Auguster v. Sch Bd Vermilion Par

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30736
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CAROL L. AUGUSTER,
Plaintiff-Appellant,
VERSUS
VERMILION PARISH SCHOOL BOARD,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
May 3, 2001
Before REAVLEY, SMITH, and DeMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Carol Auguster appeals a summary
judgment in favor of the Vermilion Parish
School Board in his suit under 42 U.S.C. §
1981 and title VII, 42 U.S.C. § 2000e et seq.
Seeing no error, we affirm.
I.
After teaching and coaching football for
many years, Auguster, a black male, was hired
to teach sixth grade at J.H. Williams Middle
School for the 1997-98 year. Pursuant to his
contract, the district reserved the right to re-
move him for cause in accordance with the
state’s tenure laws.1 Auguster alleges that the
1 The school board contendsSSand Auguster
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superintendent, Dan Dartez, told him when he
was hired of “a problem that they had with
past black coaches, and if there was another
problem, no matter what it was, that he would
do his best to get rid of me, from day one.” In
the same conversation, Auguster alleges,
Dartez told him that “he had bad luck with
black men working in Abbeville.”2
In March 1998, Jonathon Williams, the
principal, received a complaint that Auguster
had improperly used corporal punishment to
discipline students. After investigating the in-
cident, Williams sent Auguster a reprimand let-
ter informing him that he had violated the
corporal punishment policy. Sometime later,
Auguster showed an “R” rated movie to his
class, an activity the school board considered
unacceptable and for which Auguster received
another reprimand.
In May 1998, Auguster received a written
evaluation outlining his deficiencies in
management and instruction and referencing
the corporal punishment incident and the
unacceptable movie. As a result of the
evaluation, the board developed an “Intensive
Assistance Plan,” pursuant to which Auguster
received counseling and agreed to refrain from
corporal punishment. Williams began
personally to monitor Auguster’s in-class
performance to ensure compliance with school
board policies.
On July 8, 1998, Auguster received notice
that the board would consider a
recommendation by Dartez not to renew his
contract. The board held a hearing on July 22
but failed to adopt the recommendation. On
August 6, however, Dartez notified Auguster
that the board had decided not to renew his
contract for the following year. Auguster’s
position eventually was filled by a white
female.
II.
The board argued that Auguster had failed
to establish a viable claim of discrimination.
The district court, analyzing the issue under
the framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and its
progeny, held that, although Auguster had
presented a prima facie case of discrimination,
the school board had articulated a legitimate,
non-discriminatory reason for his firing.
Because Auguster could not establish that the
proffered reason was mere pretext, the court
granted summary judgment. Auguster argues
that he did establish pretext.
III.
We review a summary judgment de novo,
applying the same standards as did the district
court, while viewing all disputed facts and rea-
sonable inferences “in the light most favorable
to the nonmoving party . . . .” Duffy v.
Leading Edge Prods., 44 F.3d 308, 312 (5th
Cir. 1995). Summary judgment is appropriate
where “there is no genuine issue as to any
material fact and . . . the moving party is
entitled to judgment as a matter of law.” FED
R. CIV. P. 56(c). To survive summary
judgment, however, the nonmoving party must
do more than allege an issue of material fact:
“Rule 56(e) . . . requires the nonmoving party
to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to
1(...continued)
does not disputeSSthat Auguster was a
probationary teacher with no tenure rights.
2 The school board disputes the statements, and
the only evidence supporting the statements is
Auguster’s testimony. Because we are reviewing
a summary judgment, however, we must assume
that Auguster’s testimony is correct. See infra.

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interrogatories, and admissions on file,
designate specific facts showing that there is a
genuine issue for trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (internal
quotation marks omitted); accord Urbano v.
Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998).
The district court analyzed Auguster’s title
VII and § 1981 claims under the framework
established by McDonnell Douglas, according
to which a plaintiff must first establish a prima
facie case of discrimination, whereupon the
burden of production shifts to the defendant to
articulate a legitimate, non-discriminatory
reason for its action. Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 404 (5th Cir.
