     Case: 12-40102     Document: 00511947935         Page: 1     Date Filed: 08/07/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 7, 2012

                                     No. 12-40102                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GINA DELPHIN,

                                                  Plaintiff-Appellant
v.

GRAYSON COUNTY, TEXAS,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        In this employment discrimination action, plaintiff Gina Delphin appeals
from the district court’s order granting summary judgment in favor of her former
employer, Grayson County, Texas. On appeal, Delphin contends she presented
sufficient evidence to establish she was discharged due to her race in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e–2(a)(1) (2012). We affirm the judgment of the district court.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 12-40102

                                           I
      Delphin, an at-will employee of the District Clerk’s office, was discharged
from her position by the newly elected District Clerk, Kelly Ashmore. Delphin
is of Hispanic origin and was the only employee of Hispanic origin employed in
the District Clerk’s office at the time of her discharge. Delphin was replaced by
a Caucasian applicant, Leslie Oliver. It is disputed when Ashmore offered
Oliver the position, and it is disputed whether other applicants were considered
for Delphin’s position either before or after she left.
      Ashmore claims she relieved Delphin of her duties because Delphin failed
to meet with her prior to Ashmore’s taking office as she had asked other
employees to do, and as other employees had done. Delphin claims her discharge
was racially motivated because she was the only Hispanic employee in the office
at the time and because several Caucasian employees failed to report to Ashmore
but were not discharged, which the County denies.
          Delphin began working for the Grayson County District Clerk’s office in
October 1989 and was employed there on and off until October 2010. At several
points during this time, Delphin transferred back and forth between the District
Clerk’s office and several other County offices. Most recently, she left the
District Clerk’s office to work at another County agency in 2009 and returned to
the District Clerk’s office in August 2010.
      In 2010, Ashmore ran for the office of District Clerk, an elected position
in Grayson County, Texas, and was sworn into office on October 1, 2010.
      On or around March 2010, after it was clear Ashmore would be the new
District Clerk, Ashmore sent an email to all the District Clerk employees at their
work email addresses asking them to arrange an in-person meeting with her
before she took office.1 Ashmore wanted to meet with the employees so she

      1
          Defendants did not produce this email. Ashmore stated that she sent it in her
affidavit accompanying defendant’s motion for summary judgment. That she sent this email

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“could determine the positions each employee held, observe how they
communicated and presented themselves, and determine whether they wanted
to continue under the new administration,” and generally to “have contact
similar to an interview.” It is undisputed that Delphin did not receive this email
because at that time she was working in another County agency and did not
rejoin the District Clerk’s office until August 2010.
       According to Ashmore, all other employees in the District Clerk’s office
arranged to meet with Ashmore before she took office. However, Ashmore did
not require three Caucasian employees in the District Clerk’s office to schedule
an official meeting with her prior to her taking office. Those employees were
Tammy Mueller, Kristi McClaran, and Lindsey Brown. It is undisputed that
they had the same supervisor and similar work responsibilities as Delphin.
Ashmore responded that Mueller, McClaran, and Brown all reached out to her
before she took office such that she was satisfied they could work well together.
       Specifically, Mueller approached Ashmore at a sporting event, introduced
herself, discussed the position Mueller held in the District Clerk’s office, and
expressed her desire to continue working for Ashmore in the office. Mueller
followed up the discussion with an email offering to meet again, but because they
had already spoken, Ashmore did not schedule another meeting.
       Ashmore explains that she had known McClaran for a number of years
before she took office. After 2009, McClaran approached Ashmore at a social
function and at the Grayson County Justice Center and they discussed
McClaran’s position at the District Clerk’s office. McClaran expressed her desire
to continue her position with Ashmore.
       Finally, Ashmore had two face-to-face meetings with Brown. Before
Ashmore won the primary election, she and Brown met and discussed Brown’s



is not disputed.

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                                  No. 12-40102

