                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                 May 4, 2007
                              FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      No. 06-20589
                                   Summary Calendar
                               __________________________


GERALD FRANKLIN,

                                                                      Plaintiff-Appellant,

versus

BOEING COMPANY,

                                                                     Defendant-Appellee.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Southern District of Texas
                                    (No. 4:04-CV-844)
                 ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         Before the court is an appeal from the district court’s grant of summary judgment

in favor of The Boeing Company (“Boeing”) on Gerald Franklin’s Title VII and 42 U.S.C.

§ 1981 claims. Franklin, who is black, had asserted that he did not receive a promotion to




         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
a supervisory position because of his race, that he did not receive as high a merit-based

raise as white engineers, and that he did not receive a promotion to a lead position because

of his race. For the following reasons, we affirm.

                            I. FACTS AND PROCEEDINGS

       Franklin works for Boeing as an engineer. In 2000, Franklin’s supervisor was Chris

Byrne, who is white. In March 2002, James Purcell, who is also white, became Byrne’s

supervisor. In the autumn of that year, Byrne was transferred from his supervisory

position, and Purcell posted the vacancy. Ninety-two people applied for the job, including

Franklin. The posting listed several qualifications of successful candidates, including

educational credentials meeting the classification standards for engineers, a minimum of

ten years of avionics experience, and two years of management experience. Purcell did not

interview Franklin and, ultimately, selected a white engineer, Jeffrey Hicks, from outside

Franklin’s group to fill Byrne’s old position.

       In March 2003, Franklin received a performance-based raise that he perceived as

inadequate. Prior to receiving the raise, Franklin had received a negative evaluation—his

worst at Boeing—from Hicks regarding Franklin’s performance in 2002, who wrote it with

input from Franklin’s team leader and Purcell. Franklin asserts that his merit-based salary

increase for that time period was lower than it had been in prior years and was lower than

that received by white engineers.

       Around the same time, Purcell approached Franklin to inquire about his interest in

transferring to Boeing’s new homeland security group. Franklin answered affirmatively


                                           -2-
and ultimately accepted a job in this new group, to which he transferred in May 2003.

Because of Franklin’s departure, Purcell approached a well-qualified employee in another

group, Sheri Mutchler, to replace Franklin. Mutchler agreed to transfer into the

department, and, to entice her transfer, Purcell designated her position as a lead position

within the group. Franklin claims racial discrimination in that Purcell offered Mutchler,

a white engineer, the lead designation that was never offered to him.

                              II. STANDARD OF REVIEW

       The district court’s grant of summary judgment is reviewed de novo. Storebrand

Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139 F.3d 1052, 1055 (5th Cir. 1998). The

district court’s evidentiary rulings are reviewed for abuse of discretion, as is the district

court’s decision to deny additional discovery under Rule 56(f). Kelly v. Boeing Petroleum

Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995); see also Adams v. Travelers Indem. Co., 465

F.3d 156, 162 (5th Cir. 2006) (reviewing the district court’s denial of a Rule 56(f) motion).

                                      III. DISCUSSION

       Franklin challenges the district court’s grant of summary judgment on his two

failure-to-promote claims and on his inadequate raise claim. Franklin also challenges the

district court’s discovery rulings.

       A Title VII plaintiff bears the burden of establishing a prima facie case of

discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

If the plaintiff meets this burden, the burden of production shifts to the defendant to

articulate a legitimate, non-discriminatory reason for its decision. See McDonnell Douglas


                                            -3-
Corp. v. Green, 411 U.S. 792, 802 (1973). If the defendant carries this burden, the burden

shifts back to the plaintiff to demonstrate that the defendant’s legitimate, non-

discriminatory reason is a pretext for discrimination. See St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993). The plaintiff must substantiate his claim of pretext through

“evidence demonstrating that discrimination lay at the heart of the employer’s decision”

or that the asserted justification is false. Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th

Cir. 2002).

A.     Promotion to group supervisor

       Boeing concedes that Franklin established a prima facie case. Boeing offers as a

legitimate, non-discriminatory reason for hiring Hicks that Hicks had superior

communication and leadership skills and that Hicks had managerial experience and other

relevant experience indicating that he would excel at the job. The dispute between the

parties is whether Franklin has created a genuine issue of material fact as to whether this

reason offered by Boeing was a pretext for intentional discrimination.

       Franklin offers four arguments why he created a genuine issue of material fact

about whether Boeing’s reason was pretextual, all of which are without merit. Franklin

claims that Hicks was originally eliminated from the list of potential candidates for “other

job related reasons” and that this screening somehow suggests that Hicks was not more

qualified than Franklin. Franklin is incorrect because the determination, after further

consideration, that Hicks was more qualified only shows a deliberative, continuing hiring

process. It does not create a fact issue as to whether Hicks was or was not more qualified


                                             -4-
than Franklin. Similarly, that Purcell considered subjective factors such as the candidates’

leadership and communication skills in addition to objective ones does not create a

genuine issue about whether Purcell’s decision was pretextual, unless no reasonable

person would have chosen Hicks over Franklin, which is not the case. See Deines v. Tex.

Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999); see also Ash

v. Tyson Foods, Inc., 546 U.S. 454 (2006) (discussing the standard for determining whether

a Title VII-protected applicant’s qualifications are superior to another’s). Franklin’s

remaining assertions, that Boeing’s internal human resources software demonstrated that

Purcell “lied” about his decisional process and that Purcell’s subjective judgments were

unsupportable, are equally unavailing. See Page v. U.S. Indus., Inc., 726 F.2d 1038, 1046

(5th Cir. 1984) (“It is clear that a promotional system which is based upon subjective

selection criteria is not discriminatory per se.”). Purcell exercised his discretion in

reviewing candidates over a period of time and considered personal experience with

Franklin’s leadership and communication skills before hiring Hicks. Franklin has not

demonstrated a genuine issue of material fact on his promotion-to-supervisor claim.

B.     The 2003 raise

       Boeing has not conceded that Franklin established a prima facie case. Assuming,

however, that Franklin can establish one, he has not created a genuine issue of material fact

as to whether Boeing’s legitimate, non-discriminatory reason for the promotion—job

performance—was pretextual. Franklin received a performance evaluation for his work

in 2002 which was worse than his evaluations in years past. This resulted in his lower-


                                            -5-
than-normal pay increase. That Franklin’s team leader gave Franklin high marks for the

same time period and that Franklin received a performance award from NASA, Franklin’s

primary customer that year, do not create a genuine issue of material fact. Nor do these

assertions, without more, support the inference, urged by Franklin, that Boeing falsified

his performance evaluation. The independent assessment of a team leader regarding job

performance does not raise an inference that Franklin’s supervisor’s assessment was

pretextual; it is only indicative of varying experiences with Franklin. And a supervisor’s

subjective assessment of an employee is not evidence of pretext. See Manning v. Chevron

Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003) (“The mere fact that an employer uses

subjective criteria is not . . . sufficient evidence of pretext.”). As the district court found,

Franklin’s performance rating was probably attributable to communication problems and

an argument Franklin had with his prior supervisor. Also, Franklin’s attempt to create a

fact issue by pointing to an award received from NASA does not help his claim, since he

received the award after receiving the performance rating and the performance raise.

C.     Lead Designation

       Boeing again concedes that Franklin has established a prima facie case of

discrimination. The parties dispute the pretext issue. Boeing asserts that it designated

Mutchler the lead because of the need to fill Franklin’s position quickly with an

experienced person. Purcell thought that Mutchler would transfer to the group if offered

the incentive of having a title, even though it involved no additional pay.

       Franklin’s pretext argument is that Purcell’s designating Mutchler the lead together


                                             -6-
with the fact that Purcell did not entice Franklin to stay with the offer of a lead designation

creates a fact issue on whether Purcell’s true reason was race-based. Franklin’s argument

is without merit. As Franklin admits, Purcell was not required to entice Franklin to stay,

and Franklin’s departure created an urgency to fill the position, thus justifying Purcell’s

designation of the position as a lead position. Franklin has not created a genuine issue of
                                               1
material fact on his lead designation claim.

D.     Evidentiary decisions

       Franklin challenges the district court’s denial of a continuance, sought under Rule

56(f), to have time to take the depositions of two employees who formerly worked for

Purcell. He also challenges the district court’s rulings that (1) a certain declaration by a

former co-worker of Franklin and (2) Franklin’s statements concerning what two of his

former co-workers said concerning Purcell were hearsay and contained legal conclusions.

       The district court has wide discretion in managing evidentiary and discovery

matters. See, e.g., Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).

Though Rule 56(f) motions should be liberally granted, see id., to obtain relief under Rule

56(f), a party must show that he needs additional discovery and how the discovery

requested will create a genuine issue of material fact, see Adams, 465 F.3d at 162.

Regarding the Rule 56(f) issue, as to one employee, Franklin inadequately responded to

the district court’s request to clarify how the information Franklin sought to discover

       1
        To the extent that Franklin challenges the district court’s grant of summary
judgment on his 42 U.S.C. § 1981 claim, we reject his arguments for the same reasons as his
Title VII claims.

                                             -7-
would create a genuine issue of material fact, as required under Rule 56(f). Regarding the

other, who was Purcell’s administrative assistant for a short time, Franklin has not shown

that the information that purportedly would have been obtained in the deposition would

have been helpful in opposing Boeing’s motion for summary judgment. As the district

court found, the assistant was not involved in Purcell’s hiring decisions, and she was not

involved in any decisions regarding performance raises. We are satisfied with the court’s

careful consideration of these evidentiary issues, and we are satisfied that the district

court’s other limitations on the discovery were within its discretion. See Kelly, 61 F.3d at

360 (finding no abuse of discretion where the district court considered the instances of

allegedly discriminatory comments and found them to be irrelevant). Here, Franklin only

asserts that the employee’s testimony would generally assist him in showing the racial

atmosphere and discriminatory practices at Boeing. He is not entitled to additional

discovery under Rule 56(f). See Elliot v. Group Medical & Surgical Serv., 714 F.2d 556, 566

(5th Cir. 1983) (holding that conclusory statements regarding discriminatory animus were

not enough to create an issue of fact on pretext).

         Franklin also challenges the district court’s exclusion of portions of a declaration of

Franklin’s former co-worker as containing hearsay and legal conclusions and the exclusion

of portions of Franklin’s statements as hearsay. We again are satisfied with the court’s

consideration of these evidentiary issues and perceive no abuse of discretion by the district

court.

                                     IV. CONCLUSION


                                              -8-
We AFFIRM the judgment of the district court.




                                 -9-
