UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________________
No. 99-10554
___________________________________
Robert C. Byers, Jr.,
Plaintiff-Appellant,
v.
The Dallas Morning News, Inc.,
Defendant-Appellee.
___________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________
April 24, 2000
Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
A. Procedural History
On May 14, 1997, Plaintiff Robert C. Byers, Jr. (“Byers”) filed suit against Defendant The
Dallas Morning News, Inc. (“TDMN”), alleging race discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e, et seq.
On January 16, 1998, Byers filed his First Amended Complaint and Jury Demand, adding claims
of race discrimination and retaliation based on 42 U.S.C. § 1981.1 After TDMN filed a Motion
1
Although Byers asserts claims under Title VII and 42 U.S.C. §1981, this Court will consider
both causes of action under the Title VII rubric of analysis. Claims of intentional discrimination
2
for Summary Judgment, the district court issued its Memorandum Opinion and Order, granting
summary judgment in favor of TDMN on all claims. On January 7, 1999, the district court
entered a Final Judgment. Byers perfected his appeal to this Court by timely filing his Notice of
Appeal on February 4, 1999. Based on the district court’s subsequent Request for Leave to
Consider rule 60(b) Motion, filed on March 19, 1999, this Court remanded the case to the district
court without retaining jurisdiction on April 18, 1999. On April 22, 1999, the district court
entered its Order Modifying Judgment under Rule 60. On May 7, 1999, Byers perfected his
appeal to this Court by timely filing his Notice of Appeal.
B. Facts
On February 13, 1985, TDMN hired Byers, a white man, as a financial analyst. In
February of 1988, TDMN promoted Byers to General Accounting Manager. After receiving his
promotion, Byers reported to Scott Messer, who is white. On March 1, 1993, Reginald Brown,
who had been the Assistant Controller at A.H. Belo Corporation, the parent corporation of
TDMN, replaced Messer and became President of Finance at TDMN. Brown, a black man,
served as Byers’s direct supervisor at TDMN from March 1, 1993 until Byers’s termination on
February 27, 1996.
On March 23, 1993, Byers and one of his supervisors recommended that Loira Baker,
who is black, be discharged from the Accounts Payable Department because she had exhibited
performance problems similar to those of a white employee, Ann Self, who had been terminated
from the Department previously. Brown decided not to discharge Baker, instead conducting a
brought under Title VII and Section 1981 require the same proof to establish liability. See
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996); Anderson v. Douglas &
Lomason Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994).
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review of the entire Accounts Payable Department to discern the reasons for the performance
problems in the department. Byers alleges that he subsequently complained to Mark Rapier, in
Human Resources, about Brown’s hiring and firing practices.
On or about August 30, 1993, Brown gave Byers a three-month performance evaluation.
Although Byers received relatively high marks in certain categories, Byers was dissatisfied with
the scores he received in the areas of Initiative and Resourcefulness, Judgment, Communications
and Working Relationships. The evidence shows that prior to this August 1993 appraisal, Byers
had failed to perform a high priority task assigned to him by Brown. On September 7, 1993,
Byers sent a response to his evaluation to Ellen Wilson, in which he claimed that he was the
“victim of [Brown’s] personal biases” and that Brown had to “relinquish his personal vendetta”
against him.
On May 9, 1994, Byers left work after lunch claiming that he was ill. When Byers
returned to work, he observed that Brown had recorded “sick leave” on Byers’s timecard for the
half-day of work he missed. Byers confronted Brown, informing him that exempt employees must
receive credit for working a full day even though they only work a half day. Brown responded
that he did not agree with this policy. Later that day, Brown sent Byers an e-mail stating that he
had spoken with Human Resources and that he had been mistaken about the sick leave policy. On
May 16, 1994, at a Department Supervisors Meeting attended by many of the Department’s
managers and supervisors, Byers challenged Brown about the timecard notation. Four days later,
Brown issued Byers a Written Warning for his conduct during the Supervisors Meeting. Byers
alleges that his sick leave incident is another example of Brown’s racial discrimination against him
because black supervisors were treated differently. Specifically, Madeline Norris was allowed to
4
work from home, and Elaine Kidd took two days off without reporting it. However, Norris had
received prior authorization from Brown and her immediate supervisor to work from home due to
back problems. In addition, Byers later admitted that Kidd reported directly to him and that he
was unaware of how her leave issue was resolved.
