UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Summary Calendar No. 00-60515
SCOTT M. SMITH,
Plaintiff-Appellant,
versus
ALBERTSON’S INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Mississippi 3:99-CV-247-BN
March 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this racial discrimination and retaliation case,
Plaintiff-Appellant, Scott M. Smith (hereinafter “Smith”), appeals
from the district court’s grant of summary judgment in favor of his
former employer, Defendant-Appellee Albertson’s, Inc (hereinafter
“Albertson’s”). Finding that Smith failed to offer competent
summary judgment evidence suggesting that Albertson’s non-
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discriminatory reasons were pretextual and, that Smith’s
retaliation claim is unsubstantiated, we AFFIRM.
FACTS AND PROCEEDINGS
In September 1997, Smith, an African American, began his
employment as a clerk with Albertson’s grocery chain. In January
1998, Jeff Smith, the store director, promoted Smith to lobby
supervisor. It was at this time that Smith’s employment problems
began. In June 1998, Jeff Smith issued Smith two written
performance warnings, one pertaining to continued excessive
overtime after he had been advised against it, and the other
involving the untidy and unclean condition of Smith’s department.
As a result of these problems, Jeff Smith eventually demoted Smith
to drug clerk around November 1998. Due to his demotion, Smith’s
pay was reduced from $9.15 to $8.55 per hour.
On January 11, 1999, Smith filed a complaint with the
Equal Opportunity Employment Commission (“EEOC”) alleging that his
demotion and pay reduction were based on his race. On February 26,
1999, finding insufficient evidence to establish a violation, the
EEOC dismissed Smith’s complaint and issued him a right to sue
letter. On March 6, 1999, Smith received his third written warning
notice for missing a scheduled work shift due to car problems.
Finally, on March 19, 1999, Smith was terminated because he
discounted merchandise without management approval.
2 As a result, Smith filed this lawsuit on April 5, 1999
alleging, inter alia, racial discrimination and retaliation in
violation of Title VII.2 The district court granted Albertson’s
motion for summary judgment and dismissed Smith’s claims. Smith
timely filed a notice of appeal.
STANDARD OF REVIEW
This court reviews a district court’s grant of a motion
for summary judgment de novo, employing the same standards as the
district court. See Scrivner v. Socorro Independent School
District, 169 F.3d 969, 970 (5th Cir. 1999). Therefore, this court
reviews the record as a whole and will reverse the district court’s
ruling only if the pleadings, depositions, answers to interroga-
tories, admissions on file, and any affidavits establish a genuine
issue of material fact and the moving party is not entitled to
judgment as a matter of law. See Sreeram v. Louisiana State Univ.
Medical Center, 188 F.3d 314, 318 (5th Cir. 1999); see also,
FED.R.CIV.P. 56(c). A genuine issue of material fact exists where
a reasonable jury could return a verdict for the nonmoving party
based on the evidence currently before this court. Id.
SMITH’S RACIAL DISCRIMINATION CLAIM
Smith maintains that Albertson’s discriminated against
him on the basis of race in demoting him, reducing his wage rate,
2 Smith originally asserted claims for harassment and intentional and negligent infliction of emotional distress under state law. Smith does not challenge the district court’s dismissal of these claims on appeal.
3 and ultimately terminating him.3 Smith’s claims of discrimination
are governed by the tripartite burden-shifting analysis established
in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Under
this analysis, the Smith bears the burden of establishing a prima
facie case of discrimination. See Rubinstein v. Administrators of
the Tulane Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000).
Upon such a showing, the burden shifts to Albertson’s to articulate
some legitimate, non-discriminatory reason for the challenged
employment action. Id. If such a showing is made, then the burden
shifts back to Smith to demonstrate that the articulated reason was
merely a pretext to unlawful discrimination. Id.
Accordingly, Smith must first establish a prima facie
case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,
120 S.Ct. 2097, 2106 (2000). Since Smith’s claim for
discrimination is ultimately based on Albertson’s demoting him due
to his race, Smith must show that: (1) he was within a protected
class; (2) he was qualified for the position sought; (3) he
suffered an adverse employment action; and (4) his position was
filled by someone else. See Bennett v. Total Minatome Corp., 138
F.3d 1053, 1060 (5th Cir. 1998). In this case, it is undisputed on
appeal that Smith satisfied the prima facie case.
3 After reviewing the record and the briefs, it is not entirely clear whether Smith alleges that his race played any role in his termination. However, since Smith is proceeding pro se, this court will construe his allegations and briefs more liberally. See Nerren v. Livingston Police Dept., 86 F.3d 469, 472 (5th Cir. 1996). Accordingly, this court assumes Smith alleges that race played a role in his termination.
4 The burden then shifted to Albertson’s to articulate a
legitimate, non-discriminatory reason for the challenged employment
action. See Russell v. McKinney Hospital Venture, 235 F.3d 219,
222 (5th Cir. 2000). Albertson’s states that Smith was demoted
because of poor job performance and terminated because he sold
merchandise at a discount without management approval. These
reasons are documented in Smith’s personnel file at Albertson’s.
