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

                                                                            FILED
                                                                        December 20, 2007

                                       No. 06-20575                   Charles R. Fulbruge III
                                                                              Clerk

JOHNNY B. CRAWFORD, ORLANDO EDGERSON,
BERNARD GARRETT, DERRELL HOPSON,
ARTHUR HYPOLITE, LOUELLA NIMROD,
WILLIE PRATT

                                                  Plaintiffs-Appellants
v.

CITY OF HOUSTON TEXAS

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CV-04555


Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.
PER CURIAM:*
       Johnny Crawford, Orlando Edgerson, Bernard Garrett, Derrell Hopson,
Arthur Hypolite, Louella Nimrod, and Willie Pratt (Plaintiffs) brought suit
against the City of Houston alleging racial discrimination in violation of 42
U.S.C. §§ 1981 and 1983. The City moved for summary judgment, which the
district court granted. Plaintiffs appealed. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 06-20575

                                        I
      In November 2000, Plaintiffs, all of whom are African Americans, were
employed as Community Service Inspectors in the City’s Department of Public
Works and Engineering, Neighborhood Protection Division (the Department).
On November 8, the Department sought applicants to fill three openings as
Senior Inspectors. All Plaintiffs applied for promotion to Senior Inspector;
however, none was selected.
      Human Resources initially screened all of the applications.           The
applications that met the position’s minimum qualifications were passed on to
the Department. The Department utilized screening committees to review the
applications and interview candidates. Jennifer Wylie and Angela Dotson, both
African American females, and Elmo Day, a white male, were each
recommended by a screening committee as its top choice for one of the open
positions.   Barbara Jones, a white female, and Lee Pipes, a white male,
comprised the committee that recommended Day. The recommendations were
first reviewed by Todd Cooper, a white male, before being forwarded to Deputy
Director Beatrice Link, a black female.      Link reviewed the recommended
candidates and approved all three.      Subsequently, Link learned of recent
criminal misconduct by Wylie; she withdrew her selection of Wylie and asked the
screening committee that had recommended Wylie to refer another applicant.
The screening committee recommended Herbert Williams, an African American
male; Link approved Williams.
      Plaintiffs sued the City alleging discrimination in the promotion of Day to
the Senior Inspector position. Plaintiffs initially brought a Title VII action
against the City; however, it was dismissed for failure to exhaust administrative
remedies. Plaintiffs then filed the present suit, alleging violations under 42
U.S.C. § 1981; Plaintiffs amended their complaint to allege violations under 42
U.S.C. §§ 1981 and 1983. Plaintiffs allege that Day was less qualified than they


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                                        No. 06-20575

and did not meet the job’s minimum qualifications. They argue that he was
hired because of an affirmative action policy that had a goal of hiring white
males to correct for under-representation of whites in the Department. Plaintiffs
foot their argument that there was such a policy on the annual affirmative
action reports that the Department prepared for the City’s Affirmative Action
Advisory Commission. The reports described, inter alia, the racial makeup of
the Department’s employees, and, most important in this case, included charts
labeled “employment goals.” The 1999 report, for example, has two tables
discussing the Department’s “goals.” Under the percentage goals, the report lists
approximately twenty percent for whites and is blank for African Americans,1
and for raw numbers lists eighteen for whites and zero for African Americans.
The City denies that there was any policy to give whites a preference, urging
instead that these were mere responsive reports and that the reports were never
adopted as official City policy.
       The City moved for summary judgment arguing that the statute of
limitations had run; Plaintiffs could not prove a violation of § 1981; and
Plaintiffs could not prove the elements for municipality liability under § 1983.
The district court held that the action was not time barred, but it granted the
City’s motion on the latter two points. Plaintiffs filed this appeal.
                                               II
       We review de novo the district court’s decision to grant summary
judgment.2 Summary judgment is appropriate when there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.3


       1
        The photocopy of the report in the record is difficult to read. The percentage for white
males appears to be 20.8 %, but from this copy we cannot be certain. In any event, the exact
percentage is not dispositive.
       2
           Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
       3
           Fed. R. Civ. P. 56(c).

