     Case: 11-30914     Document: 00511956674         Page: 1     Date Filed: 08/14/2012




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

                                                                            FILED
                                                                          August 14, 2012

                                       No. 11-30914                        Lyle W. Cayce
                                                                                Clerk

KIMBERLY M. JOHNSON,

                                                  Plaintiff - Appellant
v.

MAESTRI-MURRELL PROPERTY MANAGEMENT, LLC,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                           Middle District of Louisiana
                                  (3:09-CV-638)


Before JONES, Chief Judge, and WIENER and GRAVES, Circuit Judges.
PER CURIAM:*
        Kimberly M. Johnson commenced this action alleging that Maestri-Murrell
Property Management, LLC (“Maestri-Murrell”) failed to hire her for the
position of assistant manager at Azalea Point Apartments (“Azalea Point”) on
the basis of her race, African American, pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”). The United States Equal Employment Opportunity
Commission (“EEOC”) determined that there was reasonable cause to believe
that Maestri-Murrell violated Title VII.             After the EEOC unsuccessfully

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30914

attempted to conciliate the dispute, it advised Johnson of her right to institute
a civil action in federal court and Johnson commenced this law suit. The district
court granted summary judgment in favor of Maestri-Murrell.             Johnson
appealed. We REVERSE and REMAND.
                         Facts and Procedural History
      On December 19, 2006, Johnson submitted a resume for an assistant
manager position at Azalea Point. The resume was submitted to the manager,
Connie Kimball. Kimball apparently considered every resume save Johnson’s,
as evidenced by Kimball’s notes on all other applicants’ resumes. According to
testimony from the outgoing assistant manager, Stacy Lyn Curtis, Kimball did
not think that Maestri-Murrell wanted to have an African American assistant
manager at Azalea Point, which primarily housed college students from the
nearby Louisiana State University in Baton Rouge. Ultimately, Maestri-Murrell
did not hire Johnson for the position. Instead, Maestri-Murrell selected Jamie
Cedatol, a Caucasian and the daughter of Lisa Theriot, Kimball’s supervisor.
Cedatol began work either on January 7, 2007, or January 8, 2007, the date of
Cedatol’s application.
      On January 27, 2007, Johnson filed her race discrimination claim with the
EEOC. On June 30, 2008, the EEOC issued its determination letter, which
states, in relevant part:

      All requirements for coverage have been met. Charging Party [here,
      Johnson] alleges she was denied employment as an Assistant Manager
      because of her race, Black, in violation of Title VII.

      The investigation revealed Charging Party applied for the position of
      Assistant Manager. Respondent claims Charging Party was not hired
      because she didn’t have property management experience. Analysis of the
      applications shows the individual hired by Respondent didn’t have
      property management experience either. Charging Party’s resume shows
      she had a wider variety and more office work related skills than the
      individual hired. The individual hired by Respondent is White and is less

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      qualified than Charging Party. Testimony showed Charging Party was
      not selected for Assistant Manager because Respondent’s clients are
      predominantly White students from the nearby Louisiana State
      University. The Respondent believed the students parents would object
      to having a Black as Assistant Manager. The statute prohibits race
      discrimination based on customer preference. Therefore, I find that there
      is reasonable cause to believe that Title VII was violated.

      On August 12, 2009, Johnson filed her Title VII complaint in the district
court. On November 17, 2010, Curtis testified via deposition that Maestri-
Murrell did not hire Johnson because of Johnson’s race:
      Q      And so you don’t know when this was that you went into Connie’s
      office and the resume – she said she had the resume on her desk?
      A      No, ma’am.
      Q      And so what did y’all discuss in that conversation?
      A      Just whenever Connie -- the first thing she asked me was whether
      or not Kim was black, and I kind of was like, well, I think so, but why; and
      she said that she didn’t think that they were going to want to hire
      someone who was black.
      ...