Byers, as General Accounting Manger, supervised employees in the Accounts Payable
department at TDMN. In December of 1995, Byers held a meeting with the Accounts Payable
clerks to discuss problems with unrecorded checks. While there is some disagreement in the
record as to the exact occurrences at the meeting, it is undisputed that Byers placed two stacks of
paper on the table, one containing correct invoices and the other containing incorrect invoices. It
is further undisputed that Byers asked the two poor performers who had created the incorrect
invoices to stay after the meeting with him. Lastly, it is undisputed that Byers was not the direct
supervisor of either of these clerks and that he had circumvented the authority of two
intermediary managers. After the meeting, the two clerks went to Brown to request immediate
transfers from Byers’s supervision. Brown later told Byers that his approach to the meeting was
inappropriate and that he should have let the more immediate supervisor handle the issue.
Subsequent to the December 1995 meeting, Brown determined that he no longer wanted
Byers working in a management position in his department and contacted both TDMN’s
Production Department and Belo Corporation’s Broadcast Division to inquire about employment
opportunities for Byers. Neither Department felt that Byers was the right candidate for their
openings. Brown then met with managers Bill Cox, Ellen Wilson and Joe Daume to discuss
terminating Byers’s employment. All three managers agreed with Brown that Byers should be
terminated.
5
After Brown made the recommendation for termination, but before Byers was notified of
his termination, Brown attended meetings at which Brown praised the work of Elaine Kidd, who
is black, and Julie Bimmerman and Yvonne Morgan, who are both white. Byers was not at the
meeting but heard about the praise for Kidd. Byers then sent an e-mail to Brown, which he
copied to Kidd, Bimmerman, Morgan, and another employee, in which he informed Brown that
there were other employees besides Kidd who deserved recognition. Brown responded that he
had also praised Bimmerman and Morgan and reprimanded Byers for questioning his judgment in
front of other employees.
On February 27, 1996, Brown and Daume called a meeting with Byers to inform him that
his employment was terminated. Yvonne Morgan, who is white, assumed most of Byers’s job
responsibilities after the termination. On or about December 16, 1996, Gary J. Wierzbicki, who is
white, filled the position of General Accounting Manager. On or about May 23, 1996, Byers filed
a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”),
claiming he was the victim of discrimination based on his race and retaliation based on his prior
complaints of race discrimination, in violation of Title VII. On May 14, 1997, after receiving his
right to sue letter from the EEOC, Byers filed suit in federal district court. Byers’s First Amended
Complaint was filed with this Court on January 16, 1998. Defendant’s Motion for Summary
Judgment, which the district court granted, was filed with this Court on October 16, 1998.
STANDARD OF REVIEW
Courts of Appeals review summary judgments de novo, applying the same standard as the
district courts. Fed.R.Civ.P. 56. The moving party is entitled to judgment as a matter of law
when the pleadings, answers to interrogatories, admissions and affidavits on file indicate no
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genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 2552, 91 L.Ed.2d 265, 273 (1986). If the burden at trial rests on the non-movant, the
movant must merely demonstrate an absence of evidentiary support in the record for the non-
movant’s case. See id.
This Court will consider the evidence in the light most favorable to the non-movant, yet
the non-movant may not rely on mere allegations in the pleadings; rather, the non-movant must
respond to the motion for summary judgment by setting forth particular facts indicating that there
is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). After the non-movant has been given the opportunity to raise a
genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment
will be granted. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c).
ANALYSIS
A. Procedural Claims
1. Statute of Limitations for Title VII and § 1981
Under 42 U.S.C. § 2000e-5(e)(1), for causes of action in which the aggrieved party has
“initially instituted proceedings with a State or local agency with authority to grant or seek relief,”
an EEOC Charge must be filed “within three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1) For Title VII claims based on an employee’s
termination, the 300-day statute of limitations period for filing a discrimination charge with the
EEOC begins to run at the time of termination, which is viewed as a discrete act of discrimination.
