Celestine v. Petroleos De Venezuella SA

REVISED OCTOBER 5, 2001

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-30171

AUDREY T. CELESTINE, WILTON GUILLORY; ANGEL ANN
LEBLANC; EDWINA M. HARRIS; PATRICIA A. PITRE; ET AL.,

Plaintiffs-Appellants,

and

HILLERY RANDELL; JONATHAN ANDERSON,

Movants-Appellants,

and

LEO REEDER; RUSSELL METOYER; DANIEL L. COX, SR.,

Intervenors-Plaintiffs-Appellants,

VERSUS

PETROLEOS DE VENEZUELLA SA; ET AL.,

Defendants,

CITGO PETROLEUM CORP.,

Defendant-Appellee.

Appeal from the United States District Court
For the Western District of Louisiana
September 18, 2001
Before JONES, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

This case concerns allegations of workplace racism directed at

African Americans at the CITGO Petroleum Corporation’s (“CITGO”)

Lake Charles, Louisiana plant. After the district court denied

class certification, the appellants proceeded forward with the

action as a series of individual claims. The district court

subsequently granted summary motion in favor of the defendant CITGO

on these claims. Plaintiffs now appeal from this grant by the

district court.

BACKGROUND

On May 21, 1993, two hundred and six plaintiffs filed suit

against CITGO alleging that a pattern and practice of racial

discrimination existed in CITGO’s hiring, promotions and training

at its Lake Charles plant. These plaintiffs also brought Title VII

hostile work environment claims. In September 1993, the plaintiffs

filed a motion for the certification of a class estimated to

contain more than 1,000 potential members. All of the members of

the proposed class were either African American employees, both

current and former, or unsuccessful applicants for employment at

CITGO’s sprawling Lake Charles complex. The district court

referred the case to a magistrate judge for consideration of the

class certification issue.

2
 Following a hearing, the magistrate judge informed the parties

that he was considering recommending to the district court a sua

sponte grant of summary judgment to CITGO on the “hostile work

environment” claims, and invited the plaintiffs to submit summary

judgment evidence supporting their position. In total, forty-four

plaintiffs came forward with evidence indicating the existence of

a hostile work environment. The magistrate examined the summary

judgment evidence offered by each of these forty-four individual

plaintiffs and concluded that no reasonable trier of fact could

find that the plaintiffs had established that there was

intentional, pervasive, and regular racial discrimination of which

CITGO’s supervisors and management were aware and which CITGO

permitted to continue. The magistrate judge therefore recommended

that summary judgment be granted to CITGO on all forty-four of

these hostile work environment claims. On July 12, 1996, the

district court accepted the magistrate judge’s recommendation and

granted summary judgment to CITGO on these claims.

During this same period, the magistrate judge recommended the

denial of class certification on the Title VII racial

discrimination for failure to hire, promote and train claims. The

district court again accepted the magistrate judge’s report, and

denied class certification. The plaintiffs filed an interlocutory

appeal to this Court, which affirmed the district court’s denial of

class certification. Allison v. CITGO Petroleum Corp., 151 F.3d

3
402, 426 (5th Cir. 1998). On October 2, 1998, this Court denied

the appellants’ motion for rehearing en banc on the class

certification issue.

With class certification denied, this case proceeded forward

as a series of individual claims. The claims of the three

plaintiffs who worked in the refinery lab were consolidated,

pursuant to Federal Rule of Civil Procedure 42(a). The refinery

lab discrimination case was tried to a jury on October 18-20, 1999,

and the jury returned a verdict in favor of defendant CITGO.

A second group of thirty-six failure to promote and train

racial discrimination claims was also consolidated, with this group

containing the claims of the refinery maintenance workers. CITGO

filed a motion for partial summary judgment on the issue of

temporal scope, asserting that the continuing violation doctrine,

a device which would allow incidents of racial discrimination from

outside the relevant time period to be considered, did not apply.

On January 3, 2000, the appellants filed their opposition to this

motion.

CITGO filed a second motion for summary judgment on December

28, 1999, this time seeking outright summary judgment on each of

the thirty-six refinery maintenance workers’ failure to promote and

train claims. On January 11, 2000, the district court granted both

of CITGO’s motions for summary judgment, ruling that the continuing

violation doctrine was inapplicable and granting summary judgment

4
on each of the failure to promote and hire discrimination claims.

