Ballou, et al v. Mabey, et al

*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that this opinion should not be published and is not precedent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
United States Court of Appeals
Fifth Circuit
F I L E D
February 10, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-30343
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

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1For 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
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

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

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

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

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15See Reeves, 530 U.S. at 148; Vadie v. Miss. St. Univ., 218
F.3d 365, 373 (5th Cir. 2000).
16See McDonnell Douglas, 411 U.S. at 802 (setting out the
requirements for a prima facie case of unlawful racial
discrimination).
6
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.

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17See Nichols, 81 F.3d at 42.
18See 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
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

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19See McDonnell Douglas, 411 U.S. at 802.
8
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

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20See Nichols, 81 F.3d at 42.
21See McDonnell Douglas Corp., 411 U.S. at 802.
9
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

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10
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

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22See id. at 802 (setting out the elements of a prima facie
case of racial discrimination).
23See Nichols, 81 F.3d at 42.
11
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.

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24See McDonnell Douglas, 411 U.S. at 802.
12
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

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25See Nichols, 81 F.3d at 42.
13
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.

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