     Case: 10-20667 Document: 00511400795 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011

                                     No. 10-20667                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



HECTOR CHARLES HENRY,

                                                   Plaintiff–Appellant
v.

CONTINENTAL AIRLINES,

                                                   Defendant–Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2420


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Hector Charles Henry, pro se, appeals the district court’s grant
of summary judgment to Defendant Continental Airlines (“Continental”) on his
discrimination claims brought pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Americans With Disabilities
Act, 42 U.S.C. § 12101, et seq. (“ADA”). Because Henry did not present evidence




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20667

creating a genuine dispute of material fact that would allow him to prevail under
either claim, we affirm.
       Henry worked as a customer service agent for Continental from 1997 until
April 2006, when a work-related back injury caused his employment to be
suspended. In January 2008, Henry received a medical release allowing him to
return to work subject to certain restrictions including lifting objects over a
certain weight.        Because of his back injury and based on his doctor’s
recommendations, Henry was unable to resume his former job. Continental
encouraged Henry to apply for other jobs, and using Continental’s online
employee-restricted system, he applied to twenty-five jobs between April 2008
and April 2009.1 Henry’s resumé listed his experience as a customer service
agent for Continental, his twelve years as a tax auditor, and briefly, his
experience as “Owner/Manager of [a] small business” for three years. The online
application forms asked several initial screening questions concerning flexibility
regarding shift assignments and computer skills, in addition to requesting the
applicant’s resumé.
       Continental presented evidence, uncontradicted by Henry, that based on
his answers to the screening questions, the employment application system
automatically found him unqualified for thirteen of the positions. It also showed
that two of the other positions he applied for were discontinued by Continental
and never filled. Of the remaining ten jobs, Henry was selected to interview by



       1
         The jobs Henry applied for were (1) Dispatcher, (2) Staff Accountant, (3) Material
Specialist, (4) Manager, Financial Services, (5) Auditor Field Services, (6) Controller I, Chelsea
Food Services, (7) Crew Scheduler, (8) Accounting Clerk IV, (9) Payroll Analyst, (10) Cargo
Reservation Specialist, (11) CRC Analyst, (12) Administrative Assistant, (13) Hub
Administrative Specialist, IAH, (14) Assistant Manager, Chelsea Food Services, (15) Sr.
Corporate Auditor, (16) Cargo Administrative Specialist, (17) Auditor Field Services, (18) Sr.
Financial Analyst, (19) Accounting Clerk V, (20) Hub Administrative Specialist, IAH, (21)
Senior Financial Analyst, (22) Financial Analyst, (23) Staff Manager Coordinator, (24)
Administrative Specialist, and (25) Buyer, Chelsea Food Services.

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                                      No. 10-20667

telephone for two and was not interviewed for the other eight. Ultimately,
Continental selected other applicants for all ten positions.
       Henry filed suit, pro se, against Continental on July 30, 2009, after
receiving his right-to-sue notice from the Equal Employment Opportunity
Commission. His suit alleged that Continental had discriminated against him
on the basis of race and disability in violation of Title VII and the ADA when it
selected less qualified applicants for the jobs to which he had applied.
Continental filed a motion for summary judgment on July 30, 2010, to which
Henry did not timely respond.2 After considering the record as a whole, the
district court granted summary judgment to Continental in a thorough opinion
and order on September 9, 2010. Henry then appealed the district court’s grant
of summary judgment to Continental.
       This Court reviews a grant of summary judgment de novo, applying the
same standard as the district court. Floyd v. Amite Cnty. Sch. Dist., 581 F.3d
244, 247 (5th Cir. 2009) (citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725
(5th Cir. 1995)).     Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” F ED. R. C IV . P. 56(a). This Court reviews issues of fact in the
light most favorable to the nonmoving party. Floyd, 581 F.3d at 248 (citing
Dutcher, 53 F.3d at 725).
       Henry makes several arguments on appeal, but provides little evidence in
support. He alleges that Continental did not hire him for any of the twenty-five
positions to which he applied because he is African-American or because of a
physical disability resulting from his injury.            Additionally, he specifically
contends that (1) Continental presented misleading and incomplete information


       2
          In his notice of appeal, Henry asserts that he had filed a brief response with the
district court, and he provides the document he alleges to have filed. The district court had
no record of such filing.

