IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20209

Summary Calendar

STEPHEN MANLEY,

Plaintiff – Appellant

v.

INVESCO, also known as Invesco Investment Services, also known as 

Invesco Group Services, Incorporated, also known as Invesco Management 

Group; MATRIX RESOURCES, INCORPORATED; NATIONAL 

PROSOURCE, INCORPORATED,

Defendants – Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-02408

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant, Stephen Manley, sued Defendants-Appellees, 

alleging discrimination based on race, color, and gender in violation of Title 

VII of the Civil Rights Act of 1974, the Civil Rights Act of 1991, and Section 

605 of the Fair Credit Reporting Act. The district court granted Defendants’ 

motions for summary judgment and dismissed Manley’s claims. We AFFIRM. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 5, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-20209 Document: 00512523251 Page: 1 Date Filed: 02/05/2014
No. 13-20209

FACTUAL BACKGROUND

In 2010, Invesco contracted with two employment agencies, Matrix and 

ProSource, to fill a temporary job opening for a junior “Siebel developer.” When 

the job opening was not filled after a few months, Invesco instructed Matrix 

and ProSource to broaden their search to consider candidates qualified for a 

junior Structured Query Language (“SQL”) developer position who Invesco 

would then train on Siebel. Matrix found Plaintiff’s resume on Monster.com, 

contacted him about the opening, recommended him to Invesco, and forwarded 

his resume to Rakhee Matlapudi, a senior recruiter at Invesco. Matlapudi 

determined that, as Manley had eight years of SQL experience, he was 

overqualified for the position and did not send Plaintiff’s resume to Invesco’s 

hiring manager for further consideration.

Independent of Matrix and Invesco’s activities, ProSource contacted 

Manley about the same Invesco job opening. Manley sent ProSource a written 

application, in which he indicated that he had never “been convicted of a crime” 

and authorized ProSource to run his criminal background report. By signing 

the application, Manley stated that he “underst[ood] that any 

misrepresentation, falsification, or omission of information may be grounds for 

termination of the interview process, refusal to hire, or, if hired, termination 

of employment.” ProSource subsequently interviewed Manley, administered a 

skills test, and contracted with a third party credit reporting agency for 

Manley’s criminal background report. The criminal background report 

revealed that Manley had been convicted of driving with an invalid license in 

2006, assault causing bodily injury in 2001, and theft of between $20 and $500 

in 1995. ProSource thereafter decided not to refer Manley to Invesco for the 

SQL developer position. Later, without the assistance of Matrix or ProSource, 

Invesco found and hired a candidate – a woman with one year and eight 

months of SQL experience – to fill the SQL/Siebel developer position.

2

 Case: 13-20209 Document: 00512523251 Page: 2 Date Filed: 02/05/2014
No. 13-20209

On June 24, 2011, Manley, proceeding pro se, filed an Original Complaint 

raising disparate treatment and impact discrimination claims based on race, 

color, and gender. Manley asserts that Defendants Invesco, ProSource, and 

Matrix have “a pattern and a blanket policy to deny employment opportunity 

[sic] to individuals with criminal records which disparately impacts and 

adversely affects the minority applicant pools who are protected classes under 

law” in violation of Title VII of the Civil Rights Act of 1974, the Civil Rights 

Act of 1991 (42 U.S.C. § 1981), and Section 605 of the Fair Credit Reporting 

Act (“FCRA”). Manley further alleged that “the retrieved criminal information 

antedated seven years which also violated plaintiff’s rights under the FCRA 

§ 605 and was used as the sole determinant in denying plaintiff an employment 

opportunity.” Defendants moved for summary judgment. On March 5, 2013, 

the district court issued a final judgment and dismissed the case with 

prejudice. Manley timely appeals.1

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. 

LeMaire v. Louisiana, 480 F.3d 383, 386-87 (5th Cir. 2007). 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 judgment as a matter of law.” FED. R. CIV. P. 56(c); see also 

1 Appellees argue that Manley’s brief fails to comply with the requirements set forth

in Rules 28 and 32 of the Federal Rules of Appellate Procedure and in the Rules and Internal 

Operating Procedures of the Fifth Circuit. Specifically, Appellees assert that Manley’s brief 

is twice the allowed page limit, hard to decipher, repetitive, raises issues for the first time on 

appeal, fails to cite to the record to support assertions of purported error, and impugns the 

district court. While pro se pleadings are to be construed liberally, nonconforming briefs 

should not be considered when doing so prejudices an opposing party. Grant v. Cuellar, 59 

F.3d 523, 524 (5th Cir. 1995). However, as the legal issues presented are straightforward, 

we do not reach Appellees’ arguments as to the form and content of Manley’s brief.

