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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30736
_______________
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,
I.
Circuit Judges.
After teaching and coaching football for
many years, Auguster, a black male, was hired
JERRY E. SMITH, Circuit Judge:
to teach sixth grade at J.H. Williams Middle
School for the 1997-98 year. Pursuant to his
Carol Auguster appeals a summary
contract, the district reserved the right to re-
judgment in favor of the Vermilion Parish
move him for cause in accordance with the
School Board in his suit under 42 U.S.C. §
state's tenure laws.1 Auguster alleges that the
1981 and title VII, 42 U.S.C. § 2000e et seq.
Seeing no error, we affirm.
1 The school board contendsSSand Auguster
(continued...)

superintendent, Dan Dartez, told him when he
On July 8, 1998, Auguster received notice
was hired of "a problem that they had with
that the board would consider a
past black coaches, and if there was another
recommendation by Dartez not to renew his
problem, no matter what it was, that he would
contract. The board held a hearing on July 22
do his best to get rid of me, from day one." In
but failed to adopt the recommendation. On
the same conversation, Auguster alleges,
August 6, however, Dartez notified Auguster
Dartez told him that "he had bad luck with
that the board had decided not to renew his
black men working in Abbeville."2
contract for the following year. Auguster's
position eventually was filled by a white
In March 1998, Jonathon Williams, the
female.
principal, received a complaint that Auguster
had improperly used corporal punishment to
II.
discipline students. After investigating the in-
The board argued that Auguster had failed
cident, Williams sent Auguster a reprimand let-
to establish a viable claim of discrimination.
ter informing him that he had violated the
The district court, analyzing the issue under
corporal punishment policy. Sometime later,
the framework of McDonnell Douglas Corp.
Auguster showed an "R" rated movie to his
v. Green, 411 U.S. 792 (1973), and its
class, an activity the school board considered
progeny, held that, although Auguster had
unacceptable and for which Auguster received
presented a prima facie case of discrimination,
another reprimand.
the school board had articulated a legitimate,
non-discriminatory reason for his firing.
In May 1998, Auguster received a written
Because Auguster could not establish that the
evaluation outlining his deficiencies in
proffered reason was mere pretext, the court
management and instruction and referencing
granted summary judgment. Auguster argues
the corporal punishment incident and the
that he did establish pretext.
unacceptable movie. As a result of the
evaluation, the board developed an "Intensive
III.
Assistance Plan," pursuant to which Auguster
We review a summary judgment de novo,
received counseling and agreed to refrain from
applying the same standards as did the district
corporal punishment. Williams began
court, while viewing all disputed facts and rea-
personally to monitor Auguster's in-class
sonable inferences "in the light most favorable
performance to ensure compliance with school
to the nonmoving party . . . ." Duffy v.
board policies.
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
1(...continued)
entitled to judgment as a matter of law." FED
does not disputeSSthat Auguster was a
R. CIV. P. 56(c). To survive summary
probationary teacher with no tenure rights.
judgment, however, the nonmoving party must
2
do more than allege an issue of material fact:
The school board disputes the statements, and
"Rule 56(e) . . . requires the nonmoving party
the only evidence supporting the statements is
Auguster's testimony. Because we are reviewing
to go beyond the pleadings and by her own
a summary judgment, however, we must assume
affidavits, or by the depositions, answers to
that Auguster's testimony is correct. See infra.
2