See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).
Byers was terminated from his position with TDMN on February 27, 1996. He filed his EEOC
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charge on May 23, 1996, safely within the 300-day period allowed by law. Accordingly, Byers’s
claims of discrimination and retaliatory discharge in violation of VII are not barred under that
law’s statue of limitations.
Under Texas law, § 1981 claims are subject to a two-year statute of limitations period.
See National Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F3d 698,
713 n. 22. As discussed above, Byers’s claims of discrimination and retaliation are based on his
termination from TDMN on February 27, 1996. This lawsuit was filed on May 14, 1997, safely
within the two-year period provided by law.
2. Exhaustion of Administrative Remedies
In his EEOC Charge, Byers expressly states that his “Personal Harm” was that he “was
discharged from [his] position as General Accounting Manager on February 27, 1996.” In
Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Byers clearly limits his Title
VII claims to discrimination and retaliation based on his allegedly wrongful discharge from
TDMN. Thus, there is no conflict between the matters alleged in Plaintiff’s EEOC Charge and
those alleged in his First Amended Complaint, filed with the district court on January 16, 1998.
Accordingly, Byers has exhausted his administrative remedies, and this Court need not dismiss
certain of Byers’s Title VII claims because they were not included in the EEOC charge.
3. Existence of an Employment Contract
In its Motion for Summary Judgment and Brief in Support, TDMN argues that Byers’s §
1981 claims should be dismissed because (1) Byers’s at-will employment status prevents him from
asserting a claim which relies on an underlying employment contract, and (2) Byers has failed to
8
plead the existence of such an employment contract.2 To sustain a claim under § 1981 in this
case, Byers must base his allegations on an underlying, enforceable employment contract. 42
U.S.C. § 1981. In Paniagua v. City of Galveston, Texas, this Court ruled that at-will employees
in Texas have an employment contract with their employers, simply one which may be terminated
at will. See Paniagua v. City of Galveston, Texas, 995 F2d 1310, 1313 (5th Cir. 1993). This
Court finds that Byers’s employment-at-will status does not, taken alone, bar his § 1981 claim.
Now we address the assertion that Byers’s § 1981 claim must fail because of an alleged
insufficiency in the pleadings, namely that Plaintiff did not plead a contractual relationship in his
initial or amended complaint. First, Motions for Summary Judgment are decided on the pleadings
and on the summary judgment evidence, including affidavits, depositions, and admissions. See
Celotex, 477 U.S. at 324. Furthermore, courts are to construe summary judgment evidence in the
light most favorable to the non-moving party. See Walker v. Sears, Roebuck & Co., 853 F.2d
355, 358 (5th Cir. 1988). Second, given the liberal pleading requirements of Federal Rule of Civil
Procedure 8(a), Byers has pled sufficiently specific facts in his Complaint to establish evidence of
an employment contract. See Fed.R.Civ.P. 8(a). (requiring a pleading to contain “a short and
plain statement of the claim showing that the pleader is entitled to relief”). Byers’s Original
Complaint states that “Byers was hired by TDMN as a financial analysis around or about February
13, 1985. Around or about February, 1988, Byers was promoted to general accounting
manager.” This language is sufficient to establish the existence of an employment contract
2
Under § 1981, “[a]ll persons . . .shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white citizens . . .[f]or purposes of this section,
the term ‘make and enforce contracts’ includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1981.
9
between Byers and TDMN. Accordingly, this Court refuses to dismiss Plaintiff’s § 1981 claims
based on an alleged failure to sufficiently plead the existence of an employment contract.
B. Substantive Claims
1. Race Discrimination Claims
Under Title VII, “[i]t shall be an unlawful employment practice for an employer (1) . . . to
discharge any individual . . . because of such individual’s race . . . .” 42 U.S.C. §2000e-2(a). An
employer’s decision to terminate an individual’s employment violates Title VII when that decision
was based on race, whether that race be white or black. See McDonald v. Santa Fe Transp. Co.,
427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed. 2d 493 (19760). This Court will apply, absent direct
evidence of discrimination based on race, the basic framework that the Supreme Court articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36
L.Ed.2d 668 (1973). Under that framework, the plaintiff must establish a prima facie case of
discrimination. See id. at 802. If the plaintiff succeeds in showing a prima facie case, the
defendant must then provide some legitimate, non-discriminatory reason for the employee’s
rejection. See id. Lastly, if the employer gives a legitimate, non-discriminatory reason for the
employment action, the plaintiff must then prove, by a preponderance of the evidence, that the
proffered reason was mere pretext for discrimination. See Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215 (1981).
