     Case: 13-20209      Document: 00512523251         Page: 1    Date Filed: 02/05/2014




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

                                                                                    FILED
                                    No. 13-20209                              February 5, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
STEPHEN MANLEY,

                                                 Plaintiff – Appellant
v.

INVESCO, also known as Invesco Investment Services, also known as
Invesco Group Services, Incorporated, also known as Invesco Management
Group; MATRIX RESOURCES, INCORPORATED; NATIONAL
PROSOURCE, INCORPORATED,

                                                 Defendants – Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:11-CV-02408


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant,     Stephen      Manley,     sued    Defendants-Appellees,
alleging discrimination based on race, color, and gender in violation of Title
VII of the Civil Rights Act of 1974, the Civil Rights Act of 1991, and Section
605 of the Fair Credit Reporting Act. The district court granted Defendants’
motions for summary judgment and dismissed Manley’s claims. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
      Case: 13-20209    Document: 00512523251   Page: 2   Date Filed: 02/05/2014



                                 No. 13-20209
                          FACTUAL BACKGROUND
       In 2010, Invesco contracted with two employment agencies, Matrix and
ProSource, to fill a temporary job opening for a junior “Siebel developer.” When
the job opening was not filled after a few months, Invesco instructed Matrix
and ProSource to broaden their search to consider candidates qualified for a
junior Structured Query Language (“SQL”) developer position who Invesco
would then train on Siebel. Matrix found Plaintiff’s resume on Monster.com,
contacted him about the opening, recommended him to Invesco, and forwarded
his resume to Rakhee Matlapudi, a senior recruiter at Invesco. Matlapudi
determined that, as Manley had eight years of SQL experience, he was
overqualified for the position and did not send Plaintiff’s resume to Invesco’s
hiring manager for further consideration.
       Independent of Matrix and Invesco’s activities, ProSource contacted
Manley about the same Invesco job opening. Manley sent ProSource a written
application, in which he indicated that he had never “been convicted of a crime”
and authorized ProSource to run his criminal background report. By signing
the    application,    Manley   stated   that   he   “underst[ood]   that    any
misrepresentation, falsification, or omission of information may be grounds for
termination of the interview process, refusal to hire, or, if hired, termination
of employment.” ProSource subsequently interviewed Manley, administered a
skills test, and contracted with a third party credit reporting agency for
Manley’s criminal background report.         The criminal background report
revealed that Manley had been convicted of driving with an invalid license in
2006, assault causing bodily injury in 2001, and theft of between $20 and $500
in 1995. ProSource thereafter decided not to refer Manley to Invesco for the
SQL developer position. Later, without the assistance of Matrix or ProSource,
Invesco found and hired a candidate – a woman with one year and eight
months of SQL experience – to fill the SQL/Siebel developer position.
                                         2
     Case: 13-20209        Document: 00512523251           Page: 3     Date Filed: 02/05/2014



                                        No. 13-20209
       On June 24, 2011, Manley, proceeding pro se, filed an Original Complaint
raising disparate treatment and impact discrimination claims based on race,
color, and gender. Manley asserts that Defendants Invesco, ProSource, and
Matrix have “a pattern and a blanket policy to deny employment opportunity
[sic] to individuals with criminal records which disparately impacts and
adversely affects the minority applicant pools who are protected classes under
law” in violation of Title VII of the Civil Rights Act of 1974, the Civil Rights
Act of 1991 (42 U.S.C. § 1981), and Section 605 of the Fair Credit Reporting
Act (“FCRA”). Manley further alleged that “the retrieved criminal information
antedated seven years which also violated plaintiff’s rights under the FCRA
§ 605 and was used as the sole determinant in denying plaintiff an employment
opportunity.” Defendants moved for summary judgment. On March 5, 2013,
the district court issued a final judgment and dismissed the case with
prejudice. Manley timely appeals. 1
                               STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de novo.
LeMaire v. Louisiana, 480 F.3d 383, 386-87 (5th Cir. 2007).                          Summary
judgment      is   appropriate      “if the      pleadings, depositions, answers               to
interrogatories, and admissions on file, together with the affidavits, if any,
show 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.” FED. R. CIV. P. 56(c); see also



