     Case: 09-30625     Document: 00511117867          Page: 1    Date Filed: 05/20/2010




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

                                                  FILED
                                                                            May 20, 2010

                                     No. 09-30625                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LAKENYA T. RILEY

                                                   Plaintiff - Appellant
v.

SCHOOL BOARD UNION PARISH; JUDY MABRY, Superintendent; MR.
ALLRED, Principal; DEMARIS HICKS, Hiring Supervisor

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:08-cv-0319


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        The plaintiff–appellant, LaKenya T. Riley, proceeding pro se, appeals the
district court’s grant of summary judgment to the defendants–appellees on her
claims for race discrimination under 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e. Riley also appeals the district court’s
refusal to consider other federal and state claims that she raised for the first



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30625

time in her opposition to the defendants’ motion for summary judgment. Also
pending is Riley’s motion to file a supplemental reply brief, which we now grant.
For the reasons discussed below, we affirm the district court’s grant of summary
judgment on the § 1981 and Title VII claims but vacate the district court’s entry
of final judgment and remand for consideration of whether Riley should be
permitted to amend her complaint to include the federal and state claims raised
for the first time in her opposition to summary judgment. The reasons for these
rulings are explained below.
                                   I. BACKGROUND
       On November 16, 2006, Riley, who is African–American, applied for a
teaching position with one of the defendants, the Union Parish School Board.
Riley had a bachelor’s degree and was certified under Louisiana law to teach
Social Studies.1 Riley indicated on the first page of her employment application
that she had never been convicted of any law violation other than a minor traffic
violation. On the second page, however, Riley indicated that she had been
convicted of a misdemeanor offense for “the possession, use or distribution of any
illegal drug as defined by Louisiana or federal law in March of 2000.” The
misdemeanor conviction, the school district later learned, was for possession of
marijuana during the course of a traffic stop in Arkansas. Demaris Hicks, the
Union Parish School Board Supervisor of Elementary Education and a defendant
in this case, testified that she initially overlooked Riley’s answer to the second
question when reviewing Riley’s application because she assumed, after reading




       1
         The district court’s opinion indicated that Riley was licensed in Science, but the record
shows that Riley was actually certified in Social Studies. This discrepancy does not affect our
analysis. Under Louisiana law, a teacher seeking a certification in a particular subject area
must have a bachelor’s degree; complete a state-approved teacher preparation program at a
college or university or complete one of Louisiana’s alternate certification routes; pass the
“Praxis Series” tests for their certification area; and submit the appropriate application forms
and fees.

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Riley’s answer to the question on the first page, that Riley had no criminal
convictions.
       Shortly after Riley applied, a substitute teaching position for a seventh-
grade English class became available at the Farmerville Junior High School, a
school in the Union Parish school district.2 Riley began serving as the substitute
teacher for this class on November 29, 2006. Shortly after Riley began teaching,
however, several parents of the students in that class complained to the school
that Riley had made comments to the students suggesting that she had once
been incarcerated.
       On December 11, 2006, Hicks told Riley about the parents’ complaints and
explained that she was required to investigate them. Hicks suspended Riley
with pay pending completion of the investigation and requested that Riley
provide documentation regarding her criminal history and convictions. Riley
provided the requisite documentation the following day and was permitted to
return to work as a substitute teacher on December 13, 2006.
       Also on December 13, 2006, Billie Gaye Furlow, who is white, applied for
a teaching position with the Union Parish School Board. Furlow had previously
taught English in the Union Parish school district and was certified to teach
English, although that certification had lapsed.               To reinstate her English
certification, Furlow was required simply to apply to the Louisiana State
Department of Education and pay a small fee. She submitted her fee and
application to the State Department the same day she applied for the teaching
position, and the Department officially updated her certification on December
19, 2006. Under Louisiana law, a school district must hire a certified teacher for
a permanent position when one is available. See Rogers v. Avoyelles Parish Sch.


       2
        The parties dispute whether Riley was given the substitute teaching position with the
understanding that she could later earn her English certification and become a permanent
teacher for the class. This does not affect our analysis of her race discrimination claims.

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Bd., 736 So. 2d 303, 307 (La. Ct. App. 1999) (“The statutory scheme allows for
the employment of uncertified teachers only with the permission of the state
superintendent of education based on a sworn affidavit of the parish school
board superintendent and president that no certified applicants are available.”);
L A. R EV. S TAT. A NN. 17:413 (2001).
       On December 13, 2006, the day that Furlow applied, Grady Allred, the
school principal and another defendant in this case, advised Riley that Furlow
had been hired to fill the English position and that Riley’s service as a substitute
teacher for that position was no longer required. Allred told Riley, apparently
in reference to the concerns regarding Riley’s misdemeanor conviction, that
“[t]his is not because of the other day. [Furlow is] certified.”3
       Riley then filed the present suit, alleging race discrimination under 42
U.S.C. § 1981 and Title VII. After discovery, the district court granted the
defendants’ motion for summary judgment as to these claims.4 The district court
also refused to address additional federal and state law claims that Riley raised