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to the district court and withheld information during discovery that it now
presents as evidence; (2) Continental chose several applicants over him who
were less educated and who were not already Continental employees; and (3)
Continental used his lack of computer skills to justify their discriminatory
practices.
      Claims of racial discrimination under Title VII are analyzed under a
modified McDonnell Douglas framework.3 Therefore, Henry must first establish
a prima facie case of discrimination. Jackson v. Watkins, 619 F.3d 463, 466 (5th
Cir. 2010) (citations omitted). If he can do so, then Continental must “articulate
a legitimate, nondiscriminatory reason for terminating him.” Id. (citations
omitted). If Continental meets this burden, Henry bears the ultimate burden of
proof in showing that Continental’s legitimate, nondiscriminatory reasons were
pretexts for discrimination. Id. (citations omitted).
      In order to establish a prima facie case for racial discrimination, Henry
must show (1) that he is a member of a protected class, (2) that he applied and
was qualified for an available position, (3) that he was rejected, and (4) that the
employer continued to seek applicants with Henry’s qualifications. Grimes v.
Tex. Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir.
1996). Similarly, to establish a prima facie case for discrimination based on
disability under the ADA, Henry must show that: (1) he suffers from a disability;
(2) he is qualified for the job despite the disability; (3) he was subjected to an
adverse employment action due to the disability; and (4) he was treated less
favorably than non-disabled employees. McInnis v. Alamo Cmty. Coll. Dist., 207
F.3d 276, 279–80 (5th Cir. 2000).
      Henry has failed to establish a prima facie claim under either Title VII or
the ADA with respect to at least fifteen of the positions to which he applied.

      3
        Henry has made no argument that this is a mixed-motive case, nor is there any
evidence that such a framework should apply in this case.

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                                       No. 10-20667

Continental provided evidence showing that it cancelled two of the positions, and
thus they were not “available positions.” As to the other thirteen of these jobs,
Continental introduced evidence showing that based on Henry’s answers to
screening questions concerning shift availability and computer skills, he was
automatically screened from these positions as not qualified. Henry’s current
assertions that he has adequate computer skills are irrelevant, as Henry’s own
assessment of his skills on the applications disqualified him from the positions.
Because Continental set the position qualifications and because Henry has not
made any argument that these requirements were themselves discriminatory,
Henry has failed to show that he was qualified for these positions.
       As to the remaining ten jobs, the limited evidence proffered by Henry
makes it difficult to determine whether he was qualified. Additionally, he has
offered limited evidence to prove that he has a disability.4 Assuming that he has
met these requirements, Henry has nonetheless failed to rebut Continental’s
legitimate, nondiscriminatory reasons for not hiring him for each of the
positions. Continental provided documentation showing who they hired for each
position, those applicants’ qualifications and racial backgrounds, and why each
selected applicant was more qualified than Henry. The racial backgrounds of
the applicants hired was diverse, including several African-Americans. Most
importantly, Continental specifically explained how the qualifications of each
hired applicant better qualified him or her for the position, as the district court’s
opinion meticulously documents. This included the applicants that did not earn
college degrees, unlike Henry.



       4
          Because the ADA defines disability as having a “physical or mental impairment that
substantially limits one or more major life activities of such individual,” and defines “major
life activity” to include “lifting,” it is likely that Henry has shown that he has a disability
under the statute. See Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010) (quoting 42 U.S.C.
§§ 12102(1), (2)(A)).


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                                       No. 10-20667

       In response to this evidence, Henry has offered only speculation, general
accusations, and his own subjective belief that he has been discriminated
against. The law of this Circuit is clear that at summary judgment, offering
“conclusory allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant’s burden.” Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (citations omitted). Further,
“[i]t is more than well-settled that an employee’s subjective belief [about
discrimination], without more, is not enough to survive a summary judgment
motion, in the face of proof showing an adequate nondiscriminatory reason.” Id.
at 1430. Because Henry has failed to identify any evidence to suggest that
Continental’s motives were pretextual, summary judgment was appropriate.
       Therefore, the district court’s decision is AFFIRMED.5




       5
         Continental also moves to strike certain documents included in Appellant’s Record
Excerpts. We have considered the appellate record as a whole in making our decision, and the
documents at issue have no effect on our decision in this case. Therefore, Continental’s motion
is denied as moot.

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