Byers fails to establish a prima facie case of reverse discrimination based on his race. To
establish a prima facie case, Byers must establish: (1) that he is a member of a protected group;
(2) that he was qualified for the position held; (3) that he was discharged from the position; and
(4) that he was replaced by someone outside of the protected group. See Singh v. Shoney’s, Inc.,
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64 F.3d 217, 219 (5th Cir. 1995). Byers has indisputably satisfied the second and third prongs of
the prima facie case analysis because he was terminated from TDMN and qualified for his
position as General Accounting Manager. Whether Byers meets the remaining requirements is a
matter of dispute between the parties.
With regard to the first prong, TDMN argues that Byers fails to satisfy it because he was
not part of a racial minority at his place of work. TDMN observes that throughout Byers’s
employment, the majority of employees at TDMN, the majority of directors or managers in
Byers’s level, the majority of employees in Byers’s job grade, and the majority of the senior
managers in Byers’s peer group in the Accounting Depart were white. The parties disagree over
the required showing under this first prong. Some Fifth Circuit cases require that a plaintiff be a
member of a “racial minority within the company.” Switzer v. Texas Commerce Bank, 850
F.Supp. 544, 547 (N.D.Tex. 1994), aff’d without opinion, 42 F.3d 642 (5th Cir. 1994); Flanagan
v. Aaron E. Henry Community Health Serv. Ctr., 876 F.2d 1231, 1233 (5th Cir. 1989). Other
cases require only that the plaintiff be a member of “a protected group,” meaning a group
protected under Title VII. Singh, 64 F.3d at 219; Allison v. Gulf Employees Credit Union, 836
F.Supp. 395, 397 (E.D.Tex. 1993), aff’d mem., 32 F.3d 565 (5th Cir. 1994). This Court finds that
Singh marks a retreat from the “racial minority” requirement to the “protected group”
requirement for cases of reverse discrimination. Accordingly, we hold that the fact that Byers was
not a racial minority in his workplace does not prevent him from making a prima facie case of
reverse discrimination under Title VII.
As for the fourth prong, TDMN asserts that Byers cannot establish a prima facie case of
discrimination based on race because he was replaced by someone outside of his protected class.
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Yvonne Morgan, who is white, assumed Byers’s responsibilities upon his termination on February
27, 1996. Gary J. Wierzbicki, who is also white, eventually filled Byers’s position of General
Accounting Manager. In Singh, the plaintiff, a white woman, “failed to make out a prima facie
case of race discrimination on this record, because she was replaced by a white female.” Singh,
64 F.3d at 219. TDMN relies on Singh to support its contention that Byers cannot establish a
prima facie case because he was replaced by other white individuals.
In response, Byers directs this Court’s attention to a more recent holding in Nieto v. L &
H Packing Co., which criticizes the district court for holding that Nieto failed to establish a prima
facie case of discrimination because his position was immediately filled by a member of the same
protected class. See Nieto v. L & H Packing Co., 108 F.3d 621, 624 n. 7 (5th Cir. 1997). Byers
also observes that this Court’s opinion in Nieto criticizes the Singh opinion for ignoring earlier
precedent finding that replacement by someone within one’s protected group “does not negate the
possibility that the discharge was motivated [by] discriminatory reasons.” See id. (citing Hornsby
v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985) (quoting Byrd v. Roadway Express, Inc.,
687 F.2d 85, 86 (5th Cir. 1982)).
This Court finds Byers’s argument unavailing. In Hornsby v. Conoco, Inc., this Court
“affirmed the district court’s dismissal, however, because Hornsby failed to offer any evidence
other than her subjective belief – essentially the same evidence offered with respect to her other
charges – that she was terminated because of her sex.” Hornsby, 777 F.2d at 247. In Hornsby,
this Court disagrees with the district court’s decision to automatically dismiss Hornsby’s case
because she was replaced by another woman, but ultimately affirms the district court’s decision
based on an absence of additional evidence demonstrating discriminatory intent on the part of the
12
employer. Like Hornsby, Byers has failed to produce any direct evidence of discriminatory intent
by Brown or TDMN or sufficient evidence indirectly demonstrating discriminatory intent.3
Instead, Byers urges this Court to rely on his subjective belief that Brown discriminated against
him because he was white. This Court will not do so.