      Q    I’m sorry. Connie’s comment was what?
      A    She -- she said that she didn’t think that they would want to hire
      someone who was black.
      Q    Who was she referring to?
      A    The company.
      Curtis also testified that she talked to Kimball about Johnson’s application
about one week after the facsimile arrived — which would have been on or about
December 26, 2006 — approximately a week and a half prior to Cedatol’s
application submission. Curtis further testified that, although she knew Theriot
had a daughter, Curtis did not know who Maestri-Murrell hired.
      Linda Jackson, the Vice President of Maestri-Murrell, testified that she
did not recall when she talked to Theriot about Cedatol or when Jackson
approved hiring Cedatol. Jackson testified that she had probably interviewed
Cedatol by the time she completed her application. However, Jackson did not


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explain the reasons she did not have Cedatol complete the application at or prior
to the interview.
                                       Analysis
I.       Standard of Review
         We review a grant of summary judgment de novo, applying the same
standard as the district court. Equal Emp. Opportunity Comm’n v. WC&M
Enters., 496 F.3d 393, 397-98 (5th Cir. 2007). A party is entitled to summary
judgment only if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Id. (citing FED.R.CIV.P. 56(c)). A genuine issue
of material fact exists when the evidence is such that, viewing the record as a
whole, a reasonable jury could return a verdict for the non-moving party. Dediol
v. Best Chevrolet, Inc. 655 F.3d 435, 439 (5th Cir. 2011). In reviewing a
summary judgment motion, the court must “refrain from making credibility
determinations or weighing the evidence,” WC&M, 396 F.3d at 398, and must
view the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor. Id.; see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-52 (1986) (noting that summary judgment is inappropriate if
the evidence is such that disputed issues can be resolved in favor of either
party).
II.      Evidence of Racial Discrimination
         “It shall be an unlawful employment practice for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
or national origin . . .”       42 U.S.C. § 2000e-2(a)(1).      “Title VII does not
affirmatively require direct evidence from a plaintiff . . .” Smith v. Xerox Corp.,


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602 F.3d 320, 332 (5th Cir. 2010). In cases such as this one where the allegation
is that the employer intentionally discriminated against the individual based on
her race, discrimination can be established either circumstantially or directly.
See Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing
Portis v. First Nat’l Bank of New Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994)).
      Whether or not the evidence is deemed direct or circumstantial or both, it
is clear that Johnson has established a prima facie case of racial discrimination,
and the district court should have denied Maestri-Murrell’s summary judgment
motion. “[T]he reason for treating circumstantial and direct evidence the same
is deeply rooted in the notion that circumstantial evidence may often be more
persuasive.” Xerox, 602 F.3d at 331 (citation omitted). This case presents direct
evidence of racial discrimination – sworn deposition testimony by Curtis that
Kimball stated to her that she did not think that Maestri-Murrell wanted an
African American as assistant manager at Azalea Point.
      The district court erred in disregarding Kimball’s alleged comments that
Maestri-Murrell would not consider hiring an African American.            To the
contrary, the comments provide, at a minimum, evidence sufficient to defeat
summary judgment. See Patrick v. Ridge, 394 F.3d 311, 319-21 (5th Cir. 2004).
The district court disregarded the remarks because, in its opinion, Johnson
failed to “demonstrate that the decision to hire Cedatol was made after the
occurrence of the alleged discriminatory comment” and, so, Johnson “failed to
demonstrate a causal connection between such remark and defendant’s selection
of Cedatol for the job.” The relevant inquiry is whether or not there was
discrimination that resulted in Johnson not being considered for the job. The
remarks, if true, provide evidence of discrimination. Hence, the timing of the
remarks is much less important than the content of the remarks. In other
words, the significant fact to be determined is whether or not unlawful
discrimination was involved in the decision made by Maestri-Murrell.


