IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20180
(Summary Calendar)
CORLIS T. SIMMONS,
Plaintiff-Appellant,
versus
AMERICAN TELEPHONE AND
TELEGRAPH COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-94-2803)
November 3, 1995
Before WIENER, PARKER, and DENNIS, Circuit Judges.
PER CURIAM*:
In this employment discrimination case, Plaintiff-Appellant
Corlis T. Simmons challenges the district court's grant of summary
judgment in favor of Defendant-Appellee American Telephone and
Telegraph Company (AT&T). Concluding that Simmons failed to meet
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
the evidentiary burden established for Title VII plaintiffs under
McDonell Douglas Corp. v. Green1 and its progeny, we affirm.
I.
FACTS AND PROCEEDINGS
Simmons, an African-American, has been employed as an account
executive (AE) at AT&T for several years; in fact, the parties'
appellate briefs suggest that Simmons still works for AT&T. On
appeal, Simmons asserts that on four specific occasions between
1992 and 1994, she was subjected to unfair employment practices
that were not inflicted on similarly situated, white employees at
AT&T.2 First, Simmons contends that her sales manager, James
Priestly, removed a lucrative account from her control and placed
it under the direction of a white AE. According to Simmons, that
transfer of accounts caused a decrease in her income, as the
compensation received by AEs depends in part on the revenue value
of their accounts. Second, Simmons asserts that when she and
several white employees were chosen to receive the company's Sales
Vice President (SVP) Award for having made an outstanding sale, the
white employees were given higher compensation despite having
produced less in sales. Third, Priestly allegedly accused Simmons
on one occasion of using cocaine. More specifically, on the date
in question, Simmons mentioned that she needed to get her can of
Coke from a co-worker's desk, to which Priestly allegedly
1
411 U.S. 792 (1973).
2
Simmons detailed other allegedly discriminatory incidents
before the district court, but she does not raise them on appeal.
2
responded, "Going to retrieve your drugs, huh?" Finally, Priestly
and other AT&T managers supposedly refused to help Simmons track
revenue which she claimed had been wrongly attributed to another
AE.
In August 1994, Simmons filed suit against AT&T in district
court, alleging inter alia that she had been discriminated against
in violation of Title VII3 and of the Civil Rights Act of 1866 (§
1981).4 After both parties had conducted fairly extensive
discovery, the district court granted AT&T's motion for summary
judgment dismissing Simmons's complaint, and she timely appealed.
II.
ANALYSIS
A. STANDARD OF REVIEW
When reviewing a grant of summary judgment, we view the facts
and inferences in the light most favorable to the non-moving
party;5 and we apply the same standards as those governing the
lower court in its determination.6 Summary judgment must be
granted if a court determines "that there is no genuine issue as to
any material fact and that the moving party is entitled to a
3
42 U.S.C. §§ 2000(e) et seq.
4
42 U.S.C. §§ 1981 et seq. Simmons also brought various
claims under Texas state law, but she does not renew those claims
on appeal.
5
See Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d
256, 266 (5th Cir. 1995).
6
See Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065
(5th Cir. 1995).
3
judgment as a matter of law."7 If any element of the plaintiff's
case lacks factual support, a defendant's motion for summary
judgment should be granted.8 Applying this standard, we conclude
that the district court properly granted summary judgment for AT&T.
B. THE MERITS OF SIMMONS'S CLAIM
The Supreme Court in McDonnell Douglas Corp. v. Green9
delineated special rules of proof for employment discrimination
claims. The McDonnell standard reflects an effort "`to sharpen the
inquiry into the elusive factual question of intentional
discrimination.'"10 Recognizing that direct evidence of
discrimination is rarely available, McDonnell and its progeny have
set forth the steps of an evidentiary "minuet" through which the
parties may in turn establish, rebut, and rebuild a permissible
inference of discrimination.11
The steps of the minuet are as follows: First, the plaintiff
must prove a prima facie case of discrimination by a preponderance
7
FED. R. CIV. P. 56(c).
