Wallace v. Texas Tech University

• Decision Date: 05 April 1996
• Docket Number: No. 95-10454,95-10454
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 1521, 108 Ed. Law Rep. 1069 Phillip A. WALLACE, Plaintiff-Appellant, v. TEXAS TECH UNIV.; James Dickey, in his individual and official capacity, Defendants-Appellees. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

80 F.3d 1042

70 Fair Empl.Prac.Cas. (BNA) 1521, 108 Ed. Law

Rep. 1069

Phillip A. WALLACE, Plaintiff-Appellant, v. TEXAS TECH UNIV.; James Dickey, in his individual and official capacity, Defendants-Appellees.

No. 95-10454

Summary Calendar United States Court of Appeals,

Fifth Circuit.

April 5, 1996.

Gary Lynn Bledsoe, Bledsoe, Brown, Evans and McCollough, Austin, TX, for plaintiff-appellant.

Robert B. O'Keefe, Office of the Attorney General of Texas, Austin, TX, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Phillip Wallace (Wallace) appeals the summary judgment dismissal of his employment discrimination and 42 U.S.C. §§ 1981 and 1983 suit and the denial of his motion for new trial.

Facts and Proceedings Below

Defendant-appellee James Dickey (Dickey), the head coach of the men's basketball team at defendant-appellee Texas Tech University (Texas Tech), hired Wallace as an assistant coach for the team in a one-year contract beginning in August 1991. Wallace, an African-American, had no coaching experience prior to his work at Texas Tech, but he had played on the Texas Tech basketball team during his college years. Dickey also hired Doc Sadler (Sadler) as an assistant coach for the same period. Sadler, a white male, had seven years of college coaching experience at the time Dickey hired him. Sadler was paid $57.83 per month more than Wallace.

It is undisputed that Dickey admonished Wallace not to become "too close" to the players on the basketball team and that Wallace continued to encourage close, personal relationships between himself and various team players. While an assistant coach, Wallace advised certain team players that they were eligible for financial assistance during their fifth year at Texas Tech. When Wallace's contract expired, Dickey did not renew it. Wallace was replaced by Greg Pickney, an African-American.

Wallace filed a complaint with the EEOC in December 1993. On May 31, 1994, Wallace filed this suit against Texas Tech and Dickey, alleging that they discriminated against him on the basis of his race and in retaliation for the exercise of his First Amendment rights of speech (for advising African-American players of their eligibility for financial assistance) and association (for having close, personal relationships with the players) in violation of Sections 1981 and 1983 and Title VII. Defendants-appellees denied the allegations and filed a motion to transfer venue. The district court granted the motion for transfer of venue in July 1994. Defendants-appellees later filed a motion for summary judgment on March 15, 1995. The district court granted the motion and entered judgment dismissing Wallace's complaint on April 21, 1995, holding that (1) Dickey, in his individual capacity, is entitled to qualified immunity on the section 1981 claims; (2) Dickey, in his official capacity, and Texas Tech are entitled to immunity under the Eleventh Amendment; and (3) defendants-appellees are entitled to judgment as a matter of law in their favor on the merits. The order and judgment were both filed and entered on the docket on April 24, 1995. Wallace filed a response to the summary judgment motion the next day, ¹ and he filed a motion for new trial on May 1, 1995. The district court denied the motion for new trial the same day it was filed. Wallace filed an identical motion for new trial on May 4, 1995, which the district court denied on May 5, 1995. Wallace filed a timely notice of appeal.

Discussion

I. Summary Judgment

The standard of review of the dismissal of a case on summary judgment is de novo. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.Rule Civ.P. 56(c)). The moving party "need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (emphasis in original).