Byers’s argument also fails because he stretches the Nieto holding too far. In footnote 7
of its opinion in Nieto, this Court cautions district courts against applying the four-part, prima
facie case test too mechanically: “While the fact that one’s replacement is of another national
origin ‘may help to raise an inference of discrimination, it is neither a sufficient nor a necessary
condition.’ Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).” Nieto, 108 F.3d
at 624 n. 7. The Nieto opinion appears to allow courts to find a prima facie case even where an
employee has been replaced by someone of the same race. However, Byers incorrectly expands
this holding into a presumption that replacement by someone within one’s protected class is
irrelevant. As this court stated in Nieto, “While not outcome determinative, this fact is certainly
material to the question of discriminatory intent.” Id. at 624. (quotations omitted). In fact, the
plaintiff in Nieto did not present, even under an expansive understanding of the fourth prong,
sufficient evidence to convince this Court that his national origin was a motivating factor in his
employer’s decision to terminate him.
Accordingly, this Court need not proceed to the second and third prongs of analysis under
the McDonnell Douglas framework because we find that Byers fails to establish a prima facie
case of race discrimination under Title VII. We AFFIRM the district court’s granting of summary
3
For example, Byers cannot provide sufficient evidence of disparate treatment with respect to
similarly situated non-white employees.
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judgment as to Byers’s claims under both Title VII and § 1981 of discrimination based on race.
2. Retaliation Claims
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. See Long v. Eastfield
College, 88 F.3d 300, 304 (5th Cir. 1996); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116
(5th Cir. 1983). Therefore, Byers must first establish a prima facie case of unlawful retaliation.
Second, TDMN will have an opportunity to articulate a legitimate, non-discriminatory reason for
the adverse employment action. Finally, the burden falls on Byers to show that TDMN’s
explanation is a pretext for unlawful retaliation. See Long, at 304-305.
Byers fails to establish a prima facie case of retaliation under Title VII. To establish a
prima facie case, Byers must show: (1) that he engaged in activity protected by Title VII; (2) that
he suffered an adverse employment action; and (3) that a causal connection exists between the
protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery
Assoc., 139 F.3d 532, 540 (5th Cir. 1998). Byers cannot sustain this initial, prima facie burden
because he has not demonstrated that he engaged in activity protect under Title VII.
Under Title VII, an employee has engaged in protected activity if he or she has (1)
“opposed any practice made an unlawful employment practice by this subchapter,” or (2) “made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added). In the instant case,
the “participation clause” is irrelevant because Byers’s did not file a charge with the EEOC until
after the alleged retaliatory discharge took place. To satisfy the “opposition clause,” Byers need
not prove that TDMN’s practices were actually unlawful, but only that he had “a reasonably belief
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that the employer was engaged in unlawful employment practices.” Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981), cert denied 455 U.S. 1000, 102
S.Ct. 1630, 71 L.Ed.2d 866 (1982) (emphasis added); see also Harvey v. Chevron USA, Inc., 961
F.Supp. 1017, 1032 (S.D. Tex. 1997) (holding that a showing of subjective good faith alone is
insufficient).
