Spencer v. Sargent

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-60643
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60643 Conference Calendar

JESSE BROWN SPENCER,

Plaintiff-Appellant,

versus

HARLEY SARGENT; CITY OF JACKSON, MISSISSIPPI,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:98-CV-372-WS - - - - - - - - - - June 16, 2000

Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.

PER CURIAM:*

Jesse Brown Spencer appeals the dismissal with prejudice of

his lawsuit against defendants Harley Sargent and the City of

Jackson, Mississippi, alleging that he was denied a promotion

based solely on his race. The district court granted summary

judgment in favor of the defendants with regard to Spencer’s

Title VII claim because Spencer failed to timely file a charge

with the Equal Employment Opportunity Commission (EEOC) and with

regard to Spencer’s claims under 42 U.S.C. §§ 1981 and 1983

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-60643 -2-

because Spencer failed to present sufficient proof of

discrimination.

This court reviews a grant of summary judgment de novo.

Green v. Touro Infirmary, 992 F.2d 537, 538 (5th Cir. 1993).

Spencer, who is African-American, concedes that the promotion he

was denied was given to an African-American female. He cannot

establish a prima facie case of racial discrimination for failure

to promote because the promotion was given to a member of his

same race. See Gonzalez v. Carlin, 907 F.2d 573, 578 (5th Cir.

1990)(Title VII case); see also Bunch v. Bullard, 795 F.2d 384,

387 n.1 (5th Cir. 1986)(holding that a claimant is required to

show the same proof required to show liability under Title VII

when §§ 1981 and 1983 are used as parallel causes of action with

Title VII). The defendants were therefore entitled to summary

judgment regarding Spencer’s claims of discrimination under

§§ 1981 and 1983. See Davis v. Chevron U.S.A., Inc., 14 F.3d

1082, 1087-88 (5th Cir. 1994)(Title VII case).

Because Spencer’s failure to establish a prima facie case of

discrimination was also fatal to his Title VII claim, this court

need not address Spencer’s argument that the district court erred

in dismissing his Title VII claim because he failed to timely

file a charge with the EEOC. See Bickford v. International

Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981)(holding that

“reversal is inappropriate if the ruling of the district court

can be affirmed on any grounds, regardless of whether those

grounds were used by the district court.”).

AFFIRMED.