     Case: 13-41132      Document: 00512628673         Page: 1    Date Filed: 05/13/2014




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

                                                                                   FILED
                                    No. 13-41132                               May 13, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
NADEAN GRIFFIN; JERRY SMOTHERMAN,

                                                  Plaintiffs - Appellants
v.

KENNARD INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            U.S.D.C. No. 9:12-CV-145


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiffs Nadean Griffin and Jerry Smotherman (collectively, “the
Plaintiffs”) appeal the district court’s summary judgment in favor of Kennard
Independent School District (“KISD”) on their claims of race-based
employment discrimination. We AFFIRM.
                                             I.
       Griffin is an African-American female and Smotherman is an African-
American male; both worked as custodians for KISD. In addition to their full-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41132
time custodial duties, the Plaintiffs previously performed bus-driving duties
for KISD for which they received supplemental income. For the majority of
their employment, they drove a morning bus route prior to the start of the
school day, performed most of their custodial work during the school day, drove
an afternoon bus route after the school day, and then returned to school to
complete their custodial work for that day.
           In 2011, in response to statewide budget cuts, KISD took various cost-
cutting measures, including discharging six contract employees. The school
board also authorized superintendent David Baxter to eliminate one of the five
custodial positions. Baxter informed the board that he planned instead to (1)
modify the custodial schedules in accordance with a consultant’s prior
recommendation that most custodial work be performed after the school day,
and (2) consolidate or reassign bus routes. Baxter thus changed the Plaintiffs’
schedules so that they would perform their custodial duties from 1:00 p.m. to
10:00 p.m. and relieved them of their bus-driving duties, effective for the 2011–
2012 school year. Griffin’s route was combined with an existing route driven
by an employee who worked for KISD as a full-time bus driver. Smotherman’s
route was reassigned to an employee who worked for KISD as a teacher and
substitute bus driver. Baxter also reassigned a route that had been driven by
a white, female teacher, Jennifer Currie, to KISD’s bus mechanic and head of
transportation as part of his regularly scheduled eight-hour shift.                      In
implementing these changes, KISD did not hire any new employees.
       The Plaintiffs filed suit against KISD alleging that it eliminated their
bus driving positions on the basis of their race in violation of Title VII and 42
U.S.C. § 1983. 1 KISD filed a motion for summary judgment, and a Magistrate


       1 The Plaintiffs also originally complained of disparate treatment in their custodial
positions and asserted that Griffin was discriminated against because of her gender.
However, on appeal, they take issue only with the district court’s grant of summary judgment
                                             2
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                                       No. 13-41132
Judge entered a report recommending that the District Judge grant the
motion. The Plaintiffs filed objections to the report and recommendation, but
the District Judge overruled the objections, adopted the report and
recommendation, and entered summary judgment. Plaintiffs timely appealed.
                                            II.
       We review the district court’s grant of summary judgment de novo,
construing all facts and evidence in the light most favorable to the nonmovant.
EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).
Summary judgment is appropriate when “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. P. 56(a).
      Because       the   Plaintiffs    offer     only   circumstantial     evidence    of
discrimination, their claims are analyzed through the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Lawrence v. Univ. of Tex. Med. Branch, 163 F.3d 309, 311 (5th Cir. 1999)
(explaining that the McDonnell Douglas framework applies equally to Title VII
and § 1983 claims). This analysis requires the Plaintiffs first to establish a
prima facie case of discrimination by demonstrating, inter alia, that they were
replaced by someone outside their protected class or were treated less
favorably, under nearly identical circumstances, than other similarly situated
employees outside their protected class. 2 See McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007). Because the Plaintiffs do not satisfy this prong
of the prima facie case, summary judgment was properly granted.




on their claims of race-based discrimination stemming from the elimination of their bus-
driving duties.
       2 On appeal, the parties do not dispute that the Plaintiffs have satisfied the other

three prongs of the prima facie case.
                                            3
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                                     No. 13-41132
      The Plaintiffs fail to offer evidence that they were “replaced” by someone
outside of their protected class. We have held that an employee “has not been
‘replaced’ . . . when his former duties are distributed among other co-workers.”
Rexses v. Goodyear Tire & Rubber Co., 401 F. App’x 866, 868 (5th Cir. 2010)
(unpublished); see also Dulin v. Dover Elevator Co., 139 F.3d 898, 1998 WL
127729, at *3 (5th Cir. 1998) (unpublished); Barnes v. Gencorp, Inc., 896 F.2d
1457, 1465 (6th Cir. 1990). 3 That same holding applies here. KISD did not
hire anyone to replace the Plaintiffs. It instead distributed their bus-driving
duties to other employees by combining Griffin’s route with another employee’s
route and reassigning Smotherman’s route to another employee.
      Additionally, while the Plaintiffs also argue that they were treated less
favorably because white bus drivers were allowed to retain their bus driving
duties, they fail to point to “similarly situated” employees who were treated
less favorably under “nearly identical circumstances,” such as custodian–bus
drivers or other bus drivers whose work schedule required them to work
primarily after the school day. Lee v. Kan. City S. Ry., 574 F.3d 253, 259–60
(5th Cir. 2009) (noting that employees are generally not similarly situated if
they have different supervisors, different work responsibilities, or work for
different divisions of a company). In addition, this unsubstantiated argument
is contravened by the summary judgment evidence and the Plaintiffs’
admission in their brief that Jennifer Currie—a white, female teacher—also
was not allowed to retain her bus driving duties for the 2011–2012 school year.
Like the Plaintiffs, her bus-driving duties were reassigned to a coworker.
      AFFIRMED.




      3    Although Rexses and Dulin are not controlling precedent, we cite them for their
persuasive authority and factual similarity. See Ballard v. Burton, 444 F.3d 391, 401 n.7
(5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
                                            4
