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

                                                 FILED
                                                                         December 7, 2009

                                       No. 09-40266                    Charles R. Fulbruge III
                                                                               Clerk

DAVID JOHNSON, Individually and as Class Representative,

                                                   Plaintiff - Appellant
v.

CITY OF DENTON FIRE DEPARTMENT; CITY OF DENTON, TX

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:07-CV-449


Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Johnson appeals the district court’s grant of summary judgment in
favor of defendants in his race discrimination suit. We affirm for the following
reasons.
                           FACTS AND PROCEEDINGS
       Johnson applied to a be fireman in the Denton Fire Department (“DFD”),
but was unsuccessful. If he had been hired, he would have been DFD’s first
black firefighter.     Johnson passed the civil service exam and was given a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-40266

Personal History Statement (“PHS”) to complete. The PHS contains a release
of information form and stated that the form must be signed by the applicant
and by a witness before the hiring process could continue.
      Johnson did not have the form witnessed before returning it to DFD, as
required. Instead, Johnson attests that he turned in his PHS to DFD Assistant
Chief Randy Nickerson unwitnessed and asked Nickerson to witness the
application for him. Nickerson never witnessed Johnson’s form and Johnson was
temporarily disqualified because his PHS was incomplete. Rather than reapply,
Johnson filed this civil rights suit against DFD and the City of Denton, alleging
race discrimination in violation of Title VII and 28 U.S.C. § 1981.
      Defendants moved for summary judgment and the magistrate judge issued
a Report and Recommendation recommending that Johnson’s claims be
dismissed. The district court adopted the Report and Recommendation in full
over Johnson’s objections. Johnson timely appealed.
                            STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo.”
Goodman v. Harris County, 571 F.3d 388, 393 (5th Cir. 2009). “Summary
judgment is appropriate ‘if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.’” Id. (quoting
F ED. R. C IV. P. 56(c)).   “We consider the evidence in a light most favorable
to . . . the non-movant, but [he] must point to evidence showing that there is a
genuine fact issue for trial to survive summary judgment.”          Id. (quotation
omitted).
                                  DISCUSSION
      Defendants assert that Johnson was not hired because he failed to have
his PHS witnessed. This reason is both legitimate and non-discriminatory.
Johnson therefore was required to show that there was a genuine issues of

                                         2
                                  No. 09-40266

material fact concerning whether DFD’s stated reason for not hiring him was
pretextual or whether discrimination was a motivating factor behind DFD’s
actions. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
Johnson offers only his prima facie case, his account of his interaction with
Nickerson, and evidence of DFD’s racial composition in 2005 and 2007, a period
over which diversity at DFD actually increased. The 2005 and 2007 statistics
are of little probative value because Johnson fails to provide any baseline against
which the racial composition of DFD can be compared. See, e.g., Anderson v.
Douglas & Lomason Co., Inc., 26 F.3d 1277, 1286, 1290 (5th Cir. 1994). His
remaining evidence—the prima facie case and Nickerson’s alleged assertion that
he would sign the release form—does not tend to show that DFD’s proffered
reason was pretextual or that racial discrimination was a motivating factor
behind DFD’s failure to hire Johnson. It is undisputed that Johnson did not turn
in a PHS that was signed by a witness, as required. Johnson has not offered any
evidence indicating that the witness requirement was enforced more strictly
against minority candidates or otherwise used by DFD to keep minority
candidates out of the department. Indeed, the evidence demonstrates that both
minority and non-minority candidates were disqualified for not completing the
PHS.
       The Supreme Court’s decision in Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000), does not compel a different result. There the Court
stated that “a plaintiff’s prima facie case, combined with sufficient evidence to
find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”          Id. at 148.
Assuming, arguendo, that Johnson’s evidence cast some doubt on DFD’s
proffered reason for not hiring him, he has failed to present evidence from which
a fact-finder could infer racial discrimination. See Price v. Fed. Express Corp.,
283 F.3d 715, 723-24 (5th Cir. 2002). The Reeves court emphasized that a prima

                                        3
                                 No. 09-40266

facie case and evidence of pretext would not always be enough to find
discrimination. 530 U.S. at 148. And the plaintiff in Reeves offered considerably
more evidence of pretext and discrimination than Johnson offered. Reeves made
a “substantial showing” that the employer’s proffered explanation was false and
pointed to comments made by his supervisor reflecting age-based animus. 530
U.S. at 144, 151. Johnson has not made a comparable showing. See id.; Price,
283 F.3d at 724-25 (discussing the evidence in cases where this court has
reversed a district court’s grant of summary judgment based on Reeves).
      The district court was correct to dismiss Johnson’s claims. Because we
find that Johnson has not demonstrated a genuine issue of fact as to his racial
discrimination claim, we do not address DFD’s contention that his claim would
also be barred by after-acquired evidence.
                                CONCLUSION
      For the reasons stated, the judgment of the district court is
AFFIRMED.




                                       4
