     Case: 09-40487    Document: 00511062494        Page: 1     Date Filed: 03/25/2010




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

                                                  FILED
                                                                        March 25, 2010
                                    No. 09-40487
                                  Summary Calendar                   Charles R. Fulbruge III
                                                                             Clerk

ALLEN BISHOP,

                                          Plaintiff–Appellant
v.

TEXARKANA TEXAS POLICE DEPARTMENT,

                                          Defendant–Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 5:08-CV-00141



Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Allen Bishop, Plaintiff–Appellant, appeals the district court’s grant of
summary        judgment    for   Defendant–Appellee,       Texarkana       Texas    Police
Department (“TTPD”), as to Bishop’s claims for age discrimination under the
Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the
“ADEA”), and race discrimination under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (“Title VII”). Because Bishop failed to carry his burden


        *
         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not be published and is not precedent except under the limited circumstances set forth in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.
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                                   No. 09-40487
under either the ADEA or Title VII, we AFFIRM the district court’s ruling.
             I. FACTUAL AND PROCEDURAL BACKGROUND
        Bishop, a forty-year-old African-American male, applied for an entry level
police officer position in the TTPD.         Bishop passed both the civil service
examination and physical fitness assessment. TTPD asked Bishop to complete
a Personal History Statement and submit certain documents to enable TTPD
investigators to conduct a background investigation.          Bishop provided an
incomplete Personal History Statement and failed to submit his Form DD-214,
which would have shown the circumstances surrounding his discharge from
military service. On his Personal History Statement, Bishop stated he served
in the United States Army Reserves from January 1991 through January 1999
and was honorably discharged. He did not mention any other military service.
        TTPD rules require former members of the military to have nothing less
than an honorable discharge. During an interview with a TTPD background
investigator, Bishop said he was uncertain of his military discharge status
because of an issue relating to denial of his request to transfer from one reserve
unit to another. Bishop stated he believed he had been placed on “inactive”
status. TTPD subsequently received the Army’s Form DD-214 showing that
Bishop entered service in September 1991, separated in March 1992, and
received an “uncharacterized” discharge. TTPD also received another Form DD-
214, learning for the first time that Bishop had been in the United States Navy
for about a month and a half in 1986; the Navy described Bishop’s discharge
status as an “entry level separation.” TTPD sent Bishop two letters explaining
he    was    automatically   disqualified     from   consideration    due    to   his
“uncharacterized” discharge from the Army Reserves.
        Bishop filed a Charge of Discrimination with the EEOC and received a
right to sue letter. Bishop timely filed his Complaint, raising claims of race and
age discrimination. TTPD moved for summary judgment, and the district court


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                                    No. 09-40487
granted the motion. Bishop timely appealed.
                                  II. ANALYSIS
      We review the district court’s grant of summary judgment de novo. Tex.
Indus., Inc. v. Factory Mut. Ins. Co., 486 F.3d 844, 846 (5th Cir. 2007). Summary
judgment is proper when “there is no genuine issue as to any material fact and
. . . the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(c)(2).
      To prevail on his Title VII claim, Bishop must establish a prima facie case
that TTPD based its decision not to hire him on his race. Patrick v. Ridge, 394
F.3d 311, 313 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). To do so, Bishop must show that (1) he is a member of a class
protected under the statute; (2) he was qualified for the police officer position; (3)
TTPD took an adverse employment action against him; and (4) someone outside
of the protected class was hired instead. Id. (citing McDonnell Douglas Corp.,
411 U.S. at 802). To prevail on his ADEA claim, Bishop bears a similar burden
of establishing a prima facie case that TTPD based its decision not to hire him on
his age, by showing that (1) an adverse employment action occurred; (2) he was
qualified for the police officer position; (3) he was a member of a protected class
under the statute; and (4) he was replaced by someone either younger or outside
of the protected class. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.
1993).
      After the plaintiff establishes his prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for its adverse
employment decision. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004). If the defendant meets this burden, the burden shifts back to the
plaintiff to show that (1) the defendant’s proffered reason is not only untrue, but
is pretextual; or (2) the defendant’s proffered reason is true, but is only one of the
reasons, with the protected characteristic being a “motivating factor.”              Id.


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(citation omitted). Finally, if the plaintiff succeeds, the burden shifts back to the
defendant to prove “it would have taken the same action in the absence of the
impermissible motivating factor.” Id. at 312–13 (quotation omitted).
      Here, Bishop argues that TTPD refused to hire him because he received a
discharge that was other than honorable, and that this criterion was
impermissible.1 Indeed, in Thompson v. Gallagher, 489 F.2d 443, 449 (5th Cir.
1973), a case with somewhat similar facts, we found unconstitutional a law
mandating the employment termination of any individual with a military
discharge that was other than honorable.          We need not determine whether
Thompson applies to the instant case. Even if Bishop were to establish a prima
facie case of discrimination, TTPD has articulated a valid non-discriminatory
reason for not hiring Bishop: he lied on his Personal History Statement.
Although the district court gave Bishop an opportunity to gather evidence to
show that this non-discriminatory reason was pretextual or was not TTPD’s
motivating factor, Bishop failed to do so. Therefore, Bishop failed to carry his
burden of establishing a claim for either race or age discrimination.
                                III. CONCLUSION
      We AFFIRM the district court’s judgment.




       1
        Bishop also argues that TTPD refused to hire him because of his credit score,
because he filed an unrelated lawsuit, and because TTPD uses a quota system and will not
hire any more African-American applicants until 2013. As for Bishop’s first two
arguments, Bishop failed to produce any evidence showing that TTPD refused to hire him
because of his credit score or because he filed an unrelated lawsuit. As for the third
argument, Bishop provides little more than a conspiracy theory to support this argument,
and he fails to establish a prima facie case of discrimination based on alleged quotas.

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