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

                                                 FILED
                                                                         November 16, 2009

                                       No. 08-60855                    Charles R. Fulbruge III
                                                                               Clerk

JOSEPH W. BLACKSTON, M.D., J.D.

                                                   Plaintiff - Appellant
v.

WEXFORD HEALTH SOURCES INC.

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-CV-00123


Before KING, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
       Joseph Blackston appeals the summary judgment granted against him in
his § 1981 racial discrimination case.             We REVERSE that portion of the
judgment.1


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           Blackston concedes that the district court’s disposition of his Title VII claim on
procedural grounds was proper. We affirm that portion of the judgment. We also conclude
that Blackston sufficiently raised the substance of his appeal of the § 1981 claim disposition
in his opening brief to avoid a waiver of that claim. We also note that Title VII precedents
apply to § 1981 claims because the substantive elements of those claims “are identical.” Pratt
v. City of Houston, 247 F.3d 601, 606 n.1 (5th Cir. 2001).
                                       No. 08-60855

       Blackston, a white male, was employed by a medical staffing contractor
(CMS) which provided medical directors to the Mississippi Department of
Corrections (MDOC). In that capacity, he worked as the medical director at
Central Mississippi Correctional Facility. When MDOC failed to renew CMS’s
contract at the correctional facility, Blackston approached Defendant-Appellee
Wexford Health Sources, Inc., to inquire about continuing in his then-current
capacity as a medical director. He averred – and for purposes of reviewing a
summary judgment we take as true – that Wexford told him he could not be
hired because he was white and MDOC was looking for a black candidate for the
position.
       Blackston sued. The trial court granted summary judgment to Wexford,
concluding that the “burden-shifting” analysis of McDonnell-Douglas 2 applied
because the evidence showed only an “inference” of discrimination. It also
concluded that Wexford’s stated reasons for not hiring Blackston (because he
was not a “good fit” 3 and because Dr. Kentrell Liddell, a black female in a
supervisory role at MDOC, told Wexford not to hire Blackston) were sufficient
to rebut this “inference” of discrimination. This appeal ensued.
       Our standard of review, of course, is de novo. Condrey v. SunTrust Bank
of Ga., 429 F.3d 556, 562 (5th Cir. 2005) (“This court reviews a district court’s
grant of summary judgment de novo, applying the same legal standards as the
district court.”).
       We conclude that evidence that someone was told he could not be hired for
or retained in a position because of his race is direct evidence of discrimination.



       2
           McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       3
           Because of our disposition of this case, we need not decide whether the “good fit”
reason is a “legitimate, non-discriminatory” reason for Blackston’s non-retention. See Patrick
v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that stating that someone does not “fit in”
is not evidence of non-discrimination).

                                               2
                                     No. 08-60855

Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005). It is not
necessary that Blackston show some type of hatred or ill-will by Wexford
towards people of his race in order for this case to be considered as one involving
direct evidence. Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987)
(holding that liability for intentional discrimination under § 1981 requires only
that decisions be premised on race, not that they be motivated by racial hostility
or animus).
      Thus, the district court erred in applying the McDonnell-Douglas
approach. Instead, this case is governed by Jones, Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) (as modified by the Civil Rights Act of 1991, Pub. L. No. 102-
166, § 107, 105 Stat. 1071, 1075–76), and Fabela v. Socorro Independent School
District, 329 F.3d 409 (5th Cir. 2003). Under these precedents, Blackston’s
testimony that he was told he was not hired because of his race was sufficient
to defeat summary judgment. The affidavit of Wexford’s Chief Medical Officer,
Dr. Lundquist, purporting to state legitimate reasons for the failure to hire
Blackston is insufficient to support summary judgment for Wexford in this direct
evidence case. See Fabela, 329 F.3d at 417 (“[P]roviding unrebutted evidence of
a legitimate reason for the adverse employment decision is not sufficient to
secure summary judgment under the direct evidence calculus.”).4
      Accordingly, we AFFIRM the district court’s judgment as to the Title VII
claim; we REVERSE the district court’s judgment as to the § 1981 claim and
REMAND for trial.




      4
         We need not decide whether there ever can be a summary judgment for a defendant
in a direct evidence case because, in this case, it is clear that summary judgment was not
proper.

                                            3