These African American CITGO employee plaintiffs now appeal

both the July 1996 grant of summary judgment on their hostile work

environment claims and the January 2000 grant of summary judgment

on their failure to promote and train claims. The October 1999

jury verdict in the refinery lab failure to promote and train case

is not appealed.

DISCUSSION

Standard of review

A grant of summary judgment is reviewed de novo. Hanks v.

Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).

The party seeking summary judgment carries the burden of

demonstrating that there is an absence of evidence to support the

nonmoving party’s case. Celotex v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2554 (1986). After a proper motion for summary

judgment has been made, a nonmovant must bring forward sufficient

evidence to demonstrate that a genuine issue of material fact

exists for every element of a claim. Fontenot v. Upjohn Co., 780

F.2d 1190, 1196 (5th Cir. 1986). For summary judgment purposes,

all evidence produced by the nonmovant is taken as true and all

inferences are drawn in the nonmovant’s favor. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1578, 1609-10 (1970);

Pitts v. Shell Oil Co., 463 F.2d 331, 335 (5th Cir. 1972). This

Court reviews the evidentiary rulings of the district court “only

5
for abuse of discretion.” EEOC v. Manville Sales Corp., 27 F.3d

1089, 1092-93 (5th Cir. 1994).

The granting of summary judgment for CITGO under Federal Rule of
Civil Procedure 56(c)

Appellants object to the district court’s January 11, 2000,

grant of summary judgment on the failure to promote and train

claims because they were not allotted the full ten days provided by

Fed.R.Civ.P. 56(c) to respond to CITGO’s motion for summary

judgment.

CITGO filed a motion for summary judgment on December 28,

1999, seeking summary judgment on each of the thirty-six refinery

maintenance workers’ failure to promote and train claims. On

December 29, 1999, the district court advised the appellants that

their response to CITGO’s motion for summary judgment was due

within 15 days after service, and that due to the fast-encroaching

trial scheduled for February 28, 2000, no extensions would be

given. On January 11, 2000, appellants counsel filed a motion for

an extension of time to respond to CITGO’s motion for summary

judgment seeking to extend the deadline until January 31, 2000.

The district court immediately responded by issuing an order

denying the request for an extension of time to respond. That same

day, January 11, the district court granted CITGO’s motion for

summary judgment on the failure to promote and train claims.

6
 As computed under Fed.R.Civ.P. 6(a),1 there were not the

requisite ten days provided by Fed.R.Civ.P. 56(c) between the

filing of the motion for summary judgment on December 28, 1999, and

the district court’s grant of summary judgment on January 11, 2000.

For this reason, the appellants urge that the January 11, 2000,

grant of summary judgment be reversed.

This court has repeatedly explained that strict enforcement of

the ten day notice requirement of Rule 56(c) is necessary because

summary judgment is a final adjudication on the merits. See, e.g.,

Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988);

Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979). This Court

has reasoned that because “a summary judgment forecloses any future

litigation of a case, the district court must give proper notice to

insure that the nonmoving party had the opportunity to make every

possible factual and legal argument.” Powell, 849 F.2d at 1579.

However, it is also possible for the district court’s denial

of this ten day period to be harmless error: “It appears clear that

error in notice is harmless if the nonmoving party admits that he

has no additional evidence anyway or if . . . the appellate court

evaluates all of the nonmoving party’s additional evidence and

finds no genuine issue of material fact.” Powell, 849 F.2d at

1
Rule 6(a) reads in relevant part that “[w]hen the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.”

7
1581. The appellants do not point to any new evidence which they

would have included in their response to CITGO’s motion for summary

judgment had they been allowed to respond on January 12 or 14,

2000, as they urge. In the absence of any new evidence which would

have been presented to the district court if appellants had been

allowed a full ten days to respond, the district court’s error was

harmless.

The temporal scope of this action, for both the hostile work
environment and racial discrimination claims

The district court concluded that the relevant time period for

this lawsuit was April 29, 1992, to May 24, 1994. This time frame

applied to both the appellants’ hostile work environment and

failure to promote and train claims. Having defined the temporal

scope of the lawsuit, the district court refused to look at

incidents falling outside this period.

