UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-30999 Summary Calendar
PAUL CARTER,
Plaintiff - Appellant,
VERSUS
FARMERS RICE MILLING COMPANY, INC.,
Defendant - Appellee.
Appeal from the United States District Court For the Western District of Louisiana, Lake Charles (00-CV-2215) February 28, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Paul Carter sued his employer, Farmers Rice Milling Company,
Inc. (FRMC), alleging that FRMC failed to promote him because he is
African American and suspended him without pay for filing a claim
with the Equal Employment Opportunity Commission. On FRMC’s motion
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 for summary judgment, the district court dismissed Mr. Carter’s
claims. The court found that although Mr. Carter made prima facie
cases of racial discrimination and retaliation, he failed to show
that FRMC’s nondiscriminatory reasons for its actions were
pretextual. We affirm.
I.
Carter began working for FRMC in 1988. He initially worked as
an operator in FRMC’s Rough Rice Department. He resigned his
position on July 17, 1993 but was rehired on October 31, 1994. In
1997 he was promoted to the position of Operator I/Quality Control
Relief Technician in the Rough Rice Department. In October of
1998, Carter applied for a promotion to the position of Quality
Control Technician in the Milled Rice Department. Carter did not
get the promotion; rather, FRMC awarded the position to Michael
Fontenot, a white male who was previously employed as an operator
in the Milled Rice Department. Believing that FRMC passed him for
the promotion because he is African American, Carter filed a
complaint with the EEOC in January 1999.
On April 27, 1999, FRMC suspended Carter for two weeks without
pay. Carter alleges that his suspension was in retaliation for
filing a claim with the EEOC; FRMC argues that it suspended him for
leaving work before completing his work assignment and before his
scheduled shift had ended. In June 2000, the EEOC issued Carter a
“no cause” determination and a “Notice of Right to Sue.”
2 Carter sued FRMC in a Louisiana state court on September 27,
2000, claiming that FRMC had discriminated against him in violation
of Louisiana’s Employment Discrimination Laws, La. Rev. Stat. Ann.
§ 23:301, et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Carter also alleged
that FRMC retaliated against him for asserting allegations of
discrimination in violation of La. Rev. Stat. Ann. § 51:2256(1),
and 42 U.S.C. § 2000e-3(a). FRMC removed the case to the Western
District of Louisiana and filed a motion for summary judgment. The
district court denied FRMC’s motion with respect to Carter’s
discrimination claims, but granted the motion with respect to
Carter’s § 1981 claims. FRMC then filed a motion for
reconsideration of summary judgment. In its second summary
judgment ruling, the district court granted summary judgment to
FRMC on all claims. Although Carter filed this suit with the
assistance of counsel, his attorney has since withdrawn as counsel
of record and Carter is proceeding pro se.
Carter argues on appeal that we should reverse the district
court’s summary judgment ruling because FRMC’s motion to reconsider
summary judgment was not timely filed. Although it is difficult to
decipher Carter’s second argument, he also seems to suggest that
the district court erred in dismissing his discrimination claims
because FRMC’s “legitimate explanations” for not promoting him and
suspending him without pay were mere pretext.
3 II.
We review a district court’s grant of summary judgment de
novo. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d
164, 167 (5th Cir. 1999); Grimes v. Texas Dep’t of Mental Health &
Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996). “Summary
judgment is appropriate when there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of
law.” Grimes, 102 F.3d at 139 (citing Fed. R. Civ. P. 56(c)). In
employment discrimination cases, the question is whether a genuine
issue of fact exists as to whether the defendant intentionally
discriminated against the plaintiff. Id. Unsubstantiated
assertions are not competent summary judgment evidence. Chaney,
179 F.3d at 167; Grimes, 102 F.3d at 139.
III.
Carter argues that FRMC’s motion to reconsider summary
judgment should be treated as a Rule 59 motion to amend a judgment
and must therefore be filed no later than ten days after the denial
of summary judgment. The district court entered its first summary
judgment ruling on April 5, 2001. On April 18, 2001, FRMC filed a
motion for the court to reconsider its previous motion for summary
judgment. Since FRMC filed its motion to reconsider thirteen days
after the district court entered its first summary judgment ruling,
Carter argues that the motion was not timely filed and therefore
should have been denied. That simply is not the law. We have held
4 on several occasions that “a denial of summary judgment is an
interlocutory order, which the court may reconsider and reverse at
any time before entering final judgment.” Millar v. Houghton, 115
F.3d 348, 350 (5th Cir. 1997); McKethan v. Texas Farm Bureau, 996
F.2d 734, 738 n.6 (5th Cir. 1993); accord Lavespere v. Niagra
Machine & Tool Works, 910 F.2d 167, 184-85 (5th Cir. 1990);
Trustees of Sabine Area Carpenter’s Health & Welfare Fund v. Don
Lightfoot Home Builder, Inc., 704 F.2d 822, 828 (5th Cir. 1983).
Since the district court issued its second summary judgment ruling
before entering a final judgment in this case, the court was free
to vacate its previous ruling and submit a revised judgment.
IV.