This Court finds that Byers’s belief that Brown was discriminating against him based on
race in violation of Title VII was objectively unreasonable. Byers has produced evidence that he
alleges demonstrates that on at least four occasions he opposed acts of racial discrimination
committed by Brown. First, Byers refers to the time when he told Brown, and Mark Rapier, in
Human Resources, that he believed TDMN employees Ann Self and Loira Baker were being
treated differently because of their race. More specifically, Byers complained that Ann Self, who
is white, had been discharged and given termination papers, while Brown had sought to promote
Loira Baker, who is black. Plaintiff claims that Self and Baker held similar positions in TDMN
and had made similar errors in their work. However, the evidence shows that Self was never
discharged but was instead rehired into another position in her department and that Byers was
aware of this detail at the time that he made his complaint. In addition, evidence shows that
Brown’s reason for refusing to fire Baker was that he believed the Accounts Payable Department
had some systemic problems which he wanted to take a look at before blaming individual
employees, and this was communicated to Byers. A subsequent review of the Department
disclosed a confusing set of guidelines preventing employees from correctly processing work.
This Court finds that Byers’s belief that Brown’s decision to retain Loira Baker was evidence of
race discrimination was objectively unreasonable.
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Second, Byers mentions that he complained to Brown, Rapier and Ellen Wilson after
receiving mediocre ratings on his August 1993 performance appraisal. In particular, Byers alleges
that Brown had given extraordinary weight to subjective criteria, such as Byers’s job knowledge,
dependability, timeliness, judgment, communication skills and working relationships. While
admitting that there is nothing wrong with Brown using these subjective criteria, Byers claims that
Brown used a double standard for his white mangers as compared to his black managers.
However, Byers also admitted that there were no black managers who reported to Brown, and
Mr. Coleman, another white employee who reported to Brown, expressly stated that he received
good reviews from Brown. In fact, no evidence has been presented indicating why Brown’s
decision to give consideration to subjective criteria would constitute race discrimination, nor has
any evidence been presented showing that other, non-white employees were treated differently.
Furthermore, the evidence does show that prior to this August 1993 appraisal, Byers had failed to
perform a high priority task assigned to him by Brown. It is not objectively reasonable to leap
from an observation that one’s communication skills and working relationships are being
evaluated to the conclusion that race discrimination is the underlying explanation.
Third, Byers complains that he told Brown that he believed he was singled out because of
his race with regard to Brown’s application of TDMN’s sick leave policy. Here, Byers’ belief that
Brown was discriminating based on race is unreasonable for two reasons. First, the evidence
shows that the day after Brown recorded “sick leave” on Byers’s time card for the half-day of
work he had missed, Brown e-mailed Byers to say that he had subsequently learned that he had
wrongly applied TDMN’s sick leave policy. Second, there is no evidence showing that Brown
treated similarly situated, non-white employees any differently with regard to application of
16
TDMN’s sick leave policy. Byers claims that Madeline Norris, who is black, was allowed to
work out of her home, and that Elaine Kidd, who is black, took two days off without reporting it.
However, the evidence presented shows that Norris had received prior authorization to work
from home due to back problems, while Byers had never received prior authorization. The
evidence further shows that Kidd reported directly to Byers and not to Brown and that Byers was
unaware of how her leave issue was resolved.
Fourth, Byers alleges that he told Brown’s supervisor, Bill Cox, that he was being
discriminated against because of his race when Brown blamed Byers for a breakdown in the
capital appropriation procedures. On or around February 1995, the auditor of TDMN discovered
a breakdown in the process utilized for certain capitalization appropriations: instead of being
routed to officers of TDMN and Belo Corporation for review and signature prior to review by
Byers, certain appropriations were being forwarded from Brown’s secretary directly to Byers.
When the error was detected, Brown sent Cox a memo explaining what had happened and noting
that Byers should have caught the missing signatures but thought someone else was checking for
such approvals. Byers then complained to Brown that he should send out an amended memo
because Brown was also at fault and should share the blame. Brown admitted his responsibility
and apologized to Byers, but refused to send out another memo. On March 17, 1995, Byers sent
a memo to Cox stating that Brown’s earlier memo was “another example of his vicious attack on
my professional character due to his personal dislike for my race.” After a discussion with
Brown, Cox concluded that Byers’s allegations of racial animus were baseless. While this last
incident provides the clearest example of Byers reporting to others that Brown was engaged in
race discrimination, there is no evidence showing that Byers’s complaints were objectively
17
reasonable.