interrogatories, and admissions on file,
to support a reasonable inference that
designate specific facts showing that there is a
the proffered reason is false; a mere
genuine issue for trial." Celotex Corp. v.
shadow of doubt is insufficient." This
Catrett, 477 U.S. 317, 324 (1986) (internal
court has consistently held that an
quotation marks omitted); accord Urbano v.
employee's "subjective belief of
Continental Airlines, Inc., 138 F.3d 204, 205
discrimination" alone is not sufficient to
(5th Cir. 1998).
warrant judicial relief.
The district court analyzed Auguster's title
Bauer v. Albemarle Corp., 169 F.2d 962, 967
VII and § 1981 claims under the framework
(5th Cir. 1999) (quoting E.E.O.C. v. La.
established by McDonnell Douglas, according
Office of Cmty. Servs., 47 F.3d 1438,
to which a plaintiff must first establish a prima
1443-44, 1448 (5th Cir. 1995)) (citation
facie case of discrimination, whereupon the
omitted).3
burden of production shifts to the defendant to
articulate a legitimate, non-discriminatory
Auguster undisputedly established a prima
reason for its action. Shackelford v. Deloitte
facie case: He is black, he suffered an adverse
& Touche, LLP, 190 F.3d 398, 404 (5th Cir.
employment decision, and his former position
1999). At that point, "the McDonnell
was filled by a white woman. Likewise, the
Douglas frameworkSSwith its presumptions
school board articulated a legitimate, non-
and burdensSSdisappear[s], and the sole
discriminatory reason for its decision not to
remaining issue [is] discrimination vel non."
rehire Auguster: his poor evaluation, as
Reeves v. Sanderson Plumbing Prods, Inc.,
evidenced by his inappropriate use of corporal
530 U.S. 133, 142-43 (2000) (citations and
punishment and screening of an R-rated film.
quotation marks omitted). If the plaintiff can
Auguster admits that the events occurred, and
show that the proffered justification is mere
he cannot seriously dispute that they provide
pretext, however, that showing, coupled with
ample justification for the refusal to renew his
the prima facie case, will be sufficient in most
contract.4 His case depends on the contention
cases to survive summary judgment. Id. at
146-48.
3 Bauer was decided before Reeves, which
"Although intermediate evidentiary burdens
changed our jurisprudence on the evidentiary con-
shift back and forth under this framework,
sequences of a successful showing of pretext.
`[t]he ultimate burden of persuading the trier
Nothing in Reeves, however, abrogates Bauer's
of fact that the defendant intentionally
requirement of substantial evidence to support a
discriminated against the plaintiff remains at all
claim of pretext. Cf. Reeves, 530 U.S. at 144
times with the plaintiff.'" Id. at 143 (quoting
("Petitioner, however, made a substantial showing
Tex. Dep't of Cmty. Affairs v. Burdine, 450
that respondent's explanation was false.").
U.S. 248, 256 (1981)). To carry that burden,
4 At oral argument, Auguster alleged that white
the plaintiff must produce substantial evidence
teachers who had committed similar offenses were
of pretext:
not similarly punished. If taken as true, that
allegation might be evidence of disparate impact
"Evidence that the proffered reason is
sufficient to survive summary judgment. The issue
unworthy of credence must be enough
has been abandoned, however, because Auguster
(continued...)
3

that the articulated justification is merely
Nonetheless, the fact that Dartez acted
pretext for discrimination.
outside his statutory authority is not probative
with respect to whether the board's articulated
As evidence of pretext, Auguster argues
justification is mere pretext. There is no ev-
that Dartez unilaterally refused to renew his
idence that he acted any differently from how
contract in contravention of the board's
he would have in any other situation; indeed,
mandate to rehire Auguster.5 That allegation
the board asserts that Dartez does in fact have
is not supported by the record, which reflects
the authority unilaterally to make employment
only that the board reached a stalemate when
decisions with respect to untenured teachers.
voting on Dartez's recommendation not to
rehire Auguster, not that the board
Although the school board's view of state
affirmatively voted to renew his contract. The
record does support an inference that Dartez
acted without legal authority in refusing to
6(...continued)
renew Auguster's contract, because there is no
the stipulation means Dartez was vested with dis-
evidence that the board made any decision
cretion to make the decision. Under Louisiana law,
whatsoever regarding the renewal of the
the board's interpretation appears to be im-
contract.6
permissible: Although the statutes do not refer
specifically to contract renewals, they do expressly
govern the hiring of teachers and the dismissal of
4(...continued)
probationary teachers, the combination of which
presumably envelops contract renewals. See LA.
1
failed to assert it in his brief. See Strong v. Bell-
REV. STAT. ANN. §§ 17:81, 17:442.
2
South Telecomms. Inc., 137 F.3d 844, 853 n.9 (5th
3
Cir. 1998) (considering waived an issue asserted at
Both of those statutes provide for action by the
4
oral argument but not addressed in the briefs).
school board on the superintendent's
5 Auguster also argues that the articulated jus-
recommendation, but not for unilateral action by
tification must be pretext because he already had
the superintendent. Furthermore, the Louisiana
been reprimanded for the incidents in question
Attorney General has interpreted the statutes to
before the decision not to rehire him. Thus, ac-
preclude delegation of those functions to the sole
cording to Auguster, the school board could not
discretion of the superintendent. See La. Att'y
permissibly have revisited those incidents in de-
Gen. Op. No. 93-654 (1993) ("Th[e] power to hire,
ciding whether to renew his contract. That
fire, demote, transfer and promote teachers is a
argument is meritless on its face.
discretionary power vested in the school board and
may not be delegated."); La. Att'y Gen. Op. No.
6 The parties stipulated that "the decision to not
80-1103 (1980) ("[T]he legislature strongly
renew Carol Auguster's contract of employment
intended that the local school board should have the
with the Vermilion Parish School Board was made
final selection authority and that this selection
by Dr. Daniel Dartez in his sole discretion as
power should not be totally in the hands of the
Superintendent of Vermilion Parish Schools." The
superintendent. It is therefore the opinion of this
parties disagree, however, on the meaning of the
office that both the legislative intent and plain
stipulation.
meaning of the statute dictate that the local school
board must approve and select teachers to be hired
Auguster contends that it means Dartez acted
. . . ."). Thus, although we can infer that the board
on his own, while the school board contends that
attempted to vest sole authority for the decision in
(continued...)
Dartez, we cannot infer that it in fact did so.
4