position in the District Clerk’s office, and Brown expressed her desire to work for
Ashmore if she was elected. They met again by chance in front of the Justice
Center and had a similar discussion. Brown also sent an email to Ashmore to
inquire about setting up a third meeting, which Ashmore declined.
      Ashmore had never met Delphin before Ashmore took office. Delphin
states that she did not contact Ashmore because no one requested that she do so
until Ashmore took office on October 1, 2010. Delphin did not receive the March
2010 email, but states that she was aware other employees had received it and
that some of them had met with Ashmore before she took office.
       Ashmore states that she was concerned because she had been contacted
in one form or another by every District Clerk employee except for Delphin. She
contacted the District Clerk’s Human Resources Director, Andrea Mory, about
her concerns in September of 2010, about one week before she took office.
Ashmore called a few of Delphin’s employment references to ask about her work
habits and was told of a few concerns. Ashmore also states that she looked into
Delphin’s employment records at the District Clerk’s office and learned that
Delphin had been reprimanded in the past. Ashmore and Mory spoke again on
September 30, 2010, the day before Ashmore was sworn in. Ashmore and Mory
both state in their affidavits that in this second conversation, Ashmore stated
her intention to discharge Delphin the next day, and that they discussed what
formalities were required to discharge an at-will employee. In their affidavits
submitted with the motion for summary judgment, Ashmore and Mory both
averred they did not discuss Delphin’s race.
       The next day at Ashmore’s swearing-in ceremony, Delphin introduced
herself to Ashmore and attempted to speak with her. According to Delphin,
Ashmore refused. Ashmore states that she was busy with administrative tasks
and asked Delphin to see her in her office later that day.



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                                  No. 12-40102

      Delphin went to Ashmore’s office at around 5:30 p.m. that day. She
handed Ashmore her resume, as other employees had told her they had done at
their meetings with Ashmore. Delphin had gone through similar meetings with
prior District Clerks, though they generally took place some time after the new
Clerk’s first day. Ashmore asked Delphin why she had not contacted her before,
and Delphin responded that she had not contacted“an elected official before.”
Ashmore advised Delphin that her services were no longer needed. Delphin
asked her if any other employee who had not met with her had been discharged,
and Ashmore refused to answer. Delphin left the office and Ashmore completed
the discharge paperwork.


                                        II
      This Court reviews orders granting summary judgment de novo and
applies the same standard applicable in the district court. Rachid v. Jack in the
Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004). Summary judgment is proper if the
movant shows, with reference to specific facts, that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. PROC. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). “On
a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those
facts.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007), internal quotation marks omitted). A court may only
consider admissible evidence in ruling on a motion for summary judgment. FED.
R. CIV. PROC. 56; Mersch v. City of Dallas, 207 F.3d 732, 734–35 (5th Cir. 2000).


                                       III
      Title VII makes it unlawful for an employer to fire an employee because
of the employee’s race. 42 U.S.C. § 2000e–2(a)(1). An employer’s action is

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                                   No. 12-40102

unlawful if race was “a motivating factor” for her firing, even if the employer was
also motivated by other lawful factors. Id. § 2000e–2(m). This Court applies the
modified McDonnell Douglas approach when considering whether summary
judgment was appropriate in a Title VII racial discrimination case. Vaughn v.
Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011); see McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973).
      The plaintiff carries the initial burden of establishing a prima facie case
of racial discrimination, namely: (1) that she belongs to a racial minority; (2) that
she performed her job satisfactorily; (3) that she suffered an adverse
employment action; and (4) that similarly situated employees of a different race
were treated more favorably or that she was replaced by someone outside of her
protected class. Vaughn, 665 F.3d at 636; Okoye v. Univ. of Tex. Hous. Health
Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001).
      If the plaintiff succeeds, the burden shifts to the defendant employer to
“articulate some legitimate, nondiscriminatory reason” for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. If the defendant
makes the requisite showing, the burden shifts back to the plaintiff to offer
sufficient evidence to create a genuine issue of material fact either (1) that the
proffered reason is a pretext for racial discrimination, or is “false or unworthy
of credence,” or (2) the reason, “while true, is only one of the reasons for its
conduct, and another ‘motivating factor’” is the plaintiff’s race. Vaughn, 665
F.3d at 636 (quoting Rachid, 376 F.3d at 312); Laxton v. Gap, Inc., 333 F.3d 572,
578 (5th Cir. 2003). Bare allegations of racial discrimination are insufficient to
create a genuine dispute as to a material fact. Swanson v. Gen. Serv. Admin.,
110 F.3d 1180, 1186 (5th Cir. 1997).


                                         A



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                                 No. 12-40102

      Delphin bears the initial burden of establishing a prima facie case of
employment discrimination. See McDonnell Douglas, 411 U.S. at 802. Delphin
is Hispanic and submitted evidence that she was discharged for failing to meet
with the incoming District Clerk even though three similarly situated white
coworkers, Mueller, McClaran, and Brown, were not discharged for their failure
to meet with the incoming Clerk. In addition, Delphin was replaced by a
Caucasian applicant, Leslie Oliver. Other than Delphin’s failure to contact
Ashmore, Grayson County did not provide another reason for discharging her.
The County did not claim her job performance was otherwise unsatisfactory.
Therefore, Delphin made out a prima facie case of racial discrimination: that she
belongs to a racial minority; that she performed her job satisfactorily; that she
was discharged; and she established both that similarly situated, Caucasian
employees were treated more favorably because they were not required to report
officially to Ashmore, and that she was replaced by a Caucasian applicant. See
Okoye, 245 F.3d at 512–13. Delphin carried her initial burden under the
McDonnell Douglas test.


