### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 21, 2013 Ly l e W . Cay ce Clerk Case: 12-30984 Document: 00512350007 Page: 1 Date Filed: 08/21/2013No. 12-30984

PER CURIAM: * Chad Dailey a nd Kevin Strickland a ppeal from the district court’s grant of summary ju d g ment to t he City of Shreveport and Henry Whitehorn on Dailey’s and Strickland’s claims of race and sex discrimination. We AFFIRM. Henry Whiteh o r n w a s C h i e f o f P o li c e o f the Shreveport Police Department. He instituted a diversification plan for specialized units to prevent r e cycling the

same officers into t hese units in order to generate fresh viewpoints. D ailey and Strickland, w hite males, applied to a vacancy in the Violent Crimes Unit of the Investigations Division. The high est-ranked candidate accepted another position. The next three highest-ranked candidates were Dailey, w h o w as in the Canine Unit; Strickla n d , w h o had previously worked in the Investigations D i v i sion and was in the Patrol Division 1 ; and Shaunda Holmes, an Afric a n American female who had never worked in a specialized unit. Although Holmes

was selected for th e p o s ition, Dailey and Strickland also w ere 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 s ex discrimination claims against Wh i t e horn under 42 U.S.C. § 1983; Article I, Section 3 of the Louisiana Constituti o n ; a nd Louisiana R evised Statutes § 23:332. Additionally, Strickland brought these t hree c laims a gainst the City a nd 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 o f s u m m ary judgment de novo, a pplying the same s tandards a s the district court.” A ntoine v. First Student, Inc. , 713

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not preced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 The Patrol D ivis ion ap p ears to be the non- sp ecialized unit. 2 Case: 12-30984 Document: 00512350007 Page: 2 Date Filed: 08/21/2013No. 12-30984

F.3d 824, 830 (5th Cir. 2013). “ Summary judgment i s p r o p e r if the evidence shows that there is no genuine issue as to a ny material fact and that the moving party is entitled to judgment as a m atter of law.” Griffin v. United Parcel Serv., Inc. , 661 F.3d 216, 221 ( 5th Cir. 2011). “Evidence is construed in the light most f a v o r able to the non-moving party[,] drawing all reasonable inferences in t h a t party’s f avor.” Milton v . Tex. Dep’t of Criminal Justice , 707 F.3d 570, 572 (5th Cir. 2013) (internal quotation marks and alterations omitted). Dailey’s a nd Strickl a n d ’ 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 H osp. Med. Ctr. , 298 F .3d 333, 342 (5th Cir. 2002). Title VII prohibits employers from discriminating a gainst 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 c i rcumstantial evidence.” Alvarado

v. T ex. Rangers , 492 F.3d 6 05, 611 (5th Cir. 2 007). “Direct evidence is evidence which, if believed, proves the fact without inference or presumption.” Jones v. Robins o n Pr o

p . Grp., L.P. , 427 F.3d 987, 992 (5th Cir. 2005). C ircumstantial

e v i d ence is a nalyzed under the familiar framework established by McDon n e l l Douglas Cor

p . v . G reen , 411 U.S. 792 (1973). See A lavarado , 492 F.3d at 611. The McDonnell Douglas framework requires a p l aintiff first to establish a prima facie case of discrimination. Se e 411 U.S. at 802. A prima facie c ase may be shown by demonstrating “that the plaintiff (1) is a member of a protected group; (2) w as qualified for t he p osition at i ssue; (3)

. . . suffered some adverse employment action b y t he employer; a nd (4)

. . . was treated less favorably than

2 Article I, Section 3 of the Louis ia n a C o n s titution s tates in p ertinent p art, “N o law s hall d is crim inate agains t a p ers on becaus e of race . . . . No law s hall arbitrarily, cap ricious ly, or unreas onably d is crim inate agains t a p ers on bec a u s e o f

. . . s ex . . . . ” D ailey’s and W h i t e h o r n ’ s claim s challenge alleged ly d is crim inatory conduct , not law s , s o d o not s tate a claim und er this s ection. Se e W a s h i ngton v . Loui si a na , N o. 11- 334- BAJ- D L D, 2012 WL 4159079, at *14 (M. D. L a. Aug. 21, 2012)

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other similarly situated employees o u t s i de the protected group.” McCoy , 492 F.3d at 556. T he burden then shifts to the employer t o articulate a legitimate, nondiscriminatory r eason for the adverse em p l o y m e nt action at issue. Id

. at 557. “[T]h e p l a i n tiff then bears the u l timate burden of proving that the employer’s p roffered rea s o n is not true but instead is a pretext for the real discriminatory or retaliatory purpose.” Id

. Dailey a nd Strickland purport to e stablish direct e v idence of discrimination by pointing to statements Whitehorn made between one and two years b efore the employment decision a t i s s u e indicating he i ntended to i m p l ement a diversification p lan and w ould advance minority c andidates o v e r better qualified w hite candidates. These alleged statements a re too attenuated in time f

r o m the employment decision at issue, and i n f erence is required to conclude Holmes’s s e l ection resulted from intentional discrimina t i o n. Accordingly, Dailey and Strickland c annot establish direct evidenc e of discrimination. See Jones , 427 F.3d at 992. Neither ca n D a i l ey and Stickland establish a p rima facie case of discrimination using c ircumstantial evidence bec a use they cannot s how any adverse employment action. See McCoy , 492 F.3d at 556. Even if the transfer

was actually a p r o m o t i on, they c omplain only of d elays and cannot establish adverse effects. See Benningfield v. City of Hous. , 1 5 7 F.3d 369, 378 (5th Cir. 1998) (“We need not address w hether a mere delay in promotion constitutes an adverse employment action because [plaintiff] received the promotion with retroactive p ay and seniority.”). It is undisputed t hat t here was no increase in salary associated with the transfer. The o nly evidence of adverse effects is Dailey’s claim that he would have received t he same amount of o ver t ime as Holmes at his overtime rate (an amount he calculates a s $3,800) based o n 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 S trickland’s

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evidence consists of n othing more t han “[c]onclusional allegations

. . . , speculation, improbable inferences, [and] unsubstantiated assertions [that] d o not adequately substitute for spe c i f i c facts showing a genuine issue for trial.” See TIG Ins. Co. v . Sedgwick James of Wash. , 276 F.3d 7 54, 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.

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