1999). At that point, “the McDonnell
Douglas frameworkSSwith its presumptions
and burdensSSdisappear[s], and the sole
remaining issue [is] discrimination vel non.”
Reeves v. Sanderson Plumbing Prods, Inc.,
530 U.S. 133, 142-43 (2000) (citations and
quotation marks omitted). If the plaintiff can
show that the proffered justification is mere
pretext, however, that showing, coupled with
the prima facie case, will be sufficient in most
cases to survive summary judgment. Id. at
146-48.
“Although intermediate evidentiary burdens
shift back and forth under this framework,
‘[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally
discriminated against the plaintiff remains at all
times with the plaintiff.’” Id. at 143 (quoting
Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)). To carry that burden,
the plaintiff must produce substantial evidence
of pretext:
“Evidence that the proffered reason is
unworthy of credence must be enough
to support a reasonable inference that
the proffered reason is false; a mere
shadow of doubt is insufficient.” This
court has consistently held that an
employee’s “subjective belief of
discrimination” alone is not sufficient to
warrant judicial relief.
Bauer v. Albemarle Corp., 169 F.2d 962, 967
(5th Cir. 1999) (quoting E.E.O.C. v. La.
Office of Cmty. Servs., 47 F.3d 1438,
1443-44, 1448 (5th Cir. 1995)) (citation
omitted).3
Auguster undisputedly established a prima
facie case: He is black, he suffered an adverse
employment decision, and his former position
was filled by a white woman. Likewise, the
school board articulated a legitimate, non-
discriminatory reason for its decision not to
rehire Auguster: his poor evaluation, as
evidenced by his inappropriate use of corporal
punishment and screening of an R-rated film.
Auguster admits that the events occurred, and
he cannot seriously dispute that they provide
ample justification for the refusal to renew his
contract.4 His case depends on the contention
3 Bauer was decided before Reeves, which
changed our jurisprudence on the evidentiary con-
sequences of a successful showing of pretext.
Nothing in Reeves, however, abrogates Bauer’s
requirement of substantial evidence to support a
claim of pretext. Cf. Reeves, 530 U.S. at 144
(“Petitioner, however, made a substantial showing
that respondent’s explanation was false.”).
4 At oral argument, Auguster alleged that white
teachers who had committed similar offenses were
not similarly punished. If taken as true, that
allegation might be evidence of disparate impact
sufficient to survive summary judgment. The issue
has been abandoned, however, because Auguster
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that the articulated justification is merely
pretext for discrimination.
As evidence of pretext, Auguster argues
that Dartez unilaterally refused to renew his
contract in contravention of the board’s
mandate to rehire Auguster.5 That allegation
is not supported by the record, which reflects
only that the board reached a stalemate when
voting on Dartez’s recommendation not to
rehire Auguster, not that the board
affirmatively voted to renew his contract. The
record does support an inference that Dartez
acted without legal authority in refusing to
renew Auguster’s contract, because there is no
evidence that the board made any decision
whatsoever regarding the renewal of the
contract.6
Nonetheless, the fact that Dartez acted
outside his statutory authority is not probative
with respect to whether the board’s articulated
justification is mere pretext. There is no ev-
idence that he acted any differently from how
he would have in any other situation; indeed,
the board asserts that Dartez does in fact have
the authority unilaterally to make employment
decisions with respect to untenured teachers.
Although the school board’s view of state
4(...continued)
failed to assert it in his brief. See Strong v. Bell- 1
South Telecomms. Inc., 137 F.3d 844, 853 n.9 (5th 2
Cir. 1998) (considering waived an issue asserted at 3
oral argument but not addressed in the briefs). 4
5 Auguster also argues that the articulated jus-
tification must be pretext because he already had
been reprimanded for the incidents in question
before the decision not to rehire him. Thus, ac-
cording to Auguster, the school board could not
permissibly have revisited those incidents in de-
ciding whether to renew his contract. That
argument is meritless on its face.
