UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10902
Summary Calendar
DONALD E. MAY,
Plaintiff-Appellant,
versus
MINYARD FOOD STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Lower Ct. No. 3:98-CV-2468-T
March 10, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant, Donald May, filed a complaint against his
former employer, Minyard Food Stores, Inc. (“Minyard”), alleging
that he was fired because of his race in violation of Title VII of
the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The
district court granted summary judgment in favor of Minyard.
Finding no error, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except for the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
Minyard operates retail grocery stores in central Texas.
On April 1, 1996, May applied to work at Minyard as a stocker. In
filling out the employment application, May answered “Yes” to a
question which asked whether he had ever been convicted, sentenced,
or placed on probation for violating any laws. In response to the
application’s direction to “explain” this answer, including “the
nature of conviction, dates, parole/probation officer’s name and
phone number, and your current status,” May wrote: “Buglary [sic]
Didn’t [sic] expect [sic] to be convicted.” The Minyard employee
who interviewed May and reviewed May’s completed employment
application asked May about his criminal history and made the
following note directly underneath May’s response: “10/91 Burglary
5 years - 2 yrs 2-months Parole till 2/97.”1 May then signed a
statement that he understood he would be subject to termination if
any statement in his application was false or misleading. This
statement duplicated the warning found at the beginning of the
application that “intentionally withholding or misrepresenting
information could result in rejection for employment, or if
employed, termination from the company.”
1
Bobby Goodwin, an employment specialist with Minyard, testified by
affidavit that he interviewed May on April 1, 1996. During an interview, Goodwin
reviews an applicant’s completed application, and if the applicant has indicated
that he or she has a criminal history, Goodwin asks the applicant to provide the
dates of the events and the details as to time-served. Based on the applicant’s
responses to these questions, Goodwin makes notations on the individual’s
application, including information that the applicant has not already provided.
Goodwin testified that the phrase beginning “10/91 Burglary” was in his
handwriting, so it appears that the phrase beginning with “Buglary [sic]” was
May’s own response to the criminal history question whereas the phrase
underneath this response was a clarification that Goodwin made upon questioning
May about his criminal history.
2
May was hired by Minyard as a part-time stocker at its
Store No. 14 in Dallas on April 6, 1996. In late 1997 and early
1998, Store No. 14 experienced unexpectedly low gross profits and
received third-party and employee complaints of theft. In
accordance with Minyard policy, Minyard’s Risk Management
Department (“Risk Management”) began an investigation of the
employees at Store No. 14. According to Minyard, a Risk Management
investigation involves a criminal background check on all
employees, including management, and compares the results with each
employee’s employment application. If an application does not
include an employee’s complete criminal history, Risk Management
meets with the employee to discuss the discrepancy. At the same
time, Risk Management undertakes its own investigation of the
discrepancy to determine if the employee was untruthful or
misleading in completing the employment application. Risk
Management consistently terminates those employees who, in its
view, have withheld information or have provided false or
misleading information.
The criminal history check on May revealed that he had
two felony convictions for burglaries committed in 1988 and in
1991. Risk Management determined that this criminal history was
inconsistent with May’s representations in his employment
application. On January 22, 1998, a Risk Management employee met
with May about his criminal background check, and May acknowledged
his convictions for burglaries in 1988 and 1991. Minyard then
3
concluded that May had violated company policy by failing to
disclose the 1988 burglary, and it fired him on January 23, 1998.
May was one of twelve employees fired by Risk Management
in January 1998 for the stated reason of failing to accurately list
criminal convictions in his or her employment application. In the
wake of these terminations, Minyard hired new stockers at Store No.
14, all of whom were black males.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo.
Summary judgment is proper if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with any
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Citrate, 477 U.S. 317, 322-24 (1986). Under this standard, all
reasonable inferences are drawn in favor of the non-moving party.
See Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th
Cir. 1995).
DISCUSSION
In order to make out a prima facie case of discrimination
a plaintiff alleging discriminatory discharge must show (1) that he
is a member of a protected group; (2) that he was qualified for
the job that he formerly held; (3) that he was discharged; and
(4) that after his discharge, the position he held was filled by
someone not within his protected class. Vaughn v. Edel, 918 F.2d
517, 521 (5th Cir.1990), citing Norris v. Hartmarx Specialty
4
Stores, 913 F.2d 253, 254 (5th Cir.1990). Once the plaintiff
establishes a prima facie case of discrimination, the defendant
must articulate a legitimate, nondiscriminatory reason for the
discharge. If the defendant states a legitimate reason, the
plaintiff must show, by a preponderance of the evidence, that the
reason provided by the defendant was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct.
1817, 1824-25, 36 L.Ed.2d 668 (1973).
May’s pro se complaint alleges that Minyard terminated
him based on his race.2 In response, Minyard presents evidence
that May failed to disclose his complete criminal history on his
employment application, namely, his 1988 burglary conviction. In
the face of this legitimate, nondiscriminatory reason for his
discharge, May was required to present evidence that (1) creates a
fact issue as to whether Minyard’s stated reason for his discharge
is not its actual motivation, and that (2) creates a reasonable
inference that race was a determinative factor in May’s discharge.
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996)
(en banc). May, however, failed to show such evidence.
May argues that Minyard could not have fired him for not
disclosing his criminal history because he in fact made a full
2
Under our caselaw, properly understood, May stated a prima facie case
of racial discrimination even though he was replaced by a black male. See Nieto
v. L&H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997)(stating that whether the
plaintiff is replaced by someone outside the protected class is not “outcome
determinative”). Nieto was based on the earliest caselaw in this circuit, which
is controlling. Later cases like Singh v. Shoney’s Inc., 64 F.3d 217, 219 (5th
Cir. 1995)(stating that an element of a prima facie case is whether the plaintiff
was replaced by someone outside the protected class) are not.
5
disclosure. He notes his “Yes” response to the employment
application’s question on criminal history, and he contends that
two burglaries are noted in the space provided for an explanation.
The issue, though, is not whether Minyard made a mistake
in finding nondisclosure but whether Minyard’s stated reason for
discharging May was fabricated to mask racial animus. Mayberry v.
Vought Aircraft Company, 55 F.3d 1086, 1091 (5th Cir. 1995). On
this, May offers no evidence. He does assert his subjective belief
that Minyard fired him because he was black, but this is not
competent summary judgment evidence. Wallace v. Texas Tech Univ.,
80 F.3d 1042, 1048 (5th Cir. 1996). In fact, Minyard’s
uncontroverted evidence that May was replaced by a black male and
that a majority of Store No. 14's employees are black, including
the manager and assistant managers, suggests that Minyard’s
decision to discharge May was not motivated by racial animus.
May makes one other argument to support his
discrimination claim. He contends that he was treated differently
than a white employee who had criminal convictions and who was
neither investigated nor discharged. But again, this bare
assertion is insufficient summary judgment evidence. It crumbles
under Minyard’s uncontroverted evidence that the background check
on the white employee in question revealed no criminal history.
CONCLUSION
Because May fails to present competent summary judgment
evidence that race was a motivating factor in Minyard’s decision to
discharge him, he has not raised a genuine issue of material fact
6
sufficient to withstand summary judgment. The judgment of the
district court is therefore AFFIRMED.
7