* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion s hould not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

December 15, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30483

Summary Calendar

MICHAEL MOORE

Plaintiff-Appellant

v.

HONEYWELL INTERNATIONAL INC

Defendant-Appellee

-------------------- On Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:03-CV-00612

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

Michael Moore alleges that Honeywell International Incorporated discriminated against him

by refusing to rehire him on the basis of his race. He appeals the district court’s summary judgment

dismissing his race discrimination lawsuit. We AFFIRM the district court’s judgment.

Michael Moore, an African-American male, was hired by Bendix/Allied Signal, an affiliat e of

defendant Ho neywell International Incorporated, as a truck driver in 1990. In 1997, Honeywell

terminated Moore’s employment becaus e he was late on a delivery. Moore does not allege any1 Manning v. Chevron Chem. Co ., 332 F.3d 874, 877 (5th Cir. 2003).

2 See F ED

. R. C IV . 56(c); see also Blow v. City of San Antonio , 236 F.3d 293, 296 (5th Cir.

2001).

3 42 U.S.C. § 2000e-3(a).

2 discriminatory reasons for the termination of his employment. Five years after his termination, Moore

reapplied to be a truck driver for Honeywell. Honeywell made a conditional offer of employment to

Moore subject to favorable results of a background investigation. However, upon conducting a

background investigation, Honeywell found a discrepancy between Moore’s employment history and

what Moore stated in his employment application. Ho neywell rescinded its offer to Moore,

purportedly as a result of the discrepancy in Moore’s application. After his offer of employment was

rescinded, Moore again applied to Honeywell. Honeywell rejected his application.

Moore sued Honeywell, alleging that Honeywell discriminated against him by failing to rehire

him on the basis of his race, in violation of Title VII. Honeywell moved for summary judgment. The

district court granted Honeywell’s motion for summary judgment and dismissed Moore’s claims with

prejudice. Moore appealed.

We review the district court’s order granting summary judgment de novo

. 1 Summary

judgment is proper when the record, viewed in the light most favorab le t o the non-moving party,

demonstrates no genuine issue of material fact and the moving party i s ent it led to judgment as a

matter of law. 2

Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminating against

any individual

. . . because of suc h individual’s race.” 3 In the district court, Moore attempted to

prove that Honeywell intentionally discriminated against him because of his race by utilizing the4 411 U.S. 792 (1973).

5 LaPierre v. Benson Nissan, Inc. , 86 F.3d 444, 448 (5th Cir. 1996).

6 See Perez v. Region 20 Educ. Serv. Ctr. , 307 F.3d 318, 324 (5th Cir. 2002).

7 Johnson v. Louisiana , 351 F.3d 616, 622 (5th Cir. 2003).

8 McDonnell-Douglas , 411 U.S. at 804.

9 Id.

3 familiar burden-shifting framework of McDonnell-Douglas Corp. v. Green

. 4 Under this framework,

Moore was first required to establish a prima facie case of discrimination by showing that (1) he is

a member of a protected class, (2) he sought and was qualified for an available employment position,

(3) he was rejected for that po sit io n, and (4) the employer continued to seek applicants with his

qualifications. 5 The district court held that Moore met this initial burden, but concluded that Moore

provided no evidence to support his position that race was a determinative factor in Ho neywell’s

decision to deny him employment. We agree that Moore has produced no evidence that his race was

even a motivating factor in Honeywell’s decision not to rehire him. Therefore, we do not address

Honeywell’s argument that Moore failed to present a prima facie case of discrimination. 6

A plaint iff’s prima facie case “creates a rebuttable presumption that the employer unlawfully

discriminated against the plaintiff.” 7 The burden of production then shifts to the defendant to proffer

a legitimate, non-discriminatory reason for its employment decision. 8 Here, Honeywell set forth an

adequ at e, no n-discriminatory reason for its decision not to rehire Moore; specifically, that Moore

overstated his prior experience in his employment application. To survive the motion for summary

judgment, Moore was t herefo re required to produce evidence creating at least a genuine issue of

material fact that Honeywell’s stated reason was merely a pretext for discrimination. 910 See Rachid v. Jack in the Box, Inc.

, 376 F.3d 305, 3 12 (5t h Cir. 2004) (holding that an

employment discrimination plaint iff who seeks to rebut an employer’s legitimate, nondiscriminatory

reason for an employment de cision must “offer sufficient evidence to create a genuine issue of

m aterial fact either (1) that the defendant’s reason is not true, but is instead a pre text for

discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the

reasons for its conduct, and another motivating factor is the plaint iff’s protected char acteri sti c

(mixed-motives alternative)”).

11 See Reeves v. Sanderson Plumbing Products Inc.

, 530 U.S. 133, 148 (2000) (“[A] plaint iff’s

prima facie case, combined with sufficient evidence to find that the employer’s asserted justification

is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).

4 Moore has offered no evidence that Honeywell’s reason for not rehiring him was mere pretext

and its true reason for its decision was Moore’s race. There is also no evidence that Moore’s race

was even a “motivating factor” in Honeywell’s decision not to rehire Moore. 10 Additionally, contrary

to Moore’s arguments, the evidence is insufficient to find that Honeywell’s asserted justification is

false. 11 Moore stated on his employment application that he had worked for a previo us employer

seventeen months longer than he in fact worked for that employer, and signed a statement attesting

to the truthfulness of the information he provided on his applicat ion. Moore admitted in his

deposition that he provided inaccurate information on his employment application. Therefore, there

is insufficient evidence to find that Honeywell’s asserted justification is false. Accordingly, t he

judgment of the district court is AFFIRMED.