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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2008 Decided November 21, 2008
No. 07-7165
CHARLES ROYALL,
APPELLANT
v.
NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01711)
Thomas J. Gagliardo argued the cause and filed the briefs
for appellant.
Peter Herman argued the cause for appellee. With him on
the brief were Oriana Vigliotti and Victoria L. Bor.
Before: HENDERSON and ROGERS, Circuit Judges and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This is an appeal from the grant of
summary judgment in an employment discrimination case filed
pursuant to 42 U.S.C. § 1981. As a threshold matter, the
National Association of Letter Carriers (“the Union”) contends
that the court lacks jurisdiction because the appeal is untimely.
Although the notice of appeal was not timely docketed in the
district court, we hold that the appeal is timely because the
notice of appeal was electronically filed within the thirty-day
period for appeals in a civil case. Under the federal rules of civil
and appellate procedure, the district court electronic filing
system’s failure to docket the notice within that period is not
attributable to Royall. On the merits, we hold that the grant of
summary judgment was appropriate because there was no
evidence from which a reasonable jury could find that the
Union’s reason for terminating Charles Royall’s employment
was a pretext for unlawful discrimination.
I.
In February 2002, the Union hired Royall, an African
American, as an accounting manager. His responsibilities
included handling payroll and the associated deductions and
benefits, entering vendor bills into the accounting system, and
ensuring that the Union paid its bills and taxes on time.
According to Union President William Young and the Secretary-
Treasurer Jane Broendel, Royall indicated during his
employment interview that “he was familiar” with the J.D.
Edwards accounting program that the Union used, and that “he
was a quick study, and he would be right up and running with
it.” Young Dep. at 28; see Broendel Dep. at 13.
From the Union’s perspective, Royall’s performance did not
meet expectations. According to Young, Royall “never did
3
grasp [the] J.D. Edwards [system],” and, as a result, failed to
make entries into the system that would have allowed the W-2
forms to be generated automatically. Young Dep. at 28. He
based his opinion on what Broendel and finance director Ronald
Stubblefield told him and on what he personally knew. Sukja
Neidlinger, the payroll clerk, reported that it took Royall two
months to learn basic payroll. Other Union employees also
noted inadequacies in Royall’s performance, including paying
bills, taxes, and employees’ benefits late. The Union incurred
penalties because of the late tax payments during Royall’s
tenure. Several Union officers, including Young and Broendel,
received complaints about these late payments from employees
and vendors; they also received complaints about Royall’s
performance from other employees. Broendel was of the view
that the only satisfactory elements of Royall’s performance were
that he arrived on time, did not leave early, and did not call in
sick excessively.
Frank Sclafani, a temporary employee who later became the
finance director, documented some of the inadequacies in
Royall’s performance in an undated memorandum to Broendel
about the accounting department generally. While observing
that there were “always two sides to every story,” Sclafani
advised that Royall’s accounting abilities were “suspect” and
that “unless actively supervised [Royall’s work] is often
incomplete or not timely, and in too many cases, inaccurate.”
Royall also did not demonstrate a willingness to take on or
complete the tasks assigned to him, causing the finance director
over time to rely on him less and less. In Sclafani’s opinion,
Royall’s lack of ability would continue to have “a major
detrimental effect on the work flow in the department.” Sclafani
also pointed out that while the J.D. Edwards system was “very
versatile,” its database was neither intuitive nor were the day-to-
day accounting processes easy to learn, and the system required
a “highly proficient user to harness [its] power and make the
4
database a useful accounting tool.”
Disputing the evidence about his performance, Royall
claimed that he had been complimented on his satisfactory
performance on several occasions. He pointed out that his
position had been vacant for six months and that he had caught
up on the bonds, made deposits for taxes and payroll on time,
eliminated insurance premium payments for people who had
died, and completed Neidlinger’s payroll while she was on
vacation. Stubblefield complimented him for getting current on
the bonds, as had Broendel, who had never criticized him
despite almost daily interaction, and Royall was unaware that
Neidlinger had any “problems” with him. In fact, prior to his
termination, Royall had never been disciplined for the alleged
inadequacies in his performance. Further, Royall pointed out
that various of the errors the Union officers had described took
place several months before his termination. Additionally, he
claimed that he knew nothing about the J.D. Edwards system
before he started working for the Union. Critically, however,
Royall did not deny that on two occasions he had paid the
Union’s taxes late and paid employee benefit claims late. He
also acknowledged that there were other complaints about his
work but attributed some of the problems to matters that were
his supervisor’s responsibility.
