Fifth Circuit gave the following description of the burden of
proof and burden-shifting principles applicable to this case:

To survive summary judgment on a claim of unlawful
racial discrimination in employment, a plaintiff must
prove, at least, that there is a genuine dispute of
material fact concerning his prima facie case. If the
employer comes forward with a legitimate, alternative,
non-discriminatory reason for its employment action,
the plaintiff must point to disputed facts from which a
reasonable factfinder could conclude either that the
alternative reason is a pretext or that it was only one
of multiple reasons for defendant's conduct, another of
which was racial animus. To make a prima facie case,
plaintiffs must prove that they (1) are white, (2) were
qualified for the positions from which they were
discharged; (3) were subjected to an adverse employment
action, and (4) were treated less favorably than were
similarly-situated [sic] individuals who are not white
under nearly identical circumstances.

Culwell, 468 F.3d at 873 (citation and footnote omitted). The
Fifth Circuit appears to have assumed that plaintiffs were not
attempting to show that they were replaced by persons outside the
protected class (white, in this instance). Such an assumption
undoubtedly explains why the Fifth Circuit did not say, as it has
said in other opinions, that the fourth element can be satisfied
either by proof that the plaintiff was replaced by someone
outside the protected class or by proof that the plaintiff was
treated less favorably than were similarly situated individuals,
who were outside the protected class, under nearly identical

circumstances. See, e.g., Okoye v. Univ. of Tex. Houston Health,

5



reason given by defendant for its employment actions was a
pretext or was only one of multiple reasons for defendant's
employment decisions, another of which was racial animus.

Smart gave each plaintiff a lengthy letter outlining his
non-discriminatory reasons for terminating his employment.
Summed up, Smart concluded that each plaintiff had engaged in
inappropriate and unethical conduct by mixing his real estate
business with his activities as an employee of defendant.
Plaintiffs respond by questioning the accuracy of the facts upon
which Smart relied in making his decisions to terminate
plaintiffs; and, they argue that Smart did not make correct
decisions.

The fact that another decision-maker might have made a
decision different than Smart's is not relevant. Nor is the fact
of whether plaintiffs engaged in the conduct reported to Smart
that led to Smart's decision to terminate plaintiffs
determinative. See Bryant v. Compass Group USA, Inc., 413 F.3d
471, 476-77 (Sth Cir. 2005). The test is whether Smart in good
faith believed the information he received regarding plaintiffs'
wrongdoings and whether his decision to discharge plaintiffs was

based on that belief, not whether the information was accurate.

10



discrimination context. See Roper v. Exxon Corp., 27 F. Supp. 2d
679, 682 (E.D. La. 1998).

Plaintiff also contends that there is summary judgment
evidence that they were similarly situated to two African-
American code enforcement officers working in the same department
as plaintiffs and were treated differently and more harshly than
those employees under nearly identical circumstances. Pls.' Br.
in Supp. of Resp. at 9. One of the employees is Ron Reed
("Reed") and the other is Don Crudup ("Crudup").

There is evidence in the summary judgment record that Reed
and Crudup are African-Americans and that they held positions of
employment with defendant similar to plaintiffs'. However, the
summary judgment record does not contain evidence that would
support findings that plaintiffs were treated less favorably than
Crudup or Reed under nearly identical circumstances.* The
evidence as to Crudup's real estate activities is that he had
been involved with a nonprofit organization that had purchased

and sold real estate in Fort Worth. There is nothing in the

*In their declarations plaintiffs make conclusory, hearsay
statements relative to Crudup and Reed. App. to Pls.' Br. in Supp. of
Resp. at 12-14, 49-51. The court does not consider that those
statements have probative effect as to the truth of the statements;
but, even if the court were to give the statements probative effect,
the outcome would be the same. The same is true as to conclusory and
hearsay deposition testimony given by plaintiffs.

7



245 F.3d 507, 512-13 (5th Cir. 2001). Plaintiff has now invoked

each of the alternatives.

B. The Court Concludes that the Summary Judgment Evidence
does not Create a Prima Facie Case.

The first task of the court is to determine whether the
summary judgment record raises a genuine dispute of material fact
as to whether plaintiffs have a prima facie case. There is
summary judgment evidence in support of the first three elements
of a prima facie case--(1) plaintiffs are white, (2) they are
qualified for the positions from which they were discharged, and
(3) they were subjected to adverse employment action in the form
of discharges from their jobs with defendant.

In their response to the motion for summary judgment,
plaintiffs maintain that the fourth element is satisfied by
evidence that when they were discharged by defendant they were
replaced by a person or persons who were African-American. Pls.'
Br. in Supp. of Resp. at 10. Plaintiffs base that contention on
what they consider to be summary judgment evidence that all or a
part of the job duties of plaintiffs were assumed by African-
American employees of defendant. Id. at 6, 8. The court is not
persuaded. Transfer of work by a terminated employee to other

employees does not constitute "replacement" in an employment-



who decided that plaintiffs should be terminated because of their
inappropriate behavior. Reed's supervisor was Paul Bounds,
Smart's predecessor. Smart had no involvement in the decision
regarding whether Reed's activities were inappropriate.
Apparently the same was true as to Crudup.

