Vance v. North Panola School

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 1999
• Docket: 98-60719
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60719 Summary Calendar

BARBARA VANCE,

Plaintiff-Appellant,

versus

NORTH PANOLA SCHOOL DISTRICT; VERNON JACKSON; W. RAY STREBECK; JOHN X. DOE; JANE DOE; DOE CORPORATIONS

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi (2:96 - CV - 211 - BB) - - - - - - - - - - July 16, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Barbara Vance appeals the district court’s

grant of summary judgment in favor of the defendants-appellants.

Vance argues on appeal that she sufficiently raised genuine issues

of material fact in order to survive a motion for summary judgment

on her claims of wrongful discrimination under 42 U.S.C. § 1983 and

Title VII of the Civil Rights Act of 1964.

I.

The plaintiff is a white female who was employed by the North

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Panola School District as the business manager of the school

district. The plaintiff did not have a written contract of

employment. During the time of the plaintiff’s employment, the

financial situation of the school district worsened sharply. On

February 1, 1996, Vernon Jackson, as superintendent of the school,

sent a letter to the plaintiff detailing her deficiencies as an

employee and notifying her that her performance must improve. The

listed deficiencies included “non-payment of bonds to the

superintendent, Vocational Center, and purchasing agent,” failure

to report unpaid bills over a year old, and failure to provide a

monthly statement of receipts to the school district’s accounting

firm.

On March 7, 1996, the school board met and discussed the

plaintiff’s employment. On Jackson’s recommendation, the board

voted to discharge the plaintiff for the reasons set out in the

February 1 letter. Her termination took effect on March 8, 1996,

the same date that the State of Mississippi took control of the

school district and placed it under the conservatorship of Ray

Strebeck. The plaintiff subsequently asked Strebeck and R.D.

Harris, deputy state superintendent of education, about getting her

job back. However, she never applied for the job.

II.

We review the district court’s decision to strike lay opinion

testimony under an abuse of discretion standard. Watts v. Kroger

Co., 170 F.3d 505, 509 (5th Cir. 1999). The plaintiff claims that

2 the district court erred in not allowing the affidavit of Kathy

Mason into evidence. The Mason affidavit was the plaintiff’s

primary evidence, both to make out a prima facie case of

discrimination and to show pretext. The plaintiff relies on the

Supreme Court’s statement that, “We do not mean that the nonmoving

party must produce evidence in a form that would be admissible at

trial in order to avoid summary judgment.” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). While it is true that the

evidence need not be presented in a form admissible at trial, this

court does not allow the admission of pure hearsay or speculation

as evidence to avoid summary judgment. See Salas v. Carpenter, 980

F.2d 299, 305 (5th Cir. 1992) (“Evidence inadmissible at trial

cannot be used to avoid summary judgment”); Barker v. Norman, 651

F.2d 1107, 1123 (5th Cir. Unit A July 1981) (holding that an

affidavit for summary judgment purposes must be based on the

affiant’s personal knowledge). Mason’s affidavit contains hearsay

and speculation by herself and several other people as to why the

plaintiff was fired. As the district court pointed out, none of

the people mentioned in the Mason affidavit were involved in any

way in the decision to terminate the plaintiff. The district court

did not abuse its discretion in refusing to admit the affidavit.

The affidavit, even if it were admissible, contains no valid

evidence of discrimination by the defendants in this suit.

III.

We review the district court’s grant of summary judgment de

novo. Walton v. Bisco Indus., Inc., 119 F.3d 368,370 (5th Cir.

3 1997). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” FED.R.CIV.P. 56(c).

The law regarding Title VII discrimination suits is clear.

The plaintiff must establish a prima facie case of discrimination

by the defendant. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). The defendant may then rebut the presumption of

discrimination by presenting evidence of legitimate, non-

discriminatory reasons for termination. Id. The plaintiff then

has the burden to show that the defendant(s)’ legitimate reasons

are a pretext for discrimination. Id. at 804.

Here, the defendants admit, for the purposes of this appeal,

that the plaintiff made out a prima facie case of discrimination.