The method utilized by the district court in calculating this

time period was clear and correct. As noted by the district court,

the first EEOC charges lodged in this case were filed by Charlet

McCain on October 26, 1992. A Title VII plaintiff must file a

charge of discrimination with the EEOC no more than 180 days after

the alleged discriminatory employment occurred. 42 U.S.C. § 2000e-

5(e)(1). In “deferral states” this filing period is extended to

300 days if there is also a discrimination claim based on state

law. However, it is undisputed that at the time the initial EEOC

charges were filed in this case Louisiana was not a deferral state,

8
and therefore the 180 filing period, rather than the 300 day

period, applied. The district court was thus right to look at

April 29, 1992, the date 180 days prior to the filing of the first

Title VII claim, as the earliest date on which an incident of

discrimination could be considered in this case.

Similarly, the “closing date” for this action of May 24, 1994,

was also arrived at by looking at the dates on which EEOC charges

were filed. May 24, 1994, was the date on which the last EEOC

claim was filed against CITGO’s Lake Charles facility. The

appellants did not attempt to amend their complaint or supplement

their responses to interrogatories to include evidence of

discriminatory acts occurring after this date. Therefore, the

district court was acting within its discretion when it decided to

exclude all evidence of discriminatory acts occurring after May 24,

1994. Scott v. Univ. of Miss., 148 F.3d 493, 513 (5th Cir. 1998),

overruled on other grounds, Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 120 S.Ct. 631 (2000) (excluding evidence of post-charge

discrimination which was not included in an amended complaint);

Info. Res. Inc. v. United States, 996 F.2d 780, 785 (5th Cir. 1993)

(holding that the district court did not abuse its discretion in

excluding a post-charge claim where the plaintiff delayed

supplementing discovery responses to include the claim until

shortly before trial). Thus, only incidents occurring between

April 29, 1992, and May 24, 1994, need be considered in this

9
multiple plaintiff, non-class action lawsuit. Cf. Crawford v.

United States Steel Corp., 660 F.2d 663, 665 (5th Cir. 1981)

(holding that if one plaintiff has filed an EEOC charge, then co-

plaintiffs with individual claims arising out of similar

discriminatory treatment in the same time frame need not have

satisfied the filing requirement to join the Title VII suit).

Despite the limited temporal scope established by the district

court, the appellants have attempted to introduce acts of alleged

discrimination dating from the mid-1970s to the mid-1990s. The

appellants attempt to introduce these long-past incidents under the

“continuing violation” doctrine, which has been endorsed for use by

this court under limited circumstances. The continuing violation

theory relieves a plaintiff of establishing that all of the

complained-of conduct occurred within the actionable period if the

plaintiff can show a series of related acts, one or more of which

falls within the limitations period. Messer v. Meno, 130 F.3d 130,

135 (5th Cir. 1997). The continuing violation doctrine is designed

to “accommodate plaintiffs who can show that there has been a

pattern or policy of discrimination continuing from outside the

limitations period into the statutory limitations period, so that

all discriminatory acts committed as part of this pattern or policy

can be considered timely.” Hardin v. S.C. Johnson & Son, Inc., 167

F.3d 340, 344 (7th Cir. 1999).

Although there is no definitive standard for what constitutes

10
a continuing violation, the plaintiff seeking to invoke this

doctrine must demonstrate more than a series of discrete

discriminatory acts: “He must show an organized scheme leading to

and including a present violation, such that it is the cumulative

effect of the discriminatory practice, rather than any discrete

occurrence, that gives rise to the cause of action.” Huckabay v.

Moore, 142 F.3d 233, 239 (5th Cir. 1998) (citations omitted). This

court has identified at least three factors that may be considered

in determining if a continuing violation exists: (1) Do the alleged

acts involve the same type of discrimination, tending to connect

them in a continuing violation? (2) Are the alleged acts recurring

or more in the nature of an isolated work assignment or incident?

(3) Does the act have the degree of permanence which should trigger

an employee’s awareness of and duty to assert his or her rights?

