* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20597

Summary Calendar

DAVID A GREEN

Plaintiff-Appellant

v.

TRINH DANG LA, Individually, and doing business as Fidelity National Title

Insurance Company Fee Office #72

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:05-CV-2097

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant David A. Green contends that Appellee Trinh Dang La offered

him a job as an escrow assistant through her market representative and then

rescinded the offer upon learning that Green was African-American. La

responds that she never hired Green as an escrow assistant; rather, she was

looking to hire an escrow officer. Upon learning from Green’s employer that he

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-20597

1 Section 1981(a) provides that:

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

2

was not qualified to be an escrow officer, La informed Green that she could not

offer him employment. Green admits that he was not qualified for an escrow

officer position.

A jury trial was conducted in this case on July 23-24, 2007. At the

conclusion of Green’s case-in-chief, La moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a). On July 25, 2007, the district court

granted La’s motion. Although the district court judge noted that he could not

determine at this stage of the proceedings whether Green applied for the escrow

officer or escrow assistant position, he found that he must“evaluate [La’s] intent

based upon what position she was evaluating [Green] for.” The district court

concluded that “there is insufficient evidence to create a fact question for the

jury on the issue of whether [Green’s] race was a motivating factor in [La’s]

decision.” 

We review the grant of judgment as a matter of law de novo, applying the

same standard as the district court. See Ford v. Cimarron Ins. Co., 230 F.3d

828, 830 (5th Cir. 2000). Judgment as a matter of law is appropriate where

“there is no legally sufficient evidentiary basis for a reasonable jury to have

found for that party with respect to that issue.” Id. (citation and internal

quotation marks omitted). 

Green alleges that he suffered racial discrimination in violation of 42

U.S.C. § 1981,1 which “prohibits racial discrimination in the making and

enforcement of private contracts.” Patterson v. McLean Credit Union, 491 U.S.
No. 07-20597

3

164, 172 (1989). In other words, § 1981 “prohibits, when based on race, the

refusal to enter into a contract with someone, as well as the offer to make a

contract only on discriminatory terms.” Id. at 176-77. To establish a prima facie

case of race discrimination under § 1981, Green must “prove purposeful

discrimination.” Id. at 186. Specifically, Green must “prove by a preponderance

of the evidence that [he] applied for and was qualified for an available position,

that [he] was rejected, and that after [he] was rejected respondent either

continued to seek applicants for the position, or . . . filled the position with” an

employee of a different race. Id.

The burden-shifting framework for Title VII cases–outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)–also applies to § 1981 claims.

Patterson, 491 U.S. at 186. Thus, if Green establishes a prima facie case, “the

burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action.” Auguster v. Vermilion Parish Sch. Bd., 249

F.3d 400, 402 (5th Cir. 2001). At that point, the McDonnell Douglas framework

disappears and “the plaintiff must produce substantial evidence of pretext” in

order to prevail on his discrimination claim. Id. at 402-03. 

After reviewing the record and trial transcript, we find that even if Green

established a prima facie case, the district court nonetheless properly granted

judgment as a matter of law because La produced a legitimate, nondiscriminatory reason for not entering into an employment agreement with

Green. Specifically, La believed that Green was seeking employment as an

escrow officer and learned that Green was not qualified for this position. Even

if Green is correct in his belief that he sought employment as an escrow

assistant, he did not produce evidence at trial to establish that La’s explanation

was pretextual. Without such evidence, the trier of fact is left with the following

findings: (1) La legitimately believed that Green was seeking employment as an
No. 07-20597

4

escrow officer and (2) Green was not qualified as an escrow officer. Accordingly,

Green has not established a violation of § 1981.

AFFIRMED.