### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-30736

_______________



### C AROL 

### L. A UGUSTER



### ,

Plaintiff-Appellant,

VERSUS



### V ERMILION 

### P ARISH 

### S CHOOL 

### B OARD



### ,

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:

Car o l Auguster appeals a summary

judgment in f

avo r 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.

A ft er 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 c ontends S S and Auguster

(continued...)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,

D artez told him that “he had bad lu ck with

black men working in Abbeville.” 2

In March 1998, Jonathon William s

, the

principal, received a

co mplaint that Auguster

had improperly used corporal punishm ent to

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

corporal punishment policy. Sometime later,

Auguster showed an “R” rated movi e to hi s

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 mov ie. 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 woul d consider a

recommendat io n 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 hi s

contract for the following year. Auguster’s

position eventually was filled by a w h ite

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 McDon nell Douglas Corp.

v. Green

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

progeny, held that, although August e r had

presented a prima facie case of discrimination,

the school b o ard had articulated a legitimate,

non-dis c riminatory reason for his firing.

Because Auguster could not establish that the

pro ffered reason was mere pretext, the court

granted summary judgment. Auguster argues

that he did establish pretext.

III.

We review a summary judgment d e no vo

, applying the same standards as did the district

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

t o the nonmoving party . . . .” D uffy v.

Leading Edge Prods.

, 44 F.3d 308, 312 (5th

Cir. 1995). Summary judgment is appropriate

where “ t here is no genuine issue as to any

material fact and

. . . t he moving party is

entitled to judgment as a matter of law.” F E D

R. C IV

. P. 56(c). To survive summary

judgment, however, the nonmoving party must

d o more than allege an issue of material f act:

“Rule 56(e)

. . . requires the nonmoving party

to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to 1 (...continued)

does not dispute S S

that August er 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 testimon y. Because we are reviewing

a summary judgment, however, we must assume

that Auguster’s testimony is correct. See infra

.3

interro gatories, and admissions on file,

designate specific facts showing that there is a

genuine issue for trial.” C elotex Corp. v.

Catrett , 477 U.S. 317, 324 (1986) (i nternal

quotati on 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 by McDonnell Douglas

, according

to which a plaint iff must first establish a prima

facie case of discrimi nation, whereupon the

burden of producti on shifts to the defendant to

articulate a legitimate, non-discriminatory

reason for its action. S hackelford v. Deloitte

& Touche, LLP

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

1999). At that point, “the M cDonnell

Douglas framework 

### SS

with its p resumptions

and burdens 

### SS

d isappear[s], and the sole

remaining issue [is] discri m ination 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 survi ve summary judgment. I d

. at

146-48.

“Although intermediate evidentiary burdens

shift back and forth under this framework,

‘[t]h e ultimate burden of persuading the trier

of fact that the defendant intenti o nally

discriminated against the plaint iff remains 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 plaint iff must produce substantial evidence

of pretext:

“Evidence that the proffered reason is

unworthy of credence must be enough to suppor t a reasonable inference that

the proffered reason is false; a mere

sha d ow 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.3 d 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 bo ard articulated a legitimate, nondiscriminatory reason for it s decision not to

rehire Auguster: his poor evaluation, as

evidenced by his inappropriate use of corporal

pun ishment and screening of an R-rated film.

Auguster admits that the events occurred, and

he canno t seriously dispute that they provide

ample justification for the refusal to renew his

contract. 4 His case depends on the contention

3 Bauer was de cided before R eeves

, which

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

Nothing in Reeves

, howev er, abrogates B auer ’s

requirement of substantial evidenc e to support a

claim of pretext. C

f. 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 punis h ed. If taken as true, that

allegation might be evidence of dispa rate impact

sufficient to survive summary judgment. The issue

has been abandoned, however, because Au guster

(continued...)4

that the articulated justificat io n is merely

pretext for discrimination.

As ev i dence of pretext, Auguster argues

that Dartez unilaterally ref used to renew his

contract in contravent io n 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 Augus ter, not that the board

affirmat ively voted to renew his contract. The

record does support an inference th a t Dartez

acted without legal authority in refusing to

renew Auguster’s contract, because there is no

evidence that t h e board made any decision

whatsoever regarding the renewa l of the

contract. 6 Nonetheless, the fact that Dartez acted

outside his statutory authority is not probative

with respect to whether the board’s articulated

justification is mere pretext. There is noevidence that he acted any differently from how

he would hav e 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 (...continued)

failed to assert it in his brief. S ee Strong v. Bell1

South Telecomms. Inc.

, 137 F.3d 844, 853 n.9 (5th

2

Cir. 1998) (considering waived an issue asserted at 3 oral argument but not addressed in the briefs).

