IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-30736

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CAROL L. AUGUSTER,

Plaintiff-Appellant,

VERSUS

VERMILION PARISH SCHOOL BOARD,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________

May 3, 2001

Before REAVLEY, SMITH, and DeMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Carol Auguster appeals a summary

judgment in favor of the Vermilion Parish

School Board in his suit under 42 U.S.C. §

1981 and title VII, 42 U.S.C. § 2000e et seq.

Seeing no error, we affirm.

I.

After teaching and coaching football for

many years, Auguster, a black male, was hired

to teach sixth grade at J.H. Williams Middle

School for the 1997-98 year. Pursuant to his

contract, the district reserved the right to remove him for cause in accordance with the

state’s tenure laws.1 Auguster alleges that the

1 The school board contendsSSand Auguster

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2

superintendent, Dan Dartez, told him when he

was hired of “a problem that they had with

past black coaches, and if there was another

problem, no matter what it was, that he would

do his best to get rid of me, from day one.” In

the same conversation, Auguster alleges,

Dartez told him that “he had bad luck with

black men working in Abbeville.”2

In March 1998, Jonathon Williams, the

principal, received a complaint that Auguster

had improperly used corporal punishment to

discipline students. After investigating the incident,Williamssent Auguster a reprimand letter informing him that he had violated the

corporal punishment policy. Sometime later,

Auguster showed an “R” rated movie to his

class, an activity the school board considered

unacceptable and for which Auguster received

another reprimand. 

In May 1998, Auguster received a written

evaluation outlining his deficiencies in

management and instruction and referencing

the corporal punishment incident and the

unacceptable movie. As a result of the

evaluation, the board developed an “Intensive

Assistance Plan,” pursuant to which Auguster

received counseling and agreed to refrain from

corporal punishment. Williams began

personally to monitor Auguster’s in-class

performance to ensure compliance with school

board policies.

On July 8, 1998, Auguster received notice

that the board would consider a

recommendation by Dartez not to renew his

contract. The board held a hearing on July 22

but failed to adopt the recommendation. On

August 6, however, Dartez notified Auguster

that the board had decided not to renew his

contract for the following year. Auguster’s

position eventually was filled by a white

female.

II.

The board argued that Auguster had failed

to establish a viable claim of discrimination.

The district court, analyzing the issue under

the framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and its

progeny, held that, although Auguster had

presented a prima facie case of discrimination,

the school board had articulated a legitimate,

non-discriminatory reason for his firing.

Because Auguster could not establish that the

proffered reason was mere pretext, the court

granted summary judgment. Auguster argues

that he did establish pretext.

III.

We review a summary judgment de novo,

applying the same standards as did the district

court, while viewing all disputed facts and reasonable inferences “in the light most favorable

to the nonmoving party . . . .” Duffy v.

Leading Edge Prods., 44 F.3d 308, 312 (5th

Cir. 1995). Summary judgment is appropriate

where “there is no genuine issue as to any

material fact and . . . the moving party is

entitled to judgment as a matter of law.” FED

R. CIV. P. 56(c). To survive summary

judgment, however, the nonmoving partymust

do more than allege an issue of material fact:

“Rule 56(e) . . . requires the nonmoving party

to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to

1

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does not disputeSSthat Auguster was a

probationary teacher with no tenure rights.

2 The school board disputes the statements, and

the only evidence supporting the statements is

Auguster’s testimony. Because we are reviewing

a summary judgment, however, we must assume

that Auguster’s testimony is correct. See infra.
3

interrogatories, and admissions on file,

designate specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986) (internal

quotation marks omitted); accord Urbano v.

Continental Airlines, Inc., 138 F.3d 204, 205

(5th Cir. 1998).

The district court analyzed Auguster’s title

VII and § 1981 claims under the framework

established byMcDonnell Douglas, according

to which a plaintiffmust first establish a prima

facie case of discrimination, whereupon the

burden of production shiftsto the defendant to

articulate a legitimate, non-discriminatory

reason for its action. Shackelford v. Deloitte

& Touche, LLP, 190 F.3d 398, 404 (5th Cir.