Huckabay, 142 F.3d at 239.

Appellants seek to apply the continuing violation theory to

both their hostile work environment and failure to promote and

train claims. This would allow the appellants to introduce

evidence of approximately 80 incidents of alleged racial

discrimination that occurred prior to the time period designated by

the district court for this lawsuit.

The district court was entirely correct in refusing to apply

the continuing violation theory to the appellants’ racial

discrimination for failure to promote and train claims. This

11
court’s decision in Huckabay makes clear that a one-time employment

event, including the failure to hire, promote, or train and dismals

or demotions, is “the sort of discrete and salient event that

should put the employee on notice that a cause of action has

accrued.” Huckabay, 142 F.3d at 240. These “discrete adverse

actions, although racially motivated, cannot be lumped together

with the day-to-day pattern of racial harassment” and therefore, if

otherwise untimely, cannot be saved by the continuing violation

doctrine. Id. An employee who claims to be the victim of a

racially motivated failure to promote or train is put on notice

that his rights have been violated at the time the adverse

employment decision occurs, and must therefore bring the claim

within 180 days of the adverse decision.

The appellants’ hostile work environment claims are

potentially more compatible with the continuing violation doctrine.

However, the continuing violation doctrine does not automatically

attach in hostile work environment cases, and the burden remains on

the employee to demonstrate an organized scheme led to and included

the present violation. Huckabay, 142 F.3d at 239; Berry v. Bd. of

Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). In addition, “the

continuing violation theory requires the same type of

discriminatory acts to occur both inside and outside the

limitations period,” such that a valid connection exists between

them. Martineau v. ARCO Chem. Co., 203 F.3d 904, 913 (5th Cir.

12
2000). Finally, “where a pattern of harassment spreads out over

years, and it is evident long before the plaintiff sues that she

was a victim of actionable harassment, she can not reach back and

base her suit on conduct that occurred outside the statute of

limitations.” Hardin, 167 F.3d at 344; see also Webb v.

Cardiothorasic Surgery Assocs., 139 F.3d 532, 537 (5th Cir. 1998)

(explaining that, under the continuing violation doctrine, the

plaintiff still must show a series of acts, one or more of which

fall within the limitations period).

Given these various restrictions on use of the continuing

violation doctrine, the burden is upon each of the appellants2 to

offer evidence that they suffered race-base harassment both prior

and during the filing period, that the incidents of harassment were

related, and that the harassment was pursuant to an organized

scheme. Huckabay, 142 F.3d at 238; Berry, 715 F.2d at 981. The

appellants fail to carry this burden for each of their claims. The

appellants neglect the fact that they are before this Court as

individual plaintiffs rather than as members of a class. Rather

than describing each individual appellant’s hostile work

environment and explaining why application of the continuing

violation doctrine would be appropriate for each appellant’s claim,

the appellants paint with wide brush strokes, making broad

2
Contrary to the appellants’ assertions, the burden is
upon them to establish that the continuing violation doctrine
applies. Webb, 139 F.3d at 537.

13
generalizations about the working conditions at CITGO over the last

three decades. The appellants apparently want the continuing

violation doctrine applied on a (non-existent) class-wide basis,

rather than on a claim-by-claim basis. In no instance do the

appellants take an individual hostile work environment claim and

cite examples of racial harassment during the 180 day period,

correlate this to similar racial incidents prior to the filing

period, and identify a organized scheme underlying this harassment.

It is apparent from the district court’s grant of summary judgment

and the appellee’s brief that many of the appellants fail to

identify any acts of alleged racial harassment at all during the

limitations period. No appellant claims to have been the victim of

severe and pervasive harassment during the limitations period, and

no appellant identifies any organized scheme underlying the alleged

harassment.

Because the appellants have failed to carry their burden in

attempting to invoke the continuing violation doctrine, the

district court did not err in refusing to consider alleged acts of

harassment that occurred prior to April 29, 1992.

