                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 10, 2005
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 03-30343                         Clerk
                          Summary Calendar
                       _____________________

  TRAVIS BALLOU; GEORGE BRUMFIELD; JOHN WISE; ANTHONY D. JAMES,

                     Plaintiffs - Appellants,

                               versus

                   RALPH R. MABEY, Etc.; Et al.,

                            Defendants,

         LOUISIANA GENERATING L.L.C.; NRG ENERGY, INC.,

                      Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
        for the Middle District of Louisiana, Baton Rouge
                District Court Cause No. 01-CV-125
_________________________________________________________________

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM.*

     This appeal arises from a dispute between plaintiffs-

appellants Travis Ballou, George Brumfield, John Wise, and

Anthony D. James and defendants-appellees Louisiana Generating

L.L.C. (LaGen) and NRG Energy, Inc. (NRG), regarding allegations




     *
      Pursuant to 5TH CIRCUIT RULE 47.5, this court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                 1
of racial discrimination in the workplace.1   After finding no

evidence of racial discrimination, the district court entered

summary judgment in the defendants’ favor.    The plaintiffs

challenge that judgment in this appeal.   After considering the

plaintiffs’ arguments, this court affirms the district court’s

judgment.

I.   Background

     This dispute began when NRG purchased certain assets from

Cajun Electric Power Cooperative, Inc. (Cajun) in a bankruptcy

sale for NRG’s subsidiary, LaGen.    The purchased assets included

two facilities known as Cajun I and Cajun II.    The sale was

effective on March 31, 2000.   Pursuant to the purchase, LaGen

entered into a memorandum of understanding (MOU) with the

International Brotherhood of Electrical Workers and the United

Steelworkers of America, adopting certain provisions of the

collective-bargaining agreements between Cajun and the two

unions.   The MOU obliged LaGen to adhere to the reduction-in-

force and layoff provisions found in each of the collective-

bargaining agreements in determining which Cajun employees would

receive offers of employment from LaGen for bargaining unit

positions at the Cajun plants.   Each plaintiff held a bargaining


     1
      For simplicity, this opinion refers to the plaintiffs-
appellants collectively as “plaintiffs” and to the defendants-
appellees collectively as the “defendants.” The opinion refers
to a single plaintiff as “plaintiff” or uses the particular
plaintiff’s name.

                                 2
unit position at a Cajun plant on the March 31, 2000 purchase

date; thus, each plaintiff was subject to the provisions of the

MOU.

       After NRG purchased Cajun I and Cajun II, LaGen restructured

its allocation of human resources.      As a result of the

restructuring, the plaintiffs were left without employment.

Believing LaGen’s hiring decisions were based on race, the

plaintiffs sued LaGen and NRG.

       On appeal, the plaintiffs maintain the district court erred

in entering summary judgment because genuine issues of material

fact exist about whether LaGen’s employment decisions were based

on race.    Because each argument is based on facts particular to

each plaintiff, the court addresses each plaintiff individually.

II.    Standard of Review

       This court reviews a summary judgment de novo, applying the

same standard as the district court.1     Summary judgment is

appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.2       The

court views the evidence in the light most favorable to the

nonmovant.3    The nonmovant must go beyond the pleadings and come



       1
      See Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir.
2004).
       2
        See Templet, 367 F.3d at 477.
       3
        See id.

                                  3
forward with specific facts indicating a genuine issue for trial

to avoid summary judgment.4      A genuine issue of material fact

exists when the evidence is such that a reasonable jury could

return a verdict for the nonmovant.5      Summary judgment is

appropriate when the nonmovant fails to make a showing sufficient

to establish the existence of an element essential to that

party’s case.6

III.       Burden Shifting in an Employment Discrimination Case

       In an employment discrimination case, the plaintiff bears

the initial burden to establish a prima facie case of unlawful

discrimination.7      To meet this burden, the plaintiff must show

that (1) he belongs to a racial minority; (2) he applied and was

qualified for a job for which the employer sought applicants; (3)

despite his qualifications, the employer rejected him; and (4)

after his rejection, the employer continued to seek applications

from persons with the complainant’s qualifications.8

       If the plaintiff meets his initial burden and establishes a

prima facie case, the burden shifts to the defendant-employer to


       4
        See id.
       5
        See id.
       6
        Id.
       7
      See Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 142
(2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
       8
        See McDonnell Douglas, 411 U.S. at 802.

                                     4
produce evidence of a legitimate, nondiscriminatory reason for

the plaintiff’s rejection.9     This burden is one of production,

not persuasion, and involves no credibility assessment.10     If the

defendant-employer meets its burden of production, the burden

shifts back to the plaintiff to prove by a preponderance of the

evidence that the employer’s reason for the employment decision

is a pretext for racial discrimination.11

     To survive summary judgment, the plaintiff must present

documentary evidence that raises a genuine issue of material fact

about whether the employer’s reason for the challenged employment

decision is pretextual.12     In demonstrating pretext, the

plaintiff retains the burden of persuading the fact-finder.13

It is not enough for the plaintiff to show that the defendant-

employer’s stated reason was false.      The plaintiff must present

evidence that discrimination was the actual reason for the hiring

decision.14     The actual reason, however, may be inferred to be

discrimination by the falsity of the employer’s explanation.        See

     9
      See id. at 802.
     10
          See Reeves, 530 U.S. at 142.
     11
          See id. at 143.
     12
      See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42
(5th Cir. 1996).
     13
      See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).
     14
      See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516-517
(1993).