1999). At that point, “the McDonnell

Douglas frameworkSSwith its presumptions

and burdensSSdisappear[s], and the sole

remaining issue [is] discrimination vel non.”

Reeves v. Sanderson Plumbing Prods, Inc.,

530 U.S. 133, 142-43 (2000) (citations and

quotation marks omitted). If the plaintiff can

show that the proffered justification is mere

pretext, however, that showing, coupled with

the prima facie case, will be sufficient in most

cases to survive summary judgment. Id. at

146-48.

“Althoughintermediate evidentiary burdens

shift back and forth under this framework,

‘[t]he ultimate burden of persuading the trier

of fact that the defendant intentionally

discriminated against the plaintiffremains at all

times with the plaintiff.’” Id. at 143 (quoting

Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981)). To carry that burden,

the plaintiffmust produce substantial evidence

of pretext:

“Evidence that the proffered reason is

unworthy of credence must be enough

to support a reasonable inference that

the proffered reason is false; a mere

shadow of doubt is insufficient.” This

court has consistently held that an

employee’s “subjective belief of

discrimination” alone is not sufficient to

warrant judicial relief.

Bauer v. Albemarle Corp., 169 F.2d 962, 967

(5th Cir. 1999) (quoting E.E.O.C. v. La.

Office of Cmty. Servs., 47 F.3d 1438,

1443-44, 1448 (5th Cir. 1995)) (citation

omitted).3

Auguster undisputedly established a prima

facie case: He is black, he suffered an adverse

employment decision, and his former position

was filled by a white woman. Likewise, the

school board articulated a legitimate, nondiscriminatory reason for its decision not to

rehire Auguster: his poor evaluation, as

evidenced by hisinappropriate use of corporal

punishment and screening of an R-rated film.

Auguster admitsthat the events occurred, and

he cannot seriously dispute that they provide

ample justification for the refusal to renew his

contract.4 His case depends on the contention

3 Bauer was decided before Reeves, which

changed our jurisprudence on the evidentiary consequences of a successful showing of pretext.

Nothing in Reeves, however, abrogates Bauer’s

requirement of substantial evidence to support a

claim of pretext. Cf. Reeves, 530 U.S. at 144

(“Petitioner, however, made a substantial showing

that respondent’s explanation was false.”).

4 At oral argument, Auguster alleged that white

teachers who had committed similar offenses were

not similarly punished. If taken as true, that

allegation might be evidence of disparate impact

sufficient to survive summary judgment. The issue

has been abandoned, however, because Auguster

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4

that the articulated justification is merely

pretext for discrimination. 

As evidence of pretext, Auguster argues

that Dartez unilaterally refused to renew his

contract in contravention of the board’s

mandate to rehire Auguster.5 That allegation

is not supported by the record, which reflects

only that the board reached a stalemate when

voting on Dartez’s recommendation not to

rehire Auguster, not that the board

affirmatively voted to renew his contract. The

record does support an inference that Dartez

acted without legal authority in refusing to

renew Auguster’s contract, because there is no

evidence that the board made any decision

whatsoever regarding the renewal of the

contract.6 

Nonetheless, the fact that Dartez acted

outside hisstatutory authority is not probative

with respect to whether the board’s articulated

justification is mere pretext. There is no evidence that he acted any differently from how

he would have in any other situation; indeed,

the board asserts that Dartez does in fact have

the authority unilaterally to make employment

decisions with respect to untenured teachers.

Although the school board’s view of state

4

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1 failed to assert it in his brief. See Strong v. Bell2 South Telecomms.Inc., 137 F.3d 844, 853 n.9 (5th

3 Cir. 1998) (considering waived an issue asserted at

4 oral argument but not addressed in the briefs).

5

 Auguster also argues that the articulated justification must be pretext because he already had

been reprimanded for the incidents in question

before the decision not to rehire him. Thus, according to Auguster, the school board could not

permissibly have revisited those incidents in deciding whether to renew his contract. That

argument is meritless on its face. 

