     Case: 10-30440 Document: 00511309612 Page: 1 Date Filed: 12/02/2010




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

                                               FILED
                                                                          December 2, 2010
                                     No. 10-30440
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHNNY JOHNSON,

                                                   Plaintiff-Appellant,

v.

DAVID WADE CORRECTIONAL FACILITY; VENETIAL MICHAELS,
Individually and in her official capacity as Warden, David Wade Correctional
Facility,

                                                   Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:08-CV-903


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant, Johnny Johnson (Johnson), sued David Wade Correctional
Facility (DCWF) and Venetia Michaels1 (Michaels), both in her official capacity
as Warden of DCWF and in her individual capacity, alleging claims under Title
VII, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and the Equal Protection Clause of the



        * Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
        1
          Defendant’s name is properly spelled “Venetia” not “Venetial” as it appears in the
caption of the case.
     Case: 10-30440 Document: 00511309612 Page: 2 Date Filed: 12/02/2010

                                       No. 10-30440

the United States Constitution. Johnson now appeals the district court’s
summary judgment as to his Title VII claim for non-promotion based on race.2
Johnson argues that the district court erred in finding that he did not offer
sufficient evidence to create a fact issue as to whether DCWF and Michaels’s
stated legitimate, nondiscriminatory reasons for not promoting Johnson were
mere pretext for race-based discrimination. Johnson has failed to demonstrate
that Appellees’ stated nondiscriminatory reasons were mere pretext; thus, we
AFFIRM.
       This    case     concerns      employment-related,         race-based      claims     of
discrimination. At the time of the events leading to this suit, and currently,
Johnson is a Facility Assistant Maintenance Manager 2 in the Maintenance
Division at DWCF. The highest position within the Maintenance Division at
DWCF is the Facility Maintenance Manager 4 position. Johnson’s primary
claim, and the only claim that he argues on appeal, is that Appellees have
repeatedly not promoted him because he is African-American. Specifically,
Johnson alleges that Appellees failed to promote him for race-based,
discriminatory reasons on three occasions: March of 2006, July of 2006, and
August of 2008.3
       Summary judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A dispute about a
material fact is ‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Hanchey v. Energas Co., 925 F.2d 96,
97 (5th Cir. 1990). In evaluating a summary-judgment motion, the district court
       2
          In the district court, Johnson also claimed that defendants were responsible for
exposing him to a hostile work environment, conspiring to deprive him of equal protection
under the law, and retaliating for activity protected under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e, et seq. Insofar as Johnson has raised these claims on appeal, he has
failed to adequately brief them; therefore, they are deemed waived. See U.S. v. Scroggins, 599
F.3d 433, 446-47 (5th Cir. 2010).
        3
          Johnson filed a discrimination complaint with the Equal Employment Opportunity
Commission (EEOC) related to each non-promotion incident.

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must draw all reasonable inferences in favor of the non-moving party. Duplantis
v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991). We review a district
court’s summary judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d
604, 608 (5th Cir. 1998).
       Before turning to the merits of Johnson’s claims, we first address their
timeliness. A claimant must file a Title VII discrimination claim with the EEOC
within 300 days of the alleged discriminatory act. See Frank v. Xerox Corp., 347
F.3d. 130, 136 (5th Cir. 2003). We agree with the district court’s conclusion that
Johnson did not timely file such claims with respect to the non-promotions of
March and July 2006. Thus, the claims arising from these non-promotions are
time barred. In addition, all of his Title VII claims cannot survive summary
judgment on the merits.
       To survive a summary-judgment motion, the plaintiff must first present
a prima facie case of discrimination.4 Patel v. Midland Memorial Hosp. & Med.
Ctr., 298 F.3d 333, 342 (5th Cir. 2002). “An employee can prove discrimination
through direct or circumstantial evidence.” Jones v. Robinson Prop. Group, L.P.,
427 F.3d 987, 992 (5th Cir. 2005). Cases of discrimination based on
circumstantial evidence are subject to the McDonnell Douglas burden-shifting
analysis. See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).                          If
established, a prima facie case raises an inference of discrimination, and the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its adverse decision. Patel, 298 F.3d at 342. If the defendant presents
such a reason, then the inference disappears, and the plaintiff must offer
evidence that the proffered reason is a pretext for racial discrimination. Id.

       4
        65 For a prima facie case of racial discrimination, a plaintiff must prove that (1) he
is a member of a protected class; (2) he was qualified for the position; (3) he was not promoted;
and (4) either the position was filled by someone not in the protected class, or the person was
not promoted because of his race. See Rutherford v. Harris County, Texas, 197 F.3d 173, 179
(5th Cir. 1999).

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      We assume arguendo that Johnson has established a prima facie case of
discrimination, and thus, focus on whether Johnson established that Appellees’
proffered reasons for failing to promote him were pretext for racial
discrimination.
      We first address the March 2006 and August 2008 promotions. The
legitimate reason proffered by the Appellees for not promoting Johnson in both
instances was that there was a better candidate. We have acknowledged that
“choosing some other candidate because he is the best-qualified individual for
the job is generally a legitimate, nondiscriminatory reason for an adverse
employment decision.” Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004).
Johnson argues that in both instances his application materials evince that he
was clearly a better candidate than the individual ultimately selected. However,
as the district court observed, a comparison of the application materials
submitted by Johnson and the applicants who were hired does not indicate that
Johnson was clearly better qualified. Rather, the application materials, at best,
merely indicate that Johnson and the individuals hired had a similar amount of
management experience. We have held that merely “[s]howing that two
candidates are similarly qualified does not establish pretext.” Price v. Federal
Express Corp., 283 F.3d 715, 723 (5th Cir. 2002).
      We next address the Maintenance Manager 3 position that Johnson
applied for in July of 2006. Appellees indicate that due to institutional needs this
position was converted to a plumber/ pipe fitter foreman position prior to any
applicant being selected for the job. Johnson offers absolutely no evidence that
Appellees’ proffered nondiscriminatory reason, that is, the position was
converted for institutional needs, was mere pretext for racial discrimination.
Rather than present evidence, Johnson relies solely on his subjective beliefs that
discrimination has occurred. We have held that “a plaintiff cannot merely rely
on his subjective belief that discrimination has occurred” to demonstrate pretext.
Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997).

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                                No. 10-30440

     Taken as a whole, the arguments and evidence relied upon by Johnson fail
to create a fact issue as to whether Appellees’ nondiscriminatory reasons for
failing to promote Johnson in 2006 and 2008 were mere pretext for race-based
discrimination. The judgment of the district court is therefore AFFIRMED.




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