Upon discussing Royall’s performance with Stubblefield
and Broendel, Young fired Royall six months after he was hired.
According to Young, “the only reason Royall’s employment was
terminated is he was not able to do all of the functions of the
position that he was hired to do, and we couldn’t get the finance
department in order without someone who was able to do the
things that he was supposed to do.” Young Dep. at 50.
Royall filed suit against the Union on the ground that he
was terminated because of his race in violation of § 1981. He
5
alleged that he had performed his duties in an acceptable
manner, that claims he was not doing his job were false, and that
he was replaced by a white male who was allowed to return to
his former position after a few months of inadequate
performance. He alleged as well that the Union terminated the
employment of another African American male, Stubblefield,
after Royall’s discharge because he “ostensibly ‘didn’t fit in.’”
Compl. ¶ 12. The Union answered and then moved for
summary judgment, which Royall opposed. The district court
granted the Union’s motion and Royall appeals.
II.
The Federal Rules of Appellate Procedure require a notice
of appeal in a civil case to be filed within thirty days of entry of
the judgment or order being appealed. FED. R. APP. P. 4(a)(1).
This time period is jurisdictional and mandatory. Bowles v.
Russell, 127 S. Ct. 2360, 2363-64 (2007); see 28 U.S.C. § 2107.
A notice’s improper form does not require dismissal of the
appeal. Under Rule 83(a)(2) of the Federal Rules of Civil
Procedure, “[a] local rule imposing a requirement of form must
not be enforced in a way that causes a party to lose any right
because of a nonwillful failure to comply.” Likewise, Rule
5(d)(4) provides that “[t]he clerk must not refuse to file a paper
solely because it is not in the form prescribed by these rules or
by a local rule or practice.” FED. R. CIV. P. 5(d)(4). Relatedly,
Federal Rule of Appellate Procedure 3(c)(4) bars dismissal of an
appeal because of the notice of appeal’s “informality of form or
title.”
The local rules of the United States District Court for the
District of Columbia require all documents to be submitted
electronically. D.D.C. R. 5.4(a). The clerk of the district court,
however, has issued general information stating that a notice of
appeal “cannot be filed by an attorney using the CM/ECF
6
system.”1 More recently, the clerk has issued instructions for
online filing of notices of appeal.2 The Union does not suggest
that Royall’s appeal is untimely because of noncompliance with
the requirement of the local rule to submit a paper copy of the
notice of appeal when filing it electronically and we have no
occasion to address this issue.
The relevant events are undisputed except insofar as the
Union challenges Royall’s claim that his appeal was
successfully filed.
On September 26, 2007, Royall, by and through
counsel, filed a notice of appeal using the District
Court’s electronic case filing system . . . and opposing
counsel were served with copies by mail. As part of
the ECF process a credit card number and related
information [were] submitted so that the required fees
could be paid. That same day Royall’s counsel
received electronic confirmation from the Court that
1
United States District Court for the District of Columbia,
Clerk’s Office General Information & Civil Filing Procedures 11
( A p r . 9 , 2 0 0 6 ) , a v a i l a b l e a t
www.dcd.uscourts.gov/LocalRulesSupplement.pdf; United States
District Court for the District of Columbia, Civil ECF Filing Pointers
3, available at http://www.dcd.uscourts.gov/civil-newfilingptrs.pdf
(same); see also United States District Court for the District of
Columbia, Checklist for Attorneys Using the Electronic Filing System
1, available at http://www.dcd.uscourts.gov/attycheckofflist.pdf.