3

 

 Case: 13-20209 Document: 00512523251 Page: 3 Date Filed: 02/05/2014
No. 13-20209

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We construe all facts and 

evidence in the light most favorable to the non-moving party. United Fire & 

Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).

DISCUSSION

Manley makes three arguments challenging the district court’s dismissal

of his claims.2 Manley first argues that the district court erred in dismissing 

his disparate impact and disparate treatment claims against Invesco, Matrix, 

and ProSource.3 Second, he maintains that the district court erred in denying 

his motion for recusal. Lastly, Manley asserts that the district court erred in 

its discovery rulings.

A. “Disparate Treatment” and “Disparate Impact” Claims

Manley first argues that the district court committed reversible error in 

granting Defendants’ motions for summary judgment and dismissing his 

disparate impact and disparate treatment claims against Invesco, Matrix, and 

ProSource.

The summary judgment analysis is the same for claims of discrimination 

under Title VII and 42 U.S.C. § 1981. Patel v. Midland Mem’l Hosp. & Med. 

Ctr., 298 F.3d 333, 342 (5th Cir. 2002). Section 1981 ensures that all persons 

have the same right to make and enforce contracts, including “the making, 

performance, modification, and termination of [employment] contracts.” 42 

U.S.C. § 1981. Title VII of the Civil Rights Act of 1964 prohibits employers 

from “fail[ing] or refus[ing] to hire . . . any individual . . . because of such 

2 Appellant’s brief presents twenty-five issues. These issues can be grouped into three 

buckets for analytical clarity, as the Appellees do in their responsive briefs.

3 The district court also granted Defendants’ motion for summary judgment as to 

Manley’s claims for FCRA violations; the court held that Manley’s FCRA claims failed as a 

matter of law since Invesco, Matrix, and ProSource were not “credit reporting agencies” as 

required for liability under FCRA. Manley does not dispute the district court’s findings with 

respect to FCRA anywhere in his brief. Therefore, he waived his FCRA claims on appeal.

4

 

 Case: 13-20209 Document: 00512523251 Page: 4 Date Filed: 02/05/2014
No. 13-20209

individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e2(a)(1). Title VII also makes it unlawful for an employment agency “to fail or 

refuse to refer for employment, or otherwise to discriminate against, any 

individual because of his race, color, religion, sex, or national origin . . . .” 42 

U.S.C. § 2000e-2(b).

Under Title VII, courts recognize both disparate treatment claims 

(involving deliberate discrimination) and disparate impact claims (involving 

facially neutral practices that fall more harshly on one group than another and 

cannot be justified by business necessity). Munoz v. Orr, 200 F.3d 291, 299 

(5th Cir. 2000); Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 

2002) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 

(1977)). To establish a prima facie case of disparate treatment, the plaintiff 

must demonstrate that he “(1) is a member of a protected class; (2) was 

qualified for [his] position; (3) was subject to an adverse employment action; 

and (4) was replaced by someone outside the protected class, or . . . that others 

similarly situated were treated more favorably.” Okoye v. Univ. of Tex. Hous. 

Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). To establish a prima 

facie disparate impact claim, a plaintiff must (1) “identify the employment 

practice that has the allegedly disproportionate impact” and (2) “establish 

causation by offering statistical evidence to show that the practice in question 

has resulted in prohibited discrimination.” Stout, 282 F.3d at 860.

The district court granted summary judgment dismissing Manley’s 

disparate treatment and disparate impact claims against Matrix and Invesco 

for lack of standing. “In order to have standing, a plaintiff must show: (1) it 

has suffered, or imminently will suffer, a concrete and particularized injuryin-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a 

favorable judgment is likely to redress the injury.” Miss. State. Democratic 

Party v. Barbour, 529 F.3d 538, 544 (5th Cir. 2008). The district court correctly 

5

 Case: 13-20209 Document: 00512523251 Page: 5 Date Filed: 02/05/2014
No. 13-20209

found that Manley did not meet his burden of establishing injury-in-fact fairly 

traceable to Matrix. In fact, Matrix referred Manley for employment (despite 

his criminal record of which Matrix was unaware) and played no role in 

Invesco’s decision not to hire Manley. As Matrix’s alleged policy of declining 

to refer applicants with criminal records did not cause Manley injury, his 

disparate impact challenge against the facially neutral policy as 

discriminatory against Black or male applicants likewise fails. The district 

court also acted properly in holding that Manley could not show an injury fairly 

traceable to Invesco’s conduct. Manley offered no evidence that, when Invesco 

made its decision not to interview him after viewing his resume, the company 

knew his race or color, as would be required to establish that Invesco’s reason 

for not hiring him, i.e. that he was overqualified, was pretextual and to support 

a disparate treatment claim. As Invesco was similarly unaware of his criminal 

background, Manley cannot establish that Invesco’s alleged policy of declining 

to hire individuals with criminal records had a disparate impact on him. 

