IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30984

CHAD DAILEY,

Plaintiff – Appellant

v.

HENRY WHITEHORN, individually and in his official capacity as the policymaker and agent of the appointing authority for the City of Shreveport Police

Department,

Defendant – Appellee

------------------------------------------------------------------------------------------------------------

KEVIN STRICKLAND,

Plaintiff – Appellant

v.

CITY OF SHREVEPORT; HENRY WHITEHORN, individually and in his

official capacity as the policy-maker and agent of the appointing authority for

the City of Shreveport Police Department,

Defendants – Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:10-CV-1453

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2013

Lyle W. Cayce

Clerk

 Case: 12-30984 Document: 00512350007 Page: 1 Date Filed: 08/21/2013
No. 12-30984

PER CURIAM:*

Chad Dailey and Kevin Strickland appeal from the district court’s grant

of summary judgment to the City of Shreveport and Henry Whitehorn on

Dailey’s and Strickland’s claims of race and sex discrimination. We AFFIRM.

Henry Whitehorn was Chief ofPolice of the Shreveport Police Department. 

He instituted a diversification plan for specialized units to prevent recycling the

same officers into these units in order to generate fresh viewpoints. Dailey and

Strickland, white males, applied to a vacancy in the Violent Crimes Unit of the

Investigations Division. The highest-ranked candidate accepted another

position. The next three highest-ranked candidates were Dailey, who was in the

Canine Unit; Strickland, who had previously worked in the Investigations

Division and was in the Patrol Division1; and Shaunda Holmes, an African

American female who had never worked in a specialized unit. Although Holmes

was selected for the position, Dailey and Strickland also were assigned to the

Violent Crimes Unit to fill the next two vacancies, effective four and five months

after Holmes’s selection, respectively.

Dailey and Strickland brought race and sex discrimination claims against

Whitehorn under 42 U.S.C. § 1983; Article I, Section 3 of the Louisiana

Constitution; and Louisiana Revised Statutes § 23:332. Additionally, Strickland

brought these three claims against the City and included a claim under Title

VII, 42 U.S.C. § 2000e-2. The district court granted summary judgment to the

City and Whitehorn, and Dailey and Strickland timely appealed.

“We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court.” Antoine v. First Student, Inc., 713

* 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 The Patrol Division appears to be the non-specialized unit.

2

 Case: 12-30984 Document: 00512350007 Page: 2 Date Filed: 08/21/2013
No. 12-30984

F.3d 824, 830 (5th Cir. 2013). “Summary judgment is proper if the evidence

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Griffin v. United Parcel Serv.,

Inc., 661 F.3d 216, 221 (5th Cir. 2011). “Evidence is construed in the light most

favorable to the non-moving party[,] drawing all reasonable inferences in that

party’s favor.” Milton v. Tex. Dep’t of Criminal Justice, 707 F.3d 570, 572 (5th

Cir. 2013) (internal quotation marks and alterations omitted).

Dailey’s and Strickland’s claims are analyzed under the Title VII

framework.2 See McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir.

2007); Patel v. Midland Mem’l Hosp. Med. Ctr., 298 F.3d 333, 342 (5th Cir.

2002). Title VII prohibits employers from discriminating against employees on

the basis of race or sex. 42 U.S.C. § 2000e-2(a)(1). “Intentional discrimination

can be established through either direct or circumstantial evidence.” Alvarado

v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). “Direct evidence is evidence

which, if believed, proves the fact without inference or presumption.” Jones v.

Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). Circumstantial

evidence is analyzed under the familiar framework established by McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Alavarado, 492 F.3d at 611. 

The McDonnell Douglas framework requires a plaintiff first to establish a prima

facie case of discrimination. See 411 U.S. at 802. A prima facie case may be

shown by demonstrating “that the plaintiff (1) is a member of a protected group;

(2) was qualified for the position at issue; (3) . . . suffered some adverse

employment action by the employer; and (4) . . . was treated less favorably than

2 Article I, Section 3 of the Louisiana Constitution states in pertinent part, “No law

shall discriminate against a person because of race . . . . No law shall arbitrarily, capriciously,

or unreasonably discriminate against a person because of . . . sex . . . .” Dailey’s and

Whitehorn’s claims challenge allegedly discriminatory conduct, not laws, so do not state a

claim under this section. See Washington v. Louisiana, No. 11-334-BAJ-DLD, 2012 WL

4159079, at *14 (M.D. La. Aug. 21, 2012).

3

 Case: 12-30984 Document: 00512350007 Page: 3 Date Filed: 08/21/2013
No. 12-30984

other similarly situated employees outside the protected group.” McCoy, 492

F.3d at 556. The burden then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the adverse employment action at issue. Id. at

557. “[T]he plaintiff then bears the ultimate burden of proving that the

employer’s proffered reason is not true but instead is a pretext for the real

discriminatory or retaliatory purpose.” Id.

Dailey and Strickland purport to establish direct evidence of

discrimination by pointing to statements Whitehorn made between one and two

years before the employment decision at issue indicating he intended to

implement a diversification plan and would advance minority candidates over

better qualified white candidates. These alleged statements are too attenuated

in time from the employment decision at issue, and inference is required to

conclude Holmes’s selection resulted from intentional discrimination. 

Accordingly, Dailey and Strickland cannot establish direct evidence of

discrimination. See Jones, 427 F.3d at 992.

Neither can Dailey and Stickland establish a prima facie case of

discrimination using circumstantial evidence because they cannot show any

adverse employment action. See McCoy, 492 F.3d at 556. Even if the transfer

was actually a promotion, they complain only of delays and cannot establish

adverse effects. See Benningfield v. City of Hous., 157 F.3d 369, 378 (5th Cir.

1998) (“We need not address whether a mere delay in promotion constitutes an

adverse employment action because [plaintiff] received the promotion with

retroactive pay and seniority.”). It is undisputed that there was no increase in

salary associated with the transfer. The only evidence of adverse effects is

Dailey’s claim that he would have received the same amount of overtime as

Holmes at his overtime rate (an amount he calculates as $3,800) based on public

records that are not in the record. Strickland provides only the same speculative

calculations to claim $760 in lost overtime pay. Dailey’s and Strickland’s

4

 Case: 12-30984 Document: 00512350007 Page: 4 Date Filed: 08/21/2013
No. 12-30984

evidence consists of nothing more than “[c]onclusional allegations . . . ,

speculation, improbable inferences, [and] unsubstantiated assertions [that] do

not adequately substitute for specific facts showing a genuine issue for trial.” 

See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). 

Accordingly, their allegations do not show any adverse employment action, and

they have failed to make out a prima facie case of race and sex discrimination. 

AFFIRMED.

5

 Case: 12-30984 Document: 00512350007 Page: 5 Date Filed: 08/21/2013