6 The parties stipulated that “the decision to not
renew Carol Auguster’s contract of employment
with the Vermilion Parish School Board was made
by Dr. Daniel Dartez in his sole discretion as
Superintendent of Vermilion Parish Schools.” The
parties disagree, however, on the meaning of the
stipulation.
Auguster contends that it means Dartez acted
on his own, while the school board contends that
(continued...)
6(...continued)
the stipulation means Dartez was vested with dis-
cretion to make the decision. Under Louisiana law,
the board’s interpretation appears to be im-
permissible: Although the statutes do not refer
specifically to contract renewals, they do expressly
govern the hiring of teachers and the dismissal of
probationary teachers, the combination of which
presumably envelops contract renewals. See LA.
REV. STAT. ANN. §§ 17:81, 17:442.
Both of those statutes provide for action by the
school board on the superintendent’s
recommendation, but not for unilateral action by
the superintendent. Furthermore, the Louisiana
Attorney General has interpreted the statutes to
preclude delegation of those functions to the sole
discretion of the superintendent. See La. Att’y
Gen. Op. No. 93-654 (1993) (“Th[e] power to hire,
fire, demote, transfer and promote teachers is a
discretionary power vested in the school board and
may not be delegated.”); La. Att’y Gen. Op. No.
80-1103 (1980) (“[T]he legislature strongly
intended that the local school board should have the
final selection authority and that this selection
power should not be totally in the hands of the
superintendent. It is therefore the opinion of this
office that both the legislative intent and plain
meaning of the statute dictate that the local school
board must approve and select teachers to be hired
. . . .”). Thus, although we can infer that the board
attempted to vest sole authority for the decision in
Dartez, we cannot infer that it in fact did so.

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law may be wrong in this respect, it does in-
dicate that Dartez’s failure to renew Auguster
was not a maverick action, as Auguster as-
serts, which might be evidence that the board’s
articulated justification is mere pretext.
Instead, Dartez’s action merely represents the
mistaken understanding of both Dartez and the
board that he had unilateral authority to make
employment decisions, at least with respect to
untenured teachers.
That alone is insufficient to establish pre-
text. Thus, because Auguster failed to carry
his burden of establishing pretext, the district
court correctly concluded that his claim cannot
survive under the McDonnell Douglas
framework; Auguster therefore must prove
discrimination without the benefit of McDon-
nell Douglas’s shifting burdens.
IV.
Auguster did present some direct evidence
of discrimination: the comments by Dartez to
the effect that the school had “a problem . . .
with past black coaches, and if there was
another problem, no matter what it was, that
he would do his best to get rid of me, from day
one.”7 Given the overwhelming evidence
supporting the school board’s legitimate jus-
tification, however, Dartez’s comments can be
viewed as no more than stray remarks, which
are insufficient to survive summary judgment.
In Russell, 235 F.3d at 229 & n.19, we
questioned the continued vitality of the stray
remarks doctrine, stating that, “[i]n light of the
Supreme Court’s admonition in Reeves, our
pre-Reeves jurisprudence regarding so-called
‘stray remarks’ must be viewed cautiously.”
Notably, however, in both Reeves and Russell,
there was substantial evidence of pretext apart
from the comments at issue.8 In fact, the
Supreme Court faulted our decision in Reeves9
not for applying the stray remarks doctrine,
but for failing to accord proper weight to the
7 Auguster contends that, under the McDonnell
Douglas framework, the comments establish that
the school board’s asserted justification is pretext.
Although discriminatory comments can be evidence
of pretext, see Russell v. McKinney Hosp. Venture,
235 F.3d 219, 225 n.9 (5th Cir. 2000), in a case
such as this, where there is no other evidence of
pretext, it is appropriate to analyze such comments
as direct evidence of discrimination, apart from the
McDonnell Douglas framework.
8 In Reeves, the employer cited the employee’s
poor recordkeeping as justification for dismissing
him, asserting that the recordkeeping affected union
relations and cost the company overtime wages.
