IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30914

KIMBERLY M. JOHNSON,

Plaintiff - Appellant

v.

MAESTRI-MURRELL PROPERTY MANAGEMENT, LLC,

Defendant - Appellee

Appeal from the United States District Court

Middle District of Louisiana

(3:09-CV-638)

Before JONES, Chief Judge, and WIENER and GRAVES, Circuit Judges.

PER CURIAM:*

Kimberly M. Johnson commenced this action alleging thatMaestri-Murrell

Property Management, LLC (“Maestri-Murrell”) failed to hire her for the

position of assistant manager at Azalea Point Apartments (“Azalea Point”) on

the basis of her race, African American, pursuant to Title VII of the Civil Rights

Act of 1964 (“Title VII”). The United States Equal Employment Opportunity

Commission (“EEOC”) determined that there was reasonable cause to believe

that Maestri-Murrell violated Title VII. After the EEOC unsuccessfully

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2012

Lyle W. Cayce

Clerk

 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.

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attempted to conciliate the dispute, it advised Johnson of her right to institute

a civil action in federal court and Johnson commenced this law suit. The district

court granted summary judgment in favor of Maestri-Murrell. Johnson

appealed. We REVERSE and REMAND.

Facts and Procedural History

On December 19, 2006, Johnson submitted a resume for an assistant

manager position at Azalea Point. The resume was submitted to the manager,

Connie Kimball. Kimball apparently considered every resume save Johnson’s,

as evidenced by Kimball’s notes on all other applicants’ resumes. According to

testimony from the outgoing assistant manager, Stacy Lyn Curtis, Kimball did

not think that Maestri-Murrell wanted to have an African American assistant

manager at Azalea Point, which primarily housed college students from the

nearby Louisiana State University in Baton Rouge. Ultimately,Maestri-Murrell

did not hire Johnson for the position. Instead, Maestri-Murrell selected Jamie

Cedatol, a Caucasian and the daughter of Lisa Theriot, Kimball’s supervisor. 

Cedatol began work either on January 7, 2007, or January 8, 2007, the date of

Cedatol’s application. 

On January 27, 2007, Johnson filed her race discrimination claim with the

EEOC. On June 30, 2008, the EEOC issued its determination letter, which

states, in relevant part:

All requirements for coverage have been met. Charging Party [here,

Johnson] alleges she was denied employment as an Assistant Manager

because of her race, Black, in violation of Title VII.

The investigation revealed Charging Party applied for the position of

Assistant Manager. Respondent claims Charging Party was not hired

because she didn’t have property management experience. Analysis of the

applications shows the individual hired by Respondent didn’t have

property management experience either. Charging Party’s resume shows

she had a wider variety and more office work related skills than the

individual hired. The individual hired by Respondent is White and is less

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qualified than Charging Party. Testimony showed Charging Party was

not selected for Assistant Manager because Respondent’s clients are

predominantly White students from the nearby Louisiana State

University. The Respondent believed the students parents would object

to having a Black as Assistant Manager. The statute prohibits race

discrimination based on customer preference. Therefore, I find that there

is reasonable cause to believe that Title VII was violated.

On August 12, 2009, Johnson filed her Title VII complaint in the district

court. On November 17, 2010, Curtis testified via deposition that MaestriMurrell did not hire Johnson because of Johnson’s race:

Q And so you don’t know when this was that you went into Connie’s

office and the resume – she said she had the resume on her desk?

A No, ma’am.

Q And so what did y’all discuss in that conversation?

A Just whenever Connie -- the first thing she asked me was whether

or not Kim was black, and I kind of was like, well, I think so, but why; and

she said that she didn’t think that they were going to want to hire

someone who was black.

. . .

Q I’m sorry. Connie’s comment was what?

A She -- she said that she didn’t think that they would want to hire

someone who was black.

Q Who was she referring to?

A The company.

Curtis also testified that she talked to Kimball about Johnson’s application

about one week after the facsimile arrived — which would have been on or about

December 26, 2006 — approximately a week and a half prior to Cedatol’s

application submission. Curtis further testified that, although she knew Theriot

had a daughter, Curtis did not know who Maestri-Murrell hired.