In addition, Albertson’s contends Smith’s decrease in pay was
associated with his demotion and was in accordance with Albertson’s
Mississippi Area Wage Schedule. Thus, it is clear from the record
that Albertson’s has met its burden.
The burden finally shifted back to Smith to offer
evidence sufficient to create a fact issue that Albertson’s reasons
were a pretext for discrimination. The summary judgment turns on
the question of pretext. See Rubinstein, 218 F.3d at 400.
Smith fails the third part of the analysis. In his
attempt to meet this burden, Smith makes the following contentions:
that two former co-workers will testify on his behalf at trial4;
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Summary Calendar No. 00-60515
SCOTT M. SMITH,
Plaintiff-Appellant,
versus
ALBERTSON’S INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Mississippi 3:99-CV-247-BN
March 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this racial discrimination and retaliation case,
Plaintiff-Appellant, Scott M. Smith (hereinafter “Smith”), appeals
from the district court’s grant of summary judgment in favor of his
former employer, Defendant-Appellee Albertson’s, Inc (hereinafter
“Albertson’s”). Finding that Smith failed to offer competent
summary judgment evidence suggesting that Albertson’s non-
* 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. discriminatory reasons were pretextual and, that Smith’s
retaliation claim is unsubstantiated, we AFFIRM.
FACTS AND PROCEEDINGS
In September 1997, Smith, an African American, began his
employment as a clerk with Albertson’s grocery chain. In January
1998, Jeff Smith, the store director, promoted Smith to lobby
supervisor. It was at this time that Smith’s employment problems
began. In June 1998, Jeff Smith issued Smith two written
performance warnings, one pertaining to continued excessive
overtime after he had been advised against it, and the other
involving the untidy and unclean condition of Smith’s department.
As a result of these problems, Jeff Smith eventually demoted Smith
to drug clerk around November 1998. Due to his demotion, Smith’s
pay was reduced from $9.15 to $8.55 per hour.
On January 11, 1999, Smith filed a complaint with the
Equal Opportunity Employment Commission (“EEOC”) alleging that his
demotion and pay reduction were based on his race. On February 26,
1999, finding insufficient evidence to establish a violation, the
EEOC dismissed Smith’s complaint and issued him a right to sue
letter. On March 6, 1999, Smith received his third written warning
notice for missing a scheduled work shift due to car problems.
Finally, on March 19, 1999, Smith was terminated because he
discounted merchandise without management approval.
2 As a result, Smith filed this lawsuit on April 5, 1999
alleging, inter alia, racial discrimination and retaliation in
violation of Title VII.2 The district court granted Albertson’s
motion for summary judgment and dismissed Smith’s claims. Smith
timely filed a notice of appeal.
STANDARD OF REVIEW
This court reviews a district court’s grant of a motion
for summary judgment de novo, employing the same standards as the
district court. See Scrivner v. Socorro Independent School
District, 169 F.3d 969, 970 (5th Cir. 1999). Therefore, this court
reviews the record as a whole and will reverse the district court’s
ruling only if the pleadings, depositions, answers to interroga-
tories, admissions on file, and any affidavits establish a genuine
issue of material fact and the moving party is not entitled to
judgment as a matter of law. See Sreeram v. Louisiana State Univ.
Medical Center, 188 F.3d 314, 318 (5th Cir. 1999); see also,
FED.R.CIV.P. 56(c). A genuine issue of material fact exists where
a reasonable jury could return a verdict for the nonmoving party
based on the evidence currently before this court. Id.
SMITH’S RACIAL DISCRIMINATION CLAIM
Smith maintains that Albertson’s discriminated against
him on the basis of race in demoting him, reducing his wage rate,
2 Smith originally asserted claims for harassment and intentional and negligent infliction of emotional distress under state law. Smith does not challenge the district court’s dismissal of these claims on appeal.
3 and ultimately terminating him.3 Smith’s claims of discrimination
are governed by the tripartite burden-shifting analysis established
in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Under
this analysis, the Smith bears the burden of establishing a prima
facie case of discrimination. See Rubinstein v. Administrators of
the Tulane Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000).
Upon such a showing, the burden shifts to Albertson’s to articulate
some legitimate, non-discriminatory reason for the challenged
employment action. Id. If such a showing is made, then the burden
shifts back to Smith to demonstrate that the articulated reason was
merely a pretext to unlawful discrimination. Id.
Accordingly, Smith must first establish a prima facie
case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,
120 S.Ct. 2097, 2106 (2000). Since Smith’s claim for
discrimination is ultimately based on Albertson’s demoting him due
to his race, Smith must show that: (1) he was within a protected
class; (2) he was qualified for the position sought; (3) he
suffered an adverse employment action; and (4) his position was
filled by someone else. See Bennett v. Total Minatome Corp., 138
F.3d 1053, 1060 (5th Cir. 1998). In this case, it is undisputed on
appeal that Smith satisfied the prima facie case.