Appellants’ hostile work environment claims

Appellants argue that they each established a prima facie case

of a hostile work environment. A prima facie case of racial

harassment alleging hostile work environment normally consists of

five elements: (1) the employee belongs to a protected group; (2)

14
the employee was subjected to unwelcome harassment; (3) the

harassment complained of was based on race; (4) the harassment

complained of affected a term condition or privilege of employment;

(5) the employer knew or should have known of the harassment in

question and failed to take prompt remedial action. Watts v.

Kroger Co., 170 F.3d 505, 509-10 (5th Cir. 1999); Jones v. Flagship

Int’l, 793 F.2d 714, 719-720 (5th Cir. 1986). For harassment to

affect a “term, condition, or privilege of employment” it must be

“sufficiently severe or pervasive so as to alter the conditions of

employment and create an abusive working environment.” Watts, 170

F.3d at 509.

However, this well-established five-part test has recently

undergone a revision, with the Supreme Court ruling that in Title

VII harassment cases, where the harassment is allegedly committed

by a supervisor with immediate (or successively higher) authority

over the harassment victim, the plaintiff employee needs to satisfy

only the first four of the elements listed above. Faragher v. City

of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2292-93 (1998).

Once the plaintiff makes the four-part showing that they have been

harassed by a supervisor, the “employer is subject to vicarious

liability to a victimized employee” for the supervisor’s conduct.3

3
An affirmative defense is available to employers in
certain circumstances under Faragher, provided that the
supervisor’s harassment did not culminate with any “tangible
employment action” against the employee. Faragher, 524 U.S. at
807.

15
Id.

The magistrate judge and the district court reviewed the

hostile work environment claims of forty-four individual appellants

and concluded that no reasonable fact finder could find that the

appellants had established that there was intentional, pervasive,

and regular racial discrimination of which CITGO’s supervisors and

management were aware and which CITGO permitted to continue. The

magistrate reviewed the individual hostile work environment claims

in detail, concluding that all of them failed to make out a prima

facie case because the alleged incidents took place outside of the

limitations period, the complained of incidents were not severe or

pervasive enough to constitute actionable racial harassment, or

that CITGO was not aware of the harassment.

The appellants correctly point out that the district court’s

1996 grant of summary judgment to CITGO on this set of hostile work

environment claims predates Faragher. While the district court

correctly applied the law as it stood at the time, it did not

anticipate Faragher. The district court did not take into account

that CITGO could be held vicariously liable for racial harassment

by its supervisors, even if it was not aware of this racial

harassment. However, a review of the record excerpts and briefs

reveals only eight incidents of alleged racial harassment involving

supervisory personnel during the relevant time period (between

April 29, 1992, and May 24, 1994). Of these instances involving

16
supervisory personnel, none can be said to be “sufficiently severe

or pervasive so as to alter the conditions of employment and create

an abusive working environment.” Watts, 170 F.3d at 509.

Aside from challenging the relevant time period defined by the

district court and invoking the new rule of Faragher, the

appellants offer no reason why the district court erred in finding

that the hostile work environment plaintiffs had failed to make out

their respective prima facie cases.

Appellants’ Title VII failure to promote and train claims

On January 11, 2000, the district court granted summary

judgment for CITGO and against 37 individual appellants claiming

that they were discriminated against by being denied promotions and

training because of their race in violation of Title VII. 42

U.S.C. §§ 2000e-2000e(17). Claiming that the district court

applied an erroneous legal standard by “pigeonholing” the

plaintiffs into the familiar burden-shifting framework of

McDonnell-Douglas and by forcing them to prove “better

qualifications” as part of their prima facie case, these plaintiffs

now appeal.

In order to overcome a motion for summary judgment on a Title

VII discrimination claim, the plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04, 93 S.Ct. 1817, 1824-26 (1973); Haynes v. Penzoil, 207 F.3d

17
296, 300 (5th Cir. 2000); Shackelford v. Deloitte & Touche, 190

F.3d 398, 404 (5th Cir. 1999). A prima facie case of

discrimination in a failure to promote or train case consists of

four elements: (1) the employee is a member of the protected class;

(2) he sought and was qualified for the position; (3) he was

rejected for the position; (4) the employer continued to seek

applicants with the plaintiff’s qualifications. Haynes, 207 F.3d

at 300. The prima facie case, once established, raises an

inference of intentional discrimination, and the burden of

production shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its actions. Id. If the defendant

satisfies this burden, the plaintiff must prove that the proffered

reasons are pretextual. Id. Once a Title VII claim reaches this

pretext stage, “the only question on summary judgment is whether

there is a conflict in substantial evidence to create a jury

question regarding discrimination.” Id.