Furthermore, the "nearly identical" test cannot be met
unless the decision-maker viewed the employees as similar when
the decisions were made. See Perez v. Texas Dep't of Crim. J.,
395 F.3d 206, 214 (5th Cir 2004). There is no summary judgment
evidence that Smart viewed the conduct of Reed or Crudup to be
similar to the conduct of plaintiffs that caused Smart to decide
to cause the termination of plaintiffs' employment.

For the reasons given above, the court concludes that the
summary judgment evidence does not raise a genuine dispute of
material fact as to whether plaintiffs have a prima facie case.

Cc. There is no Summary Judgment Evidence that Defendants!
Legitimate Non-Discriminatory Reason was a Pretext.

Even if plaintiffs had provided summary judgment evidence of
the fourth element of a prima facie case, defendant destroyed the
inference created by that case by coming forward with a
legitimate non-discriminatory reason for its employment actions.

Plaintiffs have adduced no summary judgment evidence that the



COUR
IN THE UNITED STATES DISTRICT] COMRIHERN DISTRICT OF TEXAS
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

GORDON DUFF CULWELL, ET AL.,
Plaintiffs,
vs. NO. 4:04-CV-655-A

CITY OF FORT WORTH, TEXAS,

MMMM MMniM Mm

Defendant.

MEMORANDUM _ OPINION
and
ORDER
I.
Background
On October 19, 2005, the court granted the motion for
summary judgment of defendant, City of Fort Worth, Texas, and

dismissed all claims (unlawful discrimination in employment,

hostile work environment, and unlawful retaliation) of

plaintiffs, Gordon Duff Culwell ("Culwell"), and William Patrick
Conrad ("Conrad"). A final judgment dismissing the claims was
signed on that date. Plaintiffs appealed. The Fifth Circuit
affirmed the dismissals of plaintiffs' unlawful retaliation and
hostile work environment claims but reversed the summary judgment
as to plaintiffs' unlawful discrimination claims. Culwell v.

City of Fort Worth, 468 F.3d 868 (5th Cir. 2006).



City Code of Ethics is unmeritorious. The Code of Ethics does
not require a management or supervisory employee to file a
complaint regarding an employee's conduct before disciplining the
employee, and the summary judgment record reflects that defendant
does not have a practice of doing so.

* * * * * *

In the final analysis, there is nothing in the summary
judgment record that constitutes direct evidence or creates an
inference that Smart's decision to terminate plaintiffs'
employment was motivated to any extent by their race. Therefore,

III.

ORDER

The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that the remaining

claims asserted by plaintiffs in the above-captioned action be,

and are hereby, dismissed.
SIGNED August 20, 2007. Mil,
by

IN “McBRYDE
Inited States District J e

12



Waggoner v. City of Garland, 987 F.2d 1160, 1165-66 (5th Cir.

1993).

There is no evidence that puts in issue whether Smart
reasonably believed the allegations against plaintiffs and acted
on those allegations in good faith. The absence of evidence
favorable to plaintiffs on those subjects is fatal to their case.
Id. at 1166. Plaintiffs argue at length that they were innocent
of the inappropriate conduct reported to Smart, on which he
relied in making his employment decisions; and, they maintain
that the information received by Smart was misinterpreted. Those
contentions are not helpful to plaintiffs, bearing in mind the
test mentioned above. There simply is no evidence in the summary
judgment record that Smart used the information upon which he
based his decisions to terminate plaintiffs as a pretext for
discriminatory dismissals.

Thus, plaintiffs had a legitimate non-discriminatory reason
for terminating plaintiffs' employment; and, plaintiffs have
adduced no summary judgment evidence that the reason was a
pretext or that it was only one of multiple reasons for
termination of plaintiffs' employment, another of which was
racial animus. Plaintiffis' argument that there is evidence of
pretext because plaintiffs were not provided a hearing under the

11



record that would support a finding that Crudup engaged in
conduct nearly identical to the conduct that led to the decisions
to terminate the employment of plaintiffs. As to Reed, the
summary judgment record reflects that he engaged in one real
estate transaction that arguably had characteristics similar to
the real estate transactions that led to the decision to
terminate the employment of plaintiffs. The Reed transaction is
fully described in his deposition, pertinent pages of which are
found at pages 119-58 of the appendix to plaintiffs' responsive
brief. Reed's conduct to which plaintiffs point is not nearly
identical to the ongoing conduct that led to the discharge of
plaintiffs, as that conduct is described in the April 23, 2003,
report of investigation (App. to Pls.' Br. in Supp. of Resp. at
34-39) and in the letters from the supervisor of plaintiffs, Carl
L. Smart ("Smart"), informing plaintiffs that their employment
with defendant was being terminated (App. to Mot. at 52, 56).
Moreover, the summary judgment record does not establish
that Smart was Crudup's or Reed's supervisor whenever decisions
were made as to the propriety of their activities. The
circumstances of two employees are not nearly identical if the
same decision-maker is not involved. See Little v. Republic Ref.