                                   5
Reeves, 530 U.S. at 142.    Thus, the plaintiff can raise a genuine

fact issue and survive a motion for summary judgment by

establishing a prima facie case and presenting sufficient

evidence to indicate that the employer’s asserted justification

is false.15

IV.   Whether Summary Judgement Was Proper

      A.   John Wise’s Claims

      At the time NRG purchased the Cajun plants, John Wise worked

as a janitor at Cajun I.    LaGen, however, did not offer Wise

employment when it took over operation of the facility.    Instead,

LaGen contracted with B&P Supply Company for janitorial services

for Cajun I.    Soon after LaGen began operating the plant, B&P

Supply hired Wise to provide janitorial services for Cajun I.

      Wise maintains that LaGen did not hire him as a janitor

because he is black.    Wise, however, cannot make out a prima

facie case for racial discrimination because he cannot show that

he applied, and was qualified, for a janitorial position with

LaGen, or that LaGen rejected him for the position.16   When LaGen

began operating Cajun I, it had no janitorial position because it

contracted for janitorial services rather than hire a janitor.



      15
      See Reeves, 530 U.S. at 148; Vadie v. Miss. St. Univ., 218
F.3d 365, 373 (5th Cir. 2000).
      16
      See McDonnell Douglas, 411 U.S. at 802 (setting out the
requirements for a prima facie case of unlawful racial
discrimination).

                                  6
Thus, LaGen never sought applicants for a janitor.      The position

Wise sought never existed.

     Even if Wise could establish a prima facie case, Wise failed

to present evidence that raised a fact question about LaGen’s

reason for not hiring him as a janitor.17     The defendants

presented summary judgment evidence establishing that LaGen

decided to contract for janitorial services in order to reduce

operating costs.     Notably, the summary judgment evidence also

showed that B&P Services already provided janitorial services for

Cajun II.     Choosing to contract for janitorial services, rather

than hiring Cajun’s former janitor, is a legitimate

nondiscriminatory reason for not hiring Wise.18     Although Wise

challenges LaGen’s reason for contracting with B&P Services for

janitorial services because it did not present evidence of cost-

savings, Wise did not present any evidence that raised a fact

question about whether contracting for janitorial services was a

pretext for racial discrimination.      Because Wise failed to

present evidence sufficient to overcome LaGen’s nondiscriminatory

reason for its employment decision, the defendants were entitled

to summary judgment on Wise’s claims.

     B. Travis Ballou’s Claims

     17
          See Nichols, 81 F.3d at 42.
     18
      See Furnco Constr. Co. v. Waters, 438 U.S. 567, 577-78
(1978) (explaining that the defendant-employer must prove that
his employment decision is based on a legitimate business
consideration and not an illegitimate one such as race).

                                   7
     Before NRG purchased the Cajun plants, Travis Ballou worked

as one of three plant aides at Cajun I.      LaGen decided to operate

Cajun I with only one plant aide.      LaGen maintains that it did

not offer Ballou a plant aide position because Ballou had the

least seniority within his bargaining unit.      Later when the plant

aide position became vacant, LaGen did not recall Ballou for the

position.     LaGen offered the position to the senior Cajun plant

aide, plaintiff George Brumfield.      Brumfield, however, turned

down LaGen’s offer of employment. LaGen then offered the position

to Derrick Amar.     Amar accepted the offer and became the new

plant aide.

     On appeal, Ballou maintains that LaGen did not recall him

for employment because he is black and that LaGen denied him

employment opportunities granted to white employees.      The

defendants presented summary judgment evidence that LaGen decided

to operate Cajun I with only one plant aide and that it did not

offer that position to Ballou because he was Cajun’s most junior

plant aide.     The summary judgment evidence also showed that

Brumfield was senior to Ballou, and Ballou concedes this point.

Thus, the defendants proffered nondiscriminatory reasons for not

hiring Ballou initially and for not recalling him when the plant

aide position became vacant.19

     Ballou complains about LaGen’s hiring of Amar as its plant


     19
          See McDonnell Douglas, 411 U.S. at 802.

                                   8
aide.     Ballou characterizes Amar as someone who, though African-

American, does not appear to be African-American because of his

extremely light skin color.     Because Ballou contends Amar

resigned from the position within months of being hired because

of the way LaGen treated him, he maintains that Amar’s

resignation raises a fact question about his own treatment.      This

argument is baseless.     Amar’s resignation does not raise a fact

question about LaGen’s reason for not hiring Ballou or why LaGen

offered the vacated position to Brumfield instead of Ballou.20

Thus, Ballou failed to show pretext.

     Ballou also complains about two white employees who

transferred from Cajun II to Cajun I to fill mechanic positions.