       3
        Riley contends that she was terminated from employment with the district entirely,
but the defendants assert that she was merely removed from that particular substitute
teaching position. The record shows that Riley’s name remained on the list of available
substitute teachers. In any event, this dispute does not affect our analysis.
       4
         The district court actually dismissed Riley’s § 1981 claim for failure to state a claim,
finding that “Riley has not . . . properly asserted a claim for intentional race discrimination
under § 1981 through § 1983.” Riley v. Union Parish Sch. Bd., No. 08-0319, 2009 WL
1806654, at *2 (W.D. La. June 24, 2009) (emphasis in original). We do not understand what
the district court meant by this comment. Riley’s complaint did not allege a violation of 42
U.S.C. § 1983. Intentional discrimination under § 1981 requires only that decisions be
premised on race, not that they be motivated by racial hostility or animus. Goodman v.
Lukens Steel Co., 482 U.S. 656, 668–69 (1987), superseded by statute on other grounds as stated
by Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 371 (2004). “[T]he inquiry into
intentional discrimination is essentially the same for individual actions brought under
section[ ] 1981 . . . and Title VII.” Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional
Div., 512 F.3d 157, 166 (5th Cir. 2007). If Riley’s allegations were sufficient to state a claim
under Title VII, they were likewise sufficient to state one under § 1981. This does not affect
our analysis, however, because the district court concluded in the alternative that Riley’s
§ 1981 claims would not survive summary judgment, Riley, 2009 WL 1806654, at *2, a
conclusion with which we agree.

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for the first time in her opposition to the motion for summary judgment,
concluding that Riley’s complaint did not give the defendants adequate notice of
those claims. This appeal followed.
                        II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo, utilizing the same
standards as the district court. N. Am. Specialty Ins. Co. v. Royal Surplus Lines
Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008). Summary judgment is proper “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.” F ED. R. C IV. P. 56(c). A genuine issue
of material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1986). When reviewing a grant of summary judgment, the court
should view all facts and evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).
To avoid summary judgment, however, the non-movant who bears the burden
of proof at trial must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment
on any grounds supported by the record and presented to the [district] court.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (per curiam).
                 III. THE § 1981 AND TITLE VII CLAIMS
      Riley appeals the district court’s grant of summary judgment to the
defendants on her § 1981 and Title VII claims.
A. Legal Framework
      The summary judgment test for discrimination claims under § 1981 is the
same as the test for discrimination claims under Title VII. Davis v. Dallas Area
Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004). Since Riley does not allege any

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direct evidence of discrimination, we apply the familiar McDonnell Douglas
burden-shifting analysis. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). “To survive summary judgment under McDonnell Douglas, the
plaintiff must first present evidence of a prima facie case of discrimination.” Id.
at 317. If the plaintiff presents a prima facie case of discrimination, then an
inference of discrimination arises, and the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the underlying employment
action.   Id.   “If the employer is able to state a legitimate rationale for its
employment action, the inference of discrimination disappears and the plaintiff
must present evidence that the employer’s proffered reason was mere pretext for
racial discrimination.” Id.
      To show pretext on summary judgment, “the plaintiff must substantiate
his claim of pretext through evidence demonstrating that discrimination lay at
the heart of the employer’s decision.” Price v. Fed. Express Corp., 283 F.3d 715,
720 (5th Cir. 2002).      “To carry this burden, the plaintiff must produce
substantial evidence indicating that the proffered legitimate nondiscriminatory
reason is a pretext for discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 578
(5th Cir. 2003). “Evidence is substantial if it is of such quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might
reach different conclusions.” Id. at 579 (internal quotation marks omitted).
      Pretext may be established “either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Id. at 578 (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). “To raise an inference of discrimination,
the plaintiff may compare his treatment to that of nearly identical, similarly
situated individuals.” Bryant v. Compass Group USA Inc., 413 F.3d 471, 478
(5th Cir. 2005). To establish disparate treatment, however, a plaintiff must
show that the employer gave preferential treatment to another employee under

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“nearly identical” circumstances.” Id. Alternatively, “[a]n explanation is false
or unworthy of credence if it is not the real reason for the adverse employment
action.” Laxton, 333 F.3d at 578. “Whether summary judgment is appropriate
depends on numerous factors, including ‘the strength of the plaintiff’s prima
facie case, the probative value of the proof that the employer’s explanation is
false, and any other evidence that supports the employer’s case and that
properly may be considered.’” Price, 283 F.3d at 720 (quoting Reeves, 530 U.S.
at 148–49).
B. Analysis
       The district court concluded that Riley had stated a prima facie case of
discrimination under Title VII because she is African-American, was qualified
for the substitute teacher position, was terminated, and was replaced by a white
teacher.5 The district court also concluded that the defendant had offered a
legitimate, non-discriminatory reason for terminating Riley: a certified English
teacher had applied to fill the vacant English position. The parties dispute
whether the district court erred in concluding that the defendants’ legitimate,
non-discriminatory reason was pretextual.
       Riley contends that her removal from the substitute teaching position was
pretextual for two reasons. First, Riley contends that she was actually removed
from the position because of her misdemeanor marijuana possession conviction,
not because a more qualified candidate applied.                   Riley argues that this is
evidence of discrimination because two similarly-situated white teachers with
criminal backgrounds were not terminated. We conclude, as did the district