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       The law requires Johnson to present sufficient evidence to raise a triable
issue of fact. See FED.R.CIV.P. 56(a). On summary judgment, the district court
was required to view the evidence and draw all reasonable inferences from the
evidence in the light most favorable to Johnson. See WC&M, 496 F.3d at 397-98.
The evidence included Johnson's resume, which, unlike other resumes that
Maestri Murrell supplied during the EEOC's investigation and discovery, had
no comments written on it by Kimball indicating her views. It also included the
Curtis deposition. Viewing all of this evidence and drawing all reasonable
inferences from it in Johnson’s favor, a jury could reasonably find that Kimball
had screened Johnson out based on race prior to hiring Cedatol.
       We make no determination as to the merits of Johnson’s claims, only that
summary judgment was wrongfully granted because there are genuine issues of
material fact. To withstand a motion for summary judgment, Johnson need not
carry the burden of persuasion but simply adduce sufficient evidence, viewed in
the light most favorable to her, to allow the jury to find in her favor. See Dediol,
655 F.3d at 439; WC&M, 396 F.3d at 397-98; see also Anderson, 477 U.S. at
249-51. Here, a jury could find that – based on the testimony by Curtis
regarding what Kimball said about Johnson’s race, the fact that Johnson’s
resume had no markings on it, and the fact that Maestri-Murrell hired a
Caucasian – Maestri-Murrell failed to hire Johnson because of her race.
III.   McDonnell Douglas Framework
       “[I]t is abundantly clear that Title VII tolerates no racial discrimination,
subtle or otherwise.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93
S. Ct. 1817 (1973). An intentional discrimination claim like this one is normally
analyzed using the three-step burden-shifting proof framework. Id. at 792.
First, the plaintiff makes out a prima facie case:
       The complainant in a Title VII trial must carry the initial burden under
       the statute of establishing a prima facie case of racial discrimination. This
       may be done by showing (i) that [she] belongs to a racial minority; (ii) that

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      [she] applied and was qualified for a job for which the employer was
      seeking applicants; (iii) that, despite [her] qualifications, [she] was
      rejected; and (iv) that, after [her] rejection, the position remained open
      and the employer continued to seek applicants from persons of
      complainant’s qualifications.

Id. at 802. Second, the burden then shifts to the defendant to produce evidence
that the challenged employment decision was made for a “legitimate,
non-discriminatory reason.” Id. at 803. Third, the burden shifts back to the
plaintiff to prove intentional discrimination with evidence that the legitimate
reason offered by the defendant was not the true reason, but was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 142-43
(2000); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Alvarado
v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
      Here, Johnson bases her racial discrimination claim for the most part,
although not entirely, on testimony by Curtis that Kimball set her application
aside, stating that she doubted that Maestri-Murrell would hire an African
American person to assist in managing Azalea Point. Analyzing Johnson’s claim
pursuant to McDonnell Douglas, the district court granted summary judgment
to Maestri-Murrell, finding that Johnson failed to carry her burden of
demonstrating a prima facie case. In rejecting Johnson’s claim, the district court
held that, because the claim involved a failure to hire, Johnson was required to
prove that she was “rejected for the position” and that “the employer continued
to seek applicants” after her rejection. See Johnson v. Louisiana, 351 F.3d 616,
621-22 (5th Cir. 2003) (citation omitted).
      However, in a failure-to-hire case like this one, a plaintiff may raise the
inference with evidence, for example, that she did not get a position that she was
seeking and the position was filled by someone from outside her protected class.
Davis v. Chevron, 14 F.3d 1082, 1087 (5th Cir. 1994) (failure to hire). A plaintiff
may create a prima facie case with evidence that “she applied for an available


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position for which she was qualified, but was rejected under circumstances
which give rise to an inference of unlawful discrimination.” Burdine, 450 U.S.
at 253.
      Here, Johnson applied for the position of assistant manager. Curtis
testified that Kimball stated that she believed that Maestri-Murrell did not want
an African American assistant manager at Azalea Point. Kimball made no
marks on Johnson’s resume, as she did on other resumes. Maestri-Murrell
ultimately hired Cedatol, a Caucasian, on or shortly after the date that Cedatol
submitted her application. Therefore, the district court should have concluded
that Johnson satisfied her prima facie burden by showing that Maestri-Murrell
did not hire her, an African American, for a position for which she applied and
appeared to be qualified, but instead hired Cedatol, a Caucasian, under
circumstances which give rise to a reasonable inference of unlawful
discrimination.
                                  Conclusion
      There are genuine issues of material facts sufficient to defeat a motion for
summary judgment. Accordingly, we conclude that the district court should
have denied Maestri-Murrell’s summary judgment motion and allowed this case
to proceed towards trial. REVERSED and REMANDED for further proceedings
consistent with this opinion.




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