4

5 Auguster also argues that the articulated justification must be pretext because he alrea dy had

b een reprimanded for the incidents in question

beforethe decision not to rehire him. Thus, according to Aug uster, the school board could not

permissibly have r evisited 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 discre tion 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 ow n, while the school board contends that

(continued...) 6 (...continued)

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

the board’s interpretation appears to be im

permis sible: Although the statutes do not refer

specifically to contract renewals, they do expressly

gove r n the hiring of teachers and the dismissal of

probationary teachers, the combination of which

pr esumably envelops contract renewals. S ee L A

. R EV

. S TAT

. A

NN . §§ 17:81, 17:442.

Both of those statutes provide for action by the

school board on the superintendent’s

recommendation, but n ot for unilateral action by

the superintendent. Furthermore, the Louisiana

Attorney General has interpreted th e statutes to

prec lude delegation of those functions to the sole

d iscretion of the superintendent. S ee La. Att’y

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

fire, demote, t ransfer 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 legisl ature strongly

intended that the local school board should have the

final selection autho rity and that this selection

power should not be totally in the hands of the

supe r intendent. 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 t his respect, it does indicate that Dartez’s failure to renew Auguster

was not a

maverick action, as Auguster asserts, which might be evidence that the board’s

a rt iculated justification is mere pretext.

Instead, Dartez’s action merely represents the

mistaken understanding of both Dartez and the

board that he had unilateral authority to make

employment decisions, at least with respect to

untenured teachers.

That alone is insuff

i cient to establish pretext. Thus, because Auguster failed to carry

his burden of establis hing pretext, the district

court correctly concluded that his claim cannot

survive under the McDonnell Douglas

framework; Auguster therefore m u st 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 pr o blem, no matter what it was, that

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

one.” 7 Given the overwhelming evidence

supp o rting 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 2 2 9 & n.19, we

questioned the continued vitality of the stray

remarks doctrine, stating that, “[i]n light of the

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 was substantial evidence of pretext apart

from the comments at issue. 8 In fact, the

Supreme Court faulted our decision in Reeves 9

no t for applying the stray remarks doctrine,

b ut for failing to accord proper weight to the

7 Auguster contends that, under the McDonnell

Douglas framework, the comment s establish that

the school board’s asserted justification is pretext.

Although discriminator y comments can be evidence

of pretext, see Russell v. McKinney Hosp. Venture

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

such as this, where there is n o 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 affect ed 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 ha d the employer ever even

calculated the amount of the alleged overpayments

resulting from the discrepancies. R eeves

, 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 the Court look at “additional

evidence of discrimina t ion” in the form of agerelated comments. Id. at 151.

Likewise, in Russell

, 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’s failure to follow internal procedures

in terminating the employee were substantial

evidence of pretext. Only then did we analyze

remarks evidencing age-relate d animus as

“Add itional Evidence of Discrimination.” I d.

at 225.

9 Reeves v. Sanderson Plumbing P rods., Inc.

, 197 F.3d 688 (5th Cir. 1999), rev’d

, 530 U.S. 133

(2000).6

plaint iff’s substantial evidenc e of pretext.

Re eves , 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 liabilit y, th e Court of

Appeals erred in proceeding from the premise

that a plaint iff must always introduce

additional, independent evidence of

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

this court already has interpreted Reeves not to

overrule our stray remarks jurisprudence, at

least where the plaint iff h as failed to produce

substantial evidence of pretext. S ee

Rubinstein v. Adm’rs of Tulane Ed. Fund

, 218

F.3d 392, 400-01 (5th Cir. 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 Br o wn v.

CSC Logic, Inc.

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

“[F]or comments in the workplace to provide

sufficient evidence of discriminatio n, they must

be ‘1) relate d [to the protected cl ass of

persons of which the plaint iff is a member];

2) proxi mate in time to the terminations;

3) made by an individual with authority o ver

the employm

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

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

256 (5th Cir. 1999) (quot i ng Brown

, 82 F.3d

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

here were made by Dartez, who ulti mately

made the decision not to renew Auguster’s

contract; mo reover, the comments pertained to

black teach ers, and in particular to Auguster.

Nonetheless, the comments were made nearly

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

ultimate decision not 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

e vidence of Auguster’s unfitness as a teach e r

and thus is insufficient, on its own, to establish

discrimination. 10 Absent any evidence that

Dartez would have be en 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 evalu a tion, we

cannot conclude that Dartez’s statement, on its

own, is sufficient to meet Auguster’s burden of

establishing discriminatory motive for the

refusal to renew his contract.

AFFIRMED.

10 In R ubinstein

, 218 F.3d at 400, a Jewish

professor who was denied tenure produced

evidence that members of the com mittees

responsible for the denial had made discriminatory

comments, including an observation “that, if ‘the

Russian Jew’ could obtain ten ure, then anyone

could.” Faced with that evidence, we concluded

that “Rubinstei n has failed to meet his burden of

producing any eviden c e of discrimination sufficient

to survive summary judgement, and his evidence to

rebut the non-discriminatory reasons offered by

Tulane is n ot so persuasive so as to support an

inference that the real reason was discrimination.”

Id. Similarly, the a lleged 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.