                                       B
      The burden is next on Grayson County to articulate a legitimate,
nondiscriminatory reason for its adverse employment action. See McDonnell
Douglas, 411 U.S. at 802. Ashmore asserts she in fact required each District
Clerk employee to meet with her in some capacity or another, including Mueller,
McClaran, and Brown, and that Delphin was the only employee who did not do
so before Ashmore took office. Ashmore was also concerned about the issues she
identified in Delphin’s employment record at the District Clerk’s office and at
her other County positions, which made Ashmore all the more concerned about
meeting Delphin in person for an interview to determine whether she would be



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                                       No. 12-40102

kept on.2 Ashmore and Mory both averred that Ashmore formed at least a
tentative intent to discharge Delphin once Ashmore took office, and that
Ashmore did not know any information about Delphin’s race until they met in
person. Grayson County successfully articulated a legitimate, nondiscriminatory
reason for Delphin’s discharge.           Namely, the incoming District Clerk had
legitimate concerns regarding Delphin’s ability to work effectively under
Ashmore once she took office and that Delphin singled herself out by not taking
the initiative to contact Ashmore earlier. This proffered reason is legitimate and
facially nondiscriminatory.


                                              C
       In the third step of the McDonnell Douglas test, Delphin must offer
sufficient evidence to create a genuine issue of material fact either (1) that the
proffered reason is not true, but rather a pretext for racial discrimination, or (2)
the reason, “while true, is only one of the reasons for its conduct, and another
‘motivating factor’” is the plaintiff’s race. See Vaughn, 665 F.3d at 636 (quoting
Rachid, 376 F.3d at 312). Delphin failed to show that Ashmore’s proffered
reason was pretextual. Delphin contends that Ashmore and Mory’s proffered
explanation lacks credibility because it is calculated to avoid liability, but
Delphin does not offer any evidence to contradict their statements. Delphin



       2
         In her opening brief, Delphin argues, without explaining, that various statements
Ashmore refers to in her affidavit and elsewhere are hearsay and therefore may not be relied
upon when reviewing the order granting summary judgment. However, Delphin does not
explain in what respect these statements are hearsay—i.e., that they are offered for the truth
of the matter asserted. See FED. R. EVID. 801(c). To the extent we consider the parties’
proffered out-of-court statements by nonparty witnesses, we do not rely on them for the truth
of the matter asserted but for, e.g., their effect on the hearer, such as to establish Ashmore’s
state of mind leading up to her decision to discharge Delphin. See id.; see also FED. R. CIV.
PROC. 56(c)(4) (providing that affidavits shall set forth facts that would be admissible in
evidence); Mersch, 207 F.3d at 734–35 (noting only admissible evidence may be considered
when ruling on a motion for summary judgment).

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likewise did not submit evidence that Ashmore decided to discharge Delphin
only after she learned Delphin’s race. Without such evidence, any inference that
Ashmore’s reason was a pretext is merely speculative and does not give rise to
a genuine issue of material fact. See Swanson, 110 F.3d at 1186 (noting that
bare allegations of racial discrimination are too speculative to create a jury
question).
      Nor did Delphin submit evidence that would show race was “another
motivating factor” in Ashmore’s decision to discharge her. See Vaughn, 665 F.3d
at 636. The evidence the parties submitted shows there may have been a
misunderstanding between Ashmore and Delphin regarding Ashmore’s
expectations. It is undisputed that Delphin did not receive the email in which
Ashmore requested that everyone “contact” her, and the record does not reflect
that Ashmore asked Delphin to contact her before October 1, 2010. However, it
is also undisputed that Ashmore had concerns about retaining Delphin in her
employ before meeting Delphin, even if this concern was at least in part
attributed to a misunderstanding. Ultimately, “[t]he question is not whether
[the County] made an erroneous decision; it is whether the decision was made
with discriminatory motive.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1091 (5th Cir. 1995). Without specific evidence that Delphin’s discharge was
racially motivated, Grayson County is entitled to summary judgment in its favor.


                                      IV
      Accordingly, the judgment of the district court is AFFIRMED.




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