Co., 924 F.2d 93, 97 (5th Cir. 1991). Smart was the supervisor



has again considered the motion for summary judgment as it
applies to the unlawful discrimination claims in the light of the
new summary judgment record. After having done so, the court has
concluded that summary judgment should be granted to defendant as
to the unlawful discrimination claims.
Ir.

Discussion
A. Applicable Principles.

For a description of the nature of the litigation and the
contentions of the parties, the court refers to, and here adopts,
the parts of the October 19, 2005, memorandum opinion of this
court and the opinion of the Fifth Circuit on appeal bearing on
those subjects. Oct. 19, 2005, Mem. Op. & Order at 1-4; Culwell,
468 F.3d at 870. The applicable summary judgment principles are

those expressed on pages 5-6 of the memorandum opinion. The

*(,,.continued)

App. in Supp. of Mot. at 48. In their response, plaintiffs assert
that the affidavit is fatally defective, presumably on the theory that
when Smart related in the affidavit the factual basis for his decision
to terminate plaintiffs he was relating hearsay information. Br. in
Supp. of Resp. at 2. Plaintiffs are wrong. The affidavit was not
offered to prove that the events on which Smart relied occurred, but
rather to show his belief that they did occur and to explain his
motive for his decision to terminate plaintiffs. Reply at 3. The
affidavit is probative summary judgment evidence for the purpose for
which it was offered. See Wallace v. Texas Tech Univ., 80 F.3d 1042,
1048 n.4 (5th Cir. 1996).



American employees who plaintiffs allege engaged in conduct
similar to that for which defendant discharged plaintiffs, both
white. Culwell, 468 F.3d at 873.

On February 13, 2007, the court had a telephone
conference/hearing with counsel concerning additional discovery
desired by plaintiffs. On that date the court signed an order
fixing a deadline for accomplishment of the discovery desired by
plaintiffs. By the same order, the court fixed a deadline of
thirty days after completion of discovery for the filing by
plaintiffs of their response to the motion for summary judgment.
Plaintiffs filed their response on April 27. 2007, which was
accompanied by an appendix that included, among other things,
affidavits of each plaintiff with exhibits and excerpts from oral
depositions with deposition exhibits.* On May 14, 2007,
defendant replied to plaintiff's response. The reply was
accompanied by, among other things, excerpts from each of the
plaintiffs' depositions, which supplemented evidence defendant

submitted when it filed its motion in September 2005.> The court

*The format of the appendix was revised, and the revised appendix
was filed June 11, 2007.

*An item of evidence initially submitted by defendant in support

of its motion is the affidavit of Carl Smart ("Smart"), who is the
supervisor who decided to terminate the employment of plaintiffs.
(continued...)



The decision of the Fifth Circuit to reverse the summary
judgment as to the unlawful discrimination claims was based on
the failure of this court to allow plaintiffs to conduct
additional discovery before responding to the motion for summary
judgment.’ The discovery the Fifth Circuit thought plaintiffs
were improperly denied consisted of the production by defendant

of documents relating to defendant's treatment of two African-

‘While apparently having little, if anything, to do with the
outcome, the Fifth Circuit made a point in its opinion of questioning
the wisdom of a rule of the undersigned that pleadings and motions be
signed by attorneys and not law firms. Culwell v. City of Fort Worth,
468 F.3d 868, 871 (5th Cir. 2006). The Fifth Circuit commented that
the practice of placing the name and address of a law firm above a by-
line and signature block is a "practice that does not seem, to the
casual reader, even to be a violation" of the undersigned's rule. Id.
A more serious reader would have found, read, and understood the
explanation of the Supreme Court in Pavelic & LeFlore v. Marvel
Entertainment Group, 493 U.S. 120 (1989), of how court papers should
be signed:

[S]ignature on behalf of the firm was not a signature that
could comply with the first sentence of [] Rule [11], and
not a signature to which the later portions of [] Rule [11]
attach consequences. Rule 11 says that papers must be signed
"by at least one attorney of record in the attorney's
individual name." . . . It has long been thought the better

practice for the attorney complying with Rule 11 not to sign
for his firm, but to sign in his individual name and on his
own behalf, with the name of his firm beneath. See Gavit,
The New Federal Rules and State Procedure, 25 A.B.A.J. 367,
371 (1939) (Under Rule 11, "the practice for pleadings to be
signed in the name of a partnership" is "undesirable" and
"improper").

Id. at 125-26 (italics by the Supreme Court; other emphasis added).
The rule enforced by the undersigned adopts the "better practice"
recommended by the Supreme Court.