2
United States District Court for the District of Columbia,
How to File a Notice of Appeal and Pay the Filing Fee Online,
a v a i l a b l e a t
http://www.dcd.uscourts.gov/NoticeAppeal-PayFeeOnline.pdf. The
clerk’s online guidance documents, supra note 1, have yet to be
updated.
7
the fee had been charged to his credit card.
Sometime in October 2007 Royall’s counsel called
the clerk of this Court to inquire about filing a
docketing statement and when he might receive a
scheduling order. The clerk informed him that the
record had not yet been transmitted; and that when it
was he would be notified.
On November 21, 2007, Royall’s counsel again
contacted the clerk of this Court and when informed
that the record had still not been transmitted, he
contacted the District Court. It was during that
telephone conversation that counsel was informed that
the District Court had not docketed the notice of appeal
which had been filed almost two months earlier. He
immediately sent a letter to the clerk by facsimile
transmission, attaching thereto a copy of the notice of
appeal and his credit card statement showing that he
had been charged $455 by “USDC DC
WASHINGTON DC” on September 26, 2007. He also
related that he had spoken with the ECF coordinator on
that day, had been told the system was experiencing a
glitch and later told the system was working properly.
He suggested this might account for the lack of docket
entry.
On or about that same day, the District Court clerk
docketed the notice as of September 26, 2007; and the
record was subsequently transmitted to this Court.
Appellant’s Br. 10 (internal citations omitted).
The filing date on the docket sheet, “09/26/2007,” supports
Royall’s contention that the notice of appeal was timely filed, as
8
does the credit card invoice indicating a September 26, 2007
charge from the district court of $455, the fee for filing a notice
of appeal. A September 26, 2007 filing would be timely
because the thirty-day period began on August 29, 2007, when
the district court granted summary judgment to the Union.
Without seriously disputing the electronic submission and
receipt date, the Union maintains that the notice was not “filed”
in satisfaction of Rule 4(b) because the clerk (or the clerk’s
computer system) failed to register the filing on the docket sheet
until November 21, 2007 – nearly two months after the deadline.
This argument fails because the date of receipt controls in this
case. The Supreme Court has long recognized that, with
exceptions not relevant here, receipt by the clerk within the
required time period satisfies the timely filing requirement for
a notice of appeal in a civil case, see Houston v. Lack, 487 U.S.
266, 273-74 (1988); Parissi v. Telechron, Inc., 349 U.S. 46, 46
(1955) (mem.). This court has similarly held, although not in
the context of jurisdictional civil notices of appeal, that receipt
by a judge constitutes filing under a rule requiring filing with the
clerk of the court or the judge. United States v. Brown, 921 F.2d
1304, 1309 (D.C. Cir. 1990). Still, relying on Bowles and other
related cases the Union maintains that because the period for
filing a notice of appeal is jurisdictional, the clerk was not
permitted to “backdate” Royall’s notice to September 26. The
Union’s challenge to the timeliness of the appeal fails for three
reasons.
First, because Royall tendered his notice of appeal to the
clerk within the thirty-day filing period, Bowles does not require
dismissal of the appeal. In Bowles, the district court reopened
the time to file an appeal but told Bowles that he had seventeen
days to file rather than the fourteen days provided in the Rule.
Bowles, 127 S. Ct. at 2362. Bowles filed the notice of appeal
after the mandatory and jurisdictional fourteen-day period
9
expired, and the Court held that his notice was filed untimely
and therefore the appeal was barred even though he had filed
within seventeen days. Id. at 2362-66. Thus, Bowles does not
control the question here: whether electronic submission of a
notice of appeal within the thirty-day period satisfies the timely
filing requirement even though the notice of appeal is not
docketed until after that period has expired. However, as
Bowles held that courts may not create equitable exceptions to
jurisdictional requirements, id. at 2366, Royall’s suggestion that
“equitable tolling prohibits dismissal” of the appeal necessarily
fails.
Second, the Union is correct that backdating a late notice
does not render it timely, but that is not what happened here.
The clerk simply deemed the notice filed on the date of Royall’s
electronic submission. Although a litigant is not “entitled to rely
on a court’s mere acceptance and processing of an untimely
notice of appeal,” Moore v. South Carolina Labor Bd., 100 F.3d
162, 164 (D.C. Cir. 1996), the clerk is required to accept and
treat as timely a notice that was timely received even if it was
received in an improper form. FED. R. CIV. P. 5(d)(4).