8
See Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th
Cir. 1995).
9
411 U.S. 792.
10
Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633
(5th Cir. 1985) (quoting Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 255 n.8 (1981)), abrogated on other grounds,
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993).
11
The allocation of evidentiary burdens established in
McDonnell also applies to Simmons's § 1981 claim. See Marcantel v.
State of La., Dept. of Transp. & Dev., 37 F.3d 197, 198 n.4 (5th
Cir. 1994); Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277,
1284 n.7 (5th Cir. 1994), cert. denied, 115 S. Ct. 1099 (1995).
4
of the evidence.12 The showing required to establish a prima facie
case is generally minimal: The plaintiff need only prove that he
or she (1) is within the protected class, (2) is qualified for the
job in question, and (3) has been treated less favorably than
employees outside of the protected class.13 If the plaintiff
successfully establishes a prima facie case, the burden shifts to
the defendant to articulate some legitimate, nondiscriminatory
reason for the difference in treatment.14 Finally, if the defendant
successfully performs that second step, the plaintiff must show
that the employer's articulated reasons were not its true reasons,
but were merely pretexts for discrimination.15 If this macabre
dance lasts that long, a trial ensues in which the plaintiff has
the burden of proving that a Title VII violation occurred.16
Even if we assume, arguendo, that Simmons has presented a
prima facie case of discrimination, she has nonetheless failed to
meet the burdens imposed by McDonnell; and so the district court
properly entered summary judgment for AT&T. As to the first two
instances of alleged discrimination, AT&T presented to the district
court legitimate, nondiscriminatory reasons for the actions of its
12
See Burdine, 450 U.S. at 252.
13
See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1163-
64.
14
See Burdine, 450 U.S. at 253 (quoting McDonnell, 411 U.S. at
802).
15
See Burdine, 450 U.S. at 253 (quoting McDonnell, 411 U.S. at
804); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.
1994) (citing St. Mary's Honor Center, 113 S. Ct. 2742).
16
Davis, 14 F.3d at 1087.
5
managers. First, in a deposition given under oath, Priestly
maintained that he had removed Simmons from the account in question
after he received a phone call from the client complaining about
Simmons's performance. Similarly, Priestly explained that Simmons
had in fact not been selected for an SVP award; rather, after a
branch manager erroneously announced that Simmons was to receive
the award, AT&T managers accumulated money to give to her so that
she would not be disappointed or embarrassed. In response, Simmons
offered no competent evidence to show that either of Priestly's
benign explanations amounted to pretext. We have consistently held
that a plaintiff's subjective beliefs and conclusionary
allegations, unsupported even by circumstantial evidence, are
insufficient to sustain a claim of discrimination in the face of
evidence showing an adequate, nondiscriminatory reason for the
behavior at issue.17
Likewise, Simmons cannot rely on her final two alleged
instances of differential treatment to establish an employment
discrimination claim. Even assuming that Priestly made the "Coke"
statement and that the comment was somehow infused with implicit
racial overtonesSQwhich, candidly, we cannot discernSQsuch vague,
"stray remarks" are insufficient to establish discrimination.18
Moreover, Simmons produced no factual evidence to support her bald
17
See Waggoner, 987 F.2d at 1164, 1166; Molnar v. Ebasco
Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993).
18
See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th
Cir. 1995); Guthrie v. Tifco Industries, 941 F.2d 374 (5th Cir.
1991), cert. denied, 503 U.S. 908 (1992);
6
assertion that AT&T managers failed to help her track "lost"
revenue. In the face of the numerous documents and affidavits
produced by AT&T to show that the revenue in question had in fact
been traced to her account, Simmons's conclusionary allegations
fail to raise any genuine factual issue, much less to support a
finding of racial discrimination.
In summary, we conclude that none of the incidents addressed
by Simmons amounts to a violation of Title VII or of § 1981.
Accordingly, we affirm the district court's grant of summary
judgment for AT&T.
AFFIRMED.
7