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

plaintiff's substantial evidence of pretext.
The fact that Dartez told Auguster that "if
Reeves, 530 U.S. at 149 ("It suffices to say
there was another problem, no matter what it
that, because a prima facie case and sufficient
was, that he would do his best to get rid of
evidence to reject the employer's explanation
[him]" is insignificant in comparison to the
may permit a finding of liability, the Court of
evidence of Auguster's unfitness as a teacher
Appeals erred in proceeding from the premise
and thus is insufficient, on its own, to establish
that a plaintiff must always introduce
discrimination.10 Absent any evidence that
additional, independent evidence of
Dartez would have been more lenient of
discrimination."). In a decision that binds us,
similar indiscretions by a white teacher or that
this court already has interpreted Reeves not to
Auguster did not in fact commit the acts cited
overrule our stray remarks jurisprudence, at
by the school board in his evaluation, we
least where the plaintiff has failed to produce
cannot conclude that Dartez's statement, on its
substantial evidence of pretext. See
own, is sufficient to meet Auguster's burden of
Rubinstein v. Adm'rs of Tulane Ed. Fund, 218
establishing discriminatory motive for the
F.3d 392, 400-01 (5th Cir. 2000) (applying the
refusal to renew his contract.
stray remarks doctrine where the plaintiff had
failed to establish that each of the defendant's
AFFIRMED.
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-
10 In Rubinstein, 218 F.3d at 400, a Jewish
lated to the employment decision at issue.'"
professor who was denied tenure produced
Krystek v. Univ. of S. Miss., 164 F.3d 251,
evidence that members of the committees
256 (5th Cir. 1999) (quoting Brown, 82 F.3d
responsible for the denial had made discriminatory
at 655). It is true that the comments at issue
comments, including an observation "that, if `the
here were made by Dartez, who ultimately
Russian Jew' could obtain tenure, then anyone
made the decision not to renew Auguster's
could." Faced with that evidence, we concluded
contract; moreover, the comments pertained to
that "Rubinstein has failed to meet his burden of
black teachers, and in particular to Auguster.
producing any evidence of discrimination sufficient
to survive summary judgement, and his evidence to
Nonetheless, the comments were made nearly
rebut the non-discriminatory reasons offered by
a year before the decision not to renew Augus-
Tulane is not so persuasive so as to support an
ter's contract, and there is no substantial evi-
inference that the real reason was discrimination."
dence that the comments related to Dartez's
Id. Similarly, the alleged comment by Dartez
ultimate decision not to renew Auguster's con-
cannot, without more, support an inference that the
tract.
real reason for the school board's refusal to renew
his contract was discrimination.
6