The Court found, however, that the plaintiff had
produced substantial evidence that the articulated
justification was pretext by explaining in detail the
alleged bookkeeping discrepancies and showing
that there had never been a union grievance filed
because of them; nor had the employer ever even
calculated the amount of the alleged overpayments
resulting from the discrepancies. Reeves, 530 U.S.
at 143-46. Only after discussing that evidence of
pretext and noting that the court of appeals had in
fact found pretext did the Court look at “additional
evidence of discrimination” in the form of age-
related comments. Id. at 151.
Likewise, in Russell, 235 F.3d at 224, we found
that where the employer justified firing the
employee to introduce a “change in management
style,” the employee’s outstanding evaluations and
the employer’s failure to follow internal procedures
in terminating the employee were substantial
evidence of pretext. Only then did we analyze
remarks evidencing age-related animus as
“Additional Evidence of Discrimination.” Id.
at 225.
9 Reeves v. Sanderson Plumbing Prods., Inc.,
197 F.3d 688 (5th Cir. 1999), rev’d, 530 U.S. 133
(2000).

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plaintiff’s substantial evidence of pretext.
Reeves, 530 U.S. at 149 (“It suffices to say
that, because a prima facie case and sufficient
evidence to reject the employer’s explanation
may permit a finding of liability, the Court of
Appeals erred in proceeding from the premise
that a plaintiff must always introduce
additional, independent evidence of
discrimination.”). In a decision that binds us,
this court already has interpreted Reeves not to
overrule our stray remarks jurisprudence, at
least where the plaintiff has failed to produce
substantial evidence of pretext. See
Rubinstein v. Adm’rs of Tulane Ed. Fund, 218
F.3d 392, 400-01 (5th Cir. 2000) (applying the
stray remarks doctrine where the plaintiff had
failed to establish that each of the defendant’s
articulated justifications was pretext), cert.
denied, 121 S. Ct. 1393 (2001).
We analyze stray remarks under Brown v.
CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996):
“[F]or comments in the workplace to provide
sufficient evidence of discrimination, they must
be ‘1) related [to the protected class of
persons of which the plaintiff is a member];
2) proximate in time to the terminations;
3) made by an individual with authority over
the employment decision at issue; and 4) re-
lated to the employment decision at issue.’”
Krystek v. Univ. of S. Miss., 164 F.3d 251,
256 (5th Cir. 1999) (quoting Brown, 82 F.3d
at 655). It is true that the comments at issue
here were made by Dartez, who ultimately
made the decision not to renew Auguster’s
contract; moreover, the comments pertained to
black teachers, and in particular to Auguster.
Nonetheless, the comments were made nearly
a year before the decision not to renew Augus-
ter’s contract, and there is no substantial evi-
dence that the comments related to Dartez’s
ultimate decision not to renew Auguster’s con-
tract.
The fact that Dartez told Auguster that “if
there was another problem, no matter what it
was, that he would do his best to get rid of
[him]” is insignificant in comparison to the
evidence of Auguster’s unfitness as a teacher
and thus is insufficient, on its own, to establish
discrimination.10 Absent any evidence that
Dartez would have been more lenient of
similar indiscretions by a white teacher or that
Auguster did not in fact commit the acts cited
by the school board in his evaluation, we
cannot conclude that Dartez’s statement, on its
own, is sufficient to meet Auguster’s burden of
establishing discriminatory motive for the
refusal to renew his contract.
AFFIRMED.
10 In Rubinstein, 218 F.3d at 400, a Jewish
professor who was denied tenure produced
evidence that members of the committees
responsible for the denial had made discriminatory
comments, including an observation “that, if ‘the
Russian Jew’ could obtain tenure, then anyone
could.” Faced with that evidence, we concluded
that “Rubinstein has failed to meet his burden of
producing any evidence of discrimination sufficient
to survive summary judgement, and his evidence to
rebut the non-discriminatory reasons offered by
Tulane is not so persuasive so as to support an
inference that the real reason was discrimination.”
Id. Similarly, the alleged comment by Dartez
cannot, without more, support an inference that the
real reason for the school board’s refusal to renew
his contract was discrimination.

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