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not be published and is not precedent except under the limited circumstances set forth in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. 09-40487

Summary Calendar

ALLEN BISHOP,

Plaintiff–Appellant

v.

TEXARKANA TEXAS POLICE DEPARTMENT,

Defendant–Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:08-CV-00141

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Allen Bishop, Plaintiff–Appellant, appeals the district court’s grant of

summary judgment for Defendant–Appellee, Texarkana Texas Police

Department (“TTPD”), as to Bishop’s claims for age discrimination under the

Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the

“ADEA”), and race discrimination under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. (“Title VII”). Because Bishop failed to carry his burden

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2010

Charles R. Fulbruge III

Clerk

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No. 09-40487

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under either the ADEA or Title VII, we AFFIRM the district court’s ruling.

I. FACTUAL AND PROCEDURAL BACKGROUND

Bishop, a forty-year-old African-American male, applied for an entry level

police officer position in the TTPD. Bishop passed both the civil service

examination and physical fitness assessment. TTPD asked Bishop to complete

a Personal History Statement and submit certain documents to enable TTPD

investigators to conduct a background investigation. Bishop provided an

incomplete Personal History Statement and failed to submit his Form DD-214,

which would have shown the circumstances surrounding his discharge from

military service. On his Personal History Statement, Bishop stated he served

in the United States Army Reserves from January 1991 through January 1999

and was honorably discharged. He did not mention any other military service.

TTPD rules require former members of the military to have nothing less

than an honorable discharge. During an interview with a TTPD background

investigator, Bishop said he was uncertain of his military discharge status

because of an issue relating to denial of his request to transfer from one reserve

unit to another. Bishop stated he believed he had been placed on “inactive”

status. TTPD subsequently received the Army’s Form DD-214 showing that

Bishop entered service in September 1991, separated in March 1992, and

received an “uncharacterized” discharge. TTPD also received another Form DD214, learning for the first time that Bishop had been in the United States Navy

for about a month and a half in 1986; the Navy described Bishop’s discharge

status as an “entry level separation.” TTPD sent Bishop two letters explaining

he was automatically disqualified from consideration due to his

“uncharacterized” discharge from the Army Reserves. 

Bishop filed a Charge of Discrimination with the EEOC and received a

right to sue letter. Bishop timely filed his Complaint, raising claims of race and

age discrimination. TTPD moved for summary judgment, and the district court

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granted the motion. Bishop timely appealed. 

II. ANALYSIS

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

Indus., Inc. v. Factory Mut. Ins. Co., 486 F.3d 844, 846 (5th Cir. 2007). Summary

judgment is proper when “there is no genuine issue as to any material fact and

. . . the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c)(2).

To prevail on his Title VII claim, Bishop must establish a prima facie case

that TTPD based its decision not to hire him on his race. Patrick v. Ridge, 394

F.3d 311, 313 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973)). To do so, Bishop must show that (1) he is a member of a class

protected under the statute; (2) he was qualified for the police officer position; (3)

TTPD took an adverse employment action against him; and (4) someone outside

of the protected class was hired instead. Id. (citing McDonnell Douglas Corp.,

411 U.S. at 802). To prevail on his ADEA claim, Bishop bears a similar burden

of establishing a prima facie case that TTPD based its decision not to hire him on

his age, by showing that (1) an adverse employment action occurred; (2) he was

qualified for the police officer position; (3) he was a member of a protected class

under the statute; and (4) he was replaced by someone either younger or outside

of the protected class. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.

1993).

After the plaintiff establishes his prima facie case, the burden shifts to the

defendant to articulate a legitimate, non-discriminatory reason for its adverse

employment decision. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004). If the defendant meets this burden, the burden shifts back to the

plaintiff to show that (1) the defendant’s proffered reason is not only untrue, but

is pretextual; or (2) the defendant’s proffered reason is true, but is only one of the

reasons, with the protected characteristic being a “motivating factor.” Id.

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 Bishop also argues that TTPD refused to hire him because of his credit score, 1

because he filed an unrelated lawsuit, and because TTPD uses a quota system and will not

hire any more African-American applicants until 2013. As for Bishop’s first two

arguments, Bishop failed to produce any evidence showing that TTPD refused to hire him

because of his credit score or because he filed an unrelated lawsuit. As for the third

argument, Bishop provides little more than a conspiracy theory to support this argument,

and he fails to establish a prima facie case of discrimination based on alleged quotas. 

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(citation omitted). Finally, if the plaintiff succeeds, the burden shifts back to the

defendant to prove “it would have taken the same action in the absence of the

impermissible motivating factor.” Id. at 312–13 (quotation omitted). 

Here, Bishop argues that TTPD refused to hire him because he received a

discharge that was other than honorable, and that this criterion was

impermissible. Indeed, in Thompson v. Gallagher, 489 F.2d 443, 449 (5th Cir. 1

1973), a case with somewhat similar facts, we found unconstitutional a law

mandating the employment termination of any individual with a military

discharge that was other than honorable. We need not determine whether

Thompson applies to the instant case. Even if Bishop were to establish a prima

facie case of discrimination, TTPD has articulated a valid non-discriminatory

reason for not hiring Bishop: he lied on his Personal History Statement.

Although the district court gave Bishop an opportunity to gather evidence to

show that this non-discriminatory reason was pretextual or was not TTPD’s

motivating factor, Bishop failed to do so. Therefore, Bishop failed to carry his

burden of establishing a claim for either race or age discrimination. 

III. CONCLUSION

We AFFIRM the district court’s judgment.

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