Assuming that the plaintiff has established a prima facie case of

discrimination, the burden shifts to the defendants to show a

legitimate, non-discriminatory reason for firing the plaintiff.

The defendants showed inadequate performance by the plaintiff as

evidenced by the February 1 letter and by the minutes of the

meeting in which the decision to terminate the plaintiff was made.

The plaintiff then had to show that the defendants’ supposed non-

discriminatory reason is a pretext for discrimination. The

plaintiff here has not raised a genuine issue of material fact as

to whether the defendants’ reason for terminating her was

pretextual. The evidence she offers is a statement allegedly made

4 by Strebeck and/or R.D. Harris. Strebeck allegedly told the

plaintiff when they met to discuss her “rehiring” that the local

black community would have to be consulted before she was brought

back. This statement simply has no bearing on the plaintiff’s

termination. It was made several weeks after her termination by

people not involved in the decision to terminate her. It does not

evidence a discriminatory intent by the school board or Jackson.

The plaintiff’s other evidence is an affidavit by her former

attorney Kathy Mason filled with hearsay and speculation as to why

the plaintiff was fired. The district court properly ruled this

affidavit inadmissible.

Mayberry v. Vought Aircraft Co. held that if the defendant in

a discrimination case meets his burden of production to rebut the

presumption of discrimination, the presumption “drops out.” 55 F.3d

1086, 1089 (5th Cir. 1995). The plaintiff cannot simply assert his

prima facie evidence again to overcome the defendants’ legitimate

reason. Id. at 1092. This plaintiff did not offer any additional

evidence of discrimination. This court has held that where the

reasons articulated for termination are rational ones (as opposed

to frivolous or capricious reasons) whose objective truth is not

seriously disputed, it is difficult to carry the burden of

establishing them as pretextual, even in a summary judgment

context. Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567

(5th Cir. 1983). Therefore, summary judgment was proper.

IV.

5 With respect to the plaintiff’s § 1983 claim, her contention

is that she has a property interest in continued employment and

that her termination violated due process. This court has held

that a protected property interest in continued employment must be

based on a legitimate claim under a source independent of the

Fourteenth Amendment. McMillian v. City of Hazelhurst, 620 F.2d

484,485 (5th Cir. 1980). The plaintiff cites the School Employment

Procedures Law, Miss. Code Ann. § 37-9-101 - § 37-9-113, as the

source for her rights to a formal hearing before termination.

However, the statute declares that “[i]t is the intent of the

legislature to establish procedures for providing public school

employees with notice of the reasons for not offering an employee

a renewal of his contract...” MISS. CODE ANN. §37-9-101 (1972). An

employee is defined in § 37-9-103 as any personnel required to have

a valid certificate issued by the state department of education as

a prerequisite of employment.

The plaintiff claims that she was required to have a

certificate, although she never produced it. Even if she was a

“certified” employee, she did not have a contract of employment;

therefore, by its plain language, the statute is inapplicable and

does not create a protected property interest. The plaintiff also

claims that she had a protected property interest in employment

because of a mutually explicit understanding based on the “Rules of

Procedure Under the School Employment Procedures Act.” However,

the “Rules of Procedure” only apply to “teachers, principals, and

superintendents...or other professional instructional personnel who

6 are required to have a valid certificate issued by the State

Department of Education and are under formal contract of

employment...” North Panola Sch. Dist. Rules of Procedure, §1.

Furthermore, we note that the district court found in Beasley v.

Grenada that the plaintiff, a food service employee for the Grenada

County School District, was part of the support staff of the

district and not part of the instructional personnel referred to in

[Miss. Code Ann. §37-9-103]. Civil Action No. WC88-103-B-D (N.D.

Miss. Oct. 9, 1998). The plaintiff in Beasley, like the plaintiff

here, had a certificate, but she was not part of the instructional

personnel referred to in the statute. Neither the statute nor the

Rules of Procedure give the plaintiff a protected property interest

in continued employment. Summary judgment on this issue was

proper.

For these reasons, we find no reversible error in the district

court’s order. Therefore, we AFFIRM the judgment of the district

court.