       1  Appellees argue that Manley’s brief fails to comply with the requirements set forth
in Rules 28 and 32 of the Federal Rules of Appellate Procedure and in the Rules and Internal
Operating Procedures of the Fifth Circuit. Specifically, Appellees assert that Manley’s brief
is twice the allowed page limit, hard to decipher, repetitive, raises issues for the first time on
appeal, fails to cite to the record to support assertions of purported error, and impugns the
district court. While pro se pleadings are to be construed liberally, nonconforming briefs
should not be considered when doing so prejudices an opposing party. Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995). However, as the legal issues presented are straightforward,
we do not reach Appellees’ arguments as to the form and content of Manley’s brief.
                                                3
     Case: 13-20209       Document: 00512523251         Page: 4     Date Filed: 02/05/2014



                                       No. 13-20209
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We construe all facts and
evidence in the light most favorable to the non-moving party. United Fire &
Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).
                                     DISCUSSION
        Manley makes three arguments challenging the district court’s dismissal
of his claims. 2 Manley first argues that the district court erred in dismissing
his disparate impact and disparate treatment claims against Invesco, Matrix,
and ProSource. 3 Second, he maintains that the district court erred in denying
his motion for recusal. Lastly, Manley asserts that the district court erred in
its discovery rulings.
   A.       “Disparate Treatment” and “Disparate Impact” Claims
        Manley first argues that the district court committed reversible error in
granting Defendants’ motions for summary judgment and dismissing his
disparate impact and disparate treatment claims against Invesco, Matrix, and
ProSource.
        The summary judgment analysis is the same for claims of discrimination
under Title VII and 42 U.S.C. § 1981. Patel v. Midland Mem’l Hosp. & Med.
Ctr., 298 F.3d 333, 342 (5th Cir. 2002). Section 1981 ensures that all persons
have the same right to make and enforce contracts, including “the making,
performance, modification, and termination of [employment] contracts.” 42
U.S.C. § 1981. Title VII of the Civil Rights Act of 1964 prohibits employers
from “fail[ing] or refus[ing] to hire . . . any individual . . . because of such



        2Appellant’s brief presents twenty-five issues. These issues can be grouped into three
buckets for analytical clarity, as the Appellees do in their responsive briefs.
       3 The district court also granted Defendants’ motion for summary judgment as to

Manley’s claims for FCRA violations; the court held that Manley’s FCRA claims failed as a
matter of law since Invesco, Matrix, and ProSource were not “credit reporting agencies” as
required for liability under FCRA. Manley does not dispute the district court’s findings with
respect to FCRA anywhere in his brief. Therefore, he waived his FCRA claims on appeal.
                                              4
    Case: 13-20209      Document: 00512523251       Page: 5    Date Filed: 02/05/2014



                                    No. 13-20209
individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-
2(a)(1). Title VII also makes it unlawful for an employment agency “to fail or
refuse to refer for employment, or otherwise to discriminate against, any
individual because of his race, color, religion, sex, or national origin . . . .” 42
U.S.C. § 2000e-2(b).
      Under Title VII, courts recognize both disparate treatment claims
(involving deliberate discrimination) and disparate impact claims (involving
facially neutral practices that fall more harshly on one group than another and
cannot be justified by business necessity). Munoz v. Orr, 200 F.3d 291, 299
(5th Cir. 2000); Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir.
2002) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15
(1977)). To establish a prima facie case of disparate treatment, the plaintiff
must demonstrate that he “(1) is a member of a protected class; (2) was
qualified for [his] position; (3) was subject to an adverse employment action;
and (4) was replaced by someone outside the protected class, or . . . that others
similarly situated were treated more favorably.” Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). To establish a prima
facie disparate impact claim, a plaintiff must (1) “identify the employment
practice that has the allegedly disproportionate impact” and (2) “establish
causation by offering statistical evidence to show that the practice in question
has resulted in prohibited discrimination.” Stout, 282 F.3d at 860.
      The district court granted summary judgment dismissing Manley’s
disparate treatment and disparate impact claims against Matrix and Invesco
for lack of standing. “In order to have standing, a plaintiff must show: (1) it
has suffered, or imminently will suffer, a concrete and particularized injury-
in-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a
favorable judgment is likely to redress the injury.” Miss. State. Democratic
Party v. Barbour, 529 F.3d 538, 544 (5th Cir. 2008). The district court correctly
                                          5
    Case: 13-20209      Document: 00512523251       Page: 6     Date Filed: 02/05/2014