A. The “pattern and practice” method of proof

The district court properly invoked and applied this McDonnell

Douglas burden-shifting scheme in analyzing the appellants’ claims

on summary judgment. Appellants, however, object to the

application of McDonnell Douglas, arguing instead that the “pattern

and practice” mode of proof for racial discrimination claims

recognized in Teamsters v. United States, 431 U.S. 324, 358-59, 97

S.Ct. 1843, 1866-67 (1977), should have been applied to their

18
claims. A pattern or practice case is not a separate and free-

standing cause of action (as the appellants assert), but is really

“merely another method by which disparate treatment can be shown.”

Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir. 1995).

The typical pattern or practice discrimination case is brought

either by the government or as a class action to establish “that

unlawful discrimination has been a regular procedure or policy

followed by an employer or group of employers.” Teamsters, 431

U.S. at 360.

The pattern and practice method of proof is almost exclusively

used in class actions, with individual racial discrimination

plaintiffs confined to the McDonnell Douglas framework. Scarlett

v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1053 (5th Cir.

1982) (“This is not a ‘pattern and practice suit’ by the government

. . . [n]or is this a private class action . . . [a]n individual

proceeding as an individual under Title VII must prove the elements

of a discriminatory hiring claim as set forth in McDonnell

Douglas.”). The Supreme Court has never applied the Teamsters

method of proof in a private, non-class suit and has recognized the

distinction between individual racial discrimination claims and

class actions:

The crucial difference between an individual’s
claim of discrimination and a class action alleging
a general pattern or practice of discrimination is
manifest. The inquiry regarding an individual’s
claim is the reason for a particular employment
decision, while at the liability stage of a

19
 pattern-or-practice trial the focus often will not
be on individual hiring decisions, but on a pattern
of discriminatory decisionmaking.

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104

S.Ct. 2794, 2799-2800 (1984).

While the Supreme Court has not explicitly stated that the

pattern and practice method of proof may never be used in private

non-class suits, other courts have reached this conclusion. See,

e.g., Lowrey v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th

Cir. 1998), vac. on other grounds, 527 U.S. 1031, 119 S.Ct. 2388

(1999); Babrocky v. Jewel Food Co., 773 F.2d 857, 866-67 n.6 (7th

Cir. 1985) (“Plaintiffs’ use of ‘pattern-or-practice’ language also

seems to be misplaced, since such suits, by their very nature,

involve claims of classwide discrimination, and the five

plaintiffs, while attacking policies that would have affected all

of Jewel’s women employees as a class, have stated only their

individual claims, not a class action.”) (citations omitted); Axel

v. Apfel, 2000 WL 1593446, *6 (D. Md. 2000); Herendeen v. Mich.

State Police, 39 F.Supp. 2d 899, 905 (W.D. Mich. 1999). Similarly,

while the Fifth Circuit has not definitively ruled out the use of

the Teamsters method of proof in a private, individual racial

discrimination suit, this Court’s precedents seem to support such

an exclusion. Scarlett, 676 F.2d at 1053; Mooney, 54 F.3d at 1219-

20 (upholding lower court’s rejection of “pattern or practice”

instruction because individual plaintiffs failed to show they were

20
entitled to such an instruction).

Given the nature and purpose of the pattern and practice

method of proof, this Court’s precedents, and the precedents of

other circuits, the district court did not err in refusing to apply

the Teamsters method of proof as an independent method of proof to

the appellants’ individual claims in lieu of the McDonnell Douglas

method at the summary judgment stage.4

B. The prima facie case and the showing of “better
qualifications”

Appellants also contend that the district court misapplied

McDonnell Douglas by requiring the appellants to show as part of

their prima facie case that they were “better qualified” than the

employees promoted or trained in their stead. Had the district

court expanded the four-element prima facie case for racial

discrimination through failure to promote or train this might be

true. However, this is not what the district court did; the

district court only asked for evidence that the plaintiff employee

was “better qualified” than the employee given promotion or

training in those instances where CITGO’s proffered legitimate,

4
This conclusion is based on precedent indicating that
the Teamsters method is simply not available to plaintiffs that
are not a part of a class action. See Scarlett, 676 F.2d at 1053
(indicating that to use this method the plaintiff must either be
part of a class action or the suit must be instituted by the
government under certain circumstances). As the plaintiffs are
before us in their individual capacities, due to their failure to
obtain class certification, the Teamsters method is not available
to them. Id.

