      Case: 12-30984          Document: 00512350007              Page: 1      Date Filed: 08/21/2013




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

                                                                                        FILED
                                                                                     August 21, 2013

                                             No. 12-30984                             Lyle W. Cayce
                                                                                           Clerk

CHAD DAILEY,

                                                          Plaintiff – Appellant
v.

HENRY WHITEHORN, individually and in his official capacity as the policy-
maker and agent of the appointing authority for the City of Shreveport Police
Department,

                                                          Defendant – Appellee
------------------------------------------------------------------------------------------------------------

KEVIN STRICKLAND,

                                                          Plaintiff – Appellant
v.

CITY OF SHREVEPORT; HENRY WHITEHORN, individually and in his
official capacity as the policy-maker and agent of the appointing authority for
the City of Shreveport Police Department,

                                                          Defendants – Appellees


                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                USDC No. 5:10-CV-1453


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
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                                        No. 12-30984

PER CURIAM:*
       Chad Dailey and Kevin Strickland appeal from the district court’s grant
of summary judgment to the City of Shreveport and Henry Whitehorn on
Dailey’s and Strickland’s claims of race and sex discrimination. We AFFIRM.
       Henry Whitehorn was Chief of Police of the Shreveport Police Department.
He instituted a diversification plan for specialized units to prevent recycling the
same officers into these units in order to generate fresh viewpoints. Dailey and
Strickland, white males, applied to a vacancy in the Violent Crimes Unit of the
Investigations Division.          The highest-ranked candidate accepted another
position. The next three highest-ranked candidates were Dailey, who was in the
Canine Unit; Strickland, who had previously worked in the Investigations
Division and was in the Patrol Division1; and Shaunda Holmes, an African
American female who had never worked in a specialized unit. Although Holmes
was selected for the position, Dailey and Strickland also were assigned to the
Violent Crimes Unit to fill the next two vacancies, effective four and five months
after Holmes’s selection, respectively.
       Dailey and Strickland brought race and sex discrimination claims against
Whitehorn under 42 U.S.C. § 1983; Article I, Section 3 of the Louisiana
Constitution; and Louisiana Revised Statutes § 23:332. Additionally, Strickland
brought these three claims against the City and included a claim under Title
VII, 42 U.S.C. § 2000e-2. The district court granted summary judgment to the
City and Whitehorn, and Dailey and Strickland timely appealed.
       “We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court.” Antoine v. First Student, Inc., 713


       *
         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.
       1
           The Patrol Division appears to be the non-specialized unit.

                                               2
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                                         No. 12-30984

F.3d 824, 830 (5th Cir. 2013). “Summary judgment is proper if the evidence
shows 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.” Griffin v. United Parcel Serv.,
Inc., 661 F.3d 216, 221 (5th Cir. 2011). “Evidence is construed in the light most
favorable to the non-moving party[,] drawing all reasonable inferences in that
party’s favor.” Milton v. Tex. Dep’t of Criminal Justice, 707 F.3d 570, 572 (5th
Cir. 2013) (internal quotation marks and alterations omitted).
       Dailey’s and Strickland’s claims are analyzed under the Title VII
framework.2 See McCoy v. City of Shreveport, 492 F.3d 551, 556 n.4 (5th Cir.
2007); Patel v. Midland Mem’l Hosp. Med. Ctr., 298 F.3d 333, 342 (5th Cir.
2002). Title VII prohibits employers from discriminating against employees on
the basis of race or sex. 42 U.S.C. § 2000e-2(a)(1). “Intentional discrimination
can be established through either direct or circumstantial evidence.” Alvarado
v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). “Direct evidence is evidence
which, if believed, proves the fact without inference or presumption.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). Circumstantial
evidence is analyzed under the familiar framework established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Alavarado, 492 F.3d at 611.
The McDonnell Douglas framework requires a plaintiff first to establish a prima
facie case of discrimination. See 411 U.S. at 802. A prima facie case may be
shown by demonstrating “that the plaintiff (1) is a member of a protected group;
(2) was qualified for the position at issue; (3) . . . suffered some adverse
employment action by the employer; and (4) . . . was treated less favorably than


       2
         Article I, Section 3 of the Louisiana Constitution states in pertinent part, “No law
shall discriminate against a person because of race . . . . No law shall arbitrarily, capriciously,
or unreasonably discriminate against a person because of . . . sex . . . .” Dailey’s and
Whitehorn’s claims challenge allegedly discriminatory conduct, not laws, so do not state a
claim under this section. See Washington v. Louisiana, No. 11-334-BAJ-DLD, 2012 WL
4159079, at *14 (M.D. La. Aug. 21, 2012).

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                                 No. 12-30984

other similarly situated employees outside the protected group.” McCoy, 492
F.3d at 556. The burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action at issue. Id. at
557.     “[T]he plaintiff then bears the ultimate burden of proving that the
employer’s proffered reason is not true but instead is a pretext for the real
discriminatory or retaliatory purpose.” Id.
        Dailey and Strickland purport to establish direct evidence of
discrimination by pointing to statements Whitehorn made between one and two
years before the employment decision at issue indicating he intended to
implement a diversification plan and would advance minority candidates over
better qualified white candidates. These alleged statements are too attenuated
in time from the employment decision at issue, and inference is required to
conclude Holmes’s selection resulted from intentional discrimination.
Accordingly, Dailey and Strickland cannot establish direct evidence of
discrimination. See Jones, 427 F.3d at 992.
        Neither can Dailey and Stickland establish a prima facie case of
discrimination using circumstantial evidence because they cannot show any
adverse employment action. See McCoy, 492 F.3d at 556. Even if the transfer
was actually a promotion, they complain only of delays and cannot establish
adverse effects. See Benningfield v. City of Hous., 157 F.3d 369, 378 (5th Cir.
1998) (“We need not address whether a mere delay in promotion constitutes an
adverse employment action because [plaintiff] received the promotion with
retroactive pay and seniority.”). It is undisputed that there was no increase in
salary associated with the transfer. The only evidence of adverse effects is
Dailey’s claim that he would have received the same amount of overtime as
Holmes at his overtime rate (an amount he calculates as $3,800) based on public
records that are not in the record. Strickland provides only the same speculative
calculations to claim $760 in lost overtime pay. Dailey’s and Strickland’s

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                                 No. 12-30984

evidence consists of nothing more than “[c]onclusional allegations . . . ,
speculation, improbable inferences, [and] unsubstantiated assertions [that] do
not adequately substitute for specific facts showing a genuine issue for trial.”
See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002).
Accordingly, their allegations do not show any adverse employment action, and
they have failed to make out a prima facie case of race and sex discrimination.
      AFFIRMED.




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