Third, under the district court’s local rules, electronic filing
“constitutes filing for all purposes under the Federal Rules of
Civil Procedure and the Local Rules of [the district court],”
D.D.C. R. 5.4(c), and the electronic case filing system is thus a
substitute for the clerk of the court. As the Seventh Circuit
observed, noting Rule 5(e)’s requirement, now located in Rule
5(d)(4), that clerks accept documents tendered for filing, “[t]he
software that operates an e-filing system acts for ‘the clerk’ as
far as Rule 5 is concerned; a step forbidden by a person standing
at a counter is equally forbidden to an automated agent that acts
on the court’s behalf.” Farzana K. v. Indiana Dep’t of Educ.,
473 F.3d 703, 707 (7th Cir. 2007). In a case where the filing
software rejected a complaint that was transmitted electronically
10
but marked with the wrong docket number, that court observed:
[T]he fact remains that the complaint was tendered to
the clerk’s office on the 30th day, and the computer’s
reaction does more to show the limits of some
programmer’s imagination than to render the suit
untimely. Had a paper copy of the complaint been
handed over the counter on July 6, a deputy clerk
would have crossed out the old docket number,
stamped a new one, and filed the document; there is no
reason to throw this suit out of court just because the e-
filing system did not know how to take an equivalent
step.
Id. Likewise, as the Second Circuit has recognized, Contino v.
United States, 535 F.3d 553, 556 (2d Cir. 2008), even in the
context of mandatory and jurisdictional civil notices of appeal,
electronic submission of a notice of appeal during the filing
period constitutes timely filing even if the electronic case filing
system rejects the submission. The Ninth Circuit also held
recently that an appeal was timely because the clerk received a
hard copy of the notice of appeal within the filing period, even
though local rules required electronic filing. Klemm v. Astrue,
No. 06-16981, 2008 WL 4210589, at *2-3 (9th Cir. Sep. 16,
2006).3
3
In unpublished opinions, two circuits have held that
attempted electronic filings were ineffective because of
noncompliance with local procedures. In Le Williamson v. Deluxe
Fin. Servs., Inc., 216 F. App’x 728 (10th Cir. 2007), the notice of
appeal was sent by electronic mail within the thirty-day filing period
but was directed to the wrong address and local rules required pro se
litigants to make paper filings. Id. at 729. In Stark v. Right Mgmt.
Consultants, 247 F. App’x 855 (8th Cir. 2007), a complaint was
submitted at 11:27 p.m. on the final day of the applicable filing period
11
Accordingly, we hold that, pursuant to the federal rules, the
electronic case filing system’s failure to docket Royall’s timely
submitted notice of appeal cannot be treated as a failure on his
part to file timely. His situation is akin to one in which the
clerk’s office misplaces a filing and then later makes the docket
entry when the filing is found. Where, as here, a notice of
appeal is tendered to the clerk within the filing period, “any
error regarding the filing of his notice of appeal must be charged
to the court, not to him.” Baney v. Dep’t of Justice, 263 F.
App’x 892, 894 (Fed. Cir. 2008) (unpublished); see also
Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., 422
F.3d 72, 76 (2d Cir. 2005). Because Royall’s notice of appeal
was timely filed, the court has jurisdiction and we turn to the
merits of his appeal.
III.
Summary judgment is appropriate when there is no genuine
issue of material fact and the “the moving party is entitled to
judgment as a matter of law.” Holcomb v. Powell, 433 F.3d 889,
895 (D.C. Cir. 2006) (quoting FED. R. CIV. P. 56(c)) (internal
quotation marks omitted). A court must “view the evidence in
the light most favorable” to the nonmoving party and “draw all
reasonable inferences in [his] favor.” Id. A court may not make
credibility determinations. Id. Our review of the grant of
summary judgment is de novo. Id.