Linda Jackson, the Vice President of Maestri-Murrell, testified that she

did not recall when she talked to Theriot about Cedatol or when Jackson

approved hiring Cedatol. Jackson testified that she had probably interviewed

Cedatol by the time she completed her application. However, Jackson did not

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explain the reasons she did not have Cedatol complete the application at or prior

to the interview.

Analysis

I. Standard of Review

We review a grant of summary judgment de novo, applying the same

standard as the district court. Equal Emp. Opportunity Comm’n v. WC&M

Enters., 496 F.3d 393, 397-98 (5th Cir. 2007). A party is entitled to summary

judgment only 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

judgment as a matter of law.” Id. (citing FED.R.CIV.P. 56(c)). A genuine issue

of material fact exists when the evidence is such that, viewing the record as a

whole, a reasonable jury could return a verdict for the non-moving party. Dediol

v. Best Chevrolet, Inc. 655 F.3d 435, 439 (5th Cir. 2011). In reviewing a

summary judgment motion, the court must “refrain from making credibility

determinations or weighing the evidence,” WC&M, 396 F.3d at 398, and must

view the facts in the light most favorable to the non-moving party and draw all

reasonable inferences in its favor. Id.; see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249-52 (1986) (noting that summary judgment is inappropriate if

the evidence is such that disputed issues can be resolved in favor of either

party).

II. Evidence of Racial Discrimination

“It shall be an unlawful employment practice for an employer . . . to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against

any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex,

or national origin . . .” 42 U.S.C. § 2000e-2(a)(1). “Title VII does not

affirmatively require direct evidence from a plaintiff . . .” Smith v. Xerox Corp.,

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602 F.3d 320, 332 (5th Cir. 2010). In cases such as this one where the allegation

is that the employer intentionally discriminated against the individual based on

her race, discrimination can be established either circumstantially or directly. 

See Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing

Portis v. First Nat’l Bank of New Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994)).

Whether or not the evidence is deemed direct or circumstantial or both, it

is clear that Johnson has established a prima facie case of racial discrimination,

and the district court should have denied Maestri-Murrell’s summary judgment

motion. “[T]he reason for treating circumstantial and direct evidence the same

is deeply rooted in the notion that circumstantial evidence may often be more

persuasive.” Xerox, 602 F.3d at 331 (citation omitted). This case presents direct

evidence of racial discrimination – sworn deposition testimony by Curtis that

Kimball stated to her that she did not think that Maestri-Murrell wanted an

African American as assistant manager at Azalea Point. 

The district court erred in disregarding Kimball’s alleged comments that

Maestri-Murrell would not consider hiring an African American. To the

contrary, the comments provide, at a minimum, evidence sufficient to defeat

summary judgment. See Patrick v. Ridge, 394 F.3d 311, 319-21 (5th Cir. 2004). 

The district court disregarded the remarks because, in its opinion, Johnson

failed to “demonstrate that the decision to hire Cedatol was made after the

occurrence of the alleged discriminatory comment” and, so, Johnson “failed to

demonstrate a causal connection between such remark and defendant’s selection

of Cedatol for the job.” The relevant inquiry is whether or not there was

discrimination that resulted in Johnson not being considered for the job. The

remarks, if true, provide evidence of discrimination. Hence, the timing of the

remarks is much less important than the content of the remarks. In other

words, the significant fact to be determined is whether or not unlawful

discrimination was involved in the decision made by Maestri-Murrell. 

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The law requires Johnson to present sufficient evidence to raise a triable

issue of fact. See FED.R.CIV.P. 56(a). On summary judgment, the district court

was required to view the evidence and draw all reasonable inferences from the

evidence in the light most favorable to Johnson. See WC&M, 496 F.3d at 397-98. 

The evidence included Johnson's resume, which, unlike other resumes that

Maestri Murrell supplied during the EEOC's investigation and discovery, had

no comments written on it by Kimball indicating her views. It also included the

Curtis deposition. Viewing all of this evidence and drawing all reasonable

inferences from it in Johnson’s favor, a jury could reasonably find that Kimball

had screened Johnson out based on race prior to hiring Cedatol.

