IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50429
Summary Calendar
NOAH JACKSON, JR.,
Plaintiff-Appellant,
versus
ANTHONY PRINCIPI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CA-313
October 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Noah Jackson appeals from the grant of summary judgment in
favor of the Secretary on his Title VII claims for reverse sex
discrimination in the Secretary's failure to promote, and
subsequent demotion of, Jackson. We review a grant of summary
judgment de novo, applying the same standard as the district
*
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this opinion should not be published and is not precedent except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.
court.1 We may affirm a summary judgment on any ground raised by
the movant below and supported by the record, even if it is not the
ground relied on by the district court.2 In the instant case,
Jackson has failed to produce evidence to establish a genuine issue
of material fact as to the Secretary's discriminatory motive in
Jackson's nonselection and reclassification in support of his
failure to promote and demotion claims.
We assume without deciding that Jackson's claim for failure to
promote is not barred as untimely.3 Here, even if the claim was
timely and Jackson made out a prima facie case of discrimination,
Jackson has produced no substantial evidence to support his
contention that the Secretary's legitimate nondiscriminatory
justification for his decision to promote Bernette Barksdale and
not Jackson was a pretext for sex discrimination, i.e., that the
true reason behind the Secretary's decision to promote Bernette
Barksdale was because Barksdale is a woman and Jackson is a man.4
1
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257
(5th Cir. 2001).
2
Id. at 257-58.
3
Compare Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d
402, 404-05 (5th Cir. 1995); Pacheco v. Rice, 966 F.2d 904, 906-07
(5th Cir. 1992); Oaxaca v. Roscoe, 641 F.2d 386, 389-90 (5th Cir.
Unit A Apr. 1981), with, Munoz v. Aldridge, 894 F.2d 1489, 1494-95
(5th Cir. 1990); Henderson v. United States Veterans Admin., 790
F.2d 436, 440-41 (5th Cir. 1986).
4
See Evans v. City of Houston, 246 F.3d 344, 350-51 (5th
Cir. 2001).
2
The district court correctly found that the Secretary offered a
legitimate, nondiscriminatory reason for the decision, and Jackson
offers only speculation that this legitimate, nondiscriminatory
reason proffered by the Secretary was false and that intentional
discrimination based on Jackson’s sex was behind the selection.5
Contrary to Jackson's claim, there is evidence in the record that
the Human Resources Department determined Barksdale was qualified
for the position. Moreover, Jackson failed to put forward
substantial evidence that he was objectively more qualified than
Barksdale for the position.6 Although Jackson, as the nonmovant, is
entitled to have reasonable inferences drawn in his favor, those
inferences must be based on more than mere speculation or
conjecture.7 The inferences that Jackson urges in support of his
failure to promote claim are not, and so summary judgment was
appropriate in favor of the Secretary.8
We need not address whether the district court erred in
finding that Jackson did not make out a prima facie case in support
of his Title VII demotion claim, because Jackson has produced no
5
See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
405-06 (5th Cir. 1999).
6
See Celestine v. Petroleos de Venezuella SA, No. 00-30171,
2001 WL 1090522, at *10 (5th Cir. Sept. 18, 2001).
7
See Ass'n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d
350, 362 (5th Cir. 1999).
8
See Pratt v. City of Houston, 247 F.3d 601, 606-07 (5th
Cir. 2001).
3
substantial evidence to support his contention that the Secretary's
admittedly legitimate nondiscriminatory justification for his
reclassification was a pretext for sex discrimination.9 He again
offers only his own speculation and unsupported allegations of sex
discrimination in his nonselection in 1995 as evidence that his
reclassification was the product of sex discrimination. Such
speculation will not preserve his demotion claim on summary
judgment.
AFFIRMED.
9
See Evans, 246 F.3d at 350-51.
4
Jackson v. Principi
Combined Opinion