit
guidelines regarding her accounts. This proffered reason was
stated on Toussaint’s termination form, and in her deposition
Toussaint admitted that she had failed to meet the credit
guidelines prior to, and at the time of, her termination.
At this point, as noted by the district court, the burden
shifted to Toussaint to prove that the defendants’ proffered reason
for discharge was a pretext for racial discrimination. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). In
opposition to the defendants’ motion for summary judgment,
Toussaint argued that the defendants’ proffered reason was clearly
pretextual because: (1) she was never told that she could be
discharged for failing to meet the credit guidelines; (2) her white
coworkers were not fired, although they also failed to meet the
credit guidelines; and, (3) at the beginning of her employment,
defendant Hamlin told her that he had never seen any black managers
that were good. However, in her deposition, Toussaint admitted
that all of the account managers had been warned that they could be
terminated if they failed to meet the credit guidelines. She also
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admitted that one of the two white coworkers who had been employed
at the time she had been hired had subsequently been fired, while
the other had subsequently quit. Although the routine use of
derogatory racial comments may constitute direct evidence of a
discriminatory motive behind a termination decision, see Brown v.
East Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir. 1993),
the single alleged comment by defendant Hamlin clearly fails to
qualify as routine.
A plaintiff’s subjective belief that she was discharged due to
racial discrimination, by itself, is insufficient to prevent
summary judgment for a defendant who has given a legitimate,
nondiscriminatory reason for discharge. See Douglass v. United
Serv. Auto. Assoc., 79 F.3d 1415, 1430 (5th Cir. 1996)(en banc).
As Toussaint failed to satisfy her burden by showing that the
defendants’ proffered reason for her discharge was a pretext for
racial discrimination, the district court properly granted summary
judgment for the defendants.
A F F I R M E D.
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