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                                          No. 06-20575

We view all of the evidence and draw all inferences in the light most favorable
to the nonmoving party, “and all reasonable doubts about the facts should be
resolved in favor of the nonmoving party.”4                  “Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat
a motion for summary judgment.”5 “Conclusory statements in an affidavit do not
provide facts that will counter summary judgment evidence, and testimony
based on conjecture alone is insufficient to raise an issue to defeat summary
judgment.”6
                                                 III
         To establish a violation of § 1981 a plaintiff must prove (1) he is a member
of a protected class; (2) there was an intent to discriminate on that basis; and (3)
the discrimination concerned one or more of the activities in the statute.7
Although § 1981 speaks of the right to “make and enforce contracts,” an
employer’s failure to promote is actionable under the statute.8 Section 1981 race
discrimination claims are analyzed under the McDonnell Douglas framework.9
         Section 1981 does not itself create a cause of action against a municipality;
rather, a plaintiff complaining of a municipality’s violations of § 1981 must




         4
             Terrebonne Parish Sch. Bd., 310 F.3d at 877.
         5
             Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
         6
             Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992).
         7
        Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002); Green v. State Bar of Tex., 27 F.3d
1083, 1086 (5th Cir. 1994).
         8
             Police Ass’n of New Orleans v. City of New Orleans, 100 F.3d 1159, 1170 (5th Cir.
1996).
         9
        Price v. Fed. Express Corp., 283 F.3d 715, 719-20 (5th Cir. 2002); Pratt v. City of
Houston, 247 F.3d 601, 606 & nn. 1, 2 (5th Cir. 2001); see McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).

                                                 4
                                         No. 06-20575

assert his claims via § 1983.10 In doing so, the plaintiff “cannot proceed under
a theory of respondeat superior and must instead satisfy the ‘custom or policy’
test fashioned for suits against a municipality under § 1983.”11 This “requires
proof of three elements in addition to the underlying claim of a violation of
rights: a policymaker; an official policy; and a violation of constitutional rights
whose ‘moving force’ is the policy or custom.”12 The final element requires the
plaintiff to prove causation; that is, that the policy or custom is the cause in fact
of the rights violation.13
       We conclude that Plaintiffs failed to offer evidence from which a
reasonable jury could find that the City’s alleged affirmative action policy served
as the “moving force” behind the decision to promote Day instead of one of the
Plaintiffs. We therefore do not address whether the district court correctly
applied the McDonnell Douglas framework, nor is it necessary for us to decide
whether Plaintiffs offered sufficient evidence to create a fact question over the
existence of an official policy or custom.
       The district court found that
       Plaintiffs have not shown that the Affirmative Action Program
       Report actually played a role in the decision to promote Elmo Day.
       Plaintiffs have presented no evidence that the members of the

       10
          Felton, 315 F.3d at 481-82; Oden v. Oktibbeha County, Miss., 246 F.3d 458, 463-64
(5th Cir. 2001).
       11
            Evans v. City of Houston, 246 F.3d 344, 358 (5th Cir. 2001).
       12
        Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005) (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (internal quotation marks omitted).
       13
         We described the “moving force” element in Fraire v. City of Arlington, 957 F.2d 1268,
1281 (5th Cir. 1992), a § 1983 excessive police force case, as requiring that “a direct causal
connection must exist between the policy and the alleged constitutional deprivation. This
connection must be more than a mere ‘but for’ coupling between cause and effect. To form the
basis of liability under § 1983, a municipal policy must be affirmatively linked to the
constitutional violation and be the moving force behind it.” See also City of Canton v. Harris,
489 U.S. 378, 391 (1989); Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379
F.3d 293, 310 (5th Cir. 2004); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980).

