Spencer v. Sargent, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60643
Conference Calendar
JESSE BROWN SPENCER,
Plaintiff-Appellant,
versus
HARLEY SARGENT;
CITY OF JACKSON, MISSISSIPPI,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:98-CV-372-WS
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June 16, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Jesse Brown Spencer appeals the dismissal with prejudice of
his lawsuit against defendants Harley Sargent and the City of
Jackson, Mississippi, alleging that he was denied a promotion
based solely on his race. The district court granted summary
judgment in favor of the defendants with regard to Spencer’s
Title VII claim because Spencer failed to timely file a charge
with the Equal Employment Opportunity Commission (EEOC) and with
regard to Spencer’s claims under 42 U.S.C. §§ 1981 and 1983

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No. 99-60643
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because Spencer failed to present sufficient proof of
discrimination.
This court reviews a grant of summary judgment de novo.
Green v. Touro Infirmary, 992 F.2d 537, 538 (5th Cir. 1993).
Spencer, who is African-American, concedes that the promotion he
was denied was given to an African-American female. He cannot
establish a prima facie case of racial discrimination for failure
to promote because the promotion was given to a member of his
same race. See Gonzalez v. Carlin, 907 F.2d 573, 578 (5th Cir.
1990)(Title VII case); see also Bunch v. Bullard, 795 F.2d 384,
387 n.1 (5th Cir. 1986)(holding that a claimant is required to
show the same proof required to show liability under Title VII
when §§ 1981 and 1983 are used as parallel causes of action with
Title VII). The defendants were therefore entitled to summary
judgment regarding Spencer’s claims of discrimination under
§§ 1981 and 1983. See Davis v. Chevron U.S.A., Inc., 14 F.3d
1082, 1087-88 (5th Cir. 1994)(Title VII case).
Because Spencer’s failure to establish a prima facie case of
discrimination was also fatal to his Title VII claim, this court
need not address Spencer’s argument that the district court erred
in dismissing his Title VII claim because he failed to timely
file a charge with the EEOC. See Bickford v. International
Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981)(holding that
“reversal is inappropriate if the ruling of the district court
can be affirmed on any grounds, regardless of whether those
grounds were used by the district court.”).
AFFIRMED.

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