Title VII prohibits employers from discriminating against
employees on the basis of race. 42 U.S.C. § 2000e-2(a)(1). To
defeat a motion for summary judgment, a Title VII plaintiff must
initially make a prima facie case of discrimination. A plaintiff
makes a prima facie case of promotion discrimination by showing
that: (1) he is a member of a protected class; (2) he applied for
a promotion to an available position for which he was qualified;
(3) he did not received the requested promotion; and (4) the
employer filled the position with an individual outside the
protected class. See EEOC v.
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-30999 Summary Calendar
PAUL CARTER,
Plaintiff - Appellant,
VERSUS
FARMERS RICE MILLING COMPANY, INC.,
Defendant - Appellee.
Appeal from the United States District Court For the Western District of Louisiana, Lake Charles (00-CV-2215) February 28, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Paul Carter sued his employer, Farmers Rice Milling Company,
Inc. (FRMC), alleging that FRMC failed to promote him because he is
African American and suspended him without pay for filing a claim
with the Equal Employment Opportunity Commission. On FRMC’s motion
* 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.
1 for summary judgment, the district court dismissed Mr. Carter’s
claims. The court found that although Mr. Carter made prima facie
cases of racial discrimination and retaliation, he failed to show
that FRMC’s nondiscriminatory reasons for its actions were
pretextual. We affirm.
I.
Carter began working for FRMC in 1988. He initially worked as
an operator in FRMC’s Rough Rice Department. He resigned his
position on July 17, 1993 but was rehired on October 31, 1994. In
1997 he was promoted to the position of Operator I/Quality Control
Relief Technician in the Rough Rice Department. In October of
1998, Carter applied for a promotion to the position of Quality
Control Technician in the Milled Rice Department. Carter did not
get the promotion; rather, FRMC awarded the position to Michael
Fontenot, a white male who was previously employed as an operator
in the Milled Rice Department. Believing that FRMC passed him for
the promotion because he is African American, Carter filed a
complaint with the EEOC in January 1999.
On April 27, 1999, FRMC suspended Carter for two weeks without
pay. Carter alleges that his suspension was in retaliation for
filing a claim with the EEOC; FRMC argues that it suspended him for
leaving work before completing his work assignment and before his
scheduled shift had ended. In June 2000, the EEOC issued Carter a
“no cause” determination and a “Notice of Right to Sue.”
2 Carter sued FRMC in a Louisiana state court on September 27,
2000, claiming that FRMC had discriminated against him in violation
of Louisiana’s Employment Discrimination Laws, La. Rev. Stat. Ann.
§ 23:301, et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Carter also alleged
that FRMC retaliated against him for asserting allegations of
discrimination in violation of La. Rev. Stat. Ann. § 51:2256(1),
and 42 U.S.C. § 2000e-3(a). FRMC removed the case to the Western
District of Louisiana and filed a motion for summary judgment. The
district court denied FRMC’s motion with respect to Carter’s
discrimination claims, but granted the motion with respect to
Carter’s § 1981 claims. FRMC then filed a motion for
reconsideration of summary judgment. In its second summary
judgment ruling, the district court granted summary judgment to
FRMC on all claims. Although Carter filed this suit with the
assistance of counsel, his attorney has since withdrawn as counsel
of record and Carter is proceeding pro se.
Carter argues on appeal that we should reverse the district
court’s summary judgment ruling because FRMC’s motion to reconsider
summary judgment was not timely filed. Although it is difficult to
decipher Carter’s second argument, he also seems to suggest that
the district court erred in dismissing his discrimination claims
because FRMC’s “legitimate explanations” for not promoting him and
suspending him without pay were mere pretext.
3 II.
We review a district court’s grant of summary judgment de
novo. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d
164, 167 (5th Cir. 1999); Grimes v. Texas Dep’t of Mental Health &
Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996). “Summary
judgment is appropriate when there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of
law.” Grimes, 102 F.3d at 139 (citing Fed. R. Civ. P. 56(c)). In
employment discrimination cases, the question is whether a genuine
issue of fact exists as to whether the defendant intentionally
discriminated against the plaintiff. Id. Unsubstantiated
assertions are not competent summary judgment evidence. Chaney,
179 F.3d at 167; Grimes, 102 F.3d at 139.
III.
Carter argues that FRMC’s motion to reconsider summary
judgment should be treated as a Rule 59 motion to amend a judgment
and must therefore be filed no later than ten days after the denial
of summary judgment. The district court entered its first summary
judgment ruling on April 5, 2001. On April 18, 2001, FRMC filed a
motion for the court to reconsider its previous motion for summary
judgment. Since FRMC filed its motion to reconsider thirteen days
after the district court entered its first summary judgment ruling,
Carter argues that the motion was not timely filed and therefore
should have been denied. That simply is not the law. We have held
4 on several occasions that “a denial of summary judgment is an
interlocutory order, which the court may reconsider and reverse at
any time before entering final judgment.” Millar v. Houghton, 115
F.3d 348, 350 (5th Cir. 1997); McKethan v. Texas Farm Bureau, 996
F.2d 734, 738 n.6 (5th Cir. 1993); accord Lavespere v. Niagra
Machine & Tool Works, 910 F.2d 167, 184-85 (5th Cir. 1990);
Trustees of Sabine Area Carpenter’s Health & Welfare Fund v. Don
Lightfoot Home Builder, Inc., 704 F.2d 822, 828 (5th Cir. 1983).