21
non-discriminatory reason for its employment decision was that the

plaintiff employee was less qualified than the employee awarded the

promotion or training. In other words, the district court’s

request for evidence that the plaintiff employee was “better

qualified” did not occur at the prima facie case stage of the

three-part McDonnell Douglas analysis, but rather at the third

stage, where the plaintiff is required to present evidence

rebutting the defendant’s proffered non-discriminatory explanation

for its decision. Here, many of the appellants successfully made

out their prima facie cases of racial discrimination, CITGO put

forward that its decision not to promote or train these appellants

was based on the superior qualifications of the other employee, and

the appellants were left to rebut this proffered non-discriminatory

reason. To succeed in doing so, the appellants were obliged to

bring forward enough evidence on summary judgment so as to create

a genuine issue of material fact on whether or not CITGO’s

explanation was pretextual. The district court ruled that the

appellants failed to meet their burden under this third prong of

the McDonnell Douglas framework by failing to introduce competent

summary judgment evidence that CITGO’s explanation was false or

pretextual (i.e. evidence that the appellant was “better

qualified”).

This Court has ruled that a plaintiff may survive summary

judgment and take his case to the jury by providing evidence that

22
he was “clearly better qualified” than the employee selected for

the position at issue. Scott, 148 F.3d at 508; Walther v. Lone

Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). The single

question for the trier of fact is whether the employer’s selection

of a particular applicant over the plaintiff was motivated by

discrimination, and evidence of the plaintiff’s superior

qualification is thus probative of pretext. Deines v. Dept. of

Prot. & Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999).

However, the bar is set high for this kind of evidence because

differences in qualifications are generally not probative evidence

of discrimination unless those disparities are “of such weight and

significance that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate selected over

the plaintiff for the job in question.” Deines, 164 F.3d at 280-

81.

A review of the briefs and record excerpts reveals that none

of the appellants presented competent summary judgment evidence

that they were “clearly better qualified” for promotion or

training. They therefore failed to even attempt to rebut CITGO’s

proffered non-discriminatory explanation, making the grant of

summary judgment to CITGO proper.

The affidavit of Dr. Andrew Hacker

The appellants also appeal the district court’s refusal to

consider on summary judgment the affidavit of Professor Andrew

23
Hacker, the appellants’ expert on racial harassment. The district

court struck this affidavit because (1) it did not contain relevant

factual information regarding the actual work environment at CITGO,

(2) it was not based upon personal knowledge as required by Fed. R.

Civ. P. 56(e), and (3) it contained many inflammatory accusations

leveled at CITGO and all of Calcasieu Parish in general without any

specific reference whatsoever to the source of such a verbal

attack. Dr. Hacker admits that his affidavit does not include data

showing a hostile work environment at CITGO, but nevertheless the

affidavit concludes that racial harassment in Lake Charles is

likely “the product of a culture of segregation, isolation and

subordination pervasive in the area.”

A district court has broad discretion to rule on the

admissibility of expert’s affidavits in the summary judgment

context, and its ruling must be sustained unless manifestly

erroneous. Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th

Cir. 1998). To be considered on summary judgment, an expert’s

affidavit must include materials upon which the expert based his

opinion, as well as an indication of the reasoning process

underlying the opinion. Id. Because Dr. Hacker’s conclusory

affidavit does not give such insight into his reasoning process,

the district court was within its discretion to exclude it.

CONCLUSION

Having carefully reviewed the record of this case and the

24
parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in granting summary

judgment or in excluding Dr. Hacker’s affidavit. We, therefore,

AFFIRM the district court’s decision in its entirety.

AFFIRMED.

25