6 The parties stipulated that “the decision to not

renew Carol Auguster’s contract of employment

with the Vermilion Parish School Board was made

by Dr. Daniel Dartez in his sole discretion as

Superintendent of Vermilion Parish Schools.” The

parties disagree, however, on the meaning of the

stipulation. 

Auguster contends that it means Dartez acted

on his own, while the school board contends that

(continued...)

6

(...continued)

the stipulation means Dartez was vested with discretion tomake the decision. Under Louisiana law,

the board’s interpretation appears to be impermissible: Although the statutes do not refer

specifically to contract renewals, they do expressly

govern the hiring of teachers and the dismissal of

probationary teachers, the combination of which

presumably envelops contract renewals. See LA.

REV. STAT. ANN. §§ 17:81, 17:442. 

Both of those statutes provide for action by the

school board on the superintendent’s

recommendation, but not for unilateral action by

the superintendent. Furthermore, the Louisiana

Attorney General has interpreted the statutes to

preclude delegation of those functions to the sole

discretion of the superintendent. See La. Att’y

Gen. Op. No. 93-654 (1993) (“Th[e] power to hire,

fire, demote, transfer and promote teachers is a

discretionary power vested in the school board and

may not be delegated.”); La. Att’y Gen. Op. No.

80-1103 (1980) (“[T]he legislature strongly

intended that the localschool board should have the

final selection authority and that this selection

power should not be totally in the hands of the

superintendent. It is therefore the opinion of this

office that both the legislative intent and plain

meaning of the statute dictate that the local school

board must approve and select teachers to be hired

. . . .”). Thus, although we can infer that the board

attempted to vest sole authority for the decision in

Dartez, we cannot infer that it in fact did so. 
5

law may be wrong in this respect, it does indicate that Dartez’s failure to renew Auguster

was not a maverick action, as Auguster asserts, whichmight be evidence that the board’s

articulated justification is mere pretext.

Instead, Dartez’s action merely represents the

mistaken understanding of bothDartez and the

board that he had unilateral authority to make

employment decisions, at least with respect to

untenured teachers. 

That alone is insufficient to establish pretext. Thus, because Auguster failed to carry

his burden of establishing pretext, the district

court correctlyconcluded that his claimcannot

survive under the McDonnell Douglas

framework; Auguster therefore must prove

discrimination without the benefit of McDonnell Douglas’s shifting burdens.

IV.

Auguster did present some direct evidence

of discrimination: the comments by Dartez to

the effect that the school had “a problem . . .

with past black coaches, and if there was

another problem, no matter what it was, that

he would do his best to get rid of me, from day

one.”7 Given the overwhelming evidence

supporting the school board’s legitimate justification, however, Dartez’s comments can be

viewed as no more than stray remarks, which

are insufficient to survive summary judgment.

In Russell, 235 F.3d at 229 & n.19, we

questioned the continued vitality of the stray

remarks doctrine,stating that, “[i]n light ofthe

Supreme Court’s admonition in Reeves, our

pre-Reeves jurisprudence regarding so-called

‘stray remarks’ must be viewed cautiously.”

Notably, however, in both Reeves and Russell,

there wassubstantial evidence of pretext apart

from the comments at issue.8 In fact, the

Supreme Court faulted our decision in Reeves9

not for applying the stray remarks doctrine,

but for failing to accord proper weight to the

7 Auguster contends that, under the McDonnell

Douglas framework, the comments establish that

the school board’s asserted justification is pretext.

Although discriminatory comments can be evidence

of pretext,seeRussell v. McKinneyHosp. Venture,

235 F.3d 219, 225 n.9 (5th Cir. 2000), in a case

such as this, where there is no other evidence of

pretext, it is appropriate to analyze such comments

as direct evidence of discrimination, apart from the

McDonnell Douglas framework.

8

In Reeves, the employer cited the employee’s

poor recordkeeping as justification for dismissing

him, asserting that the recordkeeping affected union

relations and cost the company overtime wages.