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                                       No. 06-20575

      [screening] committee . . . or any other person involved in the
      promotion decisions . . . had any knowledge of the Affirmative
      Action Program Report or the goals set forth therein.14

Plaintiffs’ counsel conceded as much at oral argument. Asked if there was
evidence in the record demonstrating that those who promoted Day knew of the
affirmative action reports, counsel responded:
      Not that I’m aware of, but since we had never received like an
      adequate justification or production of evidence as to what [the
      City’s] reason for hiring Mr. Day was, we didn’t have the
      opportunity to get that evidence. . . . As far as I know, there is no
      evidence in the record—

Counsel then qualified his statement, admitting that both Link and Cooper had
given depositions; in other words, Plaintiffs had the opportunity to develop their
knowledge of the affirmative action reports.
      As discussed below, the record is devoid of evidence indicating that those
who promoted Day knew of the reports. Counsel is incorrect in suggesting that
Plaintiffs’ responsibility for proving causation turns on the City articulating or
proving its reasons for promoting Day. Proving that a policy or custom was a
moving force in the violation is a prerequisite, free-standing requirement for a
plaintiff’s pursuing municipal liability under § 1983.
      Plaintiffs’ briefs do not directly address the moving-force requirement or
the district court’s ruling on that point. We read their briefs as pointing to the
following evidence that Day was promoted in accordance with the reports: the
interview process was discriminatory toward African American applicants, in
particular because of the “surprise” skills test and writing sample requirement;
Day had advanced knowledge of the test; the City “lost” screening committee
interview notes; Day received more favorable treatment than Wylie, an African
American applicant; and Day was less qualified than Plaintiffs.


      14
           Crawford et al. v. City of Houston, No. 4:04-CV-04555 (S.D. Tex. May 24, 2006).

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                                      No. 06-20575

       All of the evidence proffered by Plaintiffs in this case suffers from the
defect identified by the district judge: none of it establishes that those
responsible for promoting Day knew of the affirmative action reports, let alone
the purported employment goals contained therein. Knowledge of the reports
is antecedent to acting on the reports; logically, the reports cannot have been the
moving force in the decision to promote Day if those responsible did not know of
the reports’ existence. Furthermore, the individual pieces of evidence suffer
from particularized defects, dissipating any inference of knowledge of the reports
on the part of those who promoted Day.
       That the job posting failed to disclose that a skills test or evaluation would
be given favors no person or group. Anyone reading the posting and preparing
for the job would be equally “surprised”; and, while some of the questions were
technical, the test itself was neutral and the questions were related to the job.15
       There is no competent evidence that Day received advanced warning of the
skills test and writing sample requirement. The only evidence indicating that
he did are Hypolite’s and Pratt’s declarations.             Both declarations state –
verbatim – that “[s]hortly before the interviews, I observed Elmo Day in private
conferences with Todd Cooper and Lee Pipes, and Barbara Jones discussing the
interview and selection process.” The declarations are entirely conclusory and
conjectural; neither declaration describes the contents of the conversation nor
even alleges that Hypolite or Pratt could hear what was being said.
       Evidence regarding the missing notes is relevant only to the extent that
the notes were “lost” to cover up something. That the notes are missing and that




       15
         Questions included: “How have you directly or indirectly prepared yourself for this
position?”; “What is the purpose of and procedures for [the Family Medical Leave Act]?”;
“Compare and contrast the Administrative Hearing and the Building and Standards
Commission hearing process.”

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                                        No. 06-20575

the EEOC found this to be a Title VII record keeping violation16 may, standing
alone, give rise to an inference of a bad act; but, without more, they are not
probative of whether those who promoted Day knew of the reports.
       The allegation that Day received more favorable treatment than Wylie is
not helpful either. Day had been convicted for misdemeanor assault in 1996,
while Wylie’s difficulties surfaced during the interview process. Link withdrew
Wylie’s recommendation for promotion, but not Day’s. This, Plaintiffs say, shows
discrimination.
       However, Plaintiffs fail to account for the factual differences. Both Link
and Cooper testified in their depositions that the Office of the Inspector General
(OIG) contacted Link after she had approved Wylie for the promotion. According
to Cooper, the OIG explained that Wylie’s criminal issues involved “some
misrepresentation involving an ATM card and that there was a pending trial.”
Link testified that Wylie had been charged for theft on City time. As Cooper
explained, “Link and the inspector general’s office and H&R felt like [Wylie]
would not be a good candidate . . . .” There was no evidence that the OIG or
“H&R” had similar misgivings about Day and his misdemeanor assault
conviction. Moreover, there is a timing difference: Day’s conviction was on his
application for Human Resources to review during the initial screening process,
while Wylie’s criminal problems did not arise until well after the initial
screening. And, because Wylie’s problems came to light after the screening
panels and Cooper reviewed her application, there can be no suggestion that
they treated Day and Wylie differently. The difference in treatment Day and




       16
         See 29 C.F.R. § 1602.14 (“Any personnel or employment record made or kept by an
employer (including but not necessarily limited to . . . application forms submitted by
applicants and other records having to do with hiring [or] promotion . . .) shall be preserved by
the employer for a period of one year from the date of the making of the record or the personnel
action involved, whichever occurs later.”).