       5
         The defendants contend that Riley has not stated a prima facie case, arguing that
Riley was not in fact qualified for the position because she was not certified in English and was
not in fact terminated as substitute teacher for the school district but merely removed from
that particular placement. The defendants do not urge that we reach an alternative conclusion
on appeal, however. In any event, we need not address this issue because assuming without
deciding that Riley stated a prima facie case, she has not established that the defendants’
proffered reason was pretextual.

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court, that the record does not support this assertion. One of the teachers that
Riley describes, Donna Scallan, was discovered on October 2, 2007, to have been
convicted of felony fraud. She resigned shortly thereafter, on October 24, 2007.
An affidavit submitted by Hicks, uncontroverted by any other evidence in the
record, indicates that Scallan resigned after the school district discovered,
investigated, and confirmed her criminal record and told Scallan that she would
be terminated if she did not resign. The other teacher, Michael Breaux, was
suspended with pay when the school district discovered that he had been
charged with two drug offenses. He was permitted to return to work only after
it was determined that the charges had been dropped. The evidence does not
support Riley’s contention that white teachers with known criminal convictions
were permitted to continue teaching.6
       Second, Riley contends that she was in fact more qualified than Furlow,
the teacher who replaced her, because Furlow’s English certification was not
current on the day she was hired, while Riley had a current, valid certification
in Social Studies. We agree with the district court that these facts do not
establish pretext. The parties do not dispute that under Louisiana law, the
school district was required to hire a certified teacher to fill the English position
if one was available, and that reinstating Furlow’s certification simply involved
notifying the Louisiana Department of Education and paying a small fee. The
parties also do not dispute that Furlow’s certification was in fact reinstated on


       6
         Riley also contends, for the first time on appeal, that an African–American bus driver,
Arthur Hackney, served as a substitute teacher for one week in the school district before being
removed from the classroom after parents complained about his conduct. The school district
acknowledges that parents did complain, but states that Hackney was replaced because a
teacher with the necessary certification applied for the position. We do not consider Hackney’s
case in our analysis of pretext because this evidence was not presented to the district court.
See Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996) (“Although on summary judgment
the record is reviewed de novo, this court[,] for obvious reasons, will not consider evidence or
arguments that were not presented to the district court for its consideration in ruling on the
motion.” (internal quotation marks omitted)).

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December 19, 2007, six days after she was hired. We conclude, as did the district
court, that the fact that Furlow’s certification had lapsed at the time of her hire
does not raise a fact issue as to discriminatory animus.
      The record does not support Riley’s contention that the defendants’ reason
for her removal from the substitute teacher position was pretextual.
Accordingly, we affirm the district court’s grant of summary judgment to the
defendants on Riley’s § 1981 and Title VII claims.
        IV. THE CLAIMS RAISED AT SUMMARY JUDGMENT
      In addition to the § 1981 and Title VII claims raised in her complaint,
Riley raised in her opposition to summary judgment “a number of new claims,
including defamation, breach of fiduciary duties, due process violations,
conspiracy, and perhaps breach of contract,” “cit[ing] a number of statutes,
constitutional amendments, and federal rules of evidence and civil procedure.”
See Riley v. Union Parish Sch. Bd., No. 08-0319, 2009 WL 1806654, at *2 (W.D.
La. June 24, 2009).     The district court refused to consider these claims,
concluding that because Riley did not allege these claims in her complaint, the
defendants had insufficient notice of them. Riley appeals this decision.
      The district court’s treatment of these claims was error.         Under our
precedent, when a claim is raised for the first time in response to a summary
judgment motion, the district court should construe that claim as a motion to
amend the complaint under Federal Rule of Civil Procedure 15(a). See Stover v.
Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008); Sherman v.
Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972). This is particularly true where,
as here, the litigant is pro se and has not yet made any amendments to her
complaint. Cf. Crockett v. Carpenter, 20 F.3d 1169, 1994 WL 144645, at *3 (5th
Cir. Apr. 5, 1994) (unpub’d table op.). Accordingly, we vacate the final judgment
and remand to the district court to determine whether Riley should be permitted
to amend her complaint to include these additional claims. We take no position

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as to whether leave to amend should be granted—the district court may decide,
on remand, that leave to amend would be futile or otherwise inappropriate. But
we leave this determination to the district court in the first instance.
                              V. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the defendants on Riley’s § 1981 and Title VII claims but
VACATE the district court’s entry of final judgment and REMAND for
consideration of whether Riley should be permitted to amend her pleadings to
include the federal and state claims raised for the first time in her summary
judgment opposition.
      Motion GRANTED, AFFIRMED in part, VACATED in part.




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