3 After reviewing the record and the briefs, it is not entirely clear whether Smith alleges that his race played any role in his termination. However, since Smith is proceeding pro se, this court will construe his allegations and briefs more liberally. See Nerren v. Livingston Police Dept., 86 F.3d 469, 472 (5th Cir. 1996). Accordingly, this court assumes Smith alleges that race played a role in his termination.
4 The burden then shifted to Albertson’s to articulate a
legitimate, non-discriminatory reason for the challenged employment
action. See Russell v. McKinney Hospital Venture, 235 F.3d 219,
222 (5th Cir. 2000). Albertson’s states that Smith was demoted
because of poor job performance and terminated because he sold
merchandise at a discount without management approval. These
reasons are documented in Smith’s personnel file at Albertson’s.
In addition, Albertson’s contends Smith’s decrease in pay was
associated with his demotion and was in accordance with Albertson’s
Mississippi Area Wage Schedule. Thus, it is clear from the record
that Albertson’s has met its burden.
The burden finally shifted back to Smith to offer
evidence sufficient to create a fact issue that Albertson’s reasons
were a pretext for discrimination. The summary judgment turns on
the question of pretext. See Rubinstein, 218 F.3d at 400.
Smith fails the third part of the analysis. In his
attempt to meet this burden, Smith makes the following contentions:
that two former co-workers will testify on his behalf at trial4;
that he had authorization to sell the merchandise at a discount5;
that Jeff Smith is a liar and a racist; that he was demoted because
4 Specifically, Smith contends that Joan Creel’s testimony will directly contradict several of Defendant’s interrogatories, but offers nothing more in support of this contention. 5 He asserts that he and Bill Derouen, Drug Manager, discussed ways of improving gross profit in his department and that he suggested that they sell damaged merchandise at half-price rather than throwing the merchandise away. Albertson’s acknowledges the conversation took place, but denies that Smith was ever given permission to mark down the prices of diapers. Other than asserting he had permission, Smith offers nothing more in support of this contention.
5 the store director wanted to put his white former classmate in
Smith’s position; and that he was not demoted and terminated for
legitimate nondiscriminatory reasons because his personnel file
lacked documentation regarding the reasons for these adverse
actions.
Smith however does not offer any competent summary
judgment evidence in support of these contentions. Smith offers no
affidavit testimony from any co-worker in support of any of his
contentions. In addition to being hearsay, the only declaration
Smith produced fails to support any of Smith’s contentions.6 As
previously noted, the record contains documentation regarding
Smith’s termination.7 Apart from bald assertions, Smith offers no
competent evidence sufficient to withstand summary judgment. See
Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995)
(bald assertions of discrimination are inadequate to permit a
finding that proscribed discrimination motivated defendant’s
actions against plaintiff); see also, Little v. Republic Refining
Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991) (subjective belief of
discrimination cannot be basis of judicial relief). Speculation
6 Smith produced the declaration of Tracy Miller. Miller, who is white, stated that he was not terminated after marking down the price of milk after he was authorized to do so. This court fails to see the significance of Miller’s declaration. As the district court noted, Miller unquestionably had the authority to mark down the milk, while Albertson’s alleges that Smith had no such authority. 7 Smith himself produced a copy of written notice of his termination in his complaint as Exhibit “X” which states the reason for his termination was his marking down the price of merchandise without approval. (R. at 54).
6 and belief are insufficient to create a fact issue as to pretext.
See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th
Cir. 1996) (en banc) (“...employee’s subjective belief that he
suffered an adverse employment action as a result of
discrimination, without more, is not enough to survive a summary
judgment motion[.]”).
SMITH’S RETALIATION CLAIM
Smith also has failed to support a cause of action for
retaliation. To establish a prima facie claim of retaliation,
Smith must show: (1) that he engaged in activity protected by Title
VII; (2) that an adverse employment action occurred; and (3) that
a causal link existed between his participation in the protected
activity and the adverse employment action. See Casarez v.
Burlington Northern/Santa Fe Co., 193 F.3d 334, 338-39 (5th Cir.
1999). Ultimately, Smith must show that Albertson’s would not have
terminated him “but for” Smith’s filing a complaint with the EEOC.
See Scrivner, 169 F.3d at 972.
EEOC alleging that his demotion and accompanying pay reduction were
the result of race discrimination. On March 19, 1999, Albertson’s
terminated Smith for selling merchandise at a discount without
authorization. Other than self-serving statements and unsub-
stantiated assertions, Smith offers no admissible evidence of any
causal link between his termination and his filing a complaint with
7 the EEOC.8 The party opposing summary judgment must present
supporting evidence and/or testimony, or suffer dismissal of the
case. As previously noted, mere “conclusory allegations, specula-
tion, and unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden.” Douglass, 79 F.3d at 1430. Smith’s own self-
serving statements of subjective belief of discrimination are
insufficient to support his burden. See Grizzle v. Travelers Health
Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994).
CONCLUSION
Smith failed to present sufficient evidence from which a
reasonable jury could infer discrimination and his claim of illegal
retaliation is unsupported. Accordingly, summary judgment in favor
of Albertson’s is AFFIRMED.
8 Again, Smith only produces statements of witnesses who will testify at trial, but offers nothing more.