UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60811
Summary Calendar
ROBERT SMITH, JR.,
Plaintiff-Appellant,
versus
STOKES DISTRIBUTING CO., INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(2:96-CV-263-P-G)
December 15, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
POLITZ, Chief Judge:*
Robert Smith, Jr. appeals an adverse summary judgment in his Title VII
action against his former employer, Stokes Distributing Co., Inc. For the reasons
assigned, we affirm.
BACKGROUND
In 1991, Smith was hired to work as a route salesman helper for Stokes, a
beer distributor in southeast Mississippi. According to Smith, he accepted
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
employment because of a promise that he eventually would be promoted to a route
salesman. Approximately four years later, while still a route salesman helper,
Smith was fired after one of Stokes’s customers complained that he was using loud,
vulgar, and profane speech in the presence of patrons.
Smith filed suit, alleging that Stokes had violated Title VII by : (1) failing to
promote him to the position of route salesman because he is black and (2) firing
him because he is black.1
ANALYSIS
I. Standard Of Review
We review a grant of summary judgment de novo.2 A movant is entitled to
summary judgment if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and . . . the moving party is entitled to judgment as a
matter of law.”3
II. Applicable Law
Initially, we dispose of Smith’s contention that the magistrate judge erred by
failing to analyze his discrimination claims under the test developed for pattern
and practice claims. A pattern and practice suit under Title VII can be brought by
the government or as a class action to redress systemic discrimination against a
1
Smith raised various state law claims not at issue in this appeal.
2
Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 (5th Cir. 1998).
3
Fed. R. Civ. P. 56(c).
2
protected group. In an individual action, such as that filed by Smith, pattern and
practice evidence “‘can only be collateral to evidence of specific discrimination
against the actual plaintiff.’”4 Therefore, the trial court correctly declined to apply
this mode of analysis to Smith’s claims.
We review Smith’s claims under the traditional proof regime established in
McDonnell Douglas Corp. v. Green.5 Under this framework, a plaintiff alleging
a discriminatory failure to promote must make out a prima facie case, usually by
showing the following elements: (1) he was not promoted; (2) he was qualified for
the position sought; (3) he was within a protected class; and (4) an individual
outside the protected class received the promotion.6 The plaintiff must also present
evidence of pretext to rebut any legitimate, nondiscriminatory reason offered by the
employer to justify the failure to promote.7
Smith showed that he was not promoted; that he was within a protected class;
and that an individual outside his protected group received the promotion. But
Smith failed to establish that he was qualified; he did not have the license that, he
recognizes and concedes, is required of route salesmen. Further, Stokes presented
evidence that Smith was not promoted because he lacked the requisite license, a
legitimate, nondiscriminatory reason for its refusal to promote him.
4
Gilty v. Village of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990) (quoting Williams
v. Boorstin, 663 F.2d 109, 115 n.38 (D.C. Cir. 1980)).
5
411 U.S. 792 (1973).
6
Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990).
7
Bennett v. Total Minatome Corp., 138 F.3d 1053 (5th Cir. 1998).
3
Smith contends that he is excused from establishing the qualifications prong
of the prima facie test because Stokes prevented him from becoming qualified.
Smith’s evidence of this consists solely of his own affidavit, in which he claims that
Stokes informed him that even if he obtained the necessary license he still would
not receive the promotion, which would only go to a white individual. Smith rests
on this evidence in his attempt to show pretext.
If becoming qualified for a position were demonstrably futile – because of
an employer’s discriminatory policies – a failure to become qualified would present
no bar to a Title VII claim.8 But the evidence adduced by Smith to support his
claim of futility – evidence which he would use both to bypass the prima facie case
and to show pretext – is simply, grossly inadequate. A single, self-serving,
unsubstantiated assertion is all that Smith proffers. And it cannot be gainsaid that
the persons purportedly discriminating against Smith were the very persons who
hired him, a factor negating discriminatory animus.9
There is yet an additional impediment to Smith’s failure-to-promote claim.
“As in any tort case, statutory or otherwise, a plaintiff cannot win a discrimination
case if the harm to him would have been the same whether or not the defendant had
discriminated.”10 Stokes offered uncontested evidence that, pursuant to company
policy, Smith would not have been promoted even if he had received the necessary
8
See Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. Unit B 1981).
9
Brown v. CSC Logic, 82 F.3d 651 (5th Cir.1996).
10
Gilty, 919 F.2d at 1253 (internal quotations and citations omitted).
4
license, because he knowingly violated Department of Transportation and company
regulations.
Smith also charges that his dismissal was discriminatory. To make out a
prima facie case in support of his termination claim, Smith must show: (1) that he
is a member of a protected group; (2) that he was qualified; (3) that he was fired;
and (4) that he was replaced with someone outside his protected class. This burden
is purposefully light, and Smith satisfied the test. In response, Stokes articulated
a legitimate, nondiscriminatory reason for Smith’s discharge; it offered evidence
that Smith was fired because of complaints that he cursed loudly in a customer’s
store. Thus, it fell upon Smith to demonstrate that the reason articulated by Stokes
was false and a pretext for discrimination.11 This he totally failed to do.
The judgment appealed is AFFIRMED.
11
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). .
5