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                                     No. 06-20575

Wylie received did not have its genesis within the Department’s promotion
process, belying any inference that it resulted from the reports.
      Plaintiffs’ oft-made allegation that Day was less qualified suffers the same
infirmity as the other evidence: on its own, his being less qualified says nothing
of whether those who picked him did so in conformity with the reports. Indeed,
it does not overcome Plaintiffs’ threshold problem: whether those who picked
Day even knew of the reports.
      The most substantial evidence concerning the affirmative action reports
was the deposition testimony of Thomas Rolen, the then-Director of the
Department. Rolen testified that the reports were prepared by Herb Fain, whom
he indicated was the Deputy Director in personnel. Rolen explained that he
reviewed the reports, signed the transmittal letter, and returned the reports to
Fain to transmit to the City’s Affirmative Action Council. Rolen gave no
indication that the reports were distributed within the Department; Link
testified that she did not know of the reports, and both Cooper and Link testified
that they had never been told of any policy favoring white applicants.
      Rolen did state that the reports were provided to Human Resources, the
department that initially screened the applications to ensure that they met the
minimum qualifications. However, the potential exposure of Human Resources
to the reports does not advance Plaintiffs’ claim: all of Plaintiffs were approved
in the initial screening. That is, at the only point in the promotion process
where the record supports an inference that a decisionmaker could have been
exposed to the reports,17 the reports caused Plaintiffs no harm; they, along with
Day and everyone else who applied, moved to the next round.




      17
        Even that is a circumstantial inference as there was no testimony that the reports
were generally distributed in Human Resources, or that the person in Human Resources who
reviewed these particular senior inspector applications had seen the reports.

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                                       No. 06-20575

       Nor does Rolen’s or Fain’s exposure to the reports advance Plaintiffs’
cause, as there is no evidence indicating that they were involved in the decision
to promote Day. Rolen testified that it was the people under him who made the
hiring and promotion decisions. Day was selected and approved by Link before
Fain and those in personnel became involved. The testimony clearly establishes
that the persons involved in selecting Day over Plaintiffs were the members of
the Department’s screening panels, Cooper, and Link.18
       The only evidence indicating that the alleged affirmative action policy was
a moving force in the decision to promote Day are the conclusory, speculative
statements of Plaintiffs themselves.19 In the absence of any corroborative
evidence, the subjective beliefs and conjecture of Plaintiffs are not enough to
create a genuine issue of material fact.20
                                              IV
       As Plaintiffs introduced no direct evidence, or evidence giving rise to an
inference, that those who selected Day knew of, let alone acted on, the purported
discriminatory policy, they cannot establish § 1983 municipal liability and
consequently cannot prevail on their § 1981 claim. AFFIRMED.




       18
         The parties dispute at which point in the Department’s promotion process the decision
to hire Day was made – that is, who among the screening panels, Cooper, and Link actually
made the decision. Because of the lack of evidence indicating that any of them knew of the
affirmative action reports, this dispute is of no moment.
       19
         For example: “I think [they] were following the policy, discriminatory policy” (Hopson
deposition); “I do understand why it was going on because of that document about that they
was underrepresented by white males” (Pratt deposition); “The only thing I can tell you is the
fact that, you know, a less qualified white applicant was given preference in this hiring
situation in accordance with the affirmative action memo that the Public Works Department
came up with” (Edgerson deposition); “Mr. Cooper, along with the other interviewers, they
were probably I would say acting on the affirmative action report” (Nimrod deposition).
       20
          See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993) (“We have
held that a plaintiff’s subjective belief that his discharge was based on age is simply
insufficient to establish an ADEA claim.”).

                                              10