The summary judgment evidence, however, established that Ballou

was not trained or experienced as a mechanic.     As a result,

Ballou cannot establish a prima facie case for racial

discrimination as to the mechanics positions because he cannot

show that he was qualified for the positions or that despite his

qualifications, LaGen rejected him.21     Even if he could make out

a prima facie case, the collective-bargaining agreements provide

that employees shall be recalled on the basis of seniority from

among employees within the classification affected by the

reduction in force.     The summary judgment evidence shows that


     20
          See Nichols, 81 F.3d at 42.
     21
          See McDonnell Douglas Corp., 411 U.S. at 802.

                                   9
Ballou was not classified as a mechanic when he worked for Cajun;

thus, he had no recall rights to LaGen’s mechanic positions.      The

defendants were entitled to summary judgment on Ballou’s claims.

     C.   George Brumfield’s Claims

     Before NRG purchased Cajun I, Brumfield worked as Cajun I’s

senior plant aide.    When LaGen began operating Cajun I, it

offered Brumfield a position on its operations line contingent

upon Brumfield’s qualifying for the higher position of auxiliary

operator.    Concerned that he could not pass the required test,

Brumfield rejected the offer.

     On appeal, Brumfield maintains that he presented summary

judgment evidence that showed he was treated less favorably than

similarly-situated white employees.    Brumfield complains that

LaGen did not extend conditional offers of employment to white

employees.    In particular, he complains that LaGen offered two

white employees comparable positions without a testing

requirement.    The defendants presented summary judgment evidence

that LaGen required all employees in its operations line to first

qualify for the position that was one level higher than the

applied-for position.    In the case of a plant aide, the position

that was one level higher was auxiliary operator.    The evidence

also showed that although Brumfield once worked at Cajun I as an

auxiliary operator, he was voluntarily demoted from the position

after Cajun determined his performance was unsatisfactory and he



                                 10
became a permanent plant aide.     Although the record is unclear

about whether LaGen offered Brumfield a position as a plant aide

or as an auxiliary operator, as he claims, the record is clear

that Brumfield rejected LaGen’s offer of employment because he

was concerned he would not qualify as an auxiliary operator and

he would lose his severance pay.        Thus, Brumfield cannot

establish a prima facie case of racial discrimination because he

cannot show that LaGen rejected him.22       Brumfield complains that

LaGen did not prove that a plant aide must be able to perform as

an auxiliary operator, but that assertion does not raise a fact

question about whether he rejected LaGen’s employment offer or

whether he was treated less favorably than white employees.

     As for the white employees that Brumfield maintains were

hired without a testing requirement, the summary judgment

evidence showed that those employees were already working as

auxiliary operators.     Thus, no need existed for those employees

to qualify as auxiliary operators.        That LaGen did not require

those employees to test to show that they were qualified as

auxiliary operators does not raise a fact question about whether

Brumfield rejected LaGen’s employment offer or whether he was

treated less favorably than white employees.23       The defendants

were entitled to summary judgment on Brumfield’s claims.

     22
      See id. at 802 (setting out the elements of a prima facie
case of racial discrimination).
     23
          See Nichols, 81 F.3d at 42.

                                   11
     D. Anthony James’s Claims

     When LaGen took over the Cajun plants, Anthony James worked

as a warehouseman at Cajun II.     Of the seven warehousemen at that

facility, only James is black.     Although Cajun had seven

warehouse positions, LaGen began operation with only two

warehouse positions.     LaGen claims that it did not offer James

one of those positions because he had the least seniority of the

Cajun warehousemen.     Approximately fourteen months later, LaGen

recalled James for a warehouse position.

     Although LaGen ultimately employed James as a warehouseman,

James maintains that he was treated less favorably than white

employees because Cajun transferred a white employee, who served

in a warehouse position similar to James’s position, to the tool

room, depriving James of the opportunity to work in that

position.     James, however, cannot establish a prima facie case

for racial discrimination because LaGen did not reject James from

employment while seeking applicants for its warehouse

positions.24    LaGen had fewer warehouse positions than Cajun and

James was the junior person of the seven people in his bargaining

unit; instead of rejecting James, LaGen complied with the terms

of the collective-bargaining agreement and offered the warehouse

positions to the two most senior people.

     Even if James could establish a prima facie case, the


     24
          See McDonnell Douglas, 411 U.S. at 802.

                                   12
defendants presented summary judgment evidence that established a

nondiscriminatory reason for not hiring James.     That evidence

showed that LaGen had fewer warehouse positions than Cajun and

that James was the most junior person in his bargaining unit.

Although James complains about not being hired for the tool room,

LaGen’s tool room position fell within the maintenance department

and James had no seniority in the maintenance department.     The

white tool room specialist James complains about had seniority

within the maintenance department.      James failed to raise a fact

question about whether LaGen’s reason for not hiring him earlier

was a pretext for unlawful discrimination, and thus, the

defendants were entitled to summary judgment on James’s claims.25

V.   Conclusion

     Because each plaintiff-appellant failed to either establish

a prima facie case of racial discrimination or to raise a fact

question about LaGen’s reason for not hiring him, the court

AFFIRMS the district court’s judgment.

AFFIRMED.




     25
          See Nichols, 81 F.3d at 42.

                                   13
