United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 28, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
____________________
No. 02-41630
Summary Calendar
____________________
CLARENCE A PITRE
Plaintiff - Appellant
v.
WADLEY REGIONAL MEDICAL CENTER, formerly known as Texarkana
Memorial Hospital
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
No. 5:01-CV-139
_________________________________________________________________
Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
This appeal arises from a claim of racially discriminatory
discharge from employment. Plaintiff-Appellant Clarence A.
Pitre, M.D., appeals the district court’s grant of partial
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
summary judgment in favor of Defendant-Appellee Wadley Regional
Medical Center. We affirm.
The relevant facts are largely undisputed. Clarence A.
Pitre, M.D., an African-American male, is an obstetrical and
gynecological (“OB/GYN”) physician. Pitre was employed by Wadley
Regional Medical Center (“Wadley”) from November 1998 until
August 1999. One of the terms of his employment contract
expressly required that he hold and keep current his Texas
Department of Public Safety (“DPS”) certification. Pitre’s DPS
certification lapsed on July 31, 1999, while he was on vacation;
when he returned to work, he was informed of this lapse and told
that he needed to have another doctor sign off on his
prescriptions until his DPS renewal was completed. However, on
August 2, 1999, Wadley’s interim CEO Bill Curtis fired Pitre and
explained to Pitre that the termination was due to his failure to
maintain a current DPS certification.
Pitre initiated this employment discrimination suit in May
2001, claiming that Wadley discharged him because of his race in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a) (2000), and 42 U.S.C. § 1981 (2000). In response,
Wadley filed a motion for partial summary judgment, alleging that
Pitre could not establish a cause of action under either statute.
The entire case was referred to a magistrate judge. The
magistrate judge, while assuming that Pitre could make out a
prima facie case of racial discrimination, concluded that Pitre
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had failed to present substantial evidence to demonstrate that
Wadley’s reasons were pretextual. The magistrate judge
recommended granting Wadley’s motion for partial summary
judgment. The district court reached the same conclusion as the
magistrate judge as to pretext, and it granted Wadley’s motion.1
Before we begin our review of the district court’s grant of
partial summary judgment, we turn our attention to several
motions. Wadley moves to strike (1) certain portions of the
record excerpts containing deposition testimony and (2) the
portions of Pitre’s brief that refer to these excerpts. Pitre
moves to supplement the record with the deposition pages
contained in his record excerpts. Wadley argues that inclusion
of the deposition pages would be improper because these
depositions were not made part of the record, and Pitre responds
that the record should be supplemented because there was no harm
resulting from his failure to attach the deposition pages. As a
general rule, this court is barred from considering evidence not
included in the record on appeal, and “attachments to briefs will
not suffice.” Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 315 n.11 (5th Cir. 2002) (quoting In
re GHR Energy Corp., 791 F.2d 1200, 1201-02 (5th Cir. 1986) (per
curiam)). Because the depositions were not a part of the
1
Departing from the magistrate judge’s recommendation,
the district court found that Pitre could establish a prima facie
case of discrimination because he presented evidence that other
similarly situated persons were treated more favorably than he.
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district court record, the depositions cannot be considered; the
absence of harm is irrelevant. The motions to strike are granted
and the motion to supplement is denied.
Turning to the grant of partial summary judgment, this court
reviews a district court’s grant of summary judgment de novo,
reviewing the record under the same standards the district court
applied in determining whether summary judgment was appropriate.
See, e.g., Byers v. Dallas Morning News, 290 F.3d 419, 424 (5th
Cir. 2000). Under the summary judgment standard, a moving party
is entitled to judgment as a matter of law when the pleadings,
answers to interrogatories, admissions and affidavits on file
indicate no genuine issue as to any material fact. Id.
As the Supreme Court stated in Reeves v. Sanderson Plumbing
Products, 530 U.S. 133 (2000), “McDonnell Douglas and subsequent
decisions have ‘established an allocation of the burden of
production and an order for the presentation of proof,’” whereby
a “plaintiff must [first] establish a prima facie case of
discrimination. [After doing so,] [t]he burden [of production]
shift[s] to [the defendant] to ‘produce evidence that the
plaintiff was rejected . . . for a legitimate, nondiscriminatory
reason.’” Id. at 142-43. If the defendant is able to produce a
legitimate reason, then the presumption of discrimination
vanishes. Id. However, because the burden of persuasion
“‘remains at all times with the plaintiff,’” the plaintiff is
“afforded the opportunity [to demonstrate that an issue of
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material fact exists and] that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for
discrimination.” Id.
To establish his prima facie case of racial discrimination,
Pitre must demonstrate: (1) that he belongs to a protected group;
(2) he was qualified for his job; (3) an adverse employment
action was taken against him; and (4) he was replaced by someone
outside his protected group, or others similarly situated were
treated more favorably. E.g., Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). We agree
with the district court’s assessment that Pitre’s prima facie
case is relatively weak. However, even assuming arguendo that
Pitre can demonstrate his prima facie case of discrimination, his
evidence in support of pretext is lacking.
In attempting to show pretext, Pitre relies on essentially
the same evidence that he used to establish his prima facie case.
Pitre contends that Wadley’s decision not to fire two white
doctors whose certifications had expired suggests that similarly
situated persons were treated more favorably than he. This
dissimilar treatment, Pitre argues, indicates that the real
reason for his termination was based on racial discrimination.
The district court concluded that Pitre did not present
evidence that Wadley’s legitimate, non-discriminatory reason for
its decision to terminate Pitre was false. We agree. According
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to the summary judgment record, there were significant
differences between the situations of Dr. Johnny Jones and Dr.
Thomas Wilson, the two white doctors that Pitre suggests were
similarly situated but not discharged by Wadley. First, the
evidence indicates that Jones’s DPS license never expired, which
makes his situation completely different from Pitre’s. Second,
although Wilson’s DPS certificate did expire, by the time Wadley
administrators became aware of the expiration, the certificate
had already been renewed. Thus, in comparing Pitre with Jones
and Wilson, Pitre was the only doctor to have his certification
expire and have the Wadley administrators become aware of its
expiration before it was renewed; these circumstances provided
Wadley with a permissible basis for termination under Pitre’s
employment contract. More important, it means that Pitre’s
situation was not similar to the situations of Jones and Wilson.
Whether we say that Pitre fails to make out a prima facie case or
we say that he fails to provide sufficient evidence of pretext,
the conclusion that summary judgment in favor of Wadley must be
sustained is inescapable.
The final judgment of the district court is AFFIRMED; both
of Wadley’s motions to strike are GRANTED; Pitre’s motion to
supplement the record is DENIED.
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