Even viewing the evidence in the light most favorable to Byers, the non-moving party, this
Court holds that the district court was correct in finding that Byers failed to present sufficient
evidence showing that his alleged complaints of Brown’s race discrimination were objectively
reasonable. The summary judgment evidence instead shows that Byers’s complaints were
objectively unreasonable.
Accordingly, this Court finds that the opposition clause requirements have not been
satisfied and that Byers had failed to establish a prima facie case of unlawful retaliation.
Therefore, this Court need not proceed to the second and third prongs of the McDonnell Douglas
framework. We AFFIRM the district court’s granting of summary judgment as to Byers’s
retaliation claims under both Title VII and § 1981.
3. Award of Costs Other than Attorneys’ Fees
On January 7, 1999, the district court issued its Memorandum Opinion and Order granting
Defendant’s Motion for Summary Judgment in its entirety, finding that Byers had not established
a prima facie case of either racial discrimination or retaliation, and dismissing each of Byers’s
claims. As required under Federal Rule of Civil Procedure 58, this Court set forth its judgment on
a separate sheet of paper, which was also signed and entered on January 7, 1999. See
Fed.R.Civ.P. 58. In that judgment, the district court explained that the case was dismissed with
prejudice and that “[e]ach party shall bear its own costs.” This “Final Judgment” was incorrectly
dated January 7, 1998. On February 19, 1999, Defendant filed its Motion to Modify Final
Judgment to Award Costs and Correct Clerical Error, pursuant to Rules 60(a) and (b) of the
Federal Rules of Civil Procedure. See Fed.R.Civ.P. 60(a) and (b). Byers’s Response was filed on
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March 10, 1999.
In its Request for Leave to Consider 60(b) Motion, the district court found that its initial
decision to award costs to the party incurring them was made in error and asserted its desire to
correct the mistake. However, at the time of this Request for Leave, both parties had already
filed their Notices of Appeal with this Court, and the district court no longer had jurisdiction over
the case. The district court stated that if it had jurisdiction it would issue an order modifying its
previous “Final Judgment” to award costs to the Defendant, pursuant to Federal Rule of
Procedure 60(b), which allows courts to modify their judgments, upon motion, because of an
earlier mistake.
On April 8, 1999, this Court remanded the instant case back to the district court, thereby
granting its March 19, 1999 request for leave to consider the Rule 60(b) motion. The district
court then decided to grant TDMN’s motion, awarding TDMN costs other than attorneys’ fees.
On appeal, Byers contends that the district court erred in awarding costs to the prevailing party
and requests that this Court order that each party bear its own costs. Byers maintains that the
district court should not have awarded costs to TDMN absent a finding that his claims were
frivolous, unreasonable, without foundation, or filed in bad faith. In support, Byers relies
primarily on Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
We hold that the district court correctly awarded costs to TDMN. Federal Rule of Civil
Procedure 54 governs the award of costs in cases brought in federal court: “[e]xcept when
express provision therefore is made either in a statute of the United States or in these rules, costs
other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court
otherwise directs.” Fed.R.Civ.P. 54. Title VII does not expressly provide otherwise, and the
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standard procedure is to award costs to the prevailing party in Title VII suits. The “prevailing
party” standard for awarding costs under Rule 54(d)(1) is less stringent than the prevailing party
test for awarding attorney’s fees under Title VII. Furthermore, this Court has held that the
Christianburg standard for determining whether a defendant is a prevailing party under Title VII
does not apply to an award of costs. Lewis v. NLRB, 750 F.2d 1266, 1279, reh’g denied, 756
F.2d 882 (5th Cir. 1985).
Accordingly, we find that the district court correctly awarded costs other than attorneys’
fees to TDMN as the prevailing party.
CONCLUSION
First, we AFFIRM the district court’s procedural rulings that Byers’s claims are not barred
on the grounds of an alleged failure to meet limitations requirements, exhaust administrative
remedies, or establish the existence of an employment contract. Second, we AFFIRM the district
court’s granting of summary judgment, holding that Byers has failed to establish a prima facie
case of either racial discrimination or retaliation under Title VII and § 1981, and dismissing each
of the claims with prejudice. Finally, we AFFIRM the district court’s award of costs other than
attorneys’ fees to TDMN as the prevailing party.