Since the district court issued its second summary judgment ruling
before entering a final judgment in this case, the court was free
to vacate its previous ruling and submit a revised judgment.
IV.
Title VII prohibits employers from discriminating against
employees on the basis of race. 42 U.S.C. § 2000e-2(a)(1). To
defeat a motion for summary judgment, a Title VII plaintiff must
initially make a prima facie case of discrimination. A plaintiff
makes a prima facie case of promotion discrimination by showing
that: (1) he is a member of a protected class; (2) he applied for
a promotion to an available position for which he was qualified;
(3) he did not received the requested promotion; and (4) the
employer filled the position with an individual outside the
protected class. See EEOC v. Exxon Shipping Co., 745 F.2d 967, 972
n.3 (5th Cir. 1984).
5 By establishing a prima facie case for discrimination, a
plaintiff raises a presumption of discrimination, “which the
defendant must rebut by articulating a legitimate,
nondiscriminatory reason for its actions.” Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The defendant
meets this burden “by presenting evidence that, ‘if believed by the
trier of fact, would support a finding that unlawful discrimination
was not the cause of the employment action.’” Rhodes v. Guiberson
Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). If the
defendant presents sufficient evidence of nondiscriminatory
reasons, the plaintiff must demonstrate by a preponderance of the
evidence that the defendant’s reasons are not “‘true reasons, but
were a pretext for discrimination.’” See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Assuming arguendo that Carter established a prima facie case
of promotion discrimination, he did not show that FRMC’s
nondiscriminatory reasons for denying him the promotion were a
pretext for discrimination. Unlike Michael Fontenot, Mr. Carter
had no prior experience in the Milled Rice Department. Whereas
Carter had worked exclusively in the Rough Rice Department,
Fontenot was working in the Milled Rice Department at the time of
his promotion. FRMC’s decision to give Fontenot the promotion to
6 Quality Control Technician in the Milled Rice Department was
consistent with FRMC’s documented policy of promoting employees
from within the same department whenever possible.
V.
Title VII also prohibits an employer from discriminating
“against any of his employees . . . because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e3(a). A plaintiff makes a prima facie case of
discriminatory retaliation by showing that: (1) he engaged in
conduct protected under Title VII; (2) his employer thereafter
subjected him to an adverse employment action; and (3) the adverse
employment action was motivated by animus inspired by the protected
conduct. Chaney, 179 F.3d at 167. “If the plaintiff makes a prima
facie case, the burden shifts to the employer to provide a
legitimate, nonretaliatory reason for the adverse employment
action. Should the employer provide a permissible rationale, the
plaintiff then shoulders the ultimate burden of proving that the
employer’s proffered rationale was pretextual and that engaging in
the protected activity was the but-for cause of the adverse
employment action.” Id. To defeat summary judgment, Carter must
produce “substantial probative evidence” that the real reason for
his discharge was his filing of a complaint with the EEOC. Chaffin
v. Carter, 179 F.3d 316, 320 (5th Cir. 1999).
7 Assuming arguendo that Carter established a prima facie case
of discriminatory retaliation, he did not show that FRMC’s
nondiscriminatory reasons for suspending him without pay were a
pretext for retaliation. FRMC’s records and affidavits establish
that Carter left work without asking his supervisor’s permission
and before completing his assigned task. Under FRMC’s standard
disciplinary policy, this sort of insubordination would warrant
termination, but FRMC instead chose the more lenient penalty of two
weeks unpaid suspension. “In a case in which the employer has
articulated a rational justification for terminating an employee,
and the facts supporting that justification are not seriously
disputed, the task of proving pretext becomes quite difficult.”
Id. at 168 (citing Elliot v. Group Med. & Surgical Serv., 714 F.2d
556, 567 (5th Cir. 1983)). Without explanation, Carter argues that
FRMC’s insubordination argument was a pretext for retaliation
because Fontenot was promoted despite having a sexual harassment
complaint in his employee file. We see no reason why the fact that
Fontenot had a sexual harassment record is probative evidence that
FRMC retaliated against Carter for filing a complaint with the
EEOC.
VI.
Carter does not challenge the district court’s ruling that his
§ 1981 claims were prescribed. Those claims, and all other claims
not briefed on appeal, are therefore waived. Johnson v. Sawyer,
8 120 F.3d 1307,1315-16 (5th Cir. 1997).
VII.
Carter’s argument that FRMC’s motion to reconsider summary
judgment was untimely has no basis in the law. Denials of summary
judgment are interlocutory orders and are amendable any time before
final judgment. Carter also has not demonstrated that FRMC’s
nondiscriminatory reasons for denying him the promotion and
suspending him without pay were pretexts for discrimination.
Because he has not carried his evidentiary burden, summary judgment
was warranted. The district court’s order dated June 12, 2001 is
AFFIRMED.