We make no determination as to the merits of Johnson’s claims, only that

summary judgment was wrongfully granted because there are genuine issues of

material fact. To withstand a motion for summary judgment, Johnson need not

carry the burden of persuasion but simply adduce sufficient evidence, viewed in

the light most favorable to her, to allow the jury to find in her favor. See Dediol,

655 F.3d at 439; WC&M, 396 F.3d at 397-98; see also Anderson, 477 U.S. at

249-51. Here, a jury could find that – based on the testimony by Curtis

regarding what Kimball said about Johnson’s race, the fact that Johnson’s

resume had no markings on it, and the fact that Maestri-Murrell hired a

Caucasian – Maestri-Murrell failed to hire Johnson because of her race.

III. McDonnell Douglas Framework

“[I]t is abundantly clear that Title VII tolerates no racial discrimination,

subtle or otherwise.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93

S. Ct. 1817 (1973). An intentional discrimination claim like this one is normally

analyzed using the three-step burden-shifting proof framework. Id. at 792. 

First, the plaintiff makes out a prima facie case:

The complainant in a Title VII trial must carry the initial burden under

the statute of establishing a prima facie case of racial discrimination. This

may be done by showing (i) that [she] belongs to a racial minority; (ii) that

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[she] applied and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite [her] qualifications, [she] was

rejected; and (iv) that, after [her] rejection, the position remained open

and the employer continued to seek applicants from persons of

complainant’s qualifications.

Id. at 802. Second, the burden then shifts to the defendant to produce evidence

that the challenged employment decision was made for a “legitimate,

non-discriminatory reason.” Id. at 803. Third, the burden shifts back to the

plaintiff to prove intentional discrimination with evidence that the legitimate

reason offered by the defendant was not the true reason, but was a pretext for

discrimination. Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 142-43

(2000); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Alvarado

v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).

 Here, Johnson bases her racial discrimination claim for the most part,

although not entirely, on testimony by Curtis that Kimball set her application

aside, stating that she doubted that Maestri-Murrell would hire an African

American person to assist in managing Azalea Point. Analyzing Johnson’s claim

pursuant to McDonnell Douglas, the district court granted summary judgment

to Maestri-Murrell, finding that Johnson failed to carry her burden of

demonstrating a prima facie case. In rejecting Johnson’s claim, the district court

held that, because the claim involved a failure to hire, Johnson was required to

prove that she was “rejected for the position” and that “the employer continued

to seek applicants” after her rejection. See Johnson v. Louisiana, 351 F.3d 616,

621-22 (5th Cir. 2003) (citation omitted). 

However, in a failure-to-hire case like this one, a plaintiff may raise the

inference with evidence, for example, that she did not get a position that she was

seeking and the position was filled by someone from outside her protected class. 

Davis v. Chevron, 14 F.3d 1082, 1087 (5th Cir. 1994) (failure to hire). A plaintiff

may create a prima facie case with evidence that “she applied for an available

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position for which she was qualified, but was rejected under circumstances

which give rise to an inference of unlawful discrimination.” Burdine, 450 U.S.

at 253. 

Here, Johnson applied for the position of assistant manager. Curtis

testified that Kimball stated that she believed that Maestri-Murrell did not want

an African American assistant manager at Azalea Point. Kimball made no

marks on Johnson’s resume, as she did on other resumes. Maestri-Murrell

ultimately hired Cedatol, a Caucasian, on or shortly after the date that Cedatol

submitted her application. Therefore, the district court should have concluded

that Johnson satisfied her prima facie burden by showing that Maestri-Murrell

did not hire her, an African American, for a position for which she applied and

appeared to be qualified, but instead hired Cedatol, a Caucasian, under

circumstances which give rise to a reasonable inference of unlawful

discrimination.

Conclusion

There are genuine issues of material facts sufficient to defeat a motion for

summary judgment. Accordingly, we conclude that the district court should

have denied Maestri-Murrell’s summary judgment motion and allowed this case

to proceed towards trial. REVERSED and REMANDED for further proceedings

consistent with this opinion.

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