                                 No. 13-20209
found that Manley did not meet his burden of establishing injury-in-fact fairly
traceable to Matrix. In fact, Matrix referred Manley for employment (despite
his criminal record of which Matrix was unaware) and played no role in
Invesco’s decision not to hire Manley. As Matrix’s alleged policy of declining
to refer applicants with criminal records did not cause Manley injury, his
disparate   impact   challenge    against     the    facially    neutral   policy   as
discriminatory against Black or male applicants likewise fails. The district
court also acted properly in holding that Manley could not show an injury fairly
traceable to Invesco’s conduct. Manley offered no evidence that, when Invesco
made its decision not to interview him after viewing his resume, the company
knew his race or color, as would be required to establish that Invesco’s reason
for not hiring him, i.e. that he was overqualified, was pretextual and to support
a disparate treatment claim. As Invesco was similarly unaware of his criminal
background, Manley cannot establish that Invesco’s alleged policy of declining
to hire individuals with criminal records had a disparate impact on him.
      The district court likewise acted appropriately in dismissing Manley’s
claims that ProSource discriminated against him when it refused to refer him
to Invesco for employment because of his criminal record.               Persons with
criminal records are not a protected class under Title VII, preventing Manley
from basing his Title VII claim on this status, and he does not allege that
ProSource failed to refer him because he was Black or male. In any event,
ProSource has previously referred Blacks and males who had criminal records
while failing to refer Whites who, like Manley, made misrepresentations as to
their criminal records – ProSource’s stated reason for declining to refer him.
“[M]isrepresentations    on   employee       documents    can     be   a   legitimate,
nondiscriminatory reason for an adverse employment decision, like declining
to hire or firing an employee.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570
F.3d 606, 622 (5th Cir. 2009). Manley’s conclusory allegations to the contrary
                                         6
    Case: 13-20209     Document: 00512523251      Page: 7   Date Filed: 02/05/2014



                                  No. 13-20209
are insufficient to establish a genuine issue of material fact that ProSource’s
legitimate, nondiscriminatory reason for not referring him was false or
pretextual; he thus failed to meet the summary judgment burden for his
disparate treatment claim against ProSource. Given the absence of admissible
statistical data or other evidence that ProSource’s policy disparately impacts
Blacks or males, Manley similarly failed to meet his summary judgment
burden for his disparate impact claims against ProSource; these claims were
appropriately dismissed.
   B.     Denial of Motion for Recusal
        Manley also argues that the district court erred by denying his Motion
to Recuse based on 28 U.S.C. § 455 and § 144. “Under either statute, the
alleged bias must be ‘personal’, as distinguished from judicial, in nature.”
Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1020 (5th Cir. 1981).
“Thus, a motion for disqualification ordinarily may not be predicated on the
judge’s rulings in the instant case or in related cases, nor on a demonstrated
tendency to rule any particular way, nor on a particular judicial leaning or
attitude derived from his experience on the bench.” Id.; see United States v.
Grinnell Corp., 384 U.S. 563, 583 (1966). Manley has failed to present any
evidence that the district court held any personal bias against him. Instead,
Manley’s assertion that the district court should have recused himself is based
solely on judicial rulings in the case. Accordingly, the district court was correct
in denying his Motion to Recuse.
   C.     Discovery Rulings
        Manley appears to contend that the district court’s abatement of
discovery interfered with his ability to obtain admissible discovery. It is well
established that a district court can “exercise its sound discretion to restrict
what materials are obtainable” in discovery. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.
                                        7
    Case: 13-20209    Document: 00512523251     Page: 8   Date Filed: 02/05/2014



                                 No. 13-20209
1994) (quoting Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985)).
“In reviewing a district court’s curtailment of discovery under the Federal
Rules of Civil Procedure, errors made with regard to the allowance of discovery
do not require reversal unless they result in substantial prejudice to a party’s
case.” Id. (quoting United States v. Garrett, 571 F.2d 1323, 1326 (5th Cir.
1978)). Manley did not indicate what particular admissible evidence he was
prevented from obtaining, and whether such discovery would constitute
competent summary judgment evidence. Nor did he even allege much less
demonstrate that the district court’s discovery rulings caused him “substantial
prejudice.” Moreover, while “Rule 56 does not require that any discovery take
place before summary judgment can be granted,” the district court specifically
allowed Manley to conduct additional discovery before granting ProSource’s
Third Motion for Summary Judgment. Id. at 1396 (quoting Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). Absent specifics as to
what discovery was erroneously excluded and what prejudice such exclusion
did or did not cause the plaintiff, we find no error in the district court’s
discovery rulings.
                               CONCLUSION
      Accordingly, we AFFIRM the district court’s orders of dismissal.




                                       8
