United States Court of Appeals,

Fifth Circuit.

No. 96-20287.

Alfred WILLIAMS, Plaintiff-Appellant,

v.

TIME WARNER OPERATION, INC., Defendant-Appellee.

Oct. 25, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Alfred Williams appeals a summary judgment regarding his racial discrimination claim under

title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. §

1981, in favor of Time Warner Operation, Inc. ("Time Warner"). Concluding that Williams has put

forth sufficient evidence to create a genuine issue of material fact as to whether Time Warner's

proffered justification for its failure to promote Williams was pretextual, we reverse and remand.

I.

Williams, a black male, was employed by Time Warner as an Installation/Repair Technician

when he sought promotion to the position of Preventive Maintenance Technician ("PM Tech"). After

the ca ndidates had been reviewed initially by Chuck Stubblefield, the Time Warner employee

responsible for making th e promotion decisions, Williams and two white males were selected as

finalist s. Of the seven criteria employed by Stubblefield in making his decision—interview, longevity,

experience and education, supervisor's recommendation, performance evaluation, corrective actions,

and attendance—Williams scored lower than both of the other two i n attendance and supervi sory

recommendation only.

It is the supervisory recommendation that forms the crux of Williams's case. Randy Waller,

Williams's immediate supervisor in his then-current Installation/Repair Technician job, allegedly gave

Williams a poor o ral reco mmendation for the promotion, and Stubblefield avers that this1 Specifically, Stubblefield's affidavit—which appears as part of the summary judgment

record—says that Waller "did not give [Williams] a good recommendation [,] felt that Williams

should not be promoted [, and] told me that Williams continually complained about work

assignments and did not accept supervisory authority well." recommendation was pivotal in his decision not to award the promotion to Williams. 1 Although he

does not allege that Waller is a racist, Williams contends that Stubblefield is a racist and that Waller,

because of his loyalty to the company, lied about Williams's qualifi cations in order to cover up

Stubblefield's racially-motivated decision not to promote Williams.

Williams appealed his adverse decision through Time Warner's "Open Door" procedure, in

which the decision was explained to him by Stubblefield and Stubblefield's superior. Williams then

had a hearing before a committee comprised of managers and employees of Time Warner, one of

whom was selected by Williams a nd t wo of whom were black. The committee recommended no

change in the decision.

Williams filed suit, alleging that he had been rejected because of his race and seeking damages

under title VII and t he Texas Commission on Human Rights Act, T E X .C IV .S TAT .A NN

. art. 5221k

(Vernon 1994) (now codified as T EX .L AB .C ODE A NN . §§ 21.001 et seq. ). He also alleged that the

failure to prom ote constituted intentional inflict ion of emotional distress. The district court granted

Time Warner's motion for summary judgment on all claims. Williams appeals the decision as to all

claims but the art. 5221k action.

II.

We review a grant of summary judgment de novo. See Hanks v. Transcontinental Gas Pipe

Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "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 a

judg ment as a matter of l aw." F E D .R.C IV .P. 56(c). We construe all evidence in the light most

favorable to the non-moving party without weighing the evidence, assessing its probative value, or

resolving any factual disputes. S ee Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir.1993).

III.The parties do not co ntest the proper allocation of burdens of production in employment

discrimination cases: First, the plaintiff must establish a p rima facie case of discrimination; second,

if he is so successful, the defendant must articulate some legitimate, nondiscriminatory reason for the

challe nged emplo yment action; and third, if the defendant is so successful, the inference of

discrimination raised by the prima facie case disappears, and the plaint iff then must prove, by a

preponderance of the evidence, both that the defendant's articulated reason is false and that the

defendant intentionally discriminated. S ee St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113

S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993); T exas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 252-55, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1981). If the defendant has rebutted

successfully the presumption created by the prima facie case—that plaintiff's rejection was racially

motivated—the factual inquiry proceeds to a new level of specificity. I d. at 255, 101 S.Ct. at 1094.

IV.

As Time Warner stipulated that Williams had established a p rima facie case, we examine

Time Warner's reason for Williams's rejection—Randy Waller's unfavorable oral recommendation of

Williams for the promotion. This explanation, if believed, would support a finding that the decision

not to prom ote Williams was legitimate and non-discriminatory; Time Warner thus has satisfied its

burden of production. Time Warner need not persuade us that it actually was mo t ivated by this

reason; it is sufficient that it has raised a genuine issue of fact regarding whether it unlawfully

rejected Williams. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.

We now turn to the third prong of the Burdine test—whether Time Warner int entionally

discriminated against Williams on the basis of race. Williams may satisfy his summary judgment

burden on the third prong by coming forward either with direct evidence of discriminatory intent or

with circumstantial evidence demonstrating that Time Warner's articulated rationale was pretextual.

See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 449 (5th Cir.1996). We recently have articulated

the test as follows:

[A] jury issue will be presented and a plaint iff can avoid summary judgment

... if the evidence

taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons

was what actually motivated the employer and (2) creates a reasonable inference that age was

a determinative factor in the actions of which plaint iff complains. The employer, of course,2 Williams held this position for 31/2 years before leaving Time Warner to continue his

education. will be entitled to summary judgment if the evidence taken as a whole would not allow a jury

to infer that the actual reason for the discharge was discriminatory.

Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 995 (5th Cir.1996) (en banc).

The gravamen of William's pretext argument is that Waller, in order to protect his job, agreed

to state that he gave a negative recommendation to conceal Stubblefield's discriminatory animus. In

effect, Williams argues that Stubblefield made a race-based decision and then used Waller to cover

it up. In support of this argument, Williams notes that Waller gave him a positive, written

performance appraisal only four months prior to the poor oral recommendation, in which prior

evaluation Waller noted, among other things, that Williams "consistently excels," "is a team player,"

and "can be depended on to com plet e all work assigned to him with minimal supervision." In

addition, one month follow ing Waller's negative oral recommendation, Waller gave Williams another

positive written appraisal, observing that Williams "is able to receive assignments from several people,

judge or resolves the priorities and still maintain good working relationships with those involved,"

and "has a positive impact on the morale of my department." According to Williams, "The only way

to reconcile these statements [the two positive performance appraisals and the poor su pervisory

recommendation] is to determine that one is a lie."

Time Warner counters that it u ses bo t h performance appraisals and supervisory

recommendations in making promotion decisio ns for the exact reason that Williams offers as

suspect—bec ause o ft en t hey are at odds with each other. It is perfectly plausible, Time Warner

argues, that Waller believed that Williams was performing well in his current job and so reflected in

t he performance appraisals, and that at the same time Waller also believed that Williams was no t

capable of perform

ing the responsibilities associated with the job for which Williams sought

promotion.

It is uncontested, however, th a t, when Williams previously had sought and received a

promotion to the same position of PM Tech, 2 Waller had written him a favorable recommendation.

Waller reportedly was unable to recommend Williams for the promotion this time because "Alfred3 Stubblefield alleges that, at the time he made his promotion decisions, he was unaware that

such disciplinary action had been taken against Cicatello.

4 Stubblefield himself noted that attendance was the least important criterion. did not like to be told what to do

... he continually complained about work assignments and tried to

undermine his authority." Interestingly, Richard Cicatello, a white male who was selected for one of

the promotion positions, had been disciplined formally within the past year on the same charge. 3

Williams also supports his pretext argument by noting that he previously had been employed

as a PM Tech—the position for which he was re-applying in the instant case—for 31/2 years and had

worked directly for Stubblefield for 11/2 of those years. Stubblefield testified in his deposition that

Williams had performed well in this jo b. Williams posits that, given the fact that Stubblefield had

direct, personal knowledge of Williams's performance in the very job for which he was re-applying,

Stubblefield's proffered justification for the decision (Waller's negative supervisory recommendation)

may have been pretextual. That is, given Stubblefield's past satisfactory experience with Williams,

his contention that Waller's supervisory recommendation was dispositive is suspect.

Finally, Williams submits, as evidence of pretext, the fact that he scored lower than the two

white candidates in only two of the seven categories employed by Time Warner—attendance 4 and

supervisory recommendation—and scored the highest in the performanc e evaluation category.

Stubblefield ranked the supervisory recommendation and performance evaluation categories equally,

and thus Williams argues that Stubblefield's insistence that Waller's single negative, oral supervisory

recommendation so overshadowed his mult iple positive performance evaluations is disingenuous at

best. Even assuming that such were the case, Waller notes further that Stubblefield's ranking of these

two categories equally as fourth in importance relative to the other criteria, and Williams's excellent

performance in the top three categories, legitimately question the sincerity of Stubblefield's proffered

justification.

When viewed in total

, we believe that Williams's evidence creates a genuine issue of material

fact co ncerning whether Stubblefield in fact relied upon Waller's negative supervisory

recommendation or instead upon unlawful, discriminatory animus in failing to prom ote Williams. We5 Because Williams has merely presented his intentional infliction of emotional distress claim for

review without providing any attendant argument in his brief, he has abandoned that issue on

appeal. See Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.1980). do not decide the merits of Williams's und erlying claims, but note only that whether Stubblefield's

decision was discriminatory will turn on the sufficiency of Williams's evidence and the credibility of

the attesting parties, functions properly le ft t o t he fact finder and not to be resolved on summary

judgment. This may be especially true where, as here, the critical negative evaluation is oral, and

hence credibility is even more at issue. 5

V.

Williams next requests, for the first time on appeal, an enlargement of discovery to permit

him to depose Waller. Williams did not file any affidavit to this effect as required by F ED .R.C IV .P.

56(f), nor did he petition the district court for an enlargement of time or a continuance of t he

summary judgment motion pending further discovery. We refuse to review an argument that a party

has failed to raise in response to a summary judgment motion. S ee Gilley v. Protective Life Ins. Co.,

17 F.3d 775, 781 n. 13 (5th Cir.1994) (citat io n o mitted). Furthermore, because we reverse the

summary judgment, Williams's request on appeal is m oot. We express no view as to whether further

discovery is appropriate on remand.

REVERSED and REMANDED.