The burden-shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to § 1981
but local rules required new cases that were filed electronically to be
submitted by 5:00 p.m. Id. at 856. The Tenth Circuit did not address
Federal Rule of Civil Procedure 83(a)(2) and the Eighth Circuit
deemed the local timing requirement not to be a matter of “form”
under Rule 83(a)(2), id., an issue not presented in the instant case.
12
employment discrimination claims where, as here, there is no
direct evidence that prohibited discrimination caused the adverse
employment action. Carter v. George Washington Univ., 387
F.3d 872, 878 (D.C. Cir. 2004). The plaintiff must first establish
a prima facie case of racial discrimination, Chappell-Johnson v.
Powell, 440 F.3d 484, 487 (D.C. Cir. 2006), by showing that
“(1) [he] is a member of a protected class; (2) [he] suffered an
adverse employment action; and (3) the unfavorable action gives
rise to an inference of discrimination,” id. at 488. The burden of
production then shifts to the employer to articulate a “legitimate,
nondiscriminatory” justification for the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. Where an
employer offers “clear and reasonably specific”
nondiscriminatory reasons for the adverse employment action,
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258
(1981), the court need not decide whether the plaintiff has made
out a prima facie case, and “proceed[s] to ‘the ultimate question
of discrimination vel non.’” George v. Leavitt, 407 F.3d 405,
411 (D.C. Cir. 2005); see also U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983).
Once the employer offers this justification, the burden of
production shifts back to the plaintiff, “the McDonnell Douglas
framework falls away, and we must determine whether a
reasonable jury ‘could infer discrimination’” based on the prima
facie case, the plaintiff’s challenge to the employer’s proffered
justification, and any other evidence of discrimination. Vickers
v. Powell, 493 F.3d 186, 195 (D.C. Cir. 2007) (quoting Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en
banc)). A plaintiff, who retains the burden of persuasion
throughout, Burdine, 450 U.S. at 253, may show pretext in a
number of ways, including by offering evidence of more
favorable treatment of similarly situated persons who are not
members of the protected class or that the employer is lying
about the proffered justification. See Brady v. Office of the
13
Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). Under
the latter approach, “[i]f the employer’s stated belief about the
underlying facts is reasonable in light of the evidence . . . there
ordinarily is no basis for permitting a jury to conclude that the
employer is lying about the underlying facts.” Id.; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000).
Here, the Union has articulated a legitimate
nondiscriminatory justification for terminating Royall’s
employment, namely “a steady drumbeat of complaints about
Royall’s job performance.” Appellee’s Br. 19. Among other
evidence, the testimony about Royall paying payroll taxes late,
improperly entering W-2 information into the accounting
software system, making the Union officers’ benefit payments
late, and experiencing difficulties learning the accounting
system substantiate the inadequate performance justification.
The Union presented documentary evidence of the late tax
payments and consequent penalties. Although the Union failed
to produce documentary evidence to substantiate its other
reasons for terminating Royall, explaining that some of the
documents had been misplaced, the Union officers’ sworn
depositions and the documentary evidence regarding the late tax
payments suffice to meet the Union’s burden “to produce
admissible evidence that, if believed, would establish that [its]
action was motivated by a legitimate, nondiscriminatory
reason.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,
1151 (D.C. Cir. 2004). The testimonial evidence is admissible,
and Royall’s contention that sworn deposition statements
recounting complaints is hearsay fails because the Union
officers’ statements were offered “to illuminate their motives
and actions as supervisors,” not to show that the complaints
were valid, McKenna v. Weinberger, 729 F.2d 783, 792 (D.C.
Cir. 1984); see FED. R. EVID. 801(c). Therefore, the court need
not decide whether Royall made a prima facie case before
14
assessing the question of discrimination vel non. See Aikens,
460 U.S. at 714. However, the evidence Royall presented in
making his prima facie case remains relevant for determining
whether the proffered reason was the true reason or mere pretext
for discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 508 (1993).
One way to discredit an employer’s justification is to show
that similarly situated employees of a different race received
more favorable treatment. See Brady, 520 F.3d at 495. To that
end, Royall contends that he was treated more harshly than his
underperforming white replacement. The Union allowed
Royall’s replacement to transfer to another Union position after
his performance did not meet expectations, but fired Royall.