The district court likewise acted appropriately in dismissing Manley’s 

claims that ProSource discriminated against him when it refused to refer him 

to Invesco for employment because of his criminal record. Persons with 

criminal records are not a protected class under Title VII, preventing Manley 

from basing his Title VII claim on this status, and he does not allege that 

ProSource failed to refer him because he was Black or male. In any event,

ProSource has previously referred Blacks and males who had criminal records

while failing to refer Whites who, like Manley, made misrepresentations as to 

their criminal records – ProSource’s stated reason for declining to refer him. 

“[M]isrepresentations on employee documents can be a legitimate, 

nondiscriminatory reason for an adverse employment decision, like declining 

to hire or firing an employee.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 

F.3d 606, 622 (5th Cir. 2009). Manley’s conclusory allegations to the contrary 

6

 Case: 13-20209 Document: 00512523251 Page: 6 Date Filed: 02/05/2014
No. 13-20209

are insufficient to establish a genuine issue of material fact that ProSource’s 

legitimate, nondiscriminatory reason for not referring him was false or 

pretextual; he thus failed to meet the summary judgment burden for his 

disparate treatment claim against ProSource. Given the absence of admissible 

statistical data or other evidence that ProSource’s policy disparately impacts 

Blacks or males, Manley similarly failed to meet his summary judgment 

burden for his disparate impact claims against ProSource; these claims were 

appropriately dismissed.

B. Denial of Motion for Recusal

Manley also argues that the district court erred by denying his Motion 

to Recuse based on 28 U.S.C. § 455 and § 144. “Under either statute, the 

alleged bias must be ‘personal’, as distinguished from judicial, in nature.” 

Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1020 (5th Cir. 1981). 

“Thus, a motion for disqualification ordinarily may not be predicated on the 

judge’s rulings in the instant case or in related cases, nor on a demonstrated 

tendency to rule any particular way, nor on a particular judicial leaning or 

attitude derived from his experience on the bench.” Id.; see United States v. 

Grinnell Corp., 384 U.S. 563, 583 (1966). Manley has failed to present any 

evidence that the district court held any personal bias against him. Instead, 

Manley’s assertion that the district court should have recused himself is based 

solely on judicial rulings in the case. Accordingly, the district court was correct

in denying his Motion to Recuse.

C. Discovery Rulings

Manley appears to contend that the district court’s abatement of 

discovery interfered with his ability to obtain admissible discovery. It is well 

established that a district court can “exercise its sound discretion to restrict 

what materials are obtainable” in discovery. Leatherman v. Tarrant County 

Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1394 (5th Cir. 

7

 Case: 13-20209 Document: 00512523251 Page: 7 Date Filed: 02/05/2014
No. 13-20209

1994) (quoting Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985)). 

“In reviewing a district court’s curtailment of discovery under the Federal 

Rules of Civil Procedure, errors made with regard to the allowance of discovery 

do not require reversal unless they result in substantial prejudice to a party’s 

case.” Id. (quoting United States v. Garrett, 571 F.2d 1323, 1326 (5th Cir. 

1978)). Manley did not indicate what particular admissible evidence he was 

prevented from obtaining, and whether such discovery would constitute 

competent summary judgment evidence. Nor did he even allege much less 

demonstrate that the district court’s discovery rulings caused him “substantial 

prejudice.” Moreover, while “Rule 56 does not require that any discovery take 

place before summary judgment can be granted,” the district court specifically 

allowed Manley to conduct additional discovery before granting ProSource’s 

Third Motion for Summary Judgment. Id. at 1396 (quoting Washington v. 

Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). Absent specifics as to 

what discovery was erroneously excluded and what prejudice such exclusion 

did or did not cause the plaintiff, we find no error in the district court’s 

discovery rulings.

CONCLUSION

Accordingly, we AFFIRM the district court’s orders of dismissal.

8

 Case: 13-20209 Document: 00512523251 Page: 8 Date Filed: 02/05/2014