The Court found, however, that the plaintiff had

produced substantial evidence that the articulated

justification was pretext by explaining in detail the

alleged bookkeeping discrepancies and showing

that there had never been a union grievance filed

because of them; nor had the employer ever even

calculated the amount of the alleged overpayments

resulting from the discrepancies. Reeves, 530 U.S.

at 143-46. Only after discussing that evidence of

pretext and noting that the court of appeals had in

fact found pretext did theCourt look at “additional

evidence of discrimination” in the form of agerelated comments. Id. at 151.

Likewise, inRussell, 235 F.3d at 224, we found

that where the employer justified firing the

employee to introduce a “change in management

style,” the employee’s outstanding evaluations and

the employer’sfailure to followinternal procedures

in terminating the employee were substantial

evidence of pretext. Only then did we analyze

remarks evidencing age-related animus as

“Additional Evidence of Discrimination.” Id.

at 225.

9 Reeves v. Sanderson Plumbing Prods., Inc.,

197 F.3d 688 (5th Cir. 1999), rev’d, 530 U.S. 133

(2000).
6

plaintiff’s substantial evidence of pretext.

Reeves, 530 U.S. at 149 (“It suffices to say

that, because a prima facie case and sufficient

evidence to reject the employer’s explanation

may permit a finding of liability, the Court of

Appeals erred in proceeding from the premise

that a plaintiff must always introduce

additional, independent evidence of

discrimination.”). In a decision that binds us,

this court alreadyhasinterpreted Reeves not to

overrule our stray remarks jurisprudence, at

least where the plaintiff has failed to produce

substantial evidence of pretext. See

Rubinstein v. Adm’rs of Tulane Ed. Fund, 218

F.3d 392, 400-01 (5thCir. 2000) (applying the

stray remarks doctrine where the plaintiff had

failed to establish that each of the defendant’s

articulated justifications was pretext), cert.

denied, 121 S. Ct. 1393 (2001). 

We analyze stray remarks under Brown v.

CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996):

“[F]or comments in the workplace to provide

sufficient evidence ofdiscrimination, they must

be ‘1) related [to the protected class of

persons of which the plaintiff is a member];

2) proximate in time to the terminations;

3) made by an individual with authority over

the employment decision at issue; and 4) related to the employment decision at issue.’”

Krystek v. Univ. of S. Miss., 164 F.3d 251,

256 (5th Cir. 1999) (quoting Brown, 82 F.3d

at 655). It is true that the comments at issue

here were made by Dartez, who ultimately

made the decision not to renew Auguster’s

contract;moreover, the comments pertained to

black teachers, and in particular to Auguster.

Nonetheless, the comments were made nearly

a year before the decision not to renew Auguster’s contract, and there is no substantial evidence that the comments related to Dartez’s

ultimate decisionnot to renew Auguster’s contract. 

The fact that Dartez told Auguster that “if

there was another problem, no matter what it

was, that he would do his best to get rid of

[him]” is insignificant in comparison to the

evidence of Auguster’s unfitness as a teacher

and thusisinsufficient, on its own, to establish

discrimination.10 Absent any evidence that

Dartez would have been more lenient of

similar indiscretions by a white teacher or that

Auguster did not in fact commit the acts cited

by the school board in his evaluation, we

cannot conclude that Dartez’sstatement, on its

own, issufficient to meet Auguster’s burden of

establishing discriminatory motive for the

refusal to renew his contract.

AFFIRMED.

10 In Rubinstein, 218 F.3d at 400, a Jewish

professor who was denied tenure produced

evidence that members of the committees

responsible for the denial had made discriminatory

comments, including an observation “that, if ‘the

Russian Jew’ could obtain tenure, then anyone

could.” Faced with that evidence, we concluded

that “Rubinstein has failed to meet his burden of

producing any evidenceof discrimination sufficient

to survive summary judgement, and his evidence to

rebut the non-discriminatory reasons offered by

Tulane is not so persuasive so as to support an

inference that the real reason was discrimination.”

Id. Similarly, the alleged comment by Dartez

cannot, without more,support an inference that the

real reason for the school board’s refusal to renew

his contract was discrimination.