Although the two men may have been similarly situated to the
extent that they held the same position, Royall has not shown
that “all of the relevant aspects of [his] employment were
‘nearly identical’ to those of” his replacement, see Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C.
Cir. 1995) (quoting Pierce v. Commonwealth Life Ins. Co., 40
F.3d 796, 802 (6th Cir. 1994)). Royall’s employment was
terminated after six months while his replacement volunteered
to transfer back to his prior position with the Union after two
months when he was unable to meet job requirements. Royall
was a new, at-will hire; his replacement was previously
employed by the Union. There is no evidence to show that the
Union would not have granted a transfer request by Royall or
would not have fired Royall’s replacement after six months had
he not earlier voluntarily transferred. Therefore, that the Union
fired Royall but granted his replacement’s transfer request does
not demonstrate unlawful discrimination.
Also relevant to the discrimination vel non inquiry is
Royall’s contention that the Union’s proffered reasons for
terminating his employment are unpersuasive. See Brady, 520
15
F.3d at 495. Royall casts doubt upon several of the examples
the Union employees gave in justifying their belief that he was
not performing his job adequately. For instance, the Union
maintains that Royall failed to make certain required cost-of-
living adjustments, but Royall responds that these adjustments
were his supervisor’s responsibility, not his. Likewise, although
the Union blames Royall for leaving payroll checks unsecured,
Royall responds that his supervisor was responsible for securing
the checks and his possession of any checks would have
conflicted with Generally Accepted Accounting Principles.
Royall also challenges the payroll clerk’s statement that it took
Royall two months to learn basic payroll by pointing to the
clerk’s sworn deposition statement that she had not worked with
him every day over those two months. As to the documented
late tax payments, Royall asserts that these incidents took place
several months before his termination, indicating that they were
not the true reason for his discharge. These challenges weaken
but do not fully undermine the Union’s proffered justification
for terminating Royall’s employment.
Royall does not dispute some of the Union’s stated reasons
for his termination that alone could have been sufficient
nondiscriminatory grounds for terminating an at-will employee.
For example, although Royall maintains that he was not
responsible for all of the Union’s late tax payments and
penalties, he does not challenge the Union’s documented
showing that there were two late payroll tax payments during his
tenure, resulting in penalties. Royall also does not deny that
Young received two or three complaints that the Union had not
paid officers’ benefits, but simply responds that there is no
evidence of these complaints other than Young’s deposition
statement and that Young’s statements are inadmissible hearsay.
However, Young’s testimony about the complaints is
admissible to show his reasons, not their truth. There are several
other allegations that Royall does not deny, but rather criticizes
16
for being unsupported by documentary evidence. For instance,
Royall does not respond to items 35 and 36 in the Union’s
statement of undisputed material facts that employees
complained about payroll responsibilities that had been carried
out untimely. In light of this evidence, the Union’s stated belief
about Royall’s performance deficiencies was reasonable.
On appeal Royall does not contend that his deposition
testimony about several incidents of racial discrimination was
evidence of unlawful discrimination. Neither does he contend
that the district court erred in ruling that he had conceded the
issue insofar as he did not refer to this evidence in opposing the
Union’s motion for summary judgment, see D.D.C. R. 7(b).
Any arguments based on this testimony are therefore forfeited.
See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005).
Given the consistent testimony by several Union officers
that they received complaints about Royall’s work and the
undisputed evidence that at least two tax payments for which he
was responsible were late, a reasonable jury could not find that
the Union’s officers were lying, much less that the Union’s
“stated belief about the underlying facts is [un]reasonable in
light of the evidence.” Brady, 520 F.3d at 495; see also George,
407 F.3d at 415. Other than evidence that he and his African
American supervisor were replaced by white employees, Royall
provides no evidence of unlawful discrimination that the court
may properly consider. It is thus unnecessary to consider the
Union’s further suggestion that the fact that Young participated
in both the decision to hire and to terminate Royall’s
employment is further evidence that its termination decision was
not discriminatory. Accordingly, we affirm the grant of
summary judgment.