Once a summary judgment motion is made and properly supported, the nonmovant must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Id. Neither "conclusory allegations" nor "unsubstantiated assertions" will satisfy the nonmovant's burden. Id. (citations omitted). Wallace appears to rely on certain facts in his brief that were not before the district court when it ruled on the defendants-appellees' summary judgment motion; he also relies, in part, on his pleadings. "Our inquiry, however, is limited to the summary judgment record...." Id. at 1071, n. 1. Moreover, pleadings are not summary judgment evidence. Id. at 1075. Accordingly, we consider only the evidence that was in front of the district court in our analysis of Wallace's claims that summary judgment was improper. ²

On appeal, Wallace argues that the district court erred in granting the summary judgment motion on the merits, as well as by granting qualified immunity and Eleventh Amendment immunity for prospective injunctive relief. Because we hold that Wallace failed to raise a genuine issue of material fact on his claims on the merits, we affirm summary judgment without reaching the issue of qualified immunity. See Quives v. Campbell, 934 F.2d 668, 669 (5th Cir.1991). And because Wallace lacks standing to request the only prospective injunctive relief that he seeks, his complaint about the grant of Eleventh Amendment immunity to Dickey fails. ³

A. Race Discrimination Claims

To succeed on a claim of intentional discrimination under Title VII, Section 1983, or Section 1981, a plaintiff must first prove a prima facie case of discrimination. See, e.g., Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995) (Title VII); Larry v. White, 929 F.2d 206, 209 (5th Cir.1991) (plaintiff must prove racially discriminatory purpose of act to demonstrate Section 1981 or Section 1983 violation), cert. denied, 507 U.S. 1051, 113 S.Ct. 1946, 123 L.Ed.2d 651 (1993); Briggs v. Anderson, 796 F.2d 1009, 1019-21 (8th Cir.1986) (inquiry into intentional discrimination is essentially the same for individual actions brought under sections 1981 and 1983, and Title VII). Generally, a plaintiff proves a prima facie case through a four-element test that allows an inference of discrimination. Meinecke, 66 F.3d at 83. But a prima facie case can also be proven by direct evidence of discriminatory motive. See Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir.1987). Wallace's brief identifies four race-based claims: (1) intentional discrimination in refusing to renew his contract, (2) discriminatory disparate treatment in paying him less than Sadler, (3) discriminatory disparate treatment in disciplining him, and (4) hostile work environment.

1. Refusal to Renew Wallace's Contract

Dickey's affidavit states that he encountered problems with Wallace soon after Wallace was hired because Wallace (1) was unwilling to follow his instructions, and (2) repeatedly questioned Dickey's coaching judgment. ⁴ Dickey's affidavit also stated that he elected not to renew Wallace's contract because Wallace's job performance was unacceptable, and Dickey's affidavit further specifically denied that race played any role in his decision. Wallace argues that he presented direct evidence of discriminatory motive: Dickey's use of racial slurs. ⁵ Wallace misconstrues our standard of review. There was no record evidence to support this bare allegation of racial slurs when the district court granted defendants-appellees' summary judgment motion. ⁶ We do not assume that Wallace could have supported this contention. Little, 37 F.3d at 1075 ("We resolve factual controversies [for purposes of summary judgment] in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.") (emphasis in original). Consequently, the uncontroverted record evidence not only shows an absence of material facts, it negates an element of Wallace's cause of action. See e.g., McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1345-46 (5th Cir.1985) (describing plaintiff's burden of proving discriminatory intent in failure to renew contract case). The district court did not err in granting summary judgment against Wallace on this claim.

2. Disparate Pay

The record evidence on this issue was Dickey's affidavit testimony that Sadler was paid $57.83 per month more than Wallace because of Sadler's significantly greater college coaching experience. Sadler had seven years of college level coaching experience while Wallace had none. Dickey's affidavit also specifically denied that race was a factor in setting Wallace's salary. This uncontroverted evidence is sufficient to establish that there is an absence of a material fact on the issue of discriminatory motive because Wallace fails to provide any evidence that this explanation is pretextual. ⁷ See Pouncy v Prudential Ins. Co. of America, 668 F.2d 795, 803 (5th Cir.1982) (listing differing levels of experience as a nondiscriminatory rationale for unequal salaries for employees performing the same job); Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074 (5th Cir.1981) (once defendant articulates nondiscriminatory reason for disparate pay, then plain...