                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               February 1, 2007
                          FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                         ----------------------                    Clerk

                              No. 06-10658
                            Summary Calendar

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


THOMAS L GLOVER

                        Plaintiff - Appellant

     v.

CITY OF DALLAS

                        Defendant - Appellee

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

          Appeal from the United States District Court for
               the Northern District of Texas, Dallas
                          (No. 3:04-CV-917)

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

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     The district court entered summary judgment for the City of

Dallas in Thomas Glover’s Title VII lawsuit.       Glover appeals.     For

the following reasons, we AFFIRM the judgment of the district

court.

                  I.   Factual & Procedural Background


     *
       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this opinion should not be published and is not precedent except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.

                                    1
     Glover filed this lawsuit on April 30, 2004.               The complaint

does not specify counts, but avers that Glover “was denied equal

employment    opportunities    by   Defendant    and   the    Plaintiff      was

discriminated and/or retaliated against by Defendant because of his

race, African-American.” The gravamen of Glover’s claim is that he

was not promoted to the rank of Lieutenant in the Dallas Police

Department because of his participation in investigations into

allegations    of   racial   discrimination      conducted    by    the    Equal

Employment    Opportunity    Commission    and   the   U.S.   Department      of

Justice and because of his activities as President of the Texas

Peace Officers Association.

     Glover sought promotion in 1999 under a process that involved

a written examination and assessment exercises, in which the

assessors, all of whom held the rank of Lieutenant in police

departments across the United States and who were hired by a

private    contractor,   observed    the    exercises     and      rated    each

candidate.    The written examination accounted for 25% of the final

promotion score; the assessment accounted for 75%. Based solely on

his written examination results, Glover was ranked 5 out of 63

sergeants who passed the examination.        Glover did not fare as well

in the assessment; with that score included his ranking dropped to

29 out of 60 sergeants who passed the written examination and

completed the assessment.

     The City moved for summary judgment, which the district court

granted.   The district court held that despite Glover’s assertions

                                     2
in his deposition and argument in his brief, Glover never pled a

due process claim.       The district court therefore declined to

consider any due process argument. The district court then assumed

arguendo that   Glover   had   demonstrated   a   prima   facia   case   of

discrimination, but held that he had not presented any evidence

that tended to rebut the City’s proffered non-discriminatory, non-

retaliatory explanation for not promoting him–his score in the

selection process.   The City’s summary judgment evidence included

the declaration of an assistant director of the City’s Civil

Service Department, who stated that “promotions were awarded to

Sergeants. . .starting from the highest score and proceeding

downward as positions became available.”          The City also adduced

declarations of each of the eight assessors who rated Glover, four

of whom were African-American.     Each assessor stated that

     The ratings I gave to each Sergeant I assessed at the
     1999 Assessment Center were based solely on the
     information presented through the Assessment Center and
     the Sergeants’ performance during the Assessment Center
     exercises. At no time did I consider a Sergeant’s race
     in rating the Sergeant during the Assessment Center
     exercises.   At no time did I consider a Sergeant’s
     previous complaints of racial discrimination or other
     protected activity in rating the Sergeant during the 1999
     Assessment Center. I had no knowledge of any Sergeant I
     assessed having ever previously complained of racial
     discrimination or having participated in other similar
     protected activities. In fact, I did not know nor did I
     have any previous knowledge of any of the Sergeants that
     I assessed during the 1999 Assessment Center.

The district court noted that Glover’s response in opposition to

the City’s motion for summary judgment recognized that he was

required to prove that the City’s non-discriminatory reason was

                                   3
pretextual, but held that “despite this, Plaintiff does not address

the City’s non-discriminatory, non-retaliatory reason whatsoever,

nor does he point to any evidence that shows that the City’s reason

is false.”1   The district court observed that Glover’s brief

alluded to a number of facts, but that Glover had not identified

which facts, if any, tended to show pretext, and the district court

declined “to parse through his brief and determine on its own which

facts establish pretext.” Still, the district court concluded that

even if it accepted all of Glover’s alleged facts as true, none

tended to show pretext.

                     II.   Standard of Review

     Our review is de novo.    Perez v. Region, 307 F.3d 318, 323

(5th Cir. 2002).   Summary judgment is appropriate if there is no

genuine issue of material fact for trial and the moving party is

entitled to judgment as a matter of law.     FED. R. CIV. P. 56(c).

When a party moves for summary judgment on the basis that the there

is no evidence of one or more elements of the non-moving party’s

claim, the burden is on the non-moving party to direct the court to

evidence that tends to establish a genuine issue of fact for trial.

Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698,

712-13 (5th Cir. 1994).



     1
       Glover’s counsel died before the district court issued its
memorandum opinion and order and new counsel had not yet entered an
appearance, but the motion was ripe, and Glover never asked for a
hearing.

                                 4
       In a Title VII case, under the familiar McDonnell Douglas

framework, the initial burden upon the plaintiff is to establish a

prima facia case of discrimination; the defendant must then produce

evidence        of    a   legitimate,    non-discriminatory,      non-retaliatory

reason for its actions.          Laxton v. Gap Inc., 333 F.3d 572, 578 (5th

Cir. 2003).          If the defendant meets that burden, the plaintiff must

then show that the proffered reason is a mere pretext.2                  Id.

                                  III.    Discussion

       Glover presented no evidence in response to the City’s motion

for summary judgment that tends to show that the City’s proffered

explanation was pretext.            Glover’s brief in the district court

averred that he had “superior qualifications for promotion to

Lieutenant.”          That is not evidence.      Glover also asserts that he

“has successfully taught others on how to succeed in the assessment

process.”        That is not evidence of pretext.             Glover’s statements

that       he   suffered    discrimination     because   of    his   civil   rights

activities are conclusory and are no evidence.                  Glover complains

that he never received a hearing on grievances he filed complaining

of the 1997 promotion process, but that is not probative of


       2
       As the district court observed, Glover made no mixed-motive
allegation.   On appeal, Glover contends that he did raise this
theory, citing his brief in the district court. All the cited page
says is that “Those cases raising allegations of ‘mixed motives’
follow Price Waterhouse v. Hopkins, and the Civil Rights Act of
1991 modification.” This statement is in the context of describing
generally what a plaintiff must prove; it does not allege mixed-
motive as Glover’s theory, and no such theory appears in Glover’s
complaint.

                                           5
discrimination or retaliation by the outside assessors in the 1999

process.    Glover asserts that the City “conveniently lost vital

documents   related   to   Glover’s       claim”   or   improperly   withheld

information.   This is a discovery complaint and is not evidence of

pretext.    Glover states that former Police Chief Terrell Bolton

told him that “certain members of city government did not want to

see [him] promoted” based on his activities as President of the

Texas Peace Officers Association.          Even taking this speculation as

true, it has no tendency to show that the outside assessors were

influenced in the 1999 process.

     Glover’s brief in this court continues to refer to a wealth of

information which, if taken as true, tends to establish a prima

facia case, but nothing that tends to show pretext.           Glover goes on

to assail the assessment process, but the basis of his lawsuit is

illegal retaliation, not a flawed merit-selection process.               The

remainder of the brief is speculative about how the process might

have been influenced and does not direct us to probative evidence.

                            IV.   Conclusion

     Our combing of the record reveals no evidence to support a

claim that the City’s proffered non-discriminatory, non-retaliatory

reason was pretext, and there is ample evidence to the contrary.

We find no fault with the district court’s refusal to consider

theories not pled.    The judgment of the district court is therefore




                                      6
AFFIRMED.




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