Smith v. Con Recreation, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 04-30155
Summary Calendar
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NORRIS SMITH,
Plaintiff-Appellant,
VERSUS
CONSOLIDATED RECREATION AND COMMUNITY CENTER AND
PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON; ET AL.,
Defendants,
CONSOLIDATED RECREATION AND COMMUNITY CENTER AND
PLAYGROUND DISTRICT NUMBER 1 OF THE PARISH OF JEFFERSON;
TIM COULON,
JEFFERSON PARISH PRESIDENT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
MICHAEL QUIGLEY,
DIRECTOR OF THE JEFFERSON PARISH PARK AND RECREATION DEPARTMENT
AND/OR CONSOLIDATED RECREATION AND COMMUNITY CENTER
AND PLAYGROUND DISTRICT NUMBER 1, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
KEVIN O’QUINN,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
SCOTT MUHOBERAC,
INDIVIDUALLY,
Defendants-Appellees.

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_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CV-2042-B
_________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Norris Smith appeals a summary judgment
in his suit against his former employer, Jeffer-
son Parish Consolidated Recreation and Com-
munity Center ( the “Center”) and four of its
employees for, inter alia, racial discrimination
and retaliation. We review a summary judg-
ment de novo and are bound by the same
standard as is the district court.1 Finding no
error, we affirm.
I.
Smith claims he was not selected for a
promotion on account of his race. The district
court determined that Smith had established a
prima facie case because he is a member of a
protected class and was certified as eligible
and sought the supervisory position ultimately
awarded to another employee not within the
protected class. The court concluded that
Smith had failed to demonstrate a genuine
issue of material fact as to whether the Cen-
ter’s proffered legitimate, nondiscriminatory
reason for not selecting him was pretext for
unlawful discrimination.
Smith contends the court should not have
required him to demonstrate pretext because
the Center failed to carry its antecedent burden
of articulating a legitimate, nondiscriminatory
rationale for denying him the promotion.
Indeed, Smith attacks the Center’s proffered
rationaleSSSmith’s poor performance during
the interview and selection process relative to
other potential candidatesSSas “unworthy of
credence.” But the governing law explicitly
precludes courts from testing the credibility of
reasons proffered by employers in response to
a prima facie case of alleged discrimination;
the “burden on the employer is only of pro-
duction, not persuasion, involving no credibil-
ity assessments.”2
Smith attempts to demonstrate a genuine
issue of material fact as to pretext by reference
to three self-styled affidavits submitted by
former co-workers. Only one of these submis-
sions, however, is at all probative of unlawful
discrimination. In any event, as the district
court concluded, this submission is not com-
petent summary judgment evidence, because it * Pursuant to 5TH CIR. R. 47.5, the court
has determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 See Bryan v. McKinsey & Co., 375 F.3d
358, 360 (5th Cir. 2004); FED. R. CIV. P. 56(c).
2 Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000) (citing Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56
(1981)).

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is not sworn to be true and correct before a
public notary or stated to be true and correct
under penalty of perjury.3 Moreover, Smith’s
unsupported allegations and his own subjective
belief that he was not selected for the
promotion based on race are insufficient to
raise a fact issue as to pretext.4 Summary
judgment on this claim was appropriate.
II.
Smith contends he was terminated in retali-
ation for filing complaints with state and
federal agencies. The district court decided
that Smith’s claim fails because he offered
nothing but unsupported statements linking the
protected activity to the termination decision
and because the record indicates that Smith
had received negative performance appraisals
and disciplinary actions before the decision
was made to terminate him. Smith claims that
his performance was adequate and that these
infractions were trumped up, but he has failed
to provide any competent evidence that his
supervisors’ dissatisfaction with his
performance and demeanor was not the reason
for his termination. The district court was
correct in entering summary judgment on the
retaliation claim.
III.
The district court denied Smith’s post-
judgment motion for reconsideration, finding
that the evidence Smith claimed to be newly-
discovered was previously available to Smith
and was in any event of little substantive value.
Smith complains of the denial but has failed
properly to appeal the order denying the
motion. His notice of appeal, filed after the
entry of judgment but before entry of the order
denying his motion, was ineffective to appeal
the entry of judgment until the order disposing
of his reconsideration motion had been en-
tered.5 Because Smith did not amend his pre-
viously filed notice of appeal, in which he
designated only the summary judgment order
as being appealed, appellate review of the
order denying his motion for reconsideration is
precluded.6
AFFIRMED.7
3 See Nissho-Iwai Am. Corp. v. Kline, 845
F.2d 1300, 1306 (5th Cir. 1988); 28 U.S.C.
§ 1746.
4 See Ramsey v. Henderson, 286 F.3d 264,
269 (5th Cir. 2002); Lawrence v. Univ. of Tex.
Med. Branch at Galveston, 163 F.3d 309, 313 (5th
Cir. 1999).
5 See Simmons v. Reliance Stand. Life Ins.
Co., 310 F.3d 865, 868 n.1 (5th Cir. 2002); FED.
R. APP. P. 4(a)(4)(A)(iv), (B)(i).
6 See FED. R. APP. P. 4(a)(4)(B)(ii),
3(c)(1)(B).
7 Because Smith’s briefing adequately ad-
dresses only his promotion denial and retaliation
claims, any challenge to the